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According to a recent court-ordered census of all current and expected 3M Combat Arms earplug cases being pursued by lawyers nationwide, nearly 140,000 individuals nationwide have already stepped forward to present claims for hearing loss due to design defects linked to the military-issue earplugs.
There are currently about 2,800 product liability lawsuits filed against 3M Company throughout the federal court system, each involving similar allegations that military veterans were left hearing loss or tinnitus after receiving the earplugs, which were standard issue to all service members between about 2003 and 2015. However, as military hearing loss lawyers continue to review and file claims, tens of thousands of additional claims are expected in the coming weeks and months.
Given common questions of fact and law raised by plaintiffs throughout the federal court system, a federal multidistrict litigation (MDL) was established, to centralize all of the 3M earplug hearing loss claims before U.S. District Judge Casey Rodgers in the Northern District of Florida, for coordinated discovery and pretrial proceedings.
As part of the coordinated discovery and pretrial proceedings in the MDL, the parties agreed to a tolling agreement, which has extended individual deadlines to file complaints, and Judge Rodgers established a census process to register unfiled claim.
According to a pretrial order (PDF) issued on January 21, there are already 139,693 claimants registered with existing or potential future claims that will be brought in the MDL.
To help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the claims, Judge Rodgers has outlined a plan for selecting a small group of representative cases, which will go through case-specific discovery and be prepared for early trial dates.
According to a selection protocol outlined in the order, Judge Rodgers indicates that the court has randomly selected 1% of registered 3M earplug claims, resulting in 1,397 claimants that will be considered as potential bellwether candidates.
Following a process designed to identify plaintiff characteristics that were most representative of the entire litigation in terms of branch of service, age and injury severity, the court identified 175 cases that met the criteria of involving claimants who are currently between the ages of 30 and 49, served in the U.S. Army and allege a combination of tinnitus and hearing loss.
From this group of 175 cases, the Court has randomly selected six cases and one alternate to proceed with additional discovery. Plaintiffs and Defendants will also each select nine cases, including seven that will proceed with discovery and two alternates. As a result, there will be a discovery pool involving 20 cases and five alternates.
The timing for completion of case-specific discovery and filing of motions challenging the admissibility of certain expert witness testimony will be discussed during an upcoming status conference.
3M Earplug Problems
Each of the plaintiffs raise similar allegations, indicating that design defects with the 3M earplugs left military service members without adequate hearing protection, resulting in permanent hearing loss and tinnitus for thousands of veterans.
3M Combat Arms earplugs featured a dual-ended, or reversible, design that was intended to completely block all sounds when inserted one way, but provide filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands.
Plaintiffs indicate that 3M Company has known for years that the earplugs were defective, and too small to properly seal the ear canal. Rather than recalling the earplugs or providing updated warnings and instructions, the manufacturer continued to sell the defective earplugs to the U.S. military for years, who issued the product to nearly every service member.
In July 2018, 3M reached a $9.1 million settlement over the Combat Arms earplug problems with the Department of Justice, resolving claims that it defrauded the government by knowingly selling the defective earplugs.
While the outcome of the early trial dates in the MDL will not be binding on other plaintiffs in the litigation, they will be closely watched by parties involved and may influence any eventual hearing loss settlements 3M may offer to avoid thousands of individual claims being set for trial nationwide.