Discovery in Military Combat Earplugs Lawsuits To Move Forward With Remote Deposition Technology

As the on-going COVID-19 pandemic continues to disrupt judicial proceedings in courts nationwide, the U.S. District Judge presiding over all federal military combat earplug lawsuits has directed parties involved in the litigation to submit proposed protocols for taking “remote depositions” over the coming months, to keep discovery in tens of thousands of hearing loss claims brought by veterans moving forward.

There are currently more than 150,000 former U.S. service members pursuing claims against 3M Company and it’s Aero Technologies subsidiary, each involving similar allegations that defective Combat Arms earplugs were standard issue by the military between 2003 and 2015, leaving veterans with permanent hearing loss, tinnitus and other injuries.

Given common questions of fact and law presented in the claims, cases filed throughout the federal court system are centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and serve the convenience of parties, witnesses and the judicial system.

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Earlier this year, Judge Rodgers outlined the process for completing discovery in a small group of representative 3M earplug cases that were selected for a bellwether program, which are being prepared for early trial dates next year.

Disruptions caused by the COVID-19 pandemic have hindered the parties’ ability to complete discovery in the cases. Among other issues, the Department of Defense has put in place a ban on non-mission-essential domestic travel through at least June 30, which would prevent the ability to conduct face-to-face depositions with military personnel involved in the litigation.

In response, Judge Rodgers issued a case management order (PDF) this week, which calls for the parties to propose a joint remote deposition protocol by May 6.

“If the remote deposition technology proves effective and reliable during these depositions, then the remaining government depositions in this litigation will proceed remotely for as long as the DoD travel restrictions remain in place,” Judge Rodgers wrote. “The determination of whether the corporate depositions will be in-person or remote will be made at a later date and will depend on the current status of the public health crisis, and the effectiveness and reliability of the remote deposition technology used for the depositions of government witnesses in May 2020.”

The order calls for parties to schedule and conduct the remaining corporate depositions in June, with a series of monthly case management conferences scheduled throughout the remainder of 2019, many of which are likely to be handled through telephone calls between the Court and lead attorneys involved in the cases.

3M Combat Arms Earplug Litigation

The litigation over problems with the military combat earplugs is expected to continue to grow over the rest of this year, as lawyers continue to review and file claims for veterans left with on-going hearing loss and damage allegedly caused by design defects with reversible 3M earplugs.

The 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 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.

While the outcome of eventual bellwether cases will not be binding on other plaintiffs involved in the litigation, the process is designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation. If the parties fail to reach earplug hearing loss settlements or another resolution for the litigation following the bellwether trials, each claim may ultimately be remanded back to the U.S. District Court where it would have originally been filed for individual trial dates in the future.


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