The USA’s largest mass tort ever consolidated in federal court is the ongoing 3M Combat Arms Earplugs version 2 (CAEv2) litigation. Nearly 300,000 individuals, mostly U.S. military veterans who served in Iraq and Afghanistan, have cases pending against 3M, claiming that they have sustained hearing loss or have developed tinnitus, a ringing in the ears, allegedly because the earplugs were defective.Thus far, 11 trials have concluded with juries in six of the trials returning verdicts in favor of the plaintiffs. Jurors in the other five trials cleared 3M of liability.
In the trials that concluded with verdicts for the plaintiffs, juries have awarded a total of more than $160 million in damages, including the most recent decision, a $110 million verdict awarded to two U.S. Army veterans. The previous largest award was a $22.5 million verdict reached in December 2021.
3M is appealing the first verdict, which awarded three U.S. Army veterans $7.1 million. According to the Reuters News Agency, 3M filed the brief with the 11th Circuit Court of Appeals on Feb. 25, and is urging the court to put an end to earplug litigation once and for all because the first case “careened off the rails” well before the jury returned its verdict.
The company argued in the brief that the judge overseeing all the federal earplug cases—Judge Casey Rogers—wrongly ruled that because the U.S. military approved the design of the earplugs and 3M is a defense contractor, the company should be shielded from litigation.
But attorneys for the plaintiffs rejected that argument, saying in a statement, it’s “yet another attempt by 3M to blame the military for its misconduct.”
Three days before 3M filed the appeal brief, Judge Rogers ordered 500 more earplug lawsuits to be prepared to go to trial, Law360.com reported. In August 2021, Judge Rogers ordered thousands of cases moved to the active docket to relieve a backlog of cases. The number of cases now being prepped for trial numbers roughly 1,000. The federal consolidation of cases in multidistrict litigation or MDL was created in April 2019. In yet another 3M military earplug litigation development, Bloomberg News reports that five plaintiffs will be able to cross-examine a retired 3M scientist in their upcoming trials, even though the expert witness already testified extensively in previous trials. A magistrate judge ruled that “There continue to be compelling circumstances” for the witness to provide live testimony by remote transmission rather than his now-“stale” videotaped deposition testimony, which was conducted electronically because of the coronavirus pandemic.
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