3M Appeals First Earplug Hearing Damage Verdicts As Trial Losses Continue

With juries continuing to return millions of dollars in damages in early trials and a steady stream of additional earplug hearing loss lawsuits set to begin over the next year, 3M Company and its Aearo Technologies are asking a federal appeals court to overturn the verdicts returned in the first and second “bellwether” claims.

3M Company faces more than 250,000 product liability lawsuits filed by veterans in recent years, each presenting similar allegations that defective earplugs were distributed to U.S. military service members between 2003 and 2015, which failed to properly seal the ear canal and caused permanent hearing damage or tinnitus. Plaintiffs claim this has left them with permanent hearing loss, tinnitus and other ear damage.

Although the 3M has suggested it intends to continue defending the litigation and has refused to pay earplug settlements to veterans, it has been hit with combined verdicts of nearly $150 million in early trials, and the U.S. District Judge presiding over the litigation has ordered that another 1,500 claims be prepared for trial over the next year.

On Friday, the company filed briefs asking the U.S. Court of Appeals for the Eleventh Circuit to overturn verdicts returned in the first two cases, or at a minimum vacate the judgments and remand the claims for new trials.

The first bellwether trial ended in April 2021, with a federal jury awarding $7.1 million in damages to three veterans whose claims went before the same trial. In June 2021, another bellwether case ended in a $1.7 million verdict for one veteran.

In a brief (PDF) filed in support of it’s appeal of the first bellwether trial, 3M argues that the claims never should have never been subject to a trial.

“These cases should have never gone to the jury because the complaints about the military’s own design and instructions are preempted by the government-contractor defense,” the brief argues. “This case falls squarely within the heartland of that defense, and that defense alone should bring this massive and misdirected litigation to an end.”

However, in July 2018, 3M reached a $9 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, and then by causing soldiers to suffer hearing loss whose health issues have to be addressed by the government.

In the appeal, 3M argues that the juries were wrongly told during the trial that the U.S. military had determined the earplugs were defective, and that they were required to carry warning labels under the U.S. Environmental Protection Agency’s Noise Control Act. The manufacturer also points to a number of evidentiary issues it believes warrant a new trial.

Unless the company is able to succeed on appeal in obtaining a ruling that impacts all claims, estimates suggest that the company will face tens of billions in liability as each individual case moves forward. 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.