A trial date set for late March begins the fate of over 220,000 lawsuits filed by U.S. servicemen and women against 3M. Both active military and veterans have filed the lawsuits because the earplugs 3M supplied to the military for many years were defective, causing hearing loss and tinnitus.
The 220,000 lawsuits are lumped together in what’s called “multi-district litigation” or MDL. In an MDL, one federal judge is appointed to oversee the entire legal proceedings. The first trial will involve the cases of three service members. The following trial will cover an additional two service members. Together, these five cases constitute bellwether trials. Bellwether trials determine the relevant facts and evidence, and will affect the outcome of future cases in terms of how to proceed.
Because of the sheer volume of lawsuits, it is highly unlikely that each one will go to trial. However, unlike class-action lawsuits, the mass tort 3M trials are filed individually. One advantage to having the cases filed individually is that plaintiffs have the opportunity to personally interact with attorneys and have their case and facts understood. Whereas, in a class-action lawsuit, the process is not individualized, and, thus, plaintiffs rarely have the opportunity to have the facts of their cases considered.
The U.S. military is neither a plaintiff nor a defendant in the lawsuits. The only role the military will fulfill in the litigation is providing service records. In 2018, the U.S. military settled with 3M for over $9 million over the defective earplugs. However, none of that money went to servicemembers. The $9 million was paid by 3M for fraud; for 15 years, the company sold the defective earplugs to the military at a 10-fold markup.
3M tried to immunize itself from liability by using the Government Contractor Defense. But a judge dismissed the attempt. In addition, 3M is also trying to deflect some of the blame on the government. A judge will soon rule on this motion.
According to a statement by 3M provided to a news station in northwest Florida, where the MDL is assigned, the earplugs were not defectively designed and did not cause injuries. “The Combat Arms Earplugs Version 2 product is effective and safe to use, and its design reflected the direction and feedback of individuals acting on the military’s behalf.”
