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Tolling Agreement Reached for 3M Earplug Lawsuits, As Progress Made On Initial Discovery

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Parties involved in the federal 3M Combat Arms earplug litigation have entered into a tolling agreement, according to recent court records, which will allow certain claimants to extend the statute of limitations without filing a lawsuit, while efforts continue to get conduct an initial census of claims that may be presented by former military service members who have been left with hearing loss or tinnitus following use of the dual-ended earplugs.

3M Company currently faces more than 2,000 product liability lawsuits brought by former military service members, each raising nearly identical allegations that the Combat Arms earplugs provided to all soldiers in the U.S. military between 2003 and 2015 were defective and failed to provide adequate ear protection. However, some estimates suggest that there may ultimately be close to 100,000 claims as military earplug lawyers continue to review cases in the coming months and years.

Given common questions of fact and law presented in the litigation, all claims filed over the 3M earplugs throughout the federal court system are centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, for coordinated discovery and pretrial proceedings as part of an MDL, or multidistrict litigation.

According to a case management order (PDF) issued following a conference earlier this week, Judge Rogers confirmed that the parties have entered a tolling agreement to extend the statute of limitations in certain 3M earplug claims, which is part of an ongoing effort to provide the Court and manufacturer with a more accurate and informative initial count of the number of filed and unfiled claims pending nationwide.

The conference was held after a Science Day on August 26, during which the parties each made non-adversarial presentations designed to educate the Court about scientific issues that will come up during the litigation, including information about the link between hearing damage and the military earplug design.

In the order, Judge Rodgers also noted that the parties are continuing to make considerable progress with document discovery, and the manufacturer is on track to complete most document production by a September 30 deadline.

The next case management conference is slated for September 27. Future conferences are scheduled for October 25, November 22 and December 16.

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.

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