3M Attorneys Sanctioned By Judge For Disregarding Orders in Combat Arms Earplug Litigation

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Following the third in series of recent trial dates in the 3M Combat Arms earplug litigation, the U.S. District Judge presiding over the claim has leveled sanctions against two attorneys representing 3M Company, indicating they willfully disregarded her orders on how to instruct juries on evidence presented at trial.

There are currently more than 230,000 product liability lawsuits filed throughout the federal court system, each involving similar allegations that 3M Combat Arms earplug version 2 (CAEv2) were defective, and left U.S. service members with tinnitus, hearing loss and other ear problems.

To help the parties gauge how juries are likely to respond to certain evidence that will be repeated throughout thousands of different claims, a series of early “bellwether” trials are currently being held in the U.S. District Court for the Northern District of Florida, where the litigation is centralized before U.S. District Judge Casey Rodgers as part of a federal MDL, or multidistrict litigation.

Last week, a jury in Judge Rodgers’ courtroom issued a massive verdict in favor of the third plaintiff, a U.S. Army veteran who suffered hearing damage allegedly caused by the defective earplugs. The jury determined that the plaintiff suffered $1.7 million in damages, finding that 3M Company is responsible for $1.05 million, according to a final judgment (PDF) entered on June 21.

The verdict represented the second major loss by 3m, after an earlier jury awarded $7.1 million in damages to three veterans during the first bellwether trial in late April. Although 3M was able to obtain a defense verdict in the second trial that began in May, the company has faced substantial pressure to establish that it can reliably defend the safety of their product at trial.

Following the conclusion of this most recent trial, Judge Rodgers issued a sanctions order (PDF) issued on Tuesday, indicating two attorneys with Dechert LLP, who represented 3M in the trial, including partners Kimberly Branscome and Jay Bhimani, violated Court orders during closing arguments. Branscome was hit with a $10,000 fine, and Bhimani was fined $2,000.

At issue was a slide presented to the jury, which Judge Rodgers determined contained controversial statistics that could only be presented to jurors only if 3M’s attorneys used it to challenge the credibility of the plaintiffs’ experts, and not to suggest the statistics were factual.

The order indicates Branscome went ahead and presented the statistics as factual during closing arguments, despite the earlier Court ruling. She was called to the bench and promised to rectify the situation. “Inexplicably, she did not do so,” Rodgers’ order notes. Instead, the court indicates Branscome was vague and ambiguous, and gave an explanation of the concept of hearsay instead.

Judge Rodgers said in a conference later that it was the first time she had to punish attorneys for willfully disregarding her orders in 19 years on the bench.

“This Court would never have imagined that a summary sanction would become necessary in litigation of this nature and magnitude, particularly given the caliber of the attorneys on both sides,” Rodgers wrote in the order. “However, after defense counsel’s multiple violations of the Court’s explicit, unambiguous and repeated directives both before and during her closing argument, there was no other option.”

More Combat Arms Bellwether Trials to Come

With hundreds of thousands of additional claims awaiting trial, Judge Rodgers has indicated that additional bellwether cases will be scheduled for trial in her court, which may have a substantial impact on the cost of any hearing loss settlements the manufacturer may reach.

In a pretrial order (PDF) issued earlier this month, Judge Rodgers indicated seven bellwether trials will be completed by the end of the year, with three of those being consolidated cases that will involve multiple plaintiffs going before a single jury. That leaves 13 cases from the initial bellwether pool that could eventually go before a jury.

If 3M fails to show it can consistently defend the safety of its ear protectors at trial or otherwise resolve cases, the Court may begin remanding large numbers of cases to U.S. District Courts nationwide next year for additional trial dates.

The MDL established for all 3M ear protection lawsuits is currently the largest active mass tort litigation in the United States, and facing hundreds of thousands of cases that may need to go before juries nationwide, any settlement program would also likely be one of the largest ever seen in U.S. history, requiring tens of billions in compensation to be paid to military veterans.

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