Judge Overseeing Military Earplug Lawsuits Indicates 3M Engaged in “Brazen Abuse of the Litigation Process”
In a scathing order issued last week, a federal judge has barred 3M Company from employing what she described as “bad faith tactics”, indicating that after three years of litigation, the company can not change positions and raise a new defense in an attempt to force thousands of military earplug lawsuits through a controversial bankruptcy plan.
More than 230,000 U.S. veterans are currently pursuing a product liability lawsuits against 3M and it’s Aearo Technologies subsidiary, after being left with hearing loss or tinnitus following military service, where they were provided 3M Combat Arms Earplugs as standard issue equipment before deployments between 2004 and 2015. Plaintiffs allege that 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 Combat Arms Earplugs version 2 (CAEv2) were initially developed by Aearo Technologies, which was acquired 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 lawsuits over hearing loss caused by the military earplugs 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.
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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 and sale of the earplugs. However, after a number of juries hit the companies with massive verdicts, 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.
In August, U.S. Bankruptcy Judge Jeffrey J. Graham refused to grant 3M a stay in the litigation despite the bankruptcy filing, indicating the litigation can continue against 3M, despite the bankruptcy filing by Aearo. Judge Graham said Indiana’s bankruptcy laws, where the bankruptcy case is located, does not allow such a pause in the litigation in this case, since 3M Company is also named as a defendant in the litigation.
In an about-face move, which is part of it’s continuing attempt to force earplug settlements through the bankruptcy process, 3M Company has recently taken the position that it can not be held independently liable for the earplugs designed by Aearo. Plaintiffs have called it an absurd position, and the U.S. District Judge presiding over the litigation has suggested the move is an abuse of the litigation process.
In early October, hundreds of plaintiffs included in a first wave of claims being prepared for remand to U.S. District Courts nationwide in the coming months filed a motion for summary judgment against 3M, seeking to prevent the company from now arguing that it is not independently liable for the earplug-related injuries.
Judge Blasts 3M for Acting in “Bad Faith”
On December 22, Judge Rodgers issued an order (PDF) agreeing with plaintiffs and putting a sanction in place against 3M, which bars it from using its new liability defense.
Judge Rodgers points out that 3M did not adopt the tactic of claiming it was not responsible for injuries in military earplug lawsuits until it was ordered to pay nearly $300 million to 13 plaintiffs in early the bellwether trials. She blasted the company for the tactics it adopted in the aftermath of its bellwether trial losses.
“The idea here, of course, is to reconstruct 3M’s litigation narrative to align with the newly conceived bankruptcy fiction that Aearo is, and always has been, a separate entity with sole and complete responsibility for all CAEv2 liability,” Judge Rodgers wrote. “Attempting to do so in this context, for this purpose, and at this late juncture is a brazen abuse of the litigation process after 3M’s nearly four years of affirmatively asserting, advocating, and wielding – to the detriment of Plaintiffs—the precise opposite position in the MDL.“
Judge Rodgers notes that all 16 bellwether trials went forward with “no suggestion from 3M that it had anything but exclusive liability for alleged CAEv2-related injuries.”
The ruling grants plaintiffs in the first wave of 3M Combat Arms lawsuits request for partial summary judgment, barring the manufacturer from attempting to avoid liability by shifting blame to its Aearo subsidiary when the cases are remanded for trial, which Judge Rodgers says is a sanction against 3M “for the company’s explicit statements and conduct establishing itself as the sole responsible part for nearly four years in the MDL and its bad faith reversal of that position solely to serve its strategic objectives in the bankruptcy.”
She also issued a stay on the MDL’s proceedings pending an interlocutory appeal attempt by 3M. However, she noted the court will continue to rule on pending motions.
January 2023 3M Earplug Lawsuit Update
While any appeal of this ruling is pursued, Judge Rodgers has previously ordered the parties to continue engaging in 3M earplug settlement talks, requiring monthly meetings to starting in November 2022, to explore resolution for the claims.
A series of 3M earplug settlement negotiations held in late September were previously described as “worthwhile and productive”, although it does not appear any deal is imminent.
If 3M Company fails to convince an appeals court to overturn Judge Rodgers ruling, it is expected to face a rapidly increasing pace of jury trials nationwide throughout 2023 and 2024. Based on the company’s inability to successfully defend the safety of the earplugs before prior juries, estimates suggest that 3M will likely need to pay more than ten billion dollars to settle the military earplug lawsuits.
JoseJanuary 15, 2023 at 6:17 pm
Shame on 3M and the court system for allowing this to drag on for so long. Sadly we the victims of this negligence are suffering while the courts continue to entertain 3M's mockery of the court system. The only folks benefiting from this are the lawyers. Million in lawyer fee's, hello who is benefiting?
RobertDecember 30, 2022 at 11:04 pm
Well who knows if they actually got the millions they could still be in appeals. They might just get the same amount. Settlement happen all the time after a ruling. We shall see the actual amount given.
AnneDecember 30, 2022 at 3:54 am
I agree with John. Make an example out of them. This is a company that we entrusted with the production of quality equipment that would be used to protect our soldiers (and in turn U.S. Citizens). By knowingly producing and distributing defective equipment (during a time a war mind you) this company potentially risked the lives of every single American citizen. They should be bringing them to [Show More]I agree with John. Make an example out of them. This is a company that we entrusted with the production of quality equipment that would be used to protect our soldiers (and in turn U.S. Citizens). By knowingly producing and distributing defective equipment (during a time a war mind you) this company potentially risked the lives of every single American citizen. They should be bringing them to the cleaners and showing corporate America that you don't 'bite the hand that feeds you'. Also, what image does this put out to the rest of the world? This is how we treat those who knowingly do harm to those sworn to protect this country. It is a sign of weakness in a time when the whole world is watching us; with the war in Ukraine, and questionable relations/tensions between the U.S., China, and Russia, not to mention potential domestic threats to our economic and political infrastructure, etc.... We should be using this case to show the world that we will not tolerate a multi-million dollar corporations attack on our military. If this were a matter of politics 3M officials/CEOs would've already been charged with domestic terrorism. Exactly whose side is 3M on? Obviously their loyalty to country is not being questioned.
ChuckDecember 29, 2022 at 8:52 pm
Well well well, look at the city slicker pulling up in his fancy German car.
JamelDecember 29, 2022 at 6:51 pm
When will this be over? I have been waiting for my settlement for years already. Meanwhile my hearing has been getting progressively worse.
MichaelDecember 29, 2022 at 10:52 am
That amount is completely inappropriate. Now make half that payment $14K a year for the next 10 years and now we have a real value. I personally don’t see how we can get a fair settlement in a lump sum payment without completely destroying the company and at that point they have no incentive to continue! So let’s make it hurt a little for lawyers longer for a more appropriate settlement!! Curi[Show More]That amount is completely inappropriate. Now make half that payment $14K a year for the next 10 years and now we have a real value. I personally don’t see how we can get a fair settlement in a lump sum payment without completely destroying the company and at that point they have no incentive to continue! So let’s make it hurt a little for lawyers longer for a more appropriate settlement!! Curious what others think
JohnDecember 29, 2022 at 10:24 am
Ten billion is laughable when this conglomerate makes well over 100 million a year. They knew about these things. I'm 34, can't hear at all and suffer from little sleep because ringing in my ears. This broke my heart. To learn I was lied to about what protections I had. Would if my vest didn't work or gas mask? See where I'm going? This is a vital piece of equipment and we need to detour other com[Show More]Ten billion is laughable when this conglomerate makes well over 100 million a year. They knew about these things. I'm 34, can't hear at all and suffer from little sleep because ringing in my ears. This broke my heart. To learn I was lied to about what protections I had. Would if my vest didn't work or gas mask? See where I'm going? This is a vital piece of equipment and we need to detour other companies from doing similar things. Its a shame. They should be bankrupted to pay us vets who have lost a ton with our quality of life. I chose to fight for you, now fight for me.
austinDecember 28, 2022 at 11:32 pm
you're an idiot if you think people will get only $27,000. Add another zero kid.
RyanDecember 28, 2022 at 11:29 pm
I truly think this is unfair especially since all bellwether trials received millions of dollars. Especially most recent trial nailing a whopping 77.5 mil. If the rest of us get what most websites are saying 50-250k or if anything. What a slap in the face especially for people like myself who have VA evidence of hearing loss and tinnitus. We will never get our hearing back.
FernandoDecember 28, 2022 at 10:43 pm
Kenneth, each individual's case will be awarded based on their State's laws and what the court orders 3M to pay that individual plaintiff's hearing loss and damages for using the earplugs. The bellwether trails had different amounts awarded for the those who won their case and was more than $27000. Best to talk with an attorney that is well versed in this case and can help to determine your payout[Show More]Kenneth, each individual's case will be awarded based on their State's laws and what the court orders 3M to pay that individual plaintiff's hearing loss and damages for using the earplugs. The bellwether trails had different amounts awarded for the those who won their case and was more than $27000. Best to talk with an attorney that is well versed in this case and can help to determine your payout if you qualify for this case.
kennethDecember 28, 2022 at 2:26 pm
So, if yo take the estimated value and divide that number by the number of claims, it comes out somewhere around $40,000. Then subtract attorney fees. If they take 1/3 ( approx, $13,000 ) that means each person would receive $27,000. Just don't seem fair, or make any sense.
AustinDecember 28, 2022 at 2:12 am
Ya try like $20 billion
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