Judge Orders 500 Cases In 3M Earplugs MDL To Prep For Trial

The Florida federal judge overseeing the multidistrict litigation over veterans’ claims that 3M Co. earplugs damaged their hearing recently ordered a second “wave” of 500 cases to be prepared to go to trial. In a Feb. 22 order, U.S. District Judge M. Casey Rodgers set 500 more cases to be prepared for discovery, bringing the total number of cases being worked on for trial to 1,000, following a Nov. 1, 2021, order. She also set deadlines for depositions and discovery requests in the cases brought by service members and veterans alleging they experienced tinnitus and hearing loss stemming from 3M’s CAEv2 earplugs. Lead plaintiffs’ counsel Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC, Shelley Hutson of Clark Love & Hutson PLLC and Christopher Seeger of Seeger Weiss LLP said in a statement they welcomed the order. “Juries continue to find that 3M’s earplugs were defective and that they are responsible for causing irreparable hearing damage to those who served our country,” the attorneys said. “Juries that rejected 3M’s defenses have returned awards of millions of dollars per plaintiff — underscoring the severity of these injuries and the deplorable nature of 3M’s misconduct.” The largest and most recent verdict awarded $110 million to two service members in January in the sprawling multidistrict litigation bellwether series that includes nearly 300,000 service members. The plaintiffs have prevailed in six of the 11 bellwether cases that have been tried so far, whereas 3M has beaten the claims in five of the bellwether trials. In August 2021, Judge Rogers ordered the cases to speed up, citing an “unprecedented backlog” of more than 250,000 cases. She said she would issue “wave orders” requiring the parties to work up hundreds of cases simultaneously. The multidistrict litigation, which includes cases brought by hundreds of thousands of military veterans and service members, was initially created in April 2019 and has proceeded rapidly to the bellwether trial stage. In a separate Feb. 22 case management order, Judge Rogers said she would be monitoring how many cases are dismissed, saying eight previous bellwethers had been dismissed either before or during discovery. “If that pattern of dismissals holds across the litigation, approximately 80,400 cases could be dismissed before or during discovery,” the judge said. “Depending on what happens in the first few waves, the court may consider entering an order requiring a threshold level of proof before a case can be selected for future wave orders.” The cases contend 3M and a subsidiary, Aearo Technologies LLC, supplied CAEv2 earplugs that were defective. For its part, 3M argues the military bears some responsibility for how the earplugs were designed and delivered. But while the military had some influence on the earplug — the U.S. Army made it clear it would only buy the device if it could be worn under a helmet and stored in a military traveling case — Judge Rodgers ruled 3M can’t tell juries the government dictated or approved any aspect of the earplug’s design or its instructions and warnings. “3M’s conduct with respect to the CAEv2 product was consistent with the company’s values and longtime commitment to keeping our U.S. military safe,” a 3M representative told Law360 on Thursday. “We will continue to defend ourselves vigorously throughout this litigation.” The service members are represented by Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC, Shelley Hutson of Clark Love & Hutson PLLC and Christopher Seeger of Seeger Weiss LLP, among others. 3M is represented by Mark Nomellini, Mike Brock and Carrie Karis of Kirkland & Ellis LLP, Jay Bhimani of Dechert LLP, and Charles Beall of Moore Hill & Westmoreland PA, among others. The multidistrict litigation is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, in the U.S. District Court for the Northern District of Florida.