3M Earplugs Lawsuit Update 2022
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3M Earplug Lawsuit Update 2022
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This article originally appears here: https://www.millerandzois.com/combat-arms-earplug-lawsuit.html
3M Earplug Lawsuit Update 2022:
January 19, 2022 Update: The Day 6 focus (yesterday) in the Wayman/Sloan trial was the expert testimony of Dr. Marc Bennett who spoke to the plaintiff’s hearing-related injuries. Earlier in the day, two short fact witnesses, an audiology technician at Department of Defense and a nurse practitioner, provided testimony. With two plaintiffs and the day off for MLK Day, it is unrealistic to expect this trial to end this week.
January 17, 2022 Update: Day 5 (Friday) was mostly taken up by the expert testimony of Richard McKinley. This plaintiffs’ expert is a bioacoustics engineer with 40 years of experience developing hearing protection products for our military. Monday is a day off. Testimony resumes on Tuesday.
January 14, 2022 Update The highlight of Day 4 in the Wayman/Sloan trial was the testimony of the plaintiff, Ronald E. Sloan. Sloan took the stand just before lunch after the jury heard very short video deposition testimony from 3 other minor witnesses. The direct examination of Sloan lasted 2 hours and was followed by a slightly longer cross-examination which focused on Sloan’s health history.
January 13, 2022 Update: The Day 3 of the Sloan/Wayman trial was devoted to the testimony of Elliott Berger (via Zoom video conference). Mr. Berger is a retired 3M scientist who was directly involved in the design and testing of the Combat Arms earplugs. Berger has been subpoenaed as a witness for the plaintiffs in all of the bellwether trials because his testimony is key to establishing the nature of the design flaws in the earplugs and the alleged concealment of those flaws from the Army.
January 12, 2022 Update: The opening day of testimony in the Sloan/Wayman trial featured Dr. Mark Packer. Dr. Packer is a key expert witness for the plaintiffs and his testimony will help establish the cornerstone allegation that defects in 3M’s earplugs caused Sloan and Wayman to suffer hearing damage. Dr. Packer spent the entire day on the witness starting with 5 hours of direct examination, followed by two hours of cross-examination by lawyers for 3M.
January 11, 2022 Update: Yesterday, a jury was picked and lawyers on both sides presented opening statements. Testimony will begin today.
3M lawyers efforts to delay yesterday’s 3M earplug lawsuit trial failed. On Friday, 3M’s attorneys filed a last-minute motion requesting a continuance of the trial because several team members had tested positive for COVID-19.
That motion was denied the following day. Judge Rogers noted that a continuance was not justified because all of the team members were fully vaccinated and, therefore, based on CDC guidelines they were eligible to resume activities on Sunday, January 9. Judge Rogers also pointed out that granting the continuance would have imposed a significant burden on the court and the plaintiffs.
January 5, 2022 Update: The break is over. Next week, the next bellwether trial will feature the consolidated cases of plaintiffs Ronald E. Sloan and William Wayman. Both Sloan and Wayman are Army vets.
Sloan alleges that he suffered both hearing loss and tinnitus as a result of 3M’s defective earplugs. Wayman claims that the 3M earplugs caused tinnitus and that his tinnitus has caused or worsened his PTSD condition. Pretrial motions were resolved this week and these consolidated lawsuits appear set to launch as scheduled.
3M Earplug Lawsuit Update 2021:
December 28, 2021 Update: The 9th bellwether trial in the continuing 3M earplugs litigation concluded last week with another disappointing result. The jury found that the plaintiff, Carlos Montero, failed to prove that 3M’s earplugs were responsible for his hearing loss and issued a defense verdict.
This latest victory for 3M in the earplugs lawsuits comes just a week after its biggest loss with the $22.5 million verdict in the Finley bellwether trial. There have now been 9 bellwether trials featuring 11 individual plaintiffs. Seven out of the 11 bellwether plaintiffs have been awarded damages while the remaining 4 have lost at trial.
There is now a calm before the storm continues with a new trial with two plaintiffs on January 10, 2022.
December 16, 2021 Update: Christmas came early for Theodore Finley and 270,000 3M earplug lawsuit plaintiffs last Friday: a $22.5 million verdict in Florida. The jury awarded $7.5 million in compensatory damages and $15 million in punitive damages.
The punitive damages were derivative of the jury’s finding that 3M committed fraud beyond a reasonable doubt. That is an unusually high bar to for plaintiffs to meet. This underscores just how offended the jury was by 3M’s conduct.
Finley, while a legitimate military hero, was not a perfect case for plaintiffs. 3M’s attorneys had weapons for cross-examination (including unhelpful Facebook posts the plaintiff deleted in anticipation of his trial). 3M’s attorneys fought hard to get the judge to allow every imaginable character assassination into evidence at trial. (Reading the motions will make you cringe.)
The judge allowed some of this evidence and rejected others. But after all that, the 3M wisely abandoned most of the character attacks at trial and chose to embrace the extent of Finley’s noise exposure.
So 3M lawyers argued that just like his Kevlar helmet did not prevent his TBI in combat and his body armor did not prevent his back injuries, these perfect earplugs could not prevent his hearing injuries. At the same time, 3M argued Finley’s hearing injuries were minimal. Even the best lawyers will have a hard time making an argument like that without a jury seeing it for exactly what it is. Which is what happened in this case.
So what impact does a $22.5 million payout have on veterans who might have taken a smaller settlement amount before seeing all these verdicts? The price to settle a military earplug claim is going up.
History might look back on this $22.5 million award as the catalyst for 3M to finally come to their senses and start getting serious about offering settlement compensation payouts to fairly compensate these soldiers.
3M seemed to think that hiring great lawyers and fighting like these veterans and their attorneys at every turn is the path to paying a few billion to settle these lawsuits. But that is not going to work. 3M cannot get around the facts.
December 7, 2021 Update: Another 3M earplug trial began on Tuesday. The case, Finley, will be one of the more interesting 3M cases to go to trial. While we do not know how much of his accomplishments will come into evidence, the plaintiff is a legitimate war hero who fought with great honor and distinction in Afghanistan.
That is a problem for 3M. War heroes make good plaintiffs. 3M’s defense to these earplug lawsuits is making it about the weaknesses in the plaintiff’s case as opposed defendant its conduct. These punitive damage awards are sending a loud message. So 3M’s defense lawyers want to focus on the weakness in individual cases. This might be harder without someone who fought valiantly for his country.
But we do not want to oversell the strengths of this case because the Finley case is messy, too. The plaintiff has not always been consistent in his story about his hearing injury. Inconsistencies in recollection may be what a jury might expect from a war hero that is likely suffering from PTSD.
So the case is likely to ride on whether the jury believes the plaintiff’s explanations for inconsistencies in his story and exactly what the judge lets into evidence at trial.
November 25, 2021 Update: Just before Thanksgiving, the magistrate judge in the 3M Earplug MDL denied a motion by 3M lawyers seeking to compel one of the bellwether plaintiffs (Steven Wilkerson) to submit to genetic testing. 3M’s attorneys wanted the testing done to see if Wilkerson’s alleged hearing loss was an inherited condition and not something caused by ineffective earplugs. Wilkerson had testified at his deposition in his earplug lawsuit that he had a 1st and 2nd cousin who were born deaf. In denying the motion, the judge explained that hearing loss in “distant relatives” was not enough and that 3M had filed the motion too late. Wilkerson’s case will go to trial on March 14, 2022.
November 24, 2021 Update: The 3M earplug MDL class action judge has ordered the parties to prepare groups of 500 3M earplug lawsuits for trial. The plan is to continue to order 500 cases every few months until there is a settlement.
So more 3M lawsuits will be pushed with greater velocity to trial until the lawyers can agree on a reasonable settlement amount for these military veterans.
November 23, 2021 Update: $13.063 million verdict in Camarillorazo with $800,000 in compensatory damages and $12 million in punitive damages. The largest 3M earplug lawsuit verdict yet!
The jury awarded $816,395 in compensatory damages and $12.245 million in punitive damages so the award is over $13 million.
Plaintiffs are now 6-3 in the 3M earplug lawsuits. The average compensation payout has been $3.34 million. For the six 3M lawsuits where there was a victory, the average award from the jury is over $5 million.
Unfortunately, as we talk about below, Palanki was a tougher case for plaintiffs. That case ended in a defense verdict for 3M.
So how do you want to look at these verdicts? 3M earplug plaintiff won 50% of these two new verdicts. That does not sound great. The average earplug verdict is over $6 million. That sounds pretty good, right?
- Video: What the $13 million verdict means (and does not mean)
November 1, 2021 Update: Defense verdict on Friday afternoon on all counts. The jury found that the plaintiff, Michelle Blum, failed to that 3M was liable for hearing damage she allegedly suffered while wearing 3M’s earplugs in the Army.
This was, by all accounts, a tough case to win for the plaintiffs, as we allude to below. Does this verdict change our expected individual settlement amounts for the 3M earplug lawsuits? It does not. Does it mean settlement compensation payouts will talk longer than our lawyers hoped? Yes.
Plaintiff’s hearing loss lawyers attempted to bail out of the case three months before trial. This is a clear sign her attorneys knew her case would be difficult to win.
Fortunately, the 6th and 7th bellwether trials started simultaneously in different courtrooms today so we won’t have to wait long for a better outcome.
Stay tuned for a status report of both of these 3M earplug lawsuits.
October 29, 2021 Update: A new 3M earplug trial – Michele Blum – started two weeks ago and the jury is deliberating. The jury had the case for 5 hours and 28 minutes yesterday but did not reach a verdict. THE JURY HAS REACHED A VERDICT. IT HAS NOT YET BEEN ANNOUNCED. So stay tuned.
Thursday, 3M’s motion for judgment was denied and lawyers on both sides gave closing arguments.
3M put up six short witnesses on Wednesday. Tuesday, Elliott Burger, the “inventor of foam earplugs” testified for 3M. Burger was instrumental in key decisions in making and designing the Aearo earplug.
On Monday, the plaintiff’s earplug lawyers rested her case. 3M’s put on its first witness, Jennifer Laborde, a Pensacola audiologist. Her testimony has, however, been limited by the judge.
On Friday, Rear Admiral Allie Leslie testified that the earplugs 3M promised and what it delivered were very different. On Thursday, plaintiff’s experts Elliott Berger and Richard McKinley testified, as did Ms. Blum and Lt. Col. Dan Ohama.
Earplug lawyers on both sides are moving through the case remarkably quickly as mandated by the MDL judge who keeps attorneys on track. There have been a lot of Friday verdicts in this litigation and we could get another Friday verdict tomorrow.
Hopefully, the Blum verdict will look like Adkins. Earlier this month, Army veteran Brandon Adkins was awarded $8.2 million in another incredible win for veterans in the 3M earplug lawsuit. The 35-year old army veteran’s lawsuit alleges he suffered hearing loss and bilateral tinnitus from 3M’s defective earplugs.
Mr. Adkins was on 3M’s list of lawsuits it submitted to the judge that it wanted to try because it believed the facts were favorable to 3M. So the surefire winner for 3M – in their minds – ends with an $8.2 million verdict. This is a big deal.
What impact does this have on future settlement compensation payouts when these suits finally reach a global settlement? We now know that the 3M earplug lawsuit that the defendant thinks is a winner for them is worth $8.2 million. There are a quarter of a million 3M earplug lawsuits.
This math has to terrify 3M. It may shake 3M into reality on what appropriate settlement amounts should be to provide compensation for these veterans.
In addition to the new trial that started this week, the MDL Judge has scheduled four additional test trials between now and February 2022. The aggressive schedule in this second wave of bellwether will likely continue to put settlement pressure on 3M.
With over 272,416 earplug cases still pending as of November 15th, this puts incredible pressure on 3M and their lawyers to negotiate a global settlement. The upcoming gauntlet of trials may accelerate the pace of this settlement.
If Michel Blum wins her trial next week, 3M may seek to postpone any further trials and focus on settlement negotiation. Again, Blum is on the list of lawsuits 3M wants to take to trial.
One piece of good news on Blum: the court denied the defendant’s effort to bar her expert who will calculate at trial the present value of her lost wages earning capacity and the cost of future medical and personal care. This is critical because another expert in Blum will testify at trial that she will lose access to 90% of potential future occupations because of her hearing impairment. (Our 3M earplug lawyers dig deeper into the latest update on the Atkins trial in this blog post that also provides background and updates on Michele Blum’s case.)
October 20, 2021 Update: The losses keep piling up for 3M in these lawsuits. Today, the 8th Circuit denied 3M’s request to keep all earplug lawsuits in federal court. 3M had reasoned that all because it designed the CAEv2 earplugs in conjunction with the military for military purposes, federal courts had exclusive jurisdiction over all earplug lawsuits.
The court found that 3M did not prove it was was “acting under” a federal officer or agency for the earplug’s warning and instructions. So suits filed by employees who acquired earplugs in the commercial marketplace could proceed in state court. The court did, however, find that lawsuits filed by defense contractors should proceed in federal court.
This means that the civilian lawsuits can return to Minnesota state court but the military contractors’ actions will join the Aearo earplug lawsuit. This will mean more lawsuits 3M must defend which should put additional settlement pressure on the company.
September 1, 2021 Update: The 3M earplug MDL class action judge is putting real pressure on both parties to reach a settlement. Last week, Judge Rodgers issued a case management order aimed at rapidly accelerating the pace of the 3M lawsuits to address the “unprecedented backlog” of over 250,000 claims. The order instructs the parties to work up massive “waves” of pending lawsuits from the administrative docket to the active docket. The first wave will include about 1,500 cases, but subsequent waves will have as many as 20,000 cases.
This is an impossible schedule for both sides. But the judge is messaging that if the parties cannot find an agreeable settlement amount, she will start rapid-fire trying these earplug lawsuits.
August 15, 2021 Update: These four verdicts have not advanced 3M earplug lawsuit settlement talks like our lawyers expected. This is disappointing. Our attorneys know the injured soldiers we help want to get their settlement money. But if you had told our 3M earplug lawyers at the beginning of the year that soldiers would be 4-1 and the average verdict would be over $2 million, we would be very happy.
This litigation is progressing better than plaintiffs’ lawyers expected. Still, we may need more trials to get 3M and their shareholders to take an honest look at what reasonable settlement amounts are in these 3M lawsuits. The 3M trials resumed on September 20th and they could be the trigger for a final settlement.
June 28, 2021 Update: Verdict #3: Another win for in the 3M earplug lawsuits. A Florida jury awarded $1.7 but found Lloyd Baker 38 percent at fault. So the real award for this soldier is $1.1 million. This is a huge win for victims looking for a just settlement compensation payout in the 3M earplug lawsuits. Victims are now 4-1 in 3M hearing damage litigation. This sends a message to 3M that these hearing injuries have real value and an average settlement of $10,000 will not get these cases settled.
June 7, 2021 Update: Verdict #2 – The second 3M trial ended last week with a win for the 3M, unfortunately. This was a tinnitus case. The plaintiff, an addiction counselor in Ohio, claimed his earplugs failed him while serving in the Army in Afghanistan where he was exposed to machine guns fire.
April 30, 2021 Update: Verdict #1 – We have a verdict! Three earplug plaintiffs were awarded $7.1 million by a federal jury in Florida. The jury awarded $2.1 million in punitive damages per victim. The verdict shows the jury was angry at 3M’s conduct. This will impact the settlement amounts in the 3M earplug lawsuit. Our lawyers hope this stunning verdict after a five-week trial will have a game-changing effect on the individual settlement compensation payouts in these hearing loss claims. Below we talk about the potential settlement compensation payouts in these cases.
So, let’s summarize the current status of the 3M earplug lawsuits. As of November 17, 2021, we have nine completed trials. The plaintiffs are 6-3 and the jury has awarded the first three bellwether test trials in the 3M earplugs MDL have been completed. Plaintiffs have been awarded over $30 million with an average verdict of $3.34 million. Things are going well!
|Baker, Lloyd Eugene||7:20cv039||6-7-21||$1,100,000|
|Blum, Michelle Marie||7:20cv122||10-18-21||Defense Verdict|
|Camarillorazo, Guillermo||7:20cv098||11-1-21||$13,063,000 Verdict|
|King, Jared Lee||7:20cv132||Dismissed|
|McCombs, Dustin||7:20cv094||5-28-21||Defense Verdict|
|McNeal, Chad S.||7:20cv066||3-14-22|
|Palanki, Joseph||3:19cv2324||11-1-21||Defense Verdict|
|Sloan, Ronald Elliot||7:20cv001||1-10-22||Defense Verdict|
|Vaughn, Jonathan Wade||7:20cv134||4-18-21|
These first bellwether 3M earplug verdicts are a big deal. It takes great effort to get to trial in an MDL class action. If the plaintiffs continue winning these hearing damage cases, as our lawyers expect, you could see a 3M global class action settlement faster than you think. Our lawyers provide more 3M earplug trial updates below.]
The stakes are high. The MDL judge reported a mind-blowing 272,416 registered in federal court in the MDL as of November 15, 2021. There are also approximately 1,000 3M earplug lawsuits pending in state court in Minnesota.
This is the biggest MDL class action in American history. This litigation might lead to one of the largest settlements ever. These cases were moving quickly. Plaintiffs’ lawyers are excited about how they are developing and the trial now underway.
Typical victims in these cases are veterans between the ages of 30 and 49 who served in the Army and allege a combination of tinnitus and hearing loss.
Our law firm is getting calls, web inquires, and emails from veterans and active-duty military personnel with hearing issues seven days a week In the 3M CAEv2 earplug lawsuits, it’s our turn as lawyers to fight for the same brave men and women that have fought to protect us all.
3M is the St. Paul-based manufacturer and seller of an earplug called Combat Arms. These dark green and yellow earplugs were originally developed by Aearo Technologies, a company 3M bought in 2008. This makes 3M liable for conduct both before and after 2008.
Thousands of soldiers suffered complete or partial hearing loss and tinnitus because of faulty combat earplugs. Combat Arms Earplugs left veterans entirely unprotected from damaging high-level sounds. Our lawyers are handling these cases.
3M earplugs were standard issue equipment intended to protect service members from hearing loss. 3M had an exclusive contract with the U.S. military via the U.S. Department of Defense. The company admitted, however, that the earplugs were defective and did nothing to protect soldiers from significant hearing loss, subjecting them to the risk of deafness.
This means that anyone who served in the military from 2003 to 2015 and suffered permanent hearing damage has a potential product liability lawsuit against the earplug manufacturer.
Where 3M Went Wrong with These Dual-Ended Earplugs
U.S. service members are often exposed to very loud noises from things like aircraft, artillery, guns, and explosives. Without some sort of ear protection, repeated exposure to these types of high-level noises will cause auditory ailments from internal damage to the eardrums.
The nonlinear dual-ended Combat Arms Earplug Version 2 (“CAEv2”) was supposed to protect users by filtering peak-level noises. They were developed by Aearo Technologies who eventually sold their company to 3M.
The design of these earplugs was a comedy of errors. One big problem was that they were too small for the Army’s carrying case. They also made the fit of a soldier’s helmet somewhat of a challenge.
So what did they do? They modified the design by shortening the earplugs. So now they fit. But the device did not go deeply into the ear. So the design flaw was that the stem of the earplug was too short for soldiers with large, or even normal, ear canals.
These soldiers could not insert the device deeply enough to get the airtight seal required for hearing protection. The result was earplugs that did not fully block the sound… or they fell out completely.3M Knew the Earplugs Were Defective
3M was aware that the dual-ended Combat Arms earplugs were a defective product but failed to disclose this to the military. Why? There were probably many reasons. But, usually, follow the money, right? These earplugs cost 85 cents to make. They were sold to the military for $7.63. That is a stunning profit and it explains a lot.
Most of those soldiers were not being protected at all by the defective earplugs and ended up suffering permanent loss of hearing. These veterans can now sue 3M and demand financial compensation.
Many veterans that call us are wondering if the 3M cases are legit or whether this is all some scam. We get it. There are no guarantees of success. But it is also true that there is no cost to bring a claim and no risk. It is all upside for you. And for the vast majority of plaintiffs, filing a claim requires very little effort.
3M Earplugs Questions Our Lawyers Are Commonly Asked
3M Earplug Lawsuit How Much Money Will I Get?
Based on prior verdicts and settlements in cases involving hearing loss, we expect the trial value of 3M earplug cases to be somewhere between $25,000 and $300,000 per person (notwithstanding the over $2 million per person the plaintiffs received in the first hearing protection trials). The settlement payouts will likely be less.
Is this naked speculation? It is. No one knows for sure and the average value is impossible to estimate. Certainly, the expected average individual settlement amount is rising based on these three verdicts. If 3M foolishly continues to try these cases, the compensation payouts in this litigation will likely soar.
How much money veterans will ultimately be getting will depend on the severity of the level of hearing loss. Severe hearing damage lawsuits will be valued higher than tinnitus-only lawsuits.
How Do You Qualify For A Earplug Lawsuit?
Our law firm is reviewing claims that meet the following criteria:
- You served in the military between 2003 to 2015
- You wore military issued earplugs during service
- You were exposed to loud sounds during military service
- You have been diagnosed with hearing loss/tinnitus
If you meet these criteria, all you need to do is contact our office to get your 3M earplug claim filed.
How Much Do You Pay A Lawyer For A 3M Lawsuit?
Most law firms, including ours, handle these cases on a contingency fee basis. So there is no upfront payment and no fees or expenses unless you recover money for your injuries.
How Much Longer Will 3M Earplug Lawsuit Take?
Based on prior mass tort product liability cases, we anticipate that it will be a year or two before a global settlement is reached with 3M in the earplug litigation. This is frustrating. But the wheels of a mass tort claim move slowly. So 3M earplug plaintiffs should not expect to receive any settlement compensation until late 2021 at the earliest.
Has Anyone Received a Settlement In 3M Earplug Lawsuit?
No. To date, no plaintiff has settled a 3M earplug lawsuit. Thousands of individual plaintiffs have filed claims against 3M in the defective earplugs lawsuits. As of August 2021, none of these claims have been settled. We do have now, of course, the $7.1 million jury verdict and the $1.7 million verdict in Baker. So victims at 4-1 in the cases that have gone to trial.
But with these three trials completed, it is hard to say what will get 3M in more of a reasonable settlement posture. (It might just be hedge funds accessing the risk and shorting 3M stock on the litigation risk. At some point, someone will notice that the largest mass tort in American history is averaging over $1 million per verdict while 3M’s stock price keeps rising.)
Will Filing a 3M Earplug Lawsuit Affect My Disability?
Filing a lawsuit against 3M for hearing loss related to defective earplugs is unlikely to have any impact on your eligibility to receive disability benefits. But this is something our lawyers will discuss with you.
What Is Going on Now With the 3M Earplug Lawsuit?
Right now, the current status of the 3M class action litigation is that trials will continue to go. The big question for victims is when will the 3M lawsuit be settled? 3M has yet to make the kind of compensation offer to veterans to settle these cases fairly. This means more trials. The fourth hearing protection lawsuit begin on September 20, 2021.
Potential Settlement Value of 3M Combat Arms Lawsuits
Let’s go back to the individual settlement value of these cases because all victims have a keen interest in claim value. Jury verdicts and reported settlements amounts in other tinnitus or hearing loss cases suggest an average individual settlement compensation from $50,000 to $300,000 in compensation.
Will this be the settlement value for the 3M lawsuits? The trial value could be in this range or even higher (much higher for the first three victims, as it turns out). The global settlement value – the resolution of almost all of the claims at one time – would likely be less because you rarely get trial value in a mass tort settlement.
The other factor is the sheer volume of these lawsuits. This 3M lawsuit is the largest mass tort in American history. 3M has maybe $35 billion in assets. Let’s assume there are 200,000 legitimate cases and the average settlement payout is $100,000 per person. That is $20 billion. So that is an issue that plaintiffs’ lawyers have to deal with in these cases.
How do the three 3M hearing loss verdicts impact our lawyers’ projected individual settlement amounts? Our law firm has been bullish from the beginning. This is what our attorneys expected. We will win some and lose some. But plaintiffs should win more than we lose. So our projected settlement compensation payouts are higher because of the large punitive damage award in the first trial but our projections have not changed all that much.
- How the 3M earplug verdict impacts your case
- Video on how this verdict impacts earplug settlement compensation
Lawsuits against 3M are still being filed
Our lawyers believe that the average value of hearing loss claims in the Combat Arms earplug cases may be notably higher than this which could lead to larger individual payouts if these cases go to trial. The pain and suffering damages with these sympathetic plaintiffs could be very high.
Most of the sample cases below involve car accidents where settlement values are typically lower because of max limits on the applicable insurance policies. 3M is one of the largest manufacturing companies in the world, so there won’t be any insurance limits. Moreover, the prospective victims in these cases have earned great respect from all of us. Military veterans are highly sympathetic victims and they should be.
Of course, at this point, we are all guessing about the potential settlement value of these claims. But we are bullish on them because the liability case – the ability to blame the defendant for the harm – looks to be very strong.
Little More 3M Litigation History to June 2021
Two years ago, in January 2019, an earplug victim’s attorney filed a motion asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all defective earplug cases to a single federal court for coordinated pretrial proceedings.
The court granted this motion in March and the earplug cases are now consolidated in the Northern District of Florida under Judge M. Casey Rodgers. This is called an MDL, which is like a class action lawsuit for pre-trial discovery purposes. This is the first step in the hopes of a favorable global military hearing protection settlement with 3M that would give most victims a reasonable amount of money without ever having to go to court.
What does it mean to you that the JPML consolidated all the federal earplug claims in Florida? It means that no matter where you are, your lawsuit will most likely be housed in Florida while these lawsuits proceed through the multidistrict litigation process.
All you need to do is provide a small bit of information. The hope is that 3M will come to their senses and offer settlement amounts that will encourage the victims to settle their cases out-of-court. But the per-person payouts have to be high enough to entice victims to settle.
There was another big development in the MDL was Judge Rogers’s appointment of U.S. District Court Judge David Herndon as a special master in the case. Judge Herndon is an extremely experienced MDL judge who presided over Pradaxa and Yaz MDL class actions. Both ended in reasonable global settlements. This is a good development for everyone. Because it may help get these cases ripe for settlement more quickly.
July 2020 Update: How is the litigation in Tampa going so far? Newly released documents have the answer. Pretty well. Why? Because 3M’s witnesses are not doing so well. Here is one example. A company witness in the MDL class action was questioned as to his opinion on the appropriateness of the company concealing information about potential defects in the military earplugs from the government.
No one is going to say that it is okay to conceal information about defects from the military. Right? Nope. This former vice president at Aearo Technologies told the plaintiffs’ attorney that, “I suppose it is, if the product is working in most cases.”
In another deposition, a plaintiffs’ lawyer asked a sales manager if veterans were “entitled to know” that the way 3M tested the dual-ended combat arms earplugs was different from the way the device would be used in battle. His answer: “I don’t believe so.” This is the kind of stuff that puts 3M’s face in the mud and helps get these cases settled more quickly.
November 2020 Update #2: 3M is trying to pierce the attorney-client privilege by getting information from Top Class Actions, a company that develops leads for cases for some personal injury lawyers. 3M lawyers have asked a federal judge to force the company to provide information because Top Class Actions is not a law firm. This does expose the underbelly of how some earplug attorneys are getting so many cases. 3M’s position on this is technically correct. There is no attorney-client relationship if you are not speaking with an attorney or their agent. (This is why veterans are better-served to call a law firm than calling a company seeking cases for lawyers.) But, ultimately, it is a tempest in a teapot. These former soldiers are just reporting the truth. They used these defective earplugs and now they have hearing problems or tinnitus.
January 2021 Update #3: Below we flush out what we anticipated was 3M’s begin legal defense in the case. Judge Rodgers denied 3M’s motion for summary judgment that would have effectively ended the litigation. Instead, she ruled that 3M “government contractor defense” that protects some defendants from liability when building products to the government’s specifications do not apply in this case. 3M cannot even make this argument to the jury, the court ruled, because no reasonable jury could conclude that the military made Aearo/3M do anything. On March 24, 2021, on the eve of the first jury trial, Judge Rodgers underscored this point by granting, in part, plaintiffs’ motion in limine, ruling that the defendants “may not argue that the government dictated, directed, approved, or otherwise exercised discretion concerning military specifications for any aspect of the design of the CAEv2, or the content of instructions or warnings.”
January 2021 Update #4: As discovery heats up in anticipation of trial in April 2021, the defense lawyers filed late expert reports with new theories defending the design of the earplugs. Why were the reports late? Big shocker: 3M blamed the government’s delayed responses to discovery. But on January 15, 2021, the court denied defense lawyers the opportunity to use an important section of the defense expert’s report, at least for this first trial group, because they could not show their “belated disclosure of this section [was] substantially justified or harmless.”
March 2021 Update #5: Judge Rodgers ruled that the defendants cannot seek expert opinions from one of the plaintiff’s treating doctors regarding noise exposures and use of hearing protection devices because the defendants did not designate the doctor as an expert in their Rule 26 disclosures. This is a big deal. The treating doctor always has extra credibility with the jury. This doctor would testify that Dr. one of the plaintiff’s hearing loss is due to either otosclerosis or the facial nerve abnormality. Barring that testimony, even for the one plaintiff, might help increase the combined bellwether verdict if the plaintiffs win the trial.3M’s Defense
3M big defense, that they seemed certain would succeed, to end these cases before they began was asserting that all claims are preempted the “Feres” doctrine. Our lawyers looked at the applicable law and believed plaintiffs would defeat this argument. We were right.
The plan was to invoke the government contractor defense as a shield from state tort liability using the Feres doctrine. This doctrine arose out of the U.S. Supreme Court decision in Feres v. United States. Specifically, the doctrine provides a guideline for when our servicemen and women may file a claim for personal injuries. The doctrine bars service members and civilian government employees from bringing claims against the U.S. government for injuries that arose out of or were sustained while engaged in activity “incident to service.”
That does not sound good, right? But the Supreme Court decision in Boyle v. United Technologies Corp in 1988 updates Feres and made our attorneys confident we would prevail. This case promulgates a two-part test that determines a state law can be displaced:
- The claim is uniquely of federal interest; and
- There is significant conflict between “federal policy or interests and state law” or if applying the state law would “frustrate specific objectives of federal legislation”
The decision then lays out a three-part test that provides a claim is pre-empted:
- The U.S. approved reasonably precise specifications;
- The equipment conformed to those precise specifications; and
- The supplier warned the U.S. of the danger associated with the equipment that only the supplier knew of. Applying these tests, product liability attorneys do not think there will be issues with preemption because although 3M knew of the defect and danger associated with using them, they never informed the U.S. military of those dangers (we wrote this two years ago and it held up).
3M’s fatal problem is the third prong of the Boyle preemption test. Is the U.S. military going to say that they did know of the danger but still issued the earplugs for hearing protection? There is nothing to suggest that the military had any knowledge of the defect.
When 3M’s preemption arguments failed, the defense evolved to blaming the military. Our lawyers knew this defense was doomed to fail and it flopped spectacularly with the MDL judge, who limited many of the arguments, and the jury in the first trial.
This article originally appeared here: https://www.millerandzois.com/combat-arms-earplug-lawsuit.html
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