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Thousands of 3M Earplug Claims dismissed

A federal judge overseeing a multidistrict litigation court in Florida (MDL) regarding allegedly defective 3M earplugs dismissed claims brought by 20,000 people who failed to submit proof that they had served in the military.

The federal MDL has been pending for more than three years. U.S. District Judge M. Casey Rodgers said that during that time, all veterans who wore the Combat Arms Earplugs Version 2 earplugs have been on notice to provide proof that they served in the military. The judge said that such proof was “a fundamental” requirement for pursuing claims.

Judge Rogers said in this week’s order:

“Given the advanced stage of this litigation and the importance of veterans’ military service information to the various claims and defenses in this litigation, it was, and is, entirely reasonable to require veterans to show basic proof of military service.”

Claims dismissed without prejudice

Judge Rodgers dismissed the claims without prejudice; so the plaintiffs still have a chance to reopen their cases, albeit with a fast-approaching deadline. Active-duty plaintiffs and non-veterans have until June 6, 2022 to file a motion to reopen their cases. To file a claim, they must also include a statement concerning their military service status.

The 3M Earplug MDL was formed in 2019. It includes more than 280,000 service members and others who allege that they suffer hearing damage caused by their use of 3M CAEv2 earplugs. The claimants in these cases say the earplugs were defective, causing auditory problems such as tinnitus and/or hearing loss.

3M has argued in these cases that service members were allowed to flood the administrative docket with unvetted claims. In a May 9 blog post, 3M said:

“There is currently no way to know how many filers of these claims will complete the necessary steps to revive their claims, much less reach trial. Requiring expedient vetting could help provide greater certainty into the actual number of cases in the MDL.”

Judge Rodgers, however, has disputed 3M’s argument that a lack of filing fees and other filing requirements have opened the administrative docket to frivolous claims. The judge rejected 3M’s request to require more than 180,000 plaintiffs to immediately pay filing fees. She said the fees were never waived, and furthermore, that no feasible way forward could accelerate payments as 3M had requested.

The judge said on April 6, 2022: “Defendants offer only a fallacy, namely that absent the administrative docket, they would be facing a small fraction of the claims now pending in the MDL, and requiring immediate payment of all filing fees would winnow the inventory to a trivial size.”

Bellwether Trials favor Plaintiffs (as of May 2022)

Fifteen (15) bellwether trials, thus far, favor plaintiffs in the 3M earplug litigation. Plaintiffs have won nine of the trials, while 3M has won six of them. The most recent trial concluded with a $2.2 million verdict on April 29 for Jonathan Vaughn. Mr. Vaughn, who served in Iraq, has required a hearing aid since 2012.

The largest verdict to date was $110 million. It was awarded to two Army veterans in January 2022. A trial in March 2022 ended in a $50 million verdict for another Army veteran. Another trial ended in an $8 million win for a U.S. Army National Guard veteran. All those verdicts for plaintiffs are likely to be appealed by 3M.

3M Wins

Earlier in April 2022, a Florida federal jury gave 3M its latest win. The jury found no design defect in the earplugs a female veteran said caused her hearing loss while she served in Iraq and Kuwait.

In December 2021, a Florida federal jury found that 3M and its subsidiary, Aearo Technologies LLC, were not responsible for an Army combat veteran’s tinnitus and hearing loss.

Judge Rodgers pushes 3M Litigation
Judge Rogers has also ordered the parties to prepare nearly 1,000 cases for trial this year, according to the lead plaintiffs’ attorneys. One said 3M can’t escape the fact it faces more than 200,000 claims from U.S. servicemembers. Plaintiffs say 3M supplied them with defective earplugs  that caused irreversible hearing damage.”

The 3M Earplug 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.

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