3M Testing Methods For Hearing Loss in Earplug Lawsuits Described as “Problematic” by MDL Judge

Judge said both sides’ hearing loss testing methods for the earplug lawsuits failed to address specific causation

The U.S. District Judge presiding over all federal 3M earplug lawsuits has raised concerns about proposed methods for evaluating hearing loss, indicating that 3M’s testing data excludes some frequencies that are commonly affected by noise, suggesting that it may make the findings inaccurate.

More than 230,000 U.S. veterans are currently pursuing a product liability lawsuit against 3M Company and its Aearo Technologies subsidiary, each raising similar allegations that they were left with permanent hearing damage after receiving 3M Combat Arms Earplugs. Plaintiffs allege the earplugs were sold to the U.S. government with a known design defect, which left veterans without adequate ear protectors during combat and training exercises.

The earplugs were initially developed by Aearo Technologies, which was acquired by 3M Company in 2008, and the entire Aearo hearing protection business was “upstreamed” into 3M, which continued to market and sell the defective earplugs to the U.S. government without disclosing known problems that caused them to commonly fall out of the ear canal.

Given common questions of fact and law raised in the litigation, all 3M earplug hearing loss lawsuits have been centralized for the past three and a half years before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of an MDL or multidistrict litigation.

Following a number of massive verdicts in early 3M earplug lawsuits which went to trial, and a controversial bankruptcy plan pursued by 3M and Aearo, additional trials are currently on hold while various appeals are being pursued. However, in January Judge Rodgers called for BrownGreer, PLC, a neutral company previously tasked with analyzing records from the Defense Occupational and Environmental Health Readiness System (DOEHRS), to share its findings with “all stakeholders” involved in the litigation during an open “Data Day” held on February 23.

Hearing Loss Testing Methods Criticized by Judge

Following the presentations, Judge Rodgers issued a notice (PDF) on March 10, criticizing certain testing methods for not addressing specific causation between use of the earplugs and hearing loss damage to veterans.

The Court looked at four different types of testing methods used by the parties and BrownGreer PLC, noting that none were perfect, but specifically calling out 3M’s testing methods as likely not being suitable for calculating the value of veterans’ hearing loss.

“3M’s pure tone average-based approach, for example—and we know it remains 3M’s approach based on its recent public statements and the estimation motion filed in Aearo’s bankruptcy proceedings — excludes the two frequencies (4000 and 6000 Hz) most commonly affected by noise and includes two frequencies (500 and 1000 Hz) rarely affected by noise, which is problematic in a litigation where the alleged injury is noise-induced hearing damage,” Judge Rodgers noted. “Moreover, even the pioneers of pure tone average rating schemes, the World Health Organization and American Medical Association, caution against relying on the schemes for diagnostic purposes and/or as the sole determinant in assessing a person’s hearing-related damage.”

However, she also noted that plaintiffs’ approach does not distinguish between temporary and permanent hearing loss changes, and did not measure an individual’s current hearing loss status.

Rogers expressed caution about using the parties’ testing methods for determining the value of estimating claims.

March 2023 3M Earplug Lawsuit Litigation Update

The Data Day came about a month after Judge Rodgers declared 3M earplug settlement negotiations at an impasse, after the manufacturer advised the Court that it has no desire to reach a global resolution of all claims in the MDL and continues to insist that the litigation should only be resolved through the bankruptcy system, after its Aearo Technologies subsidiary filed for Chapter 11 protections in July 2022.

Multiple challenges are being pursued to the Aearo bankruptcy filing, based on a lack of no financial distress faced by the subsidiary, since 3M has billions in assets available to cover all liabilities. U.S. Bankruptcy Judge Jeffrey J. Graham has previously rejected a requested by 3M to stay the litigation during the bankruptcy proceedings.

At a hearing in December, Judge Rodgers barred 3M Company from arguing that it was not independently responsible for the earplugs made by its Aearo subsidiary, suggesting that a recent shift in defense strategy was done in “bad faith” after nearly four years of failing to raise the argument, and the Court described the effort as a “brazen abuse of the litigation process.” However, the Court did agree to a temporary pause on the proceedings while various appeals are considered, which will have wide-ranging impacts on all cases.

If 3M Company fails to convince the appeals court to overturn prior rulings, it is expected that the Court will schedule a rapid pace of jury trials nationwide throughout 2024 and beyond. Prior estimates had suggested that the company would need to pay more than ten billion to settle the earplug lawsuits during early mediations. However, if the company loses on appeal, the settlement estimates are likely to increase dramatically.