Analysis of 3M Earplug Hearing Loss Statistics To Be Presented in Open Court During “Data Day”

Information and statistics on hearing loss linked to 3M earplugs will be made available to the public after the Data Day presentation on Feb. 23

The U.S. District Judge presiding over all 3M earplug hearing loss lawsuits has scheduled a “Data Day” for February 23, at which time a neutral third party will publicly present an analysis of government testing data and statistics on hearing loss linked to the earplugs, which were standard issue to all service members before deployments between 2004 and 2015.

More than 230,000 U.S. veterans are currently pursuing a product liability lawsuit against 3M Company and its Aearo Technologies subsidiary, each raising similar allegations that they were left with permanent hearing damage after receiving 3M Combat Arms Earplugs. Plaintiffs allege the earplugs were sold to the U.S. government with a known design defect, which left veterans without adequate ear protectors during combat and training exercises.

The earplugs were initially developed by Aearo Technologies, which was acquired by 3M Company in 2008, and the entire Aearo hearing protection business was “upstreamed” into 3M, which continued to market and sell the defective earplugs to the U.S. government without disclosing known problems that caused them to commonly fall out of the ear canal.

Given common questions of fact and law raised in the litigation, all 3M earplug hearing loss lawsuits have 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.

Following a number of massive verdicts in early 3M earplug lawsuits that went to trial, and a controversial bankruptcy plan pursued by 3M and Aearo, additional trials are currently on hold while various appeals are being pursued. However, last month, Judge Rodgers called for BrownGreer, PLC, a neutral company previously tasked with analyzing records from the Defense Occupational and Environmental Health Readiness System (DOEHRS), to share its findings with “all stakeholders” involved in the litigation during an open “Data Day”.

3M Earplug Data Day Set for February 23, 2023

BrownGreer conducted a detailed analysis of information and data contained in the DOEHRS records, which included hearing loss information on a substantial majority of all plaintiffs who are now pursing a 3M earplug lawsuit. While that information has previously been shared with the Court and various leadership lawyers involved in settlement negotiations, Judge Rodgers inicates that it is now time for the information to be publicly presented.

In a court order (PDF) issued on February 17, Judge Rodgers scheduled the Data Day for Thursday, February 23, 2023 at 9:00 a.m., at the U.S. Courthouse in Pensacola, Florida. All parties have been invited to attend, and the PowerPoint presentation will be made available on the Court’s public website following the Data Day, with a full transcript available through the court report.

“At this time, in the interests of fairness and transparency, the Court has concluded that non-leadership stakeholders – which include more than 300 plaintiffs’ firms, at least 20 defense firms, and individual plaintiffs numbering in the hundreds of thousands – should hear BrownGreer’s unbiased insights too,” Rodgers wrote. “BrownGreer’s highly specialized role has been properly limited to helping the Court and leadership counsel, and now the non-leadership stakeholders in the MDL, understand the characteristics of the body of data produced in connection with this litigation.”

Judge Rodgers indicates that the data day will consist of some opening remarks by the court, followed by an informational presentation of the analysis, which is expected to look at the correlations between military hearing loss and hearing damage following use of the 3M earplugs.

Much like a “Science Day,” where parties make educational presentations for the judge on scientific issues that will arise in complex litigation, the Data Day procedure will be non-adversarial. Neither side will be permitted to make opening or closing remarks, there will be no cross-examination, and plaintiffs’ and defendants’ participation is limited to observing the presentation.

“BrownGreer’s highly specialized role has been properly limited to helping the Court and leadership counsel, and now the non-leadership stakeholders in the MDL, understand the characteristics of the body of data produced in connection with this litigation,” Judge Rodgers wrote in the order. “The Data Day proceedings will be fairly straightforward. At the outset, the Court will offer some opening remarks. BrownGreer’s informational presentation will follow. That presentation will be largely consistent with the preliminary presentation previously given to MDL leadership and counsel for the Aearo debtors. BrownGreer’s Powerpoint presentation will not be produced in advance to either side.”

3M Earplug Lawsuit Litigation Status: March 2023

The Data Day comes about a month after Judge Rodgers declared 3M earplug settlement negotiations at an impasse, after the manufacturer advised the Court that it has no desire to reach a global resolution of all claims in the MDL and continues to insist that the litigation should only be resolved through the bankruptcy system, after its Aearo Technologies subsidiary filed for Chapter 11 protections in July 2022.

Multiple challenges are being pursued to the Aearo bankruptcy filing, based on a lack of no financial distress faced by the subsidiary, since 3M has billions in assets available to cover all liabilities. U.S. Bankruptcy Judge Jeffrey J. Graham has previously rejected a requested by 3M to stay the litigation during the bankruptcy proceedings.

At a hearing in December, Judge Rodgers barred 3M Company from arguing that it was not independently responsible for the earplugs made by its Aearo subsidiary, suggesting that a recent shift in defense strategy was done in “bad faith” after nearly four years of failing to raise the argument, and the Court described the effort as a “brazen abuse of the litigation process.” However, the Court did agree to a temporary pause on the proceedings while various appeals are considered, which will have wide-ranging impacts on all cases.

If 3M Company fails to convince the appeals court to overturn prior rulings, it is expected that the Court will schedule a rapid pace of jury trials nationwide throughout 2024 and beyond. Prior estimates had suggested that the company would need to pay more than ten billion to settle the earplug lawsuits during early mediations. However, if the company loses on appeal, the settlement estimates are likely to increase dramatically.