Medical Exams and Hearing Tests Being Conducted For Plaintiffs in 3M Earplug Bellwether Cases

The U.S. District Judge presiding over all 3M earplug lawsuits has issued an order establishing the process for conducting medical examinations and hearing tests for a small group of military veterans who have been selected for the first bellwether trials.

There are currently more than 150,000 hearing loss claims being pursued against 3M Company and its Aearo Technologies subsidiary by individuals who indicate they have been left with permanent ear damage or tinnitus due to design defects with the 3M Combat Arms earplugs, which were standard issue to all service members between 2003 and 2015.

Since each plaintiff is presenting similar allegations, the litigation has been centralized for coordinated discovery and a series of early “bellwether” trials in the federal court system, before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of an MDL or multidistrict litigation.

To help the parties gauge how juries are likely to respond to certain evidence and testimony about the link between 3M earplugs and hearing loss following military service, which is likely to be repeated throughout the cases, Judge Rodgers has established a bellwether trial program, where several small groups of representative plaintiffs are being prepared for early trial dates set to begin in April 2021.

In a Pretrial Order (PDF) issued on October 2, Judge Rodgers approved the protocol for conducting medical examinations on the first set of bellwether plaintiff, which began this week.

The order limits the examinations to four hours, and calls for objective test results to be handed over to plaintiffs no later than seven days after the exams. Parties also have the opportunity to conduct rebuttal tests.

The results of the testing will be used during the individual bellwether trials, which are expected to begin on April 5, 2021 and continue with additional cases over the remainder of next year.

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.