Settlement Talks Between 3M and Earplug Hearing Loss Plaintiffs Resume, as Appeals Court Considers Early Verdicts

The District Judge overseeing the litigation warns that the complexity of the case and the lack of certainty in the outcomes should inspire both 3M and hearing loss plaintiffs to try to reach a settlement agreement.

The U.S. District Judge presiding over all 3M earplug hearing loss lawsuits has ordered both the manufacturer and plaintiffs to resume settlement talks, after a months-long pause, while awaiting a decision on appeals challenging early verdicts returned in the first jury trials.

More than 230,000 U.S. veterans are currently pursuing lawsuits against 3M Company and its Aearo Technologies subsidiary, each raising similar allegations that they were left with permanent hearing damage after receiving Combat Arms Earplug during military service, which were standard issue before all deployments between 2003 and 2015.

Plaintiffs allege that 3M sold the earplugs to the U.S. government, knowing they contained a design defect that left service members without adequate ear protectors during combat and training exercises.

Although juries have returned millions in early 3M earplug bellwether trial verdicts, settlement negotiations between 3M and hearing loss plaintiffs over the past few years have failed to reach any offer that veterans would accept as fair compensation to resolve large numbers of claims, and the size of the litigation has continued to increase.

The earplugs were initially developed by Aearo Technologies, which was acquired by 3M Company in 2008, and the entire Aearo hearing protection business was “upstreamed” into 3M, which continued to market and sell the defective earplugs to the U.S. government without disclosing known problems that caused them to commonly fall out of the ear canal.

3M has attempted to defend the safety of the earplugs, and appealed each of the early verdicts. However, even after it became clear that it was unable to reliably convince juries that the earplugs were not to blame for hearing loss suffered by nearly a dozen plaintiffs, 3M has failed to make a good faith attempt to negotiate a settlement.

Last year, 3M made the controversial decision to place its Aearo Technologies subsidiary into bankruptcy, attempting to force the litigation through the U.S. bankruptcy court, even though the multi-billion parent company is well funded, and directly profited from the earplugs for years.

The U.S. District Judge presiding over the litigation has suggested that 3M has engaged in a “brazen abuse of the litigation process”, but did agree to stay the MDL proceedings pending interlocutory appeal attempts from earlier rulings.

3M Earplug Lawsuit Settlement Talks to Proceed

In January 2023, the Court declared that settlement talks between 3M and earplug hearing loss plaintiffs were at an “impasse”, and suspended further required mediation efforts. However, that pause on negotiations will now end, while the parties await a decision regarding appeals filed on some of the first bellwether trials.

The U.S. Court of Appeals for the 11th Circuit heard oral arguments by 3M and hearing loss plaintiffs on May 1, regarding challenges to verdicts returned against the company in favor of four veterans, which totaled $8.2 million in damages. 3M argued in that appeal that the claims should have been dismissed under a government contractor defense, which it indicates should provide immunity in all claims brought by U.S. military servicemembers.

A day after the arguments were presented, U.S. District Judge M. Casey Rodgers issued a new mediation order (PDF), requiring the parties to resume participation in mediation sessions to promote settlement talks and negotiate in good faith.

Judge Rodgers noted the ongoing complexity of the case represents risks for both sides, which could be resolved through a settlement agreement. The pending rulings on the bankruptcy filings and the appeal of the bellwether trial verdicts, of which 3M only won six out of 16, has led to “far more uncertainty than ever existed before”, according to the order.

“All of those matters present difficult issues and conservable risks for both sides, which warrant renewed exploration of a mutually agreeable resolution,” Judge Rodgers wrote.

Rodgers has appointed retired Judges David R. Herndon and Jeffrey J. Keyes to serve as mediators, who will work with both the federal MDL court and Minnesota state court, which is also home to a large number of 3M earplug lawsuits, alongside Special Master Randi Ellis, who has been assigned as the MDL mediator for some time.

3M Earplug Hearing Loss Trials to Resume If No Settlement Reached

While 3M Company has continued to defend the Aearo Technologies bankruptcy maneuver, it has already faced a number of set backs, after judges found that the earplug hearing loss lawsuits can move forward against 3M for it’s independent liability in manufacturing and selling the product for years.

3M is pursuing an appeal of that ruling, and challenging the trial courts decision to reject their government contractor defense. However, if 3M is unsuccessful with the appeals, it is expected that the entire litigation will quickly get back underway, with a rapid pace of jury trials scheduled nationwide.

Judge Rodgers has begun preparations to start remanding large waves of cases to federal courts nationwide for trial once the issues surrounding the bankruptcy and appeals from the early bellwether trials are resolved.

Prior estimates had suggested the company would need to pay more than ten billion to settle the earplug lawsuits during early mediations. However, if the Aearo bankruptcy is dismissed and the company loses issues on appeal, the settlement estimates are likely to increase dramatically.