Plaintiffs Ask Court To Combine Five 3M Earplug Lawsuits For Joint Bellwether Trial

With more than 220,000 former military service members and veterans pursuing lawsuits over hearing loss from 3M Combat Arms earplugs, plaintiffs ask the U.S. District Judge presiding over the litigation to combine a group of five claims together for one “bellwether” trial, which will help the parties gauge how juries are likely to respond to certain evidence that will be repeated throughout the cases.

3M Combat Arms (CAEv2) earplugs were standard issue to all service members in the U.S. military between 2003 and 2015, involving a dual-ended or reversible design. The earplugs are supposed to block all sound when inserted one way, but provide selective filtering when reversed, to reduce loud impulse sounds while allowing users to hear spoken commands.

Over the past few years, a steadily growing number of lawsuits have been filed against 3M by former service members and veterans left with permanent hearing loss or tinnitus, alleging that that the earplugs were defective and too small to fit the ear canal.

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Although the manufacturer was aware of problems where the earplugs commonly fell out of the ear, the lawsuits each raise similar claims that 3M withheld critical safety information and instructions for proper use from the U.S. government and members of the military.

Given common questions of fact and law raised in lawsuits, a federal multidistrict litigation (MDL) was established last year, which centralized the claims before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.

As part of the coordinated management of the growing litigation, Judge Rodgers has established an early bellwether program, where a several small groups of representative cases are going through a discovery process in preparation for early trial dates, which are expected to begin in April 2021.

While the outcomes of these early trials will not be binding on other plaintiffs, they will be closely watched by parties involved in the litigation to determine how juries respond to evidence about the link between the 3M earplugs and hearing loss. However, with hundreds of thousands of additional claims pending, it could take decades to resolve the litigation if each claim goes to trial individually.

In a motion (PDF) filed on December 7, plaintiffs encouraged Judge Rodgers to combine five different claims from the “Group A” bellwether pool for one consolidated trial, arguing that each of the claims involve substantial overlap of both law and facts, which justify combining the claims for one trial for efficiency.

“Across all five cases, the factual and legal issues are predominately common: the CAEv2’s defects, and 3M’s inadequate warnings and misrepresentations. Single-plaintiff trials would burden the Court, the parties, and witnesses with the presentation of duplicative evidence and the relitigation of common issues,” the plaintiffs’ motion states. “A consolidated trial, on the other hand, will allow the common issues to be presented only once, allowing timely consideration of the Group A Bellwethers’ claims, without unduly taxing the available judicial resources.”

The request comes as the Court, like other courts nationwide, struggles with conducting hearings and depositions of witnesses during the ongoing pandemic. They must often conduct such procedures through video teleconferencing and other remote communication means.

The motion comes following a case management conference held on November 20, after which the Court issued an order (PDF) for the parties to submit briefs on the issue of whether to consolidate trials among the first group of bellwether cases. Any response by the manufacturer must be filed by December 15, and any reply brief by the plaintiffs is due by December 22.

Leading up to the scheduled start of the first bellwether trial on April 5, Judge Rodgers has scheduled a series of monthly case management conferences with the parties.

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