Second Bellwether Trial Over 3M Earplugs Hearing Damage Goes Before Federal Jury

Following a $7.1 million jury award last month in the first federal trial over problems with 3M Combat Arms earplugs, a second bellwether trial is set to begin today in the U.S. District Court for the Northern District of Florida.

There are currently more than 230,000 product liability claims pending in the federal court system involving allegations that veterans were left with hearing damage from the 3M earplugs, which were standard issue for all service members between 2003 and 2015.

The ear protectors featured a dual-ended or reversible design, which was intended 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, plaintiffs allege that 3M knew the earplugs were defective and failed to properly fit in the ear canal, placing a generation of military service members at risk of tinnitus, hearing loss and other ear damage.

Given common questions of fact and law raised in the claims, a federal multidistrict litigation (MDL) was established in the Northern District of Florida, where U.S. District Judge Casey Rodgers has been presiding over coordinated discovery and proceedings. To help the parties gauge how juries are likely to respond to certain fact patters repeated throughout the litigation, a series of early bellwether trials are being held in Pensacola.

Late last month, the first trial ended with a $7.1 million verdict for three veterans, who presented their claims during a consolidated trial that began in March 2021.

This week, a second trial begins, which involves the claims of only one plaintiff, Dustin McCombs, who indicates he suffered hearing damage due to the use of Combat Arms earplugs during his military service.

To help keep the cases moving, Judge Rodgers previously issued a pretrial order (PDF), that allocated 10 business days for the trial, with an average day expected to last 9.5 hours. However, late last week, the defendants raised objections, calling for additional time to present their side of the case.

In an order (PDF) issued on Friday, the Court rejected request, indicating that 3M waited until less than 72 hours before the trial was set to begin to file their objections.

“As the Court previously explained, the Court’s trial time allocation considered the time necessary to educate the jury on development, testing and sales of the [Combat Arms earplugs],” Judge Rodgers wrote. “The first trial plainly demonstrated that the burden of educating the jury on these matters fell primarily with Plaintiff as the first side to present the case, contrary to what the Court had assumed prior to the first trial. The Court finds the time allocation fair and not unduly prejudicial to Defendants.”

The McCombs trial is expected to reach the jury by Memorial Day, and a third trial is scheduled to begin on June 7.

While the outcomes of these early bellwether trials will not have a binding effect on other plaintiffs, if 3M can not establish that it can consistently defend the safety of the earplugs at trial, it could drastically increase the amount the company will have to pay to resolve the litigation and avoid tens of thousands of individual cases being remanded to U.S. District Courts nationwide for trial dates in the coming years.