3M’s Earplug Testing Report Barred From Future Bellwether Trials Over Military Hearing Loss

Bellwether trials for military hearing loss lawsuits will continue with two new cases set to begin this week, but 3M Company and Aearo Technologies will be prevented from introducing a controversial report involving earplug testing data.

The U.S. District Judge presiding over all federal 3M earplug lawsuits has slammed the manufacturer for its use of testing data during recent trials involving claims brought by veterans diagnosed with hearing loss, indicating that 3M Company and its Aearo Technologies unit will be barred from introducing the report in future trials, after what she called “brazen and repeated attempts to misuse” the data.

There are currently more than 250,000 product liability lawsuits pending before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of a federal MDL, since they each involve similar allegations that 3M Combat Arms Earplugs distributed to all military service members between 2003 and 2015 were defective and unreasonably dangerous.

The 3M earplugs featured a reversible design, which was supposed to block all sound when inserted one way, and provide selective filtering when reversed, to reduce loud impulse sounds will allowing users to hear spoken commands. However, plaintiffs allege that the earplugs commonly fell out of the ear, failing to properly seal the ear canal and leaving them with permanent hearing loss and tinnitus.

To help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims, Judge Rodgers has been presided over a series of “bellwether” trials, which have ended in several multi-million dollar damage awards, as well as a few defense verdicts in favor of the manufacturer, with at least eight additional cases set to go before juries between November 2021 and February 2022.

3M Earplug Trial Results

A total of seven claims have been presented to juries so far, with five of the plaintiffs receiving a combined total of $17 million in damages.

The first bellwether trial ended in April 2021, with a massive $7.1 million verdict for three veterans whose claims went before the same jury. That was followed by a defense verdict in the second trial that ended in June 2021, and a $1.7 million award in a case that ended later that same month.

Early last month, a fourth bellwether trial ended in an $8.2 million verdict for one veteran, and a fifth case ended on Friday with another defense verdict, after the jury found that plaintiff failed to establish that her hearing loss and tinnitus was caused by the earplugs.

While the outcome of these early trial dates will not have any binding impact on tens of thousands of plaintiffs awaiting their day in court, the verdicts are being closely watched and are likely to have a big impact on the amount of money that the Defendants may need to pay in 3M earplug settlements to avoid the types of massive verdicts that many plaintiffs will receive if each case goes to trial.

Judge Excludes 3M Earplug Report After Misused At Trial

In the bellwether trials conducted so far, 3M and Aearo Technologies have presented a report in support of their case involving earplug testing data on sound reduction from Michael & Associates, Inc., which Judge Rodgers previously allowed into evidence to provide a reference point for some experts’ opinions. However, the Court has now determined that 3M abused the use of the document, and will ban the Defendants from introducing the evidence in future trials.

In a court order (PDF) issued on October 27, Judge Rodgers indicates that 3M used the data improperly at previous trials, attempting to introduce the evidence to directly rebut some of the plaintiffs’ accusations, which is inappropriate use of material deemed hearsay.

In the order, Judge Rodgers explains the she was previously reluctant to allow anything from the report as substantive evidence, because it carried a risk of confusing and unfairly prejudicing the jury. Now that Judge Rodgers has seen how 3M intends to use the report in future trials over the military hearing loss lawsuits, she has withdrawn permission for the report’s use.

“The fiction that Defendants are offering the Michael’s report for anything other than its truth is now plainly belied by the record,” Judge Rodgers wrote. “This is not the first time, or even the second, that Defendants have disregarded the Court’s rulings regarding the Michael’s report. But it will be the last.”

The report is now deemed completely inadmissible and can no longer be used for any purpose in any of the future bellwether trials.

Two separate trials are scheduled to begin this week, with one in Tallahassee and another in Pensacola. Both are scheduled to be completed by November 13.

With only about 2,000 civil jury trials typically held nationwide each year throughout the federal court system, it is likely the Court will combine large numbers of plaintiffs for consolidated trials to avoid taking decades to resolve the 3M earplug litigation.