3M Argues About-Face Over Responsibility for Earplugs Linked to Hearing Loss Does Not Warrant Sanction of Waiver

The MDL judge is considering whether to impose sanctions that prevent 3M Company from introducing new arguments years into the litigation, that it is not independently liable for hearing loss caused by the defective earplugs

Facing potential sanctions which may prevent 3M Company from arguing that it is not independently liable in thousands of earplug hearing loss lawsuits, the manufacturer argues that prior attempts to jointly defend against claims together with its wholly owned Aearo Technologies subsidiary, should not prevent the parent company from now arguing it is not separately responsible, since Aearo has filed for bankruptcy.

More than 230,000 U.S. military veterans are currently pursuing a lawsuit against both 3M Company and Aearo Technologies over hearing loss and tinnitus allegedly caused by a defective design for the Combat Arms earplug, which were standard issue to all service members between 2004 and 2015.

The Combat Arms Earplugs version 2 (CAEv2) was initially developed by Aearo Technologies, which was acquired 3M Company in 2008. 3M Company “upstreamed” the entire Aearo hearing protection business into itself in 2010, and continued to sell the defective earplugs to the U.S. government for years, without warning about known problems that caused the earplugs to commonly fall out of the ear canal.

Given common questions of fact and law raised in the litigation, lawsuits brought by military veterans nationwide have all been centralized for the past three and a half years before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of an MDL or multidistrict litigation.

Throughout the proceedings, 3M Company has defended the cases brought against both itself and its Aearo subsidiary, never raising any arguments during at least 16 trials that suggested it is not jointly responsible for the design. However, after a number of juries hit the companies with massive verdicts, and facing thousands of additional claims being prepared for trial, 3M Company has made the controversial decision to place Aearo Technologies into bankruptcy, and is attempting to argue that the multi-billion dollar parent company can not be independently held responsible for hearing loss caused by products it sold and profited from for years.

After a federal bankruptcy judge determined that the Aearo Technologies subsidiary does not prevent earplug hearing loss lawsuits from moving forward against 3M Company, hundreds of plaintiffs included in a first wave of claims being prepared for remand to U.S. District Courts nationwide raised objections to the new arguments 3M is now making so late in the proceedings.

On November 1, Judge Rodgers issued an order (PDF), indicating that the court is considering whether 3M’s litigation conduct “warrants the sanction of waiver”, which would prevent the company from raising any new assertion or arguments that it is not fully and independently liable for the earplugs. However, prior to issuing a ruling, the Court granted 3M the opportunity to file a written response.

In a filing (PDF) on November 8, 3M took issue with a seven-page limit imposed on the response by the Court, and attempted to argue it has engaged in no conduct, made no statement or taken any legal position that should lead to a finding of bad faith or the imposition of sanctions.

“[I]n general, the conduct is hardly notable. It is common for a parent company to, by way of example, sit ‘at the helm’ in meetings or present a ‘united front’ with its subsidiaries in individual bellwether trials in which they are all defendants,” according to the response. “That is not the same as assuming ‘full and independent’ liability in thousands of future actions. Nor is it close to sanctionable, even if issues are litigated in later actions that were not the focus previously.”

The response and potential sanctions the court is considering came after plaintiffs filed a motion for summary judgement last month, on the issue of 3M’s independent liability.

“Although there are strong bases to argue that the 2010 upstreaming constituted either a de facto consolidation/merger or rendered 3M Company a mere continuation of the Aearo Defendant’s hearing protection business, the Court need not wade into those issues now because 3M Company’s actions since 2010 clearly demonstrate that it impliedly assumed all CAEv2-related liabilities,” according to the plaintiff’s filing. “After upstreaming the Aearo Defendant’s hearing protection business into 3M Company, the latter settled all CAEv2 liabilities with the government in a qui tam case, indicated throughout this MDL via words and actions that it was independently liable for all CAEv2 liabilities, submitted itself as the primary defendant for CAEv2 injuries in 16 different bellwether trials (representing 19 different verdicts), and di so for cases that no only spanned pre- and post-acquisition periods (thereby incurring liability for 3M Company for the pre-acquisition portions of those cases), but also for purely pre-acquisition injury cases.”

November 2022 3M Earplug Lawsuit Update

While considering the motion for summary judgement or whether to issue sanctions of waiver, Judge Rodgers announced in October 2022 that all 3M earplug lawsuit deadlines will be paused in four waves of cases being prepared for remand and trial until this central issue is resolved. However, the tenor and tone of the order suggests that Judge Rodgers is unlikely to allow 3M to shield itself from liability at this late date.

The order indicated Judge Rodgers plans to issue a decision about 3M’s independent liability soon, and that the court will certify its decision for an interlocutory appeal, allowing the ruling to be challenged to the U.S. Court of Appeals before additional cases are remanded to courts nationwide for individual trial dates.

As part of the order, Judge Rodgers also ordered the parties to “fully engage in ongoing settlement negotiations” during the stay of the wave process. Even though the litigation will be mostly on pause and 3M Company will not face the impending pressure of additional jury verdicts, Judge Rodgers ordered the parties to make a good faith effort in negotiations, indicating the confidentiality of those discussions must be maintained.