Jury Continues To Hear Evidence In Lawsuit Over 3M Earplugs, As Judge Rejects Motion for Mistrial and Judgment as Matter of Law

Trial is continuing in the first bellwether claim alleging 3M earplugs caused widespread hearing loss in the military, after the U.S. District Judge presiding over the litigation rejected motions to dismiss and requests for a mistrial filed by the manufacturer this week.

3M Company currently faces nearly 250,000 claims filed by military veterans who say they were left with hearing damage following use of 3M Combat Arms v2 earplugs, which were standard issue to all service members between 2003 and 2015.

The earplugs featured a dual-ended or reversible design, which were supposed to block all sound when inserted one way, but provide selective filtering when reversed. This was intended to reduce loud impulse sounds, while allowing users to hear spoken commands. However, according to allegations raised in the litigation, the military earplugs commonly fell out and did not properly seal the ear canal, leaving veterans with permanent hearing loss, tinnitus and other ear damage following service.

Given common questions of fact and law raised in lawsuits, a federal multidistrict litigation (MDL) has been established before U.S. District Judge Casey Rodgers in the Northern District of Florida, where claims filed throughout the federal court system have been centralized for discovery and a series of “bellwether” trials intended to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

The first bellwether trial began late last month, and was expected to end this week, with additional trials scheduled to begin on May 17 and June 7. However, the jury continues to hear evidence, after Judge Rodgers has rejected several mid-trial attempts by 3M to stop the trial.

3M Attempts To Dismiss Case Rejected

Earlier this week, Judge Rodgers issued an order (PDF) denying a motion filed by 3M Company for judgment on the applicability of a “sophisticated intermediary” defense, which typically only applies in cases involving industrial materials that are not sold directly to the public.

The Court found no evidence the specialized defense is even recognized under the law in Georgia and Kentucky, which applies to the claims involved in the trial. However, even if it did apply, Judge Rodgers ruled it would not absolve the manufacturer of its responsibility to warn and instruct users of an ordinary consumer product, like the 3M Combat Arms earplugs supplied to military service members.

Judge Rodgers also issued a separate Order (PDF) on April 28, rejecting 3M’s Motion for Judgment as a Matter of Law (JMOL) made at the conclusion of the evidence presented by the Plaintiffs, which argued that insufficient evidence had been presented to support the case.

As a result of the decisions, the jury has been hearing evidence from defense witnesses this week.

Throughout the trial yesterday, 3M made several requests for a mistrial, which were rejected by the Court at least three times.

In a written motion (PDF) filed late in the day, 3M Company argued that a mistrial was appropriate based on what it claims was an improper jury instruction regarding the testimony of two expert witnesses, with one military audiologist saying she never heard any complaints from soldiers about the earplugs, and a doctor who reported there were a large number of soldiers who complained about the earplugs.

Judge Rogers has instructed the jury to consider that some soldiers complained about the fit of the earplugs and some didn’t, but their concerns should be whether the earplugs fit the three plaintiffs. However, 3M argued the doctor told the jury a large number of lawsuits had been filed over the earplugs, which should not have been allowed, and the question for jurors should be whether, specifically, alleged defects led to poor fits for the plaintiffs, instead of just whether the earplugs fit or not.

In an order issued by the Court yesterday evening, Judge Rodgers pointed out that the same request for a mistrial was rejected earlier in the day at 10:12am, and again at the end of the day, only 20 minutes before 3M filed the written motion. Therefore, the Court noted that the motion was being denied for a third time.

While the outcome of this bellwether trial will not be binding on other plaintiffs involved in the litigation, and is likely to be appealed, it is being closely watched and may have a large impact on settlement negotiations in hundreds of thousands of claims.

If 3M does not establish that it can successfully defend the safety of the product and it’s actions before juries, it is likely that Judge Rodgers may begin preparing large “waves” of individual cases for remand back to U.S. District Courts nationwide for individual jury trials.