Protocols Established for Case-Specific Depositions in 3M Earplug Litigation

The U.S. District Judge presiding over all federal 3M earplug lawsuits has outlined the process for handling case-specific depositions in a small group of claims that are being prepared for early trial dates in the litigation.

There are currently more than 150,000 cases being pursued throughout the federal court system by U.S. military veterans, who indicate they have been left with permanent hearing loss or tinnitus caused by defective 3M Combat Arms earplugs that were standard issue to all service members between 2003 and 2015.

Plaintiffs each raise similar allegations that a defective design used in the reversible earplugs left them without adequate hearing protection, claiming the manufacturer withheld information about the known problems.

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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.

In a pretrial order (PDF) issued on August 27, Judge Rodgers laid out a number of rules on conducting depositions for Bellwether Trial Group A, from which the first cases will later be selected to go before juries beginning in April 2021.

The order restricts each party to no more than six case-specific depositions, urges cooperation between the two sides in scheduling and coordination. The order sets deposition interview lengths at four hours, allows for remote depositions, and restricts them from taking place on Saturdays, Sundays or federal court holidays, as well as setting numerous other deposition parameters and rules.

The early bellwether trial program established by Judge Rogers will involve a small group of representative cases selected for additional discovery and preparation for early trial dates that are designed to help the parties gauge how juries may respond to certain evidence and testimony about the link between 3M earplugs and hearing loss following military service.

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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