Considering that the 3M Corporation is trying to resolve Combat Arms Earplug Version 2 (CAEv2 military earplugs) litigation through Chapter 11 bankruptcy and the more than 200,000 plaintiffs who allege they have hearing damage because of a design flaw in the earplugs refuse to discuss the possibility of a bankruptcy-only resolution, the federal judge overseeing the CAEv2 litigation referred to mediation efforts as having reached an impasse.
Judge M. Casey Rogers is responsible for federal CAEv2 cases, which were consolidated in multidistrict litigation (MDL) in 2019 in the U.S. District Court for the Northern District of Florida. CAEv2 litigation is believed to be the largest MDL in U.S. history. Formal settlement talks have been ongoing for several months but not one CAEv2 claim has been settled.
Several CAEv2 cases have been tried in a first round of test cases called bellwether trials. To date, 16 bellwether trials have been held. Juries in 10 of the 16 trials have found 3M liable for veterans’ hearing damages and awarded 13 plaintiffs in those 10 trials $300 million. Juries in the other six trials found that 3M’s dual-ended earplugs were not liable for causing hearing damage to the veterans.
Judge Rodgers recently referenced 3M’s apparent lack of desire to reach a settlement because it shifted its CAEv2 legal liabilities to its subunit, Aearo Technologies, which immediately then filed for Chapter 11 bankruptcy. Aearo was the original manufacturer of CAEv2, and was acquired by 3M in 2008 for $1.2 billion. An Indianapolis bankruptcy judge recently ruled that even while Chapter 11 proceedings for Aearo are being considered by a bankruptcy court, 3M can still face CAEv2 lawsuits.
A CAEv2 settlement master was appointed by Judge Rogers in June 2022. At that time, both parties indicated that they were committed to reaching an “efficient, equitable and expeditious” settlement.
Judge Rogers opined that she hopes CAEv2 mediation talks will resume considering that the litigation will likely be ongoing for years.