Minneapolis lawyers at Barnes & Thornburg represented 3M in a lawsuit against Moldex in 2012 in which 3M took the position that Moldex’s “BattlePlug” earplugs infringed on 3M patents that it uses in 3M’s Combat Arms earplugs. The case was before U.S. District Court Judge Joan N. Ericksen (D. Minn.). (The pictured earplugs are neither Moldex’s or 3M’s, which are fancier, more complicated, and are apparently sold mainly to the U.S. military.)
I think it is fair to say that 3M’s case was weak based on the fact that it agreed to the dismissal of all of its claims with prejudice (but only after a year of expensive battling).
The dismissal took a lot longer than dismissals usually take because defendant Moldex wouldn’t go along with it as 3M proposed. Moldex wanted to preserve its right to sue 3M for what Moldex viewed as 3M’s baseless case. Finally, though, the Court dismissed the lawsuit absent an agreement between the parties on an acceptable stipulation for dismissal. And, guess what happened next? Of course, Moldex sued 3M.
This week, Judge Ericksen declined to dismiss the demon spawn (that is, from 3M’s perspective undoubtedly) of 3M’s earlier ill-fated lawsuit. 3M’s failed attack could ultimately cost 3M dearly.
3M has hired Cleary Gottlieb Steen & Hamilton LLP and Faegre Baker Daniels to defend against Moldex’s retaliatory strike. Moldex has retained the lawyers from Quinn Emanuel and Stinson Leonard, who worked the earlier case, for its counter-attack.
We cannot know who bears responsibility for 3M’s unfortunate circumstances, itself, its original lawyers, or, for that matter, some unforeseen and unforeseeable (non-blameworthy) developments over the course of the earlier litigation. But we have a word for physical diseases caused by doctors (“iatrogenic“). I wonder why we don’t have a word for legal liability caused by lawyers (“esquirogenic”?)? I am not saying we have esquirogenic liability in this case. But it is certainly a pathogenic strain that unfortunately too frequently ails the U.S. civil litigation ecosystem.