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The U.S. District Judge presiding over all federal 3M Combat Arms earplugs lawsuits has rescheduled a “Science Day” for late August, where the parties will make non-adversarial presentations designed to educate the court about issues that will come up in the litigation over hearing loss suffered by U.S. military veterans in recent years.
There are currently more than 800 product liability lawsuits filed on behalf of individuals nationwide, each raising similar allegations that there is a connection between hearing loss and 3M earplugs provided to nearly every service member between 2003 and 2015.
Plaintiffs indicate that 3M Company failed to disclose known defects with the earplugs, which make them too small to properly fit the ear canal. As a result, the earplugs may imperceptibly loosen and leave wearers without adequate ear protection.
Given similar questions of fact and law raised in complaints pending throughout the federal court system, U.S. Judicial Panel on Multidistrict Litigation (JPML) decided last month to consolidate and centralize the claims for pretrial proceedings before U.S. District Judge Casey Rodgers in the Northern District of Florida, to prevent duplicative discovery into common issues, avoid conflicting schedules and to serve the convenience of the parties, witnesses and the courts.
In an order (PDF) issued June 4, Judge Rodgers indicated that a “Science Day” has been scheduled for Monday, August 26. The parties have been ordered to meet and confer about the proposed parameters for the presentations, including the timing, scope of topics, and level of detail that will be involved, and submit a joint agenda by August 5.
In complex product liability litigation, it is common for courts to scheduled such scientific presentations early in the case, to educate the court about issues and concepts that will come up during the proceedings. The presentations are designed to be educational, not adversarial, and typically are not part of the official record or subject to cross examination.
The presentations will likely focus on the science between hearing loss and the earplug designs, which featured a unique reversible design. While they were intended to serve traditional earplugs when inserted one way, blocking all sound, the manufacturer indicated that they provided filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands.
Plaintiffs claim that problems with the 3M earplugs were known before they were sold to the U.S. Military, and the manufacturer provided false and misleading information to the government.
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 earplug 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.