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Direct Filing of New 3M Military Earplug Lawsuits Allowed in Federal MDL

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The U.S. District Judge recently appointed to preside over all federal 3M military earplug lawsuits has approved new procedures that allow the direct filing of future cases brought by veterans residing throughout the U.S. in the Northern District of Florida, where the federal multidistrict litigation (MDL) has been centralized for coordinated discovery and pretrial proceedings.

There are currently about 600 product liability lawsuits filed on behalf of individuals nationwide who allege they have been left with hearing loss as a result of problems with 3M Combat Arms earplugs, which were standard issue by the military between 2003 and 2015. Each of the claims raise similar allegations that the manufacturer failed to disclose known design defects, which increased the risk of hearing loss, tinnitus, and other damage.

Given the widespread use of the dual-ended earplugs during military service it is widely expected that tens of thousands of cases may eventually be brought by veterans nationwide.

To prevent duplicative discovery into common issues, avoid conflicting pretrial schedules and serve the convenience of the parties, witnesses and the court system, the U.S. Judicial Panel on Multidistrict Litigation decided last month to centralize all claims filed throughout the federal court system before U.S. District Judge Casey Rodgers in Pensacola, Florida.

To avoid the delay associated with transferring cases from different federal district courts, Judge Rodgers issued a Pretrial Order (PDF) this week, which outlines the stipulated procedures for direct filing of future cases in the MDL.

The reversible 3M earplugs were designed to serve as traditional earplugs when inserted one way, but the manufacturer indicated that they provided filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands. However, according to allegations raised in complaints filed nationwide, the manufacturer knew the earplugs were defective and left military service members without adequate ear protection.

Plaintiffs claim that the 3M earplug problems were known to the manufacturer, as they were too small to properly seal the ear canal. Instead of warning the military about the design defects or providing updated instructions about insertion procedures, the lawsuits claim that the manufacturer continued to place veterans at risk for years.

As part of the coordinated pretrial proceedings, it is expected that Judge Rodgers will establish a “bellwether” process, where a small group of representative claims will be prepared for early trial dates to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

However, if the parties fail to reach hearing loss settlements or another resolution for the litigation, each claim may be remanded back to the U.S. District Court where it would have originally been filed for individual trial dates in the future.

In the order, Judge Rodgers notes that directly filing cases in the MDL will have no impact on choice of law that would have otherwise applied had it been filed in another District Court.

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