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The U.S. District Judge presiding over all federal 3M earplug lawsuits filed nationwide has declined to create separate litigation track for class action lawsuits, indicating that the it is premature to consider such a move and they will continue on the same path as individual hearing loss claims at this time.
3M Company currently faces more than 2,000 product liability lawsuits brought by military veterans who have been left with hearing loss or tinnitus due to alleged design defects associated with the company’s Combat Arms earplugs, which were standard issue to all service members between about 2003 and 2015. However, a number of class action lawsuits over the 3M earplugs have also been filed to obtain medical monitoring and other damages for all users of the earplugs.
Each of the complaints raise similar allegations, claiming that the 3M earplugs were knowingly sold to the U.S. military with design defects, which caused the earplugs to not properly seal the ear canal and exposed military service members to a risk of hearing damage.
Due to common questions of fact and law presented in litigation filed throughout the federal court systen, earlier this year the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided to centralize all lawsuits before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.
In May 2019, at least one class action plaintiff filed a motion to establish a separate track, arguing that there were significant differences between the individual hearing loss claims and the class action lawsuits. Judge Rodgers was asked to establish a separate leadership group, and pretrial schedule for the 3m earplug class action lawsuits.
Attorneys representing both 3M Company and individual plaintiffs opposed the motion, arguing that creating separate tracks for discovery and pretrial proceedings would complicate matters and result in duplicative and overlapping efforts.
In an order (PDF) issued on September 3, Judge Rodgers rejected the proposal, indicating that such a move was premature at this time. Judge Rodgers also voiced support for the current plaintiff leadership team, indicating that the interests of all plaintiffs were currently well-represented. However, she did not rule out the possibility of a separate track in the future.
“Once the first phase of discovery is complete, the Court will entertain dispositive motions on the federal defenses, if any. If the litigation survives summary judgment on the federal defenses, it may then become appropriate to consider establishing a separate class action track,” she wrote. “At this stage, however, the interests of the individual and putative class claimants are the same.”
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, but 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, it is expected that Judge Rodgers will likely establish 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 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.