Approximate 1,500 3M Earplug Cases Being Prepared For Trial

A federal judge warns that scheduling conflicts and other problems threatened to delay the prepartion of the cases for trial, resulting in the need for a Special Master to help parties coordinate.

The U.S. District Judge presiding over all federal 3M earplug lawsuits has appointed a Special Master to oversee pretrial preparations for 1,500 cases, which will all be going through the discovery process simultaneously by May 2022.

The claims are part of three large “waves” of cases that will be prepared for trial in the coming year, which were selected from more than 250,000 lawsuits brought by U.S. military veterans nationwide, each involving similar allegations that 3M failed to warn about problems with its Combat Arms Earplugs version 2 (CAEv2).

The 3M earplugs were standard issue for all service members between 2003 and 2015, and intended to provide ear protection during training and deployment. However, veterans now claim that they have been left with permanent hearing loss, tinnitus or other problems due to a defective design.

Given common questions of fact and law raised in the litigation, cases filed throughout the federal court system have been centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, where a series of early “bellwether” trials have been held over the past year to help gauge how juries are likely to respond to certain evidence and testimony that may be repeated throughout the claims.

Following mixed results in early bellwether trials, including combined damage awards of more than $160 million returned for at least nine veterans who prevailed in their claims, the parties have still been unable to reach an agreement to settle the 3M earplug claims. Therefore, Judge Rodgers directed the parties to begin an extensive Wave process, where discovery will be conducted for 1,500 claims to move the enormous inventory of cases toward trial.

In an order (PDF) issued on February 18, Judge Rodgers outlined a number of challenges that have threatened to delay the preparation of those 3M earplug cases.

“For example, some number of plaintiffs have traveled to appear for their Defense Medical Exam (DME), only to find on arrival that no doctor was present to perform the exam,” Judge Rodgers wrote. “There have also been instances where plaintiffs have outright failed to appear for their scheduled depositions.”

To address the problem, Judge Rodgers appointed Adriane Theis as a Special Master to assist in resolving disputes that arise in these wave cases. She will coordinate with both sides to ensure the parties are abiding by scheduling deadlines and shepherd the cases through the discovery process, helping them coordinate DMEs, depositions and the production of expert reports.

The order indicates Theis will be charged with providing the Court with regular status reports on the preparation of the Wave cases and will apprise the Court of any issues that threaten to disrupt the Court’s deadlines.

Given the massive losses suffered in previous trials, the remand of these cases without resolution means 3M is likely to continue to face huge liability exposure as they go before juries. A recent Bloomberg News analysis highlighted the increasing concerns among 3M investors, which may increase pressure on the manufacturer to begin negotiation earplug settlements.

Some estimates warn that resolving all pending Combat Arms lawsuits could cost the company as much as $185 billion.

With only about 2,000 civil jury trials typically held nationwide each year throughout the federal court system, it is likely that Courts will continue to combine large numbers of plaintiffs for consolidated trials to avoid taking decades to resolve the 3M earplug litigation.