3M Earplug Lawsuit Judge Wants Expert Witness To Help Define What A Representative Case Would Look Like

The U.S. District Judge presiding over a massive number of 3M earplug lawsuits, filed throughout the federal court system by veterans left with permanent hearing loss following military service, indicates that it may be necessary to bring in an independent, court-appointed expert to help the Court define what a “representative case” would look like in a complex litigation that may eventually involve more than 150,000 claims.

3M Company and its Aearo Technologies subsidiary have faced a growing number of product liability lawsuits over the past few years, each raising similar allegations that reversible Combat Arms Earplugs, which were standard issue by the U.S. military between 2003 and 2015, were defective and failed to adequately protect service members. Veterans allege that they have been left with permanent hearing loss, tinnitus and other hearing damage, which may have been avoided if the company had not mis-stated the effectiveness of the earplugs.

There are currently about 8,000 product liability lawsuits filed throughout the federal court system, with another 67,050 cases registered on an administrative docket and 74,000 more claims in the process of being filed, according to a recent filing by the U.S. District Judge presiding over the litigation.

Given similar questions of fact and law presented in throughout the claims, the U.S. Judicial Panel on Multidistrict Litigation decided last year to centralize lawsuits before U.S. District Judge Casey Rodgers in the Northern District of Florida, to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and serve the convenience of parties, witnesses and the judicial system.

As part of the coordinated pretrial proceedings in the 3M earplug litigation, the parties are preparing to select a small group of “representative” cases that will go through case-specific discovery and be set for early trial dates, to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the claims.

In a pretrial order (PDF) issued late last month, Judge Rodgers asked both parties to file objections by today, showing cause why the Court should not appoint an independent expert, such as a biostatistician, to help the court determine what the most representative cases should look like.

“In order for the MDL to continue moving forward against this backdrop, it will be essential to assemble an inventory of individual service members’ records that is broadly informative with respect to the litigation-relevant characteristics of the plaintiff population as a whole,” Judge Rodgers wrote. “The cases selected for targeted records requests to date—the 25 bellwether cases, followed by 1,509 cases approximating one percent of the total plaintiff population—will provide insights into the characteristics of the most representative plaintiffs. But there are many more variants of litigation relevant characteristics that must be considered to develop a more complete and accurate picture of the full universe of cases in the MDL.”

If there is no objection to the appointment of an independent expert, then the parties have been directed to file a statement to that effect. Judge Rodgers also encouraged the parties to confer and nominate an appropriate expert for the role.

3M Combat Arms Earplug Problems

The reversible 3M earplugs were designed to serve as traditional earplugs when inserted one way, but the manufacturer indicated that they provided filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands. However, according to allegations raised in complaints filed nationwide, the manufacturer knew the earplugs were defective and left military service members without adequate ear protection.

Plaintiffs claim that the 3M earplug problems were known to the manufacturer, as they were too small to properly seal the ear canal. Instead of warning the military about the design defects or providing updated instructions about insertion procedures, the lawsuits claim that the manufacturer continued to place veterans at risk for years.

As part of the coordinated pretrial proceedings, Judge Rodgers has established a “bellwether” process, where a small group of representative claims will be prepared for early trial dates to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation. However, if the parties fail to reach earplug hearing loss settlements or another resolution for the litigation, each claim may be remanded back to the U.S. District Court where it would have originally been filed for individual trial dates in the future.