$8.2M in Damages Awarded to Veteran With Hearing Loss, Tinnitus from 3M Earplugs

The latest in an on-going series of bellwether trials involving problems with 3M military earplugs resulted in an $8.2 million jury award late last week, finding that the manufacturer is entirely responsible for hearing loss and tinnitus suffered by a U.S. Army veteran.

More than a half-dozen other bellwether claims involving the 3M earplugs are scheduled to go before juries between November 2021 and February 2022, with more than 250,000 veterans awaiting their day in court to present similar claims that defective and unreasonably dangerous earplugs were provided by 3M Company and its Aearo Technologies subsidiary as standard issue for all military service members between 2003 and 2015.

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 were defectively designed and commonly fell out of the ear, failing to properly seal the ear canal.

To help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation, a series of early “bellwether” trials have been scheduled before U.S. District Judge Casey Rodgers in the Northern District of Florida, where all claims are currently centralized as part of a federal MDL, or multidistrict litigation.

The fourth such bellwether trial concluded on Friday with the $8.2 million compensatory damage award for U.S. Army veteran Brandon Adkins, who filed a tinnitus and hearing loss lawsuit against 3M and Aearo in January 2020. According to the jury verdict form (PDF), Adkins prevailed on establishing liability under claims for design defects, failure to warn, fraudulent misrepresentation and concealment, finding that neither the United States Army nor Adkins share fault for contributing to the hearing damage suffered.

While the outcome for this trial will not be binding on other plaintiffs, each of the bellwether claims are being closely watched and are expected to have a large impact on the amount of any 3M earplug settlements that may be reached to avoid the need for tens of thousands of individual cases to be set for trial.

The previous three bellwether trials conducted earlier this year ended with mixed results, including a massive $7.1 million verdict for three veterans in the first trial that ended in April 2021. The next month, 3M was able to obtain a defense verdict in the second trial, but the third bellwether case ended in a $1.7 million verdict in June.

With seven additional cases set for trial, plaintiffs are not expected to prevail in each claim, but the size of the damages awarded to plaintiffs when they are successful signals clear trouble for 3M Company, which will face increasing pressure to consider negotiating settlements if it can not establish that it can consistently defend the safety of its products before juries.

Since there are only about 2,000 civil jury trials typically held nationwide each year throughout the federal court system, it expected that Judge Rodgers will begin consolidating large numbers of plaintiffs for consolidated trial and remanding cases to U.S. District Courts nationwide for jury trials if the parties fail to make progress toward resolving the litigation after the scheduled bellwether trials.