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Second 3M Earplugs “Science Day” To Focus on Drug Side Effects Causing Hearing Loss, Tinnitus

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The U.S. District Judge presiding over all federal 3M Combat Arms earplug lawsuits will hold a second “Science Day”, to provide the parties an opportunity to make non-adversarial presentations designed to educate the court about other potential causes of hearing loss and tinnitus at issue in the litigation.

More than 150,000 claims have been presented by former U.S. military veterans who indicate they have been left with permanent hearing loss or tinnitus caused by defective 3M earplugs that were standard issue to all service members between 2003 and 2015. Plaintiffs allege that the defective design used in the reversible earplugs left them without adequate hearing protection, seeking damages from the manufacturer.

Given common questions of fact and law raised in lawsuits, a federal multidistrict litigation (MDL) was established last year, which centralized the claims before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.

As part of the management of the growing litigation, Judge Rodgers established an early bellwether trial program, where a small group of representative cases were selected for additional discovery and preparation for early trial dates, to help gauge how juries may respond to certain evidence and testimony about the link between 3M earplugs and military hearing loss, which will be presented throughout each of the claims.

However, before such trials can proceed, the Court and the other parties must be brought up to date on the often complex science involved in such a litigation, both so that the pretrial issues presented to the Court are better understood, and so that the parties are all speaking a common scientific language.

In a court order (PDF) issued on July 9, Judge Rodgers indicated she will soon have parties conduct a second Science Day for the earplug litigation. The first such Science Day was held in August 2019.

“The purpose of the second Science Day is to educate the Court on what medicines and illicit substances are ototoxic such that the Court may appropriately define the scope of discoverable medicines and illicit substances prior to Plaintiff-specific depositions,” Judge Rodgers wrote. “Information about Plaintiffs’ use of medicines and illicit substances are discoverable only if relevant and proportional to the needs of the case.”

After plaintiffs and defendants failed to agree on the parameters of such a Science Day, the Court stepped in to set the parameters.

Judge Rodgers called on defendants to give the plaintiffs and the Court a list of every class of medication or illicit substance they consider capable of causing hearing loss based on current medical science by July 17. She also wants both sides to put forward one expert who can explain ototoxicity and how it is defined, as well as present scientific and medical information addressing the Defendants’ claim that the medications on the list they provide are actually ototoxic, and whether its effects are permanent or temporary.

Each side will be given two hours to make their presentations and the experts will not be placed under oath. No date has yet been announced for the second Science Day.

In complex product liability litigation, it is common for courts to scheduled such scientific presentations early in the case, to educate the court about issues and concepts that will come up during the proceedings. The presentations are designed to be educational, not adversarial, and typically are not part of the official record or subject to cross examination.

The information provided during this science day may guide Judge Rodgers in ruling on any motions about evidence that will be presented during the first bellwether trials set to begin in April 2021, which are intended to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

While the outcome of these early test trials will not be binding on other claims, they will be closely watched by the parties and are expected to heavily influence any negotiations to reach 3M earplug hearing loss settlements for veterans, which may be necessary to avoid the need for thousands of individual trials to be scheduled in courts nationwide in the coming years.

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