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The U.S. District Judge presiding over the coordinated discovery and pretrial proceedings for thousands of federal 3M military ear plugs lawsuits indicates that the first “bellwether” trials will begin in April 2021, to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.
There are currently more than 2,800 product liability claims pending in the federal court system against 3M Company, which allege veterans have been left with hearing loss or tinnitus due to defective earplugs distributed by the U.S. armed forces to all service members between about 2003 and 2015. However, based on a recent court-ordered census that includes claims under investigation by military hearing loss lawyers, it is widely expected that more than 100,000 claims will eventually be pursued by former service members in the coming months and years.
Given common questions of fact and law raised by plaintiffs, the federal court system established a multidistrict litigation (MDL) last year, which centralized all 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 claims will be prepared to go before a jury. The cases are designed to be representative of other claims in the 3M military ear plug litigation, presenting evidence and testimony that will be similar to what will be seen in thousands of other claims.
In a pretrial order (PDF) issued on February 11, Judge Rodgers announced that the initial bellwether selection process will be complete by February 25, resulting in a pool of 20 ear plug cases and six alternates
“Assuming at least 20 bellwether cases remain after case-specific discovery and dispositive motions practice, the Court will randomly select four pools of five cases each to proceed with bellwether trials. The first bellwether trial(s) will be held in April 2021, with Daubert and dispositive motions due in January 2021,” the order states. “The Court is considering the possibility of consolidating some number of cases for trial and trying other cases individually; the parties will be permitted an opportunity to brief the consolidation issue before a final decision is made.”
3M Ear Plug Problems
Each of the plaintiffs raise similar allegations, indicating that design defects with the 3M earplugs left military service members without adequate hearing protection, resulting in permanent hearing loss and tinnitus for thousands of veterans.
3M Combat Arms earplugs featured a dual-ended, or reversible, design that was intended to completely block all sounds when inserted one way, but provide filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands.
Plaintiffs indicate that 3M Company has known for years that the earplugs were defective, and too small to properly seal the ear canal. Rather than recalling the earplugs or providing updated warnings and instructions, the manufacturer continued to sell the defective earplugs to the U.S. military for years, who issued the product to nearly every service member.
In July 2018, 3M reached a $9.1 million settlement over the Combat Arms earplug problems with the Department of Justice, resolving claims that it defrauded the government by knowingly selling the defective earplugs.
Following the bellwether trials, if 3M earplug settlements are not reached following the MDL proceedings, each individual claim would eventually be remanded back to U.S. District Courts nationwide for individual trials in the future.