Products Liability
It has been a long strange journey to the 3M earplug settlement. Before we get to the meat of the 3M Combat Arms earplug lawsuits are/were about, our attorneys update you with the latest news in the 3M earplug litigation.
3M EARPLUG LAWSUIT UPDATES
December 2, 2024: After significant movement in October from reducing settled cases, the 3M earplugs MDL saw no changes in November, with the pending case count remaining at 148,528.
October 1, 2024: Following a reduction of over 20,000 cases in August, the 3M earplug MDL saw a more modest decrease in September, with only 29 additional cases dropped. The total number of pending cases now stands at 224,418.
September 2, 2024: There are now 109,838 plaintiff that have received their settlements. The number of pending cases in the MDL has dropped down to 224,417, a decrease of about 20,000 cases from last month.
July 1, 2024: The number of active cases decreased from 247,640 in June 2024 to 237,907 in July 2024. This represents a reduction of 9,733 cases, most from the dismissal for failure to cooperate. I don’t think all the settlements have cleared for these numbers which makes them fairly useless.
June 15, 2024: 3M and its subsidiary Aearo Technologies are facing challenges in securing over $1.5 billion in insurance coverage following a $6 billion settlement for multidistrict litigation over defective combat earplugs.
The companies reported to the MDL judge that they are litigating against their insurers in Delaware state court and in arbitration in London, accusing the insurers of failing to honor their coverage obligations. Despite their efforts, the insurers have allegedly engaged in tactics to delay and deny coverage. Well, at least 3M is incredibly familiar with this tactic.
June 3, 2024: We saw no change at all in the number of pending cases in the 3M MDL during the month of May. The MDL has 247,640 pending cases, exactly the same number of cases that were pending at the start of May.
May 18, 2024: Some law firms are part of the Settlement Program’s “Ledgering Process” for processing 3M earplug lawsuits. (266 law firms). This means BrownGreen is handling the accounting. But 73 law firms, many of which have the largest volume of clients, are represented by “non-lingering” law firms.
May 1, 2024: As the settlement procedure advances, the 3M earplugs MDL keeps shrinking. In the past month alone, 23,478 cases were resolved from the 3M MDL, reducing the total number of pending cases to 247,640. This represents the most substantial monthly decline since the litigation commenced.
April 18, 2024: The MDL judge issued Case Management Order No. 88 pertaining to the 3M settlement. This order introduces a “Bulk Submission” method, facilitated by the Settlement Administrator, BrownGreer, which allows Primary Counsel to simultaneously submit data and documents for numerous claimants. This method applies to submissions for the Extraordinary Injury Fund (EIF) Award Applications and Deferred Payment Program (DPP) Supplementations.
Detailed guidelines for this bulk submission process were provided to the lead plaintiffs’ lawyers on Monday. To prevent logistical issues, the court has established specific deadlines for these submissions that are earlier than those for individual submissions. These deadlines are April 22, 2024, for MSA III Wave Claimants and July 23, 2024, for MSA I Claimants, for both EIF applications and DPP supplementations.
The order also stresses the importance of adhering to the required naming conventions for EIF and DPP documents to ensure they are correctly matched with claimants. Failure to comply with these rules could lead to sanctions against the Primary Counsel utilizing the Bulk Submission process.
April 1, 2024 Update: With the commencement of settlement payments, the 3M class action MDL is at last witnessing a reduction in size. Over the past month, approximately 5,000 cases have been resolved, resulting in a decrease in the total number of pending cases to 271,118.
January 26, 2024 Update: These settlement deadlines are helpful:
| Date | Event |
|---|---|
| 12/20/23 | MSA III Initial Registration Date |
| 1/8/24 | Ledgering Data on Fees and Costs for EPP Fast Track Claimants Due from Primary Counsel |
| 1/25/24 | MSA I Initial Registration Date |
| 1/26/24 | Extraordinary Injury Application Opens and DPP Supplementation Period Begins |
| 1/31/24 | Ledgering Data on Fees and Costs for All Other Eligible Claimants Due from Primary Counsel |
| 4/25/24 | MSA III Extraordinary Injury Applications Due |
| 7/26/24 | MSA I Extraordinary Injury Applications Due and DPP Supplementation Period Ends |
January 3, 2023 Update: Judge Rodgers has signed off on 3M Co.’s proposal to issue $1 billion worth of unregistered stock. The court’s approval, which was expected, hinged on several nuanced aspects of the settlement, emphasizing the fairness and practicality of using unregistered stock as a form of compensation. The court’s order details the process for valuing the unregistered stock, employing a weighted average method commonly used by regulators and experienced professionals for valuing shares of publicly traded firms
To mitigate the risk of stock dilution as the veterans’ fund dumps the shares, the issuance of stock will be executed in tranches. An additional layer of risk management is introduced by appointing an investment manager and adviser to oversee and minimize the investment risks.
November 16, 2023 Update: Over the last month the 3M earplugs MDL has increased by over 42,000 cases. That is the biggest monthly new case volume we have seen in this MDL (and probably any MDL ever). The massive influx of new cases pushes the pending case total back up to 285,758. The settlement cutoff was long ago… this is just the most recent accounting.
November 7, 2023 Update: Judge Rodgers has eliminated a substantial number of duplicate lawsuits in the ongoing 3M earplug case, adhering to her previous deadline for sorting out case and representation overlaps. As a result, only the earliest filed case for each claimant remains active, with the rest being dismissed with prejudice, clearing 3,548 cases from the docket due to this cleanup.
October 30, 2023 Update: Earlier this month, Judge Rodgers ordered that specific claimants, whose Identification Order Declarations were missing this data, must furnish accurate email and cell phone details to the Settlement Data Administrator by October 12, 2023.
On Friday, Judge Rogers issued directives for two distinct groups of plaintiffs. The initial group, composed of eight individuals, is allotted time until November 3, 2023, to provide the necessary information. If they fail in this obligation, their cases will be dismissed owing to their continuous breach of the Court’s directives.
The second group of 39 plaintiffs already experienced case dismissals for varied reasons. Their remaining procedural step, as stated in the order, is the closure of their PIDs in MDL-Centrality, a task assigned to the Settlement Data Administrator.
October 17, 2023 Update: Scammers are attempting to defraud claimants involved in the $6 billion settlement related to 3M combat earplugs, which are alleged to have caused hearing damage. Judge Rodgers issued a warning about fraudulent actors posing as Archer Systems employees, the company administering the settlement. They are cold-calling claimants, requesting sensitive information such as social security numbers and dates of birth. Judge Rodgers declared these calls a scam and alerted the Federal Bureau of Investigation. Archer Systems uses a specific contact number for claimants, which scammers have spoofed to appear legitimate.
October 11, 2023 Update: A federal magistrate judge has warned plaintiffs’ lawyers of potential sanctions if they persist in submitting redundant claims and filings, which, according to the judge, unnecessarily drained court resources and added undue intricacy to the resolution of these cases.
October 10, 2023 Update: 3M has withdrawn several appeals related to its combat earplugs in the Eleventh Circuit even though the overall settlement with service members has not been finalized. The appeals court approved 3M’s request to drop the four main cases.
October 5, 2023 Update: Are you to reimburse the VA for your VA benefits? Can the VA place a lien on your recovery? Thankfully, the answer is no.
But if you used private health insurance or received care from a private healthcare provider outside of the VA, then you are responsible for covering those costs using your settlement funds. This includes expenses associated with Medicare, Medicaid, and private health insurance.
The good news is you should not pay back the full amount. Upon receiving your Registration Form, you will get a lien questionnaire that Archer will use to try to reduce any liens you might have.
October 4, 2023 Update: To be eligible to participate in the deferred pay program, you must:
- Sign the registration form with the Deferred Pay Full Evaluation Settlement Program elected and submit it to the settlement administrator on or before December 31, 2023;
- Establish mild or greater hearing loss caused by a defect in the earplugs; and
- Execute the release and submit it to the settlement administrator on or before December 31, 2023.
October 2, 2023 Update: There is frustration from victims that they are hearing from Archer (Brown Greer) instead of their lawyers. Archer is the official Settlement Administrator chosen by Judge Rodgers to assist with the 3M earplug settlement. Lawyers have shared your contact details as required by Judge Rodgers’ order. So the details of the settlement will be dealing with Archer by design. That does not mean you should not be discussing your options with your lawyer.
September 18, 2023 Update: There are 242,604 pending cases in the 3M earplugs MDL. That is a decrease of over 12,000 since the start of the summer. This modest downsizing is not related to the recently announced settlement deal but rather the result of long overdue docket control measures implemented by Judge Rogers.
September 14, 2023 Update: This is an excellent post on how to get your medical records in these cases.
September 12, 2023 Update: Here is the settlement agreement itself and other documents related to the 3M earplug settlement.
September 1, 2023 Update: Judge Rodgers issued an order to predatory lending practices in the 3M settlement.
Her concerns are valid. The third-party litigation funding groups are generally awful. So the judge’s order requires earplug claimants and their attorneys to disclose all third-party litigation funding arrangements to the judge to and ensure that they are fair and reasonable. Her ability to interfere in a third-party contract under state law is a little hazy – but she is a federal court judge and that comes with some sway.
Judge Rogers also ordered that the Court-appointed Settlement Administrator to maintain all settlement funds for plaintiffs who received a loan. The Settlement Administrator will not have any obligation to negotiate repayment of any third-party litigation or settlement loan.
August 28, 2023 Update: 3M’s board of directors has formally approved the $6 billion earplug settlement agreement, according to statements filed with the SEC today. The $6 billion in settlement funds will be paid out over the next several years based on qualifying criteria set forth in the settlement. The Payment Schedule attached to the settlement agreement shows the breakdown of when 3M will be funding the settlement.
August 28, 2023 Update: Why aren’t lawyers in the settlement negotiations telling everyone what is in the settlement deal? Judge Rodgers ordered the attorneys to keep everything confidential and no one wants to risk her wrath by violating her order. But that will change this week and we will get more information.
It is hard not to be annoyed that 3M stock is up over 5% this morning in premarket trading.
August 27, 2023 Update: Bloomberg News reported on a $5.5 billion 3M earplug settlement today.
Estimations from for potential liability for 3M ranged from $8 billion to $25 billion. So what gives? A number like $25 billion was never realistic. And not every plaintiff will accept the settlement offer and that will likely mean many billions more in a second round of settlements.
Our lawyers are no longer handling new claims.
We will tell you more as we learn more.
August 2, 2023 Update: Incredibly, there are still 139 plaintiffs that have filed more than one lawsuit in the 3M MDL. The judge is asking the lawyer to figure it out or she will just dismiss the later filed claim for each duplicate plaintiff.
Another group of over 350 3M earplug plaintiffs will get their cases dismissed this week unless they submit outstanding documentation by tomorrow, August 3, 2023. The required documents include military records or plaintiff census forms.
There is nothing concrete. But settlement rumors continue to percolate from multiple sources.
July 18, 2023 Update: As of July 17, 2023, there were a total of 257,449 plaintiffs with pending cases in the 3M earplugs MDL, an increase of nearly 3,000 since the previous month. The never-ending stream of plaintiffs has become a major obstacle to settlement, but a significant reduction in pending cases is expected in the next few weeks as Judge Rogers is planning to dismiss large blocks of cases for failure to comply with procedural requirements.
July 10, 2023 Update: The first trial for non-veteran claims is set to go to trial today in Minnesota state court. We have not followed this litigation very closely. But a big verdict could have an impact on 3M’s settlement thinking in this litigation.
July 5, 2023 Update: There is a new tolling agreement in place for Claimants who filed or pocket-served lawsuits against 3M during the bankruptcy stay that do not name Aearo as a defendant between July 25, 2022, and June 9, 2023. The agreement does not revive claims where the statute of limitations has already passed. The tolling period ends at the end of the year (but may be extended).
July 1, 2023 Update: Judge Rodgers dismissed more cases yesterday for failing to comply with (the most basic) requirements to participate in the litigation. This is good news for plaintiffs with real claims. Having nonviable cases padding the numbers helps no one.
June 28, 2023 Update: 3M asked the 11th Circuit yesterday to overturn Judge Rodgers’s ruling that prohibits 3M from challenging certain decisions from the MDL and threatening potential contempt charges if it attempts to do so. This prevents 3M from leveraging Aearo’s Chapter 11 filing to reexamine decisions made MDL, most notably the government contractor defense that 3M still believes it will get someone to buy at some point.
Plaintiffs argue that 3M can only make the same argument to so many judges and the appropriate path if they disagree with Judge Rodgers is to appeal. 3M has appealed but it wants to appeal to every possible judge that it can.
The irony of it all is that Aearo’s bankruptcy has been dismissed. So 3M would have to win this appeal and the dismissal of the bankruptcy and then get the bankruptcy judge to bite on the government contractor defense. triumphs in its appeal or Aearo’s financial circumstances change prompting a new bankruptcy attempt, the bankruptcy proceedings could resume.
June 21, 2023 Update: In a bid to overturn a $50 million verdict resulting from a bellwether trial involving allegedly faulty earplugs, took its case to the Eleventh Circuit on Tuesday. The company took issue with what it perceives as several major errors by the trial court and emphasized its status as a government contractor, which, it argues, should provide immunity.
We think the 11th Circuit is unlikely to disturb this $50 million award to U.S. Army veteran Luke Vilsmeyer.
June 16, 2023 Update: We saw a reduction in the number of pending cases in the MDL for the second month in a row. As of 6/15/23 there were 254,943 active plaintiffs in the earplugs MDL, which is 10,000 less than at the start of the year.
June 15, 2023 Update: Judge Jeffrey J. Graham has ruled that Aearo Technologies, a 3M subsidiary grappling with liability claims related to its combat earplugs, can present its Chapter 11 case dismissal appeal directly to the Seventh Circuit. Judge Graham cited the public significance of the issues and the absence of a definitive ruling from the Seventh Circuit or Supreme Court. This ruling comes shortly after Graham dismissed Aearo’s Chapter 11 case for lacking a valid reorganization objective. Aearo, which attempted to leverage bankruptcy to shield 3M from liability and resolve defective product claims, now has two weeks to argue for certification of the appeal.
June 13, 2023 Update: Yesterday, MDL Judge Casey Rogers issued several orders aimed at clearing cases off the massive 3M earplugs docket. The first Order states that all plaintiffs who failed to submit required information about their military service will have their cases dismissed if the documents are not provided by July 2nd. The second Order states that all plaintiffs who have failed to submit census forms will have their cases dismissed by June 26th.
June 12, 2023 Update: A judge has ruled that Aearo Technologies, a subsidiary of 3M and the bankrupt manufacturer of allegedly faulty combat earplugs, cannot seek bankruptcy relief. The Chapter 11 proceedings filed by Aearo last year to address around 230,000 claims of hearing loss by combat veterans were deemed to lack a valid purpose for reorganization, according to Judge Jeffrey J. Graham of the US Bankruptcy Court for the Southern District of Indiana.
Judge Graham expressed the opinion that it exceeded the court’s jurisdiction to allow a financially healthy debtor, particularly one whose debts are backed by a financially robust Fortune 500 multinational conglomerate, to remain in bankruptcy without any imminent solvency issues.
Judge Graham’s decision is a big deal for this case and others like it. The issue is financially stable corporations finding ways to separate and settle mass tort liabilities through bankruptcy which is ridiculous. The judge pointed to Johnson & Johnson’s establishment of a special-purpose entity to handle and resolve claims related to the company’s talc-based baby powder allegedly causing cancer as a notable example. The US Court of Appeals for the Third Circuit’s dismissal of the J&J unit’s initial bankruptcy case, ruling that the company was not in financial distress, further influences Aearo’s bankruptcy proceedings, according to Judge Graham.
This is a big win for plaintiffs, who have had to deal with 3M hiding behind the bankruptcy court’s skirt for far too long.
June 2, 2023 Update: Judge Rodgers’s take on 3M settlement negotiations: “Mediation did not result in a settlement, but progress was made, and negotiations continue.”
June 1, 2023 Update: Yesterday, in the least important ruling in the history of the 3M litigation, the 11th Circuit Court found that Judge Rodges wrongly imposed sanctions totaling $12,000 on two trial attorneys representing 3M Co. in a veterans’ earplug defect case.
The sanctioned lawyers, Kimberly Branscome and Jay Bhimani of Dechert LLP, allegedly violated the judge’s instructions on presenting a piece of evidence during closing arguments. The Eleventh Circuit Court ruled that Judge Rodgers failed to provide the necessary notice before imposing sanctions and did not demonstrate that the lawyers had acted in bad faith. The judge can still sanction these lawyers, she just has to use a different standard in issuing her punishment.
May 22, 2023 Update: A federal judge has ruled that 3M CEO, Mike Roman, must be present at a pivotal mediation session regarding allegations that the company’s combat earplugs failed to protect service members’ hearing. Scheduled for May 25 and 26, the session also requires attendance from the service members’ settlement committee. Following unsuccessful bankruptcy settlement talks, the judge ordered the mediation to resume. Roman’s engagement with the mediators is crucial, the judge believes, to accurately inform the Board of Directors about the potential for a global resolution.
A 3M earplug settlement is far from a done deal. Far. But this is probably the closest we have been in the over four year history of the MDL.
May 15, 2023 Update: Over the last month the total number of pending cases in the 3M earplugs MDL decreased 262,426 to 255,500. That is the second biggest reduction in the number of active plaintiffs since the MDL began. The reduction is likely the result of dismissals triggered by a failure of the plaintiffs to provide the supporting documentation required to keep their case active.
May 8, 2023 Update: Judge Rodgers dismissed more cases last week for failure to comply with some pretty basic requests for information. If there is no motion to refile in these individual cases after June 5, 2023, they will be permanently dismissed.
May 3, 2023 Update: 3M settlement talks are back on. The mediation will be led by two very experienced retired judges and a court-appointed mediator Randi Ellis. The new settlement talks will encompass MDL class action and the thousands of earplug cases (that we never talk about) pending for non-direct military plaintiffs in Minnesota state court. The order comes after months of impasse, during which the bankruptcy mediation process failed to yield a settlement.
As we said on Monday, it would be wise for 3M to settle these lawsuits before the 11th Circuit shoots down the government contractor defense.
May 2, 2023 Update: An Eleventh Circuit panel of judges appears open to affirming four veterans’ hearing-loss verdicts and a lower-court ruling against 3M Co. regarding defective combat earplugs. 3M pushed its claim that it has broad immunity as a government contractor.
The 11th Circuit seemed concerned that the lack of a contract was found to be a reason to deny 3M immunity as a matter of law. But none of that matters if the court finds no evidence of precise specifications. It is really hard to argue there were precise specifications in this case as Justice Scalia specifically required in the seminal case on this defense.
You cannot help but go into the arguments hoping that the 11th Circuit will ridicule 3M’s position. That arguably happened in the bankruptcy appeal. It did not happen yesterday. Still, the plaintiffs still had much stronger arguments. More importantly, the court seemed to be setting up a ruling where they overrule Judge Rogers on some threshold rulings but affirm the verdicts because there is no reasonable evidence of the precise specifications that the Supreme Court requires.
You can listen to the arguments here.
May 1, 2023 Update: 3M is dusting off its government contractor defense and heading to the 11th Circuit today, claiming it has broad immunity from lawsuits.
We have been discussing the government contractor defense since this litigation began. We flush it out at the bottom of this page. This defense is based on the idea that if the government is immune from third-party injury claims related to a contract, the government contractor carrying out the government’s specific orders should also be shielded from legal action. So if the government signs a contract with a defense contractor and says build me this jet to these precise specifications, you can’t sue the contractor. The law makes sense.
A ruling in favor of 3M on the immunity issue would end the litigation. But the odds of a 3M victory are remote. It fails the most basic premise of the defense: it did not even have a contact with 3M. Nor did the government approve reasonably precise specifications for the CAEv2.
If 3M were smart, it would have settled these lawsuits while this issue remained unresolved. Plaintiffs’ lawyers always fear dispositive motions, so you get credit for the pressure of the motion hanging over plaintiffs’ heads. But when the 11th Circuit shoots this defense down, 3M will have lost the last threat arrow in its quiver.
You can hear the oral arguments on Monday. It is the second case up this morning. Or you can wait for us to give you the full report.
April 20, 2023 Update: A bankruptcy judge in Indiana is hearing oral arguments this week on a motion to dismiss a controversial bankruptcy filed by 3M earplug subsidiary Aearo Technologies. The bankruptcy court has already refused 3M’s request to be protected by the stay in the Aearo bankruptcy. That pivotal issue (which was really the whole point of the Aearo bankruptcy in the first place) is currently on appeal to the 7th Circuit, where things look bleak for 3M (see the April 14 Update below).
3M earplug plaintiffs are also pushing a more aggressive course of action by demanding the dismissal of the bankruptcy, citing the same grounds established by the 3rd Circuit in a similar case involving J&J in the talc litigation. The bankruptcy court hearings are ongoing, and the judge is expected to issue a ruling promptly after they conclude.
April 19, 2023 Update: Oral arguments for the appeal of the initial bellwether verdicts will be on May 1, 2023.
April 14, 2023 Update: 3M thinks the whole world is out to get them. The latest villains are likely the 7th Circuit, who seemed highly skeptical of 3M getting a stay on the litigation because of the Aearo bankruptcy.
You can hear the oral arguments – audio-only – online. Pick it up at about the 40:40 mark if you are interested. There are a lot of bankruptcy-specific arguments made by 3M and resoundingly rejected by the judges. But at 46:10, Judge David Hamilton asks the big picture question: “One of the points that some of the amicus make, they suggest that if this maneuver works, why won’t it automatically happen anytime a defendant in an MDL starts to get uncomfortable with the MDL court’s rulings?” This is precisely what happened in this case. 3M was quite happy with the MDL process until the judge started making rulings and juries had a chance to be heard.
April 1, 2023 Update: Bloomberg has an article on how 3M’s litigation woes are dragging down the stock. If 3M would have offered reasonable settlement amounts to victims before the bellwether trials, it share price would be a lot higher today. The same logic applies now. Settling these cases today will be cheaper than settling them next year.
March 31, 2023 Update: Judge Rodgers is still looking to weed out lawsuits that are not viable. Last week, the judge ordered a number of veterans involved in the litigation to provide proof of their military service by a specific deadline. The court warned that failure to provide this proof would result in the dismissal of their case. The court has now dismissed the cases of several plaintiffs who failed to provide this proof by the deadline. However, active-duty plaintiffs and non-veterans may file a motion to reopen their case if they provide a statement clarifying their status with respect to military service.
The court’s goal is to keep the lawsuit moving forward in an organized and efficient manner. As we have said before, this process helps veterans with meritorious claims.
March 11, 2023 Update: 3M was pretty excited earlier in the month to claim that DOD records showed most earplug plaintiffs suffered no hearing loss. Judge Rodgers pushed back on that yesterday, criticizing the company’s methods for testing whether its military combat earplugs caused hearing loss as “problematic.” She criticized plaintiffs, too, noting that the plaintiff’s separate testing approach does not consider “specific causation” and does not measure or value an individual’s current hearing loss status.
March 2, 2023 Update: Shares of 3M rose sharply yesterday after the company filed a motion in the Aearo bankruptcy proceeding claiming that recently produced medical records from the Department of Defense show that 90% of the 3M plaintiffs have no hearing impairment.
Not surprisingly, 3M’s self-serving interpretation of the DOD data is highly flawed and the claim that 90% of the plaintiffs have no hearing loss is grossly misleading. Just last week the MDL Judge held a “data day” to review the DOD medical data.
During that presentation, Judge Rodgers noted that the data was subject to multiple interpretations and that 3M has chosen to interpret it in a way that is most advantageous to its position.
February 27, 2023 Update: The federal government is with us. The Justice Department is seeking to dismiss Aearo’s bankruptcy in Indiana, claiming as it did before the 3rd Circuit that its Chapter 11 filing was a ploy to benefit its solvent, dividend paying parent company and escape ongoing litigation over allegedly faulty earplugs. Consistently, it is making the same obvious point now to the bankruptcy court: this was not the congressional purpose of the Bankruptcy Code.
February 23, 2023 Update: Judge Rodgers held the 3M earplug data day as planned this morning, which featured comments from the bench and a 90-minute presentation from the third-party claims administrator. The overriding takeaway from the presentation was that 3M and the plaintiff leadership have adopted vastly different interpretations of the injury data based on various metrics. The metric favored by 3M would result in a very large percentage of plaintiffs (as high as 85%) being classified as having no injury and excluded from any settlement. Under the approach favored by the plaintiffs, a much smaller percentage of plaintiffs would be excluded. Judge Rodgers explained that both sides are entrenched in their respective data metrics and that this has been the primary roadblock to getting a global settlement done.
February 22, 2023 Update: Judge Rodgers will hold a “data day” tomorrow in the 3M earplugs MDL at which the third-party claims administrator for the MDL (Brown Greer) will make a presentation summarizing the data collected about the hear-loss claims made by plaintiffs in the MDL. In her Order, Judge Rodgers explained that the purpose of the data day is “to educate those outside of leadership roles in the MDL about the nature and scope of the hearing-related claims in this litigation.”
So why now? In cases where an MDL judge believes the claims have merit, the judge always wants a successful resolution to the litigation and that means a settlement. We think this is an effort by Judge Rodgers to facilitate continued settlement negotiations between 3M and the plaintiffs by giving everyone involved in the litigation a better idea of the scope and nature of the 268,000 hearing loss claims currently on the table. 3M has consistently complained of difficulties in accessing so many claims. That data here shows we have a good statistical understanding of what all of the claims are about.
February 20, 2023 Update: New 3M earplug cases continue to get filed in large numbers. Over the last 30 days, another 2,604 new earplug cases were added to the MDL, bringing the current pending case count to 265,092, At its peak, the MDL was just under 300,000. But Judge Rodgers has been steadfast about dismissing claims that are not viable. Which is a good thing for getting these claims settled for the real victims.
February 14, 2023 Update: Yesterday, U.S. Bankruptcy Judge Jeffrey Graham postponed the hearing on the recent motion by the 3M plaintiffs seeking full and immediate dismissal of the Aearo bankruptcy. Instead of this week, Judge Graham will hold the hearing sometime between April 19-21.
February 6, 2023 Update: The Bankruptcy Court in the Southern District of Indiana will hold a Status Conference next week on the recent Motion to Dismiss filed by the 3M earplug plaintiffs. The Motion asks Judge Graham to fully dismiss the Aearo bankruptcy proceeding based on the “precedent” recently established by the 3rd Circuit in the J&J talc bankruptcy case (In re LTL Management LLC).
February 4, 2023 Update: Plaintiffs’ lawyers asked a judge to dismiss the Aearo bankruptcy petition after an appellate court dismissed a similar bankruptcy involving Johnson & Johnson in the talc powder litigation. In that case, like this case, J&J was using Chapter 11 to end run facing judgment from juries.
For its part, 3M says it is committed to the settlement process in bankruptcy court. Again, veterans do not care if settlement talks occur, whether they are in bankruptcy court or the possibly soon-to-be dismissed bankruptcy action. They just want the compensation payout they deserve.
January 21, 2023 Update: Mediators Christopher Sontchi and Randi Ellis updated the bankruptcy court in Indiana that they will have a settlement mediation in “early February.”
This is after Judge Rodgers told us earlier in the week that there was a settlement impasse because 3M sought to resolve earplug lawsuits through the bankruptcy proceedings in Indiana, and the plaintiffs’ lawyers reject a “bankruptcy-only resolution.” But the mediators report that they “respectfully disagree with the characterization of certain of the facts that underlie” Judge Rodgers’ conclusion. You would not think these mediators – one who was also a mediator in the 3M MDL – would contradict a federal judge unless they had hoped a settlement was on the horizon.
What in the world is going on here? 3M has been saying all along that these claims should be resolved in bankruptcy court. Plaintiffs have been saying all along they want a fair settlement.
Veterans are more than happy to settle these lawsuits in bankruptcy court, kangaroo court, or anywhere they can get reasonable compensation payouts for their injuries. So a settlement in bankruptcy court might be the face-saving venue 3M needs.
January 20, 2023 Update: MDL Judge M. Casey Rodgers issued an Order formally terminating the court-sponsored settlement mediation.
In her Order, Judge Rodgers explains that after years of efforts to mediate a settlement, 3M has recently advised the court that it is determined to force the claims to be settled in the Aearo bankruptcy and, therefore, “it has no desire to reach a global resolution in the MDL.” Talks are ongoing in the bankruptcy court.
So 3M is putting all of its eggs in the basket of a successful bankruptcy appeal and winning the successor liability appeal of the sanctions imposed by Judge Rodgers. 3M put all of its hopes in a contrived bankruptcy scheme that two federal judges have already rejected. But this is the depressing part of the judge’s order:
“Hopefully as the MDL, the bankruptcy, and the various appeals proceed, all of which undoubtedly will take years to run their course, the intransigence on both sides will give way to a genuine commitment to negotiate reasonably and meaningful compromises on both sides so that a just and mutually acceptable resolution of these matters may be achieved.”
“Years to run their course” is a hard pill to swallow. Hopefully, that is not where we are.
January 8, 2023 Update: In a brief supporting 3M’s bankruptcy appeal, the Chamber of Commerce argues that allowing a Chapter 11 bankruptcy for Aearo to extend to 3M would provide the best mechanism for “determining the legitimacy of claims through claims estimation processes.”
The only flaw in this method of settlement payout evaluation, the brief later contends, is that disposing of these cases through bankruptcy will make it easier for injured veterans to recover money for low-value claims – presumably tinnitus which 3m has never taken seriously – that “are difficult to prove in court.”
Wait what? Does that mean the cases that deserve higher settlement compensation will get less? They would not argue that. So they must be contending that they believe 3M will pay more through the bankruptcy process, but it is necessary because it is fairer. Really? Because bankruptcy is a more equitable system for valuing claims for settlement than the civil justice system we have had for hundreds of years in this country?
January 7, 2023 Update: 3M reports spending $450 million in attorneys’ fees defending the 3M earplug lawsuit.
Here is the money quote, quoting University of Richmond law professor Carl Tobias:
“$466 million is a lot of money to spend on lawyers and defense costs, not to mention the reputation harm they’re doing to themselves with all these trial losses.”
January 6, 2023 Update: This litigation is in limbo. But new lawsuits are not. Twelve new 3M lawsuits were filed today; 30 were filed yesterday.
- SEE MORE 3M LAWSUIT UPDATES (get all of the old update in the 3M litigation)
About the 3M Earplug Lawsuits
3M is the St. Paul-based manufacturer, and seller of an earplug called Combat Arms. These dark green and yellow earplugs were initially developed by Aearo Technologies, a company 3M bought in 2008. This makes 3M liable for conduct both before and after 2008.
Thousands of soldiers suffered complete or partial hearing loss and tinnitus because of faulty combat earplugs. Combat Arms Earplugs left veterans entirely unprotected from damaging high-level sounds. Our lawyers are handling these cases.
3M earplugs were standard-issue equipment intended to protect service members from hearing loss. 3M had an exclusive contract with the U.S. military via the U.S. Department of Defense. The company admitted, however, that the earplugs were defective and did nothing to protect soldiers from significant hearing loss, subjecting them to the risk of deafness.
Anyone who served in the military from 2003 to 2015 and suffered permanent hearing damage has a potential product liability lawsuit against the earplug manufacturer.
Where 3M Went Wrong with These Dual-Ended Earplugs
U.S. service members are often exposed to loud noises from aircraft, artillery, guns, and explosives. Without some ear protection, repeated exposure to these high-level noises will cause auditory ailments from internal damage to the eardrums.
The nonlinear dual-ended Combat Arms Earplug Version 2 (“CAEv2”) was supposed to protect users by filtering peak-level noises. They were developed by Aearo Technologies, which eventually sold their company to 3M.
The design of these earplugs was a comedy of errors. One big problem was that they were too small for the Army’s carrying case. They also made the fit of a soldier’s helmet somewhat of a challenge.
So what did they do? They modified the design by shortening the earplugs. So now they fit. But the device did not go deeply into the ear. So the design flaw was that the earplug’s stem needed longer for soldiers with large, or even average, ear canals.
3M Knew the Earplugs Were Defective
3M was aware that the dual-ended Combat Arms earplugs were a defective product but failed to disclose this to the military. Why? There were probably many reasons. But, usually, follow the money, right? These earplugs cost 85 cents to make. They were sold to the military for $7.63.
Most of those soldiers were not protected by the defective earplugs and suffered permanent hearing loss. These veterans can now sue 3M and demand financial compensation.
Many veterans who call us wonder if the 3M cases are legit or if this is some scam. We get it. There are no guarantees of success. But it is also true that there is no cost to bring a claim and no risk. It is all upside for you. And for the vast majority of plaintiffs, filing a claim requires minimal effort.
3M Earplugs Questions Our Lawyers Are Commonly Asked
Has Anyone Received a Settlement In the 3M Earplug Lawsuit?
Yes. Some victims have been paid. But the lion’s share of the $6 billion settlement has not yet been paid out.
Will Filing a 3M Earplug Lawsuit Affect My Disability?
Filing a lawsuit against 3M for hearing loss related to defective earplugs is unlikely to impact your eligibility for disability benefits. But this is something our lawyers will discuss with you.
What Is Going on Now With the 3M Earplug Lawsuit in April 2024
These cases have settled. Some victims have been paid, most are still waiting for compensation.
Potential Settlement Value of 3M Combat Arms Lawsuits
Let’s go back to the individual settlement value of these cases because all victims have a keen interest in claim value. Jury verdicts and reported settlement amounts in other tinnitus or hearing loss cases suggest an average individual settlement compensation from $50,000 to $300,000 in compensation.
Will this be the settlement value for the 3M lawsuits? The trial value could be in this range or even higher (much higher for the first three victims, as it turns out). The global settlement value – the resolution of almost all claims at one time – would likely be less because you rarely get trial value in a mass tort settlement.
The other factor is the sheer volume of these lawsuits. This 3M lawsuit is the largest mass tort in American history. 3M has maybe $35 billion in assets and is worth approximately $100 billion. Let’s assume there are 200,000 legitimate cases, and the average settlement payout is $100,000 per person. That is $20 billion. So that is an issue that plaintiffs’ lawyers have to deal with in these cases.
Little More 3M Litigation History to November 2022
Nearly four years ago, in January 2019, an earplug victim’s attorney filed a motion asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all defective earplug cases to a single federal court for coordinated pretrial proceedings.
The cases were consolidated in the Northern District of Florida under Judge M. Casey Rodgers. This is called an MDL, which is like a class action lawsuit for pre-trial discovery purposes. This is the first step in the hopes of a favorable global military hearing protection settlement with 3M that would give most victims a reasonable amount of money without ever having to go to court.
What does it mean to you that the JPML consolidated all the federal earplug claims in Florida? It means that no matter where you are, your lawsuit will most likely be housed in Florida while these lawsuits proceed through the multidistrict litigation process.
All you need to do is provide a small bit of information. The hope is that 3M will come to its senses and offer settlement amounts that will encourage the victims to settle their cases out of court. But the per-person payouts must be high enough to entice victims to settle. We may know more after the October 2022 settlement talks.
- More military litigation: Camp Lejune lawsuit and AFFF lawsuit
3M’s Defense
3M’s big defense, that they seemed confident would succeed, to end these cases before they began was asserting that all claims are preempted by the “Feres” doctrine. Our lawyers looked at the applicable law and believed the plaintiffs would defeat this argument. We were right.
Using the Feres doctrine, the plan was to invoke the government contractor defense as a shield from state tort liability. This doctrine arose from the U.S. Supreme Court decision in Feres v. the United States. Specifically, the doctrine provides a guideline for when our servicemen and women may file a claim for personal injuries. The doctrine bars service members and civilian government employees from bringing claims against the U.S. government for injuries that arose out of or were sustained while engaged in activity “incident to service.”
That does not sound good, right? But the Supreme Court decision in Boyle v. United Technologies Corp in 1988 updates Feres and made our attorneys confident we would prevail. This case lays out a three-part test that provides a claim is pre-empted if:
- The U.S. approved reasonably precise specifications;
- The equipment conformed to those precise specifications; and
- The supplier warned the U.S. of the danger associated with the equipment that only the supplier knew of.
3M’s preemption arguments failed. Judge Rodgers ruled that 3M “government contractor defense,” which protects some defendants from liability when building products to the government’s specifications, does not apply in this case. 3M cannot even make this argument to the jury, the court ruled, because no reasonable jury could conclude that the military made Aearo/3M do anything.