First “Wave” of 500 Combat Arms Earplug Lawsuits Against 3M Will Be Prepared For Trial

Federal courts nationwide will face a staggering 280,000 potential trials if no earplug hearing loss settlement is reached to resolve the claims

With more than 280,000 Combat Arms Earplug lawsuits pending against 3M Company in the federal court system, the U.S. District Judge presiding over the litigation has directed the parties to start preparing a group of 500 cases for trial, as the first of three planned “wave orders” that will be issued about every three months over the next year.

Each of the complaints raise nearly identical allegations, indicating that 3M failed to warn about problems with combat earplugs, which were standard issue for all U.S. military service members between 2003 and 2015. Plaintiffs maintain that the earplugs were defective, and left veterans with permanent hearing loss, tinnitus or other problems after ear protectors failed.

Given common questions of fact and law raised in the litigation, cases filed throughout the federal court system have been centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, where the parties have engaged in coordinated discovery into common issues in the claims, and held a series of early “bellwether” trials to gauge how juries are likely to respond to certain evidence and testimony that may be repeated throughout the claims.

Following mixed results in early bellwether trials, including defense verdicts in four cases, and combined damages of more than $30 million awarded to six other veterans who prevailed at trial, the parties have still been unable to settle the earplug hearing loss claims that are still pending. Therefore, the Court is signaling that it intends to dramatically increase the number of cases that will be prepared for trial, and likely remanded to U.S. District Courts nationwide to go before juries.

In a case management order (PDF) issued on November 22, Judge Rodgers identified about 500 cases that represent the first “wave” of cases, involving claims for which Veterans Affairs and Department of Defense information and data has been requested and received.

The parties have been ordered to complete fact discovery in those cases within 130 days, after which the court will hold hearings over Daubert challenges to the admissibility of expert witness testimony, dispositive motions and other necessary proceedings to clear the cases to go before a jury.

Judge Rodgers indicates that this is the first of three “wave orders” that the Court will issue, each involving about 500 cases, which will be entered about every 3 months.

With only about 2,000 civil jury trials typically held nationwide each year throughout the federal court system, it is likely that Courts will combine large numbers of plaintiffs for consolidated trials to avoid taking decades to resolve the 3M earplug litigation.