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Military Earplug Problems Will Be Subject of Presentations to MDL Judge During “Science Day”

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The U.S. District Judge presiding over all federal 3M military earplug lawsuits has scheduled a day of scientific presentations for later this month, at which time the parties will educate the court on alleged defects with Combat Arms earplugs and hearing problems that former U.S. service members indicate they now have.

3M Company currently faces nearly 1,000 product liability lawsuits brought by former military service members, who indicate that they now suffer from hearing loss or tinnitus due to design defects associated with the company’s military earplugs, which were standard issue equipment provided to all soldiers between 2003 and 2015.

Each of the complaints raise similar allegations, indicating that the 3M earplugs were knowingly sold to the U.S. military with design defects, which caused them to not properly seal the ear canal and exposed military service members to a risk of hearing damage.

Due to common questions of fact and law presented in the claims, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided to consolidate cases in April 2019, centralizing lawsuits pending in various different federal courts before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.

In a pretrial order (PDF) issued on August 9, Judge Rodgers outlined the agenda for a Science Day scheduled for August 26. During the non-adversarial presentations, each side will summarize their theory of the claims or defenses, and will present up to three speakers to provide general information designed to educate the court about the military earplug problems or other scientific aspects of the case.

In complex product liability litigation, it is common for courts to scheduled such scientific presentations early in the case, to educate the court about issues and concepts that will come up during the proceedings. The presentations are designed to be educational, not adversarial, and typically are not part of the official record or subject to cross examination.

Plaintiffs claim that military earplug problems were known by 3M Company before it sold the product to the U.S. Military, and the manufacturer provided false and misleading information to the government. However, those claims will not be part of the Science Day presentations.

“The admission of, or specific reference to, merits evidence—such as evidence about product-specific testing and/or results, whether 3M or its predecessor deviated from any testing protocol, labeling frameworks and/or the adequacy of the label for the Combat Arms Earplug, company documents, and/or government FOIA materials—will not be permitted at Science Day, including during the parties’ opening summaries and during the speakers’ presentations,” Judge Rodgers wrote.

As part of the coordinated pretrial proceedings, it is expected that Judge Rodgers will establish a “bellwether” process, where a small group of representative claims will be prepared for early trial dates to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation. However, if the parties fail to reach earplug hearing loss settlements or another resolution for the litigation, each claim may be remanded back to the U.S. District Court where it would have originally been filed for individual trial dates in the future.

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