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The U.S. District Judge presiding over all federal 3M Combat Arms earplug lawsuits has set a discovery schedule which will prepare a small group of cases for a first bellwether trial set to begin April 2021.
More than 100,000 claims are currently being pursued by service members who suffered military hearing loss due to the allegedly defective design of the 3M earplugs, which were standard issue by the U.S. military between 2003 and 2015.
Given common questions of fact and law raised in the 3M earplug cases, the federal court system established a multidistrict litigation (MDL) 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 management of the growing litigation, Judge Rodgers established an early bellwether trial program, where a small group of cases were selected for additional discovery and preparation to be before juries. The claims are expected to involve evidence and testimony that will be similar to what will be seen in thousands of other trials if the parties fail to settle or resolve the litigation.
In a pretrial order (PDF) issued on February 25, Judge Rodgers indicated that initial bellwether selections have been completed, and outlined the schedule for parties to begin serving interrogatories and requests for case-specific documents during the bellwether discovery process.
The parties have been given a May 15 deadline to respond to written discovery, and core discovery will be complete by July 31. At that time, the Court will then create four trial groups, assigning five cases to each group, which will be eligible to go before juries.
The schedule calls for the first trial group to have supplemental fact discovery completed by September 25, with Plaintiffs’ expert disclosures due by October 2, and Defendants expert disclosures due a month later, on November 2. Depositions of Plaintiffs’ and Defendants experts must be complete by December 23, after which time the court will consider case-specific challenges to the admissibility of the expert witness testimony and dispositive motions in early 2021.
Case management conferences will continue on a monthly basis, with the next three scheduled for March 27, April 24, and May 29.
3M Military Earplug Problems
Each of the plaintiffs raise similar allegations, indicating that design defects with the 3M Combat Arms earplugs left military service members without adequate hearing protection, resulting in permanent hearing loss and tinnitus for thousands of veterans.
The 3M military earplugs feature 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 3M 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.
Following the bellwether trials, 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.