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Discovery Underway in Lawsuits Over 3M Combat Arms Earplugs

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As a growing number of lawsuits continue to be filed over hearing loss from 3M Combat Arms earplugs, which have been standard issue by the military for years, the U.S. District Judge recently appointed to preside over the litigation has lifted a previous stay on discovery, allowing parties to begin preparing claims for eventual trial dates.

There are currently about 1,000 military earplug lawsuits filed against 3M Company throughout the federal court system, which are centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of an MDL or multidistrict litigation.

As product liability lawyers continue to review and file complaints on behalf of military veterans left with hearing loss or tinnitus after receiving the earplugs between 2003 and 2015, the size of the litigation is expected to continue to grow over the coming months, with tens of thousands of lawsuits over the 3M earplugs ultimately expected.

After the U.S. Judicial Panel on Multidistrict Litigation (JPML) transferred cases pending nationwide to Judge Rodgers in April 2019, a stay was placed on any discovery while the pretrial proceedings were organized in the MDL, including appointing a group of earplug attorneys to serve in various leadership roles and establishing protocols for the exchange of information about the cases.

Following a case management conference earlier this week, Judge Rodgers issued a pretrial order (PDF) on June 20, adopting a discovery plan for the first phase of the litigation and allowing the parties to commence generic discovery into common issues that apply to all claims.

The Defendants have been ordered to substantially complete early document exchange by June 27, 2019, with a deadline for complete document production set for September 30, 2019.

The parties have been directed to file a status report by October 31, 2019, including proposals for any dispositive motions and case-specific discovery, as well as a bellwether process, which would prepare a small group of cases for early trial dates to help gauge how juries may respond to certain evidence and testimony that may be repeated throughout the litigation.

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.

As part of the coordinated discovery and pretrial proceedings in the MDL, Judge Rodgers is expected to rule on motions that impact all claims, and schedule a series of early trial dates involving representative claims, which will present facts similar to those contained in many other claims. However, if 3M earplug settlements are not reached following the MDL proceedings, each individual claim would eventually be remanded back to U.S. District Courts nationwide for individual trials in the future.

To help educate the Court on issues that are likely to come up during the litigation, Judge Rodgers previously scheduled a “Science Day” for Monday, August 26, at which time the parties will make non-adversarial presentations of information about the link between 3M earplugs and hearing loss. A series of case management conferences have also been scheduled on a monthly basis for the rest of the year.

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