Hundreds of Lawsuits Over 3M Earplug Hearing Loss To Be Worked Up, As Pace of Trials Ramps Up

Facing an “unprecedented backlog” of more than 250,000 claims involving veterans who suffered hearing loss from 3M Combat Arms earplugs, the U.S. District Judge presiding over the litigation indicates the pace of trials and discovery proceedings will be accelerated dramatically in the coming months.

3M Combat Arms earplugs were standard issue for all military service members between 2003 and 2015, featuring a reversible design which was supposed to block all sound when inserted one way, and provide selective filtering when reversed, to reduce loud impulse sounds will allowing users to hear spoken commands. However, in recent years a steadily mounting number of the lawsuits allege the earplugs commonly fell out and did not properly seal the ear canal, causing veterans to suffer permanent hearing loss, tinnitus and other ear damage.

Each of the claims raise similar allegations that 3M Company sold dangerous and defective earplugs to the U.S. military, while failing to warn service members about the risk of permanent hearing loss.

Given common questions of fact and law, the litigation has been centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of an MDL, or multi-district litigation, where an administrative docket has been established for plaintiffs to present claims while the parties worked through common discovery that applied to all lawsuits and prepared small groups of “bellwether” cases for early trial dates.

In a case management order (PDF) issued on August 24, Judge Rodgers announced that the court will begin requiring the parties to work up “waves” of several hundred cases simultaneously, and increase the pace at which claims registered on the administrative docket are transitioned to the court’s active docket.

“Due to the unprecedented backlog of cases piling up on the administrative docket, which tallies over 250,000 cases, the Court deems it necessary to accelerate the bellwether trials and discovery for the remaining mass of cases,” according to the order.

Last week, Judge Rodgers entered the first in a series of orders requiring plaintiffs to move about 1,358 cases to the active docket. However, the Court now indicates subsequent “Transition Orders” will require 10,000 to 20,000 cases to be moved at a time.

The Court will also enter a series of “Wave Orders”, the first three of which will include about 500 cases each. However, Judge Rodgers indicates the court will enter a new Wave Order every three months, providing only an 8-month discovery schedule before the cases are remanded back to U.S. District Courts nationwide for individual trial dates.

While these additional cases are being worked up, the MDL will also increase the number of bellwether trials that will be held for cases previously worked up be the parties, with additional cases expected to be set for trial in the coming months.

“[T]he Court has reached out to other judges in the Northern District of Florida to try cases in Bellwether Group C. These trials will take place between October and December 2021,” according to the order. “The Court also intends to solicit help trying the Bellwether Group D cases from other judges in the Circuit. These trials will take place in early Spring 2022, once discovery and dispositive motions have been completed.”

Earlier this year, an initial series of three bellwether trials were held by Judge Rodgers to help the parties gauge how juries may respond to certain evidence and testimony which will be repeated throughout the litigation. However, after mixed results, the parties appear no closer to reaching 3M earplug settlements that will resolve large numbers of cases.

The first trial ended in a massive $7.1 million verdict for three veterans, whose claims went before the same jury in a consolidated trial the ended in April 2021. The next month, 3M was able to obtain a defense verdict in the second trial, and a third bellwether case ended in a $1.7 million verdict in June.

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