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The U.S. District Judge presiding over all federal 3M Combat Arms earplug lawsuits has agreed that the first bellwether trial will involve three separate claims brought veterans left with hearing loss, which is scheduled to go before one jury in April 2021.
3M Company currently faces more than 200,000 product liability lawsuit brought throughout the federal court system, each involving similar allegation that the company distributed Combat Arms earplugs which were defectively designed and left military service members at risk of permanent hearing loss, tinnitus and other problems.
The 3M Combat Arms earplug version 2 (CAEv2) were standard issue to all service members in the U.S. military between 2003 and 2015, involving a dual-ended or reversible design. The earplugs are supposed to block all sound when inserted one way, but provide selective filtering when reversed, to reduce loud impulse sounds while allowing users to hear spoken commands.
The lawsuits have been brought by former service members now left with hearing loss problems, raising similar allegations that 3M withheld critical safety information and instructions on proper use from the U.S. government.
Given common questions of fact and law raised in lawsuits, a federal multidistrict litigation (MDL) was established last year, which centralized the 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 management of the growing litigation, Judge Rodgers has established an early bellwether program, where a several small groups of representative cases are going through a discovery process in preparation for early trial set to begin in April, May and June 2021.
While the outcomes of these early trials will not be binding on other plaintiffs, they will be closely watched by parties involved in the litigation to determine how juries respond to evidence about the link between the 3M earplugs and hearing loss, and they may have a substantial impact on potential settlement negotiations.
In early December, plaintiffs asked Judge Roberts combine five different claims from the for bellwether pool for one consolidated trial, arguing that each of the claims involve substantial overlap of both law and facts, which they say justify combining the claims before one jury for efficiency.
In a court order (PDF) issued on December 30, Judge Rodgers agreed, in part, and announced the trial will involve the claims of three plaintiffs instead of five. The first trial is currently set for April 5 through April 30, 2021, and will involve claims brought by Luke and Jennifer Estes, Lewis Keefer, and Stephen Hacker. However, two additional cases brought by Dustin McCombs and Lloyd Baker will proceed before juries individually, starting on May 17, 2021 and June 7, 2021, respectively.
Defendants argued that a consolidated trial would confuse jurors, but Judge Rodgers rejected those arguments in her order.
“While the Court appreciates the practicality of Defendants’ argument, it cannot overcome the need for efficiency in the trial process,” she wrote. “Indeed, separate trials in these three cases would be largely repetitive and thus would implicate the great many burdens, delays, and expenses that consolidation is designed to mitigate.”
The decision comes as the Court, like other courts nationwide, struggles with conducting hearings and depositions of witnesses during the ongoing pandemic. They must often conduct such procedures through video teleconferencing and other remote communication means.
Judge Rodgers has scheduled a series of monthly case management conferences with the parties leading up to the first bellwether trial in April.