Separate Track for Class Action Lawsuits Over 3M Earplugs Opposed By Manufacturer, Plaintiffs Leadership

In response to a request to establish a separate track for 3M earplug class action lawsuits pending in the recently established federal multidistrict litigation (MDL), the manufacturer and plaintiffs lawyers appointed to various leadership roles indicate that all claims should proceed together during the coordinated pretrial proceedings.

3M Company currently faces nearly 1,000 product liability lawsuits brought by military veterans who have been left with hearing loss or tinnitus due to design defects associated with the company’s Combat Arms earplugs, which were standard issue to all service members between about 2003 and 2015.

Each of the complaints raise similar allegations, indicating that the 3M earplugs were knowingly sold to the U.S. military with design defects, which caused them to not properly seal the ear canal and exposed military service members to a risk of hearing damage.

In addition to individual injury claims, a number of complaints also seek to establish a class action for the 3M earplug problems, including claims for future medical monitoring and other damages that all military veterans who received the defective earplugs may be entitled to receive.

Due to common questions of fact and law presented in the claims, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided to consolidate cases in April 2019, centralizing lawsuits pending in various different federal courts before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.

Only weeks after the cases were transferred to Judge Rodgers and pretrial schedules were established, a motion was filed to establish a separate class action track, arguing that there were significant differences between the individual hearing loss claims and the class action lawsuits. Judge Rodgers was asked to establish a separate leadership group and schedule for the pretrial proceedings involving claims that seek class action certification.

According to memorandums of opposition filed this week by both 3M Company (PDF) and plaintiffs current leadership counsel (PDF), Judge Rodgers is being urged to reject the motion, indicating that there is no need for a separate litigation track for class action lawsuits over the 3M earplugs, and that all parties will benefit from one coordinated track.

“Indeed, establishing a separate track for the putative class actions would only complicate matters and result in duplicative and overlapping efforts,” the defendants’ memorandum states. “Distinctions between the individual actions and the putative class actions can be dealt with at the class certification stage, if necessary.”

The memorandum submitted by lawyers recently appointed to various leadership roles agrees with the position taken by the manufacturer, noting that the current leadership format is capable of handling both individual and class action claims, saying that the discovery and relief sought for in both are substantially similar.

3M Combat Arms Earplug Problems

The reversible 3M earplugs were designed to serve as traditional earplugs when inserted one way, but the manufacturer indicated that they provided filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands. However, according to allegations raised in complaints filed nationwide, the manufacturer knew the earplugs were defective and left military service members without adequate ear protection.

Plaintiffs claim that the 3M earplug problems were known to the manufacturer, but instead of warning the military about the design defects or providing updated instructions about insertion procedures, the lawsuits claim that the manufacturer continued to place veterans at risk for years.

As part of the coordinated pretrial proceedings, it is expected that Judge Rodgers will likely 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 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.