A federal judge overseeing the huge multidistrict litigation (MDL) over 3M’s Combat Arms Earplugs ordered the parties on June 10 to begin mediation in July 2022. U.S. District Judge M. Casey Rodgers told the lawyers on both sides that they should try to reach a good faith settlement to save district courts from being “flooded” with cases from the MDL.
Judge Rodgers said the MDL is at a “critical juncture,” because all evidence necessary to evaluate claims from the plaintiffs has been identified. She also noted that 16 bellwether cases in the litigation have concluded, so that all parties now have a clear idea of the risks and likely outcomes of the litigation.
The judge wrote: “At this stage, there can be no reasonable dispute that the litigants in this MDL have more data points about individual claims, and the broader whole, than any other litigants in the country.”
233,883 Earplug Plaintiffs
The judge said that before the 233,883 plaintiffs who are still in the proceeding are disbursed to the trial courts, 500 cases at a time will move to plaintiff-specific discovery, summary judgment motions, and then to trial.
According to the order, this move will put an average of 2,500 cases in each of the nation’s 94 districts, though the judge said some districts will see very few, while others will see many more plaintiffs.
Judge Rodgers wrote: “An enormous amount of time and resources will be required to accomplish this endeavor, not just from this court but from the entire federal judiciary.”
The judge said that in light of the “staggering” amount of judicial resources needed for those cases to all go forward, the parties must go to mediation and try to resolve as many of the cases as possible. She appointed Randi S. Ellis, a dispute resolution attorney, as special master for the purpose of mediating a possible settlement.
Judge Rodgers directed the parties in her order to begin meeting by July 15. She ordered counsel for the plaintiffs and 3M to attend the mediation, as well as 3M’s corporate counsel and any insurance representatives who may be necessary to resolve the earplug litigation.
The multidistrict litigation was launched in April 2019. The MDL includes cases brought by hundreds of thousands of military veterans and service members. These cases allege that 3M and its subsidiary, Aearo Technologies LLC, supplied CAEv2 earplugs to the military that were defective. Meanwhile, 3M argues that the military bears some responsibility for how the earplugs were designed and delivered.
3M Verdict Losses lowered by Judge
In the first week of June 2022, 3M asked a Florida judge to cut a $50 million verdict in one of the bellwether trials. The company argued that it was an excessive amount that was out of step with the nature of the plaintiff’s injuries.
In May 2022, Judge Rodgers cut a $55 million verdict for a plaintiff to roughly $21.7 million, due to a Colorado law capping tort damages. Again in May 2022, in the 16th bellwether ruling, the last from the initial set of cases chosen from the MDL, a jury awarded plaintiff James Beal $77.5 million in damages. The 3M company will appeal that verdict.
The MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, in the U.S. District Court for the Northern District of Florida.
Combat Arms Earplugs History
Beginning in 2004, the U.S. military issued Combat Arms earplugs to all soldiers deployed to Iraq and Afghanistan. The plugs were an unusual design, as they featured two symmetrical sides. One side was yellow and the other olive green. The plugs were designed to be worn with the olive end inside the ear canal to block sound. When worn with the yellow end inside the ear canal, the plugs were supposed to block, or at least significantly reduce, loud impulse sounds of battlefield explosions, while still allowing the wearer to hear quieter sounds like those from fellow soldiers or enemy combatants.
Defective Earplug Lawsuit Settlement with U.S. Gov’t.
On July 25, 2018, the 3M company agreed to pay the U.S. government $9.1 million to settle its lawsuit over the Combat Arms earplugs.
The government’s lawsuit claimed the earplugs had dangerous design defects that could cause them to loosen in the wearer’s ear, imperceptibly to both the wearer and even to a trained audiologist observer. The loosening permitted damaging sounds to enter the ear canal by traveling around the outside of the earplug while the user and/or audiologist would incorrectly believe that the earplug was working as intended.
The government’s petition read:
“Because the stem of the earplug is too short, it is difficult to insert the plug deeply into some wearer’s ear canals and obtain a proper fit. Specifically, when the earplug is inserted into the ear according to standard fitting instructions, the basal edge of the third flange of the non-inserted end of the earplug is prone to press against some wearers’ ear canals and fold back to its original shape, thereby losing the seal in the ear canals. The defect has the same effect when either end is inserted because the earplugs are symmetrical. In either scenario, the effect is that the earplug may not maintain a tight seal in some wearers’ ear canals such that dangerous sounds can bypass the plug altogether thereby posing serious risk to the wearer’s hearing unbeknownst to him or her.”
Further, the government charged that these dangerous design defects were known to Aero in 2000, and later to 3M.
3M & Aero Technologies Defendant
3M acquired Aero in 2008, and thus is associated with any liability associated with its past conduct. At the acquisition of Aero, 3M also hired the employees at Aero who developed and tested the defective earplugs. Further, the 3M/Aero scientist who oversaw and documented the testing of the Combat Arms earplugs, and the 3M/Aero lab technician who conducted the testing, are still employed by 3M today.