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Defense Verdict Returned For 3M in Second Bellwether Trial Over Combat Arms Earplug Problems

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Only a few weeks after a federal jury awarded $7.1 million in damages to three veterans left with hearing loss from 3M Combat Arms earplugs, a second “bellwether” trial ended late last week with a defense verdict in favor of the manufacturer.

3M Company currently faces more than 230,000 product liability lawsuits over problems with the earplugs, which were standard issue to all U.S. military service members between 2003 and 2015.

Each of the claims raise similar allegations, indicating that veterans were left with hearing damage due to a defective design, which caused the earplugs to fall out and not properly seal the ear canal.

To help the parties gauge how juries are likely to respond to certain evidence that will be repeated throughout thousands of different claims, a series of early “bellwether” trials are currently being held in the U.S. District Court for the Northern District of Florida, where the litigation is currently centralized before U.S. District Judge Casey Rodgers.

In late April, the first trial ended with a massive $7.1 million verdict for three veterans, who presented their claims during a consolidated trial that began a few weeks earlier. The award included both compensatory and punitive damages, which were designed to punish 3M Company for recklessly disregarding the health of military service members when they designed and sold the earplugs, and sent shockwaves throughout the investment community, suggesting that 3M could face tens of billions in liability exposure in future trials.

Weeks after that first case concluded, trial began in a second bellwether claim brought by Dustin McCombs, which was selected for an early trial by the defense attorneys, and was perceived to present a fact pattern more favorable to the manufacturer.

McCombs claimed that he was left with tinnitus, or ringing in the ear, following use of earplugs during training and deployment to Afghanistan in 2009. However, following presentation of evidence over the past two weeks, the jury returned a verdict in favor of the defendants on May 28.

A third bellwether trial is currently expected to begin on June 7, involving claims presented by Lloyd Baker, who indicates that he was left with both hearing loss and tinnitus. According to a pretrial order (PDF) issued on Friday, the Court has set aside 10 business calendar days for this third bellwether trial, which will be split with 55% allocated to the plaintiffs, who have the burden of proof.

Following this final bellwether trial, if 3M Company is unable to resolve the litigation or start negotiating mass settlements, it is expected that additional claims will be set for trial before Judge Rodgers, and large “waves” of individual lawsuits may also be remanded back to U.S. District Courts nationwide for simultaneous trial dates in the coming years.

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