The 14th bellwether trial in the 3M Combat Arms Earplug litigation, now the nation’s largest mass tort with nearly 300,000 plaintiffs, concluded at the end of last week, and returned a verdict for the defense.
3M’s success in defending itself against hearing loss and tinnitus claims against plaintiff Denise Kelly—just the second female plaintiff whose case has been tried thus far—marks the sixth time the Minnesota-based company has won during the preliminary phase of the bellwether trials.
The defense verdict ends a string of three successive plaintiff verdicts, including an historic $110 million award for two plaintiffs (Solan/Wayman), and a $50 million verdict in the 13th trial (Vilsmeyer), which is the second-highest award. In the 14 bellwether trials that have concluded, 17 plaintiffs have received awards averaging $38 million per soldier. The lowest monetary award was $1.1 million (Baker).
The number of plaintiffs who have received awards exceeds the number of trials 3M has lost because two trials consolidated more than one plaintiff’s case, including the Solan and Wayman $110 million verdict. In the very first bellwether trial, which concluded nearly a year ago (May 2021), three veterans (Hacker, Estes, Keefer) were collectively awarded $7.1 million.
The only other trial involving a female plaintiff (Blum) also resulted in a defense verdict. What the Blum and Kelly cases have in common is that both plaintiffs had little to no combat experience, therefore their exposure to loud noises may have been much more limited than other veterans who allege that 3M’s defective earplugs caused them to develop hearing loss or tinnitus. Kelly’s deposition also posed problems. She claimed that she took part in target practice at the gun range dozens of times. This differed from the information she gave during discovery, during which she only produced evidence that placed her two times at the gun range.
Next 3M Earplug Trials
Two more bellwether trials are slated before the end of next month. The next trial is set to begin April 18 (plaintiff: Vaugh). The next trial after Vaugh will end the first phase of the 3M earplug bellwether MDL. The next phase may consolidate the cases of up to 50 plaintiffs, which should be much more challenging for 3M to defend against.
No Forced Filing Fees
3M recently filed a motion to force 180,000 earplug plaintiffs to pay filing fees of several hundred dollars, even if their cases were not yet on the active docket. If a judge had ruled in favor of 3M’s motion, 3M was banking on the fact that many plaintiffs would have been trimmed from the MDL. But Judge Casey Rogers, who is overseeing the MDL in Florida, denied the motion.
Judge Rogers has ordered up to 25,000 cases per month to the active docket, which means that attorneys on both sides must prepare for trial.
“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,” Judge Rodgers wrote, according to Law360.com. “The absurdity of that proposition is self-evident, and it is not borne out by the numbers.”
Judge Rogers also noted that any plaintiff who has had their case moved to the active docket will have paid the $402-per-claim filing fee.
3M acquired Combat Arms Earplugs version 2 (CAEv2) when it purchased the device’s original manufacturer, Aearo Technologies in late 2007. A competitor earplug maker, Moldex-Metric Inc., filed a whistleblower lawsuit against 3M and Aearo on behalf of the government in 2016. The lawsuit claimed that 3M/Aearo knowingly sold defective earplugs to the military, thereby committing fraud against the government. 3M settled the lawsuit in 2018 with the U.S. Justice Department for $9.1 million, a paltry amount considering some of the damage awards that juries have returned to several plaintiffs. No remuneration from the whistleblower settlement was allocated to any veterans with hearing damage claims.