Products Liability
For the most recent July 2024 updates on the new $6 billion settlement and other news, see our main 3M earplug lawsuit page.
The purpose of this page is that our website has page size limits. We have been updating this page for so long. So these are more updates that didn’t make the main page or were later moved because they were less critical. For example, the Aearo bankruptcy was a big deal at the time but insignificant now (thankfully).
2021-22 3M LAWSUIT UPDATES
December 25, 2022 Update: Just one more comment on Judge Rodgers’ ruling this week. The one thing that always stood out as the most hypocritical part of the bankruptcy effort was 3M’s effort to reduce the punitive damage award in Wayman because there were not six defendants but just one because 3M “owns and controls 100% of the other five named defendants.”
The hypocrisy is apparent but this affliction is seen with lawyers on our side of the aisle too, to be honest. But what is striking is that 3M had the audacity to make this argument after the bankruptcy scheme was first concocted in the early spring of 2022. You wonder how that could happen.
As we lean into 2023, 3M needs more cards to play in this litigation.
December 23, 2022 Update: MDL Judge Casey Rodgers brought down a mighty hammer on 3M yesterday afternoon. Rogers issued an Order (3M Sanctions Order) imposing unprecedented sanctions on 3M for what she described as a “brazen abuse of the litigation process.” The sanction expressly prohibits 3M from attempting to avoid any liability for the earplug claims by shifting blame to its Aearo Technologies subsidiary (which is now in bankruptcy). In other words, 3M has been barred from pursuing its strategy to force the earplug claims into bankruptcy. In her 22-page opinion, Judge Rogers explains how 3M actively litigated the earplug cases for 4 years during which it held itself out as the sole responsible party and never asserted that Aearo was the responsible party:
Scorched earth battle was waged against every theory of liability alleged in this litigation. Yet, there was nary a whisper that Aearo, and not 3M, was the only proper target, or even a target.
Judge Rodgers points out that 3M had many opportunities over the last 4-years to assert the Aearo successor liability argument, but chose not to. Only after 3M was unhappy with the results of the bellwether trials that it shifted its strategy. The Order concludes by imposing full liability for the earplug claims on 3M and barring it from attempting to shift liability to Aearo. This ruling theoretically renders the Aearo bankruptcy appeal to the 3rd Circuit moot, as the MDL plaintiffs are now free to go after 3M separately. The only problem is that 3M will be able to file an immediate appeal of this ruling (which it certainly will), and the MDL cases will be stayed pending the outcome of that appeal.
December 17, 2022 Update: 3M filed its appellate brief in the 3rd Circuit asking the court to overrule Judge Graham’s order that 3M cannot piggyback off of Aearo and stay earplug lawsuits again it.
The response broke no new ground. The only thing of note to us is that it was less vitriolic against the judges who dared to rule against 3M than we have seen in previous motions.
December 1, 2022 Update: Ever since 3M had its subsidiary, Aearo Technologies, file bankruptcy, the proceedings in the 3M earplugs class action MDL have been frozen by an automatic stay.
Recently, however, a group of earplug plaintiffs filed a motion seeking to partially lift that stay with respect to all cases alleging injuries occurring after 3M acquired Aearo in 2008. The motion argues that the stay should not apply to these suits because they do not involve claims of direct liability against Aearo.
November 14, 2022 Update: The judge in the bankruptcy filed by 3M subsidiary Aero Technologies has ruled that 3M’s law firm, Kirkland & Ellis, can continue to represent Aero in the bankruptcy. K&E has been the primary defense firm in the earplug MDL. This prompted lawyers for the MDL plaintiffs to argue that K&E could not simultaneously represent Aearo in its bankruptcy because it presented a conflict of interest. The bankruptcy judge was not persuaded. But he noted that a conflict could arise in the future and that K&E was “navigating a minefield.”
November 1, 2022 Update: Judge Rodgers said last week that monthly settlement talks must resume. She also said she would allow an immediate appeal of her successor liability ruling, a strong signal she may rule for the plaintiffs. This is good. This ruling could knock the bankruptcy issue out of play. This will box 3M in a corner.
But she will allow an immediate appeal of her ruling. This is bad. Allowing an appeal will hold up new trials. Settlement talks without imminent trial dates will be spinning wheels with 3M.
October 25, 2022 Update: 3M asked Judge Rodgers permission to file another motion on the successor liability motion for summary judgment plaintiffs’ lawyers filed in the Wave 1 cases. See October 11, 2022 update below. Yesterday, Judge Rodgers refused to grant 3M permission to file a sur-reply.
October 24, 2022 Update: 3M wants to pretend that Aearo is a separate company from 3M. But it can’t muster the energy even to pretend. Aearo wanted to hire Kirkland & Ellis as bankruptcy counsel. But that same law firm represents 3M – an apparent conflict. So the U.S Trustee, the DOJ’s bankruptcy watchdog, was forced to intervene. It asked the U.S. Bankruptcy Court for the Southern District of Indiana to deny Aearo’s choice of Kirkland as its bankruptcy lawyers.
October 23, 2022 Update: 3M got some excellent news this week, albeit soft good news. In addition to agreeing to hear the 3M bankruptcy appeal on an expedited basis, the 11th Circuit also granted 3M’s request to stay an order by earplug MDL Judge Casey Rodgers, which blocked 3M from challenging her MDL rulings in the Aero bankruptcy proceeding.
The request was granted partly because plaintiffs in 3M earplug cases pending in Minnesota state court were attempting to use the ruling by Judge Rodgers as a shield in their cases. 3M will now be free to argue issues in the Aero bankruptcy that have already been ruled on in the MDL. However, none of these issues will matter if the 11th Circuit rejects 3M’s appeal of the bankruptcy court ruling.
October 14, 2022 Update: The U.S. Court of Appeals for the 7th Circuit has agreed to an expedited review of 3M’s appeal of the bankruptcy court decision that effectively blocked 3M from pulling the 230,000 earplug lawsuits into bankruptcy.
A 3-judge panel from the 7th Circuit found that an expedited appeal was appropriate because the decision will impact many people and establish a significant precedent.
3M is most likely going to lose this appeal, and the sooner that happens, the sooner meaningful progress on a global settlement can occur. This ruling means that this appeal could be decided in a few months instead of taking over a year.
October 11, 2022 Update: The plaintiffs in the 3M earplugs MDL filed a motion seeking summary judgment on the issue of whether 3M is fully and independently liable for all injuries related to the earplugs.
The motion is an effort to block any remaining hope 3M may have of forcing the litigation into bankruptcy via its Aearo subsidiary.
This is the second time the earplug plaintiffs have asked the MDL Judge for a ruling that would preempt 3M’s bankruptcy strategy. Judge Rodgers denied the previous motion because it was premature.
However, the most recent summary judgment motion has a much better chance of success. Meanwhile, 3M’s appeal of the bankruptcy court ruling rejecting its strategy is on appeal to the 7th Circuit.
October 4, 2022 Update: Judge Rodgers pushed back the David George trial set for October 24, 2022, to February 13, 2023, in an order signed yesterday. The reason for the delay is not related to the litigation. This trial date was putting pressure on 3M to make a reasonable settlement offer and the delay will take away some of that exigency.
October 6, 2022 Update: 3M canceled the settlement talks set for October 6, 2022.
October 3, 2022 Update: 3M spokesman Sean Lynch: 3M hopes that the “parties and their attorneys will come together to negotiate a prompt resolution to this matter so that those veterans with eligible claims can be compensated sooner.”
Veterans agree. It is just a question of how much money 3M will pay to settle these claims.
September 20, 2022 Update: The settlement news yesterday was good. But just before those settlement talks, 3M executives were making statements to investors and financial analysts indicating that they are still clinging to the belief that they can settle the litigation in the bankruptcy court.
Kevin Rhodes, 3M’s Chief Legal Affairs Officer, gave a somewhat delusional presentation at the Conference last Wednesday on the status of the earplug lawsuits. The transcript – passed on to us by a veteran represented by another law firm – is depressing.
Rhodes casually brushed off the ruling by the Bankruptcy Court denying, which rejected 3M’s bankruptcy strategy. Rhodes labeled the decision as “wrong” and noted that 3M’s appeal has been sent directly to the 7th Circuit. Not mentioned: it has little chance of success.
Rhodes claimed that the proposed bankruptcy trust fund of $1 billion is a fair valuation for all earplugs claims. He also has a funny bit where he complains – forgetting for a moment that we are in America – that jury trials are not the appropriate way to handle this litigation. The unspoken part of most of 3M’s arguments is that they have hurt so many people they should be given special treatment. 3M also complains that everyone is getting it wrong – multiple judges, juries, and financial analysts. Don’t you have to look in the mirror at some point?
September 19, 2022 Update: There was no settlement from the settlement talks last week. Still, Judge Rodges deemed the mediation “worthwhile and productive…” The court-appointed mediator is scheduling another mediation session within the next 14 days. A confidentiality agreement concerning the details of the discussion binds the lawyers.
September 15, 2022 Update: The two-day settlement talks begin today. 3M has a choice. Settle these cases or start the next wave of trials next month – beginning with David George’s trial – that could lead down a path where 3M has to declare a very different kind of bankruptcy this time.
September 6, 2022: Just days after the Bankruptcy Court denied 3M’s motion to extend the automatic stay and effectively halt the 3M earplugs litigation, MDL Judge Casey Rodgers responded by issuing a new Order on Tuesday requiring 3M to take part in another settlement mediation. Judge Rodgers forced 3M to participate in a settlement mediation just over a month ago, and she was less than thrilled when 3M launched its bankruptcy strategy immediately after the mediation concluded.
Now that the bankruptcy play has failed, Judge Rodgers is pushing both sides to go back to the settlement table again. Plaintiffs have always wanted to settle these lawsuits. Now 3M might have a greater interest. Following the bankruptcy ruling, 3M is facing enormous external pressure from investors and financial analysts who tell them they have no choice but to capitulate by dropping all of the legal gamesmanship and offer reasonable settlement amounts to veterans who have suffered from these defective earplugs.
September 1, 2022: 3M noted its appeal of the bankruptcy ruling on Monday. Procedurally, 3M’s appeal will either go to the U.S. District Court for Indiana or the Bankruptcy Appellate Panel. I do not think even 3M’s lawyers believe it has much chance of success.
August 29, 2022: This Fortune article has a quote that is on point: “Like most things that sound too good to be true, [the bankruptcy option] was. Now it may be time for Plan B: a comprehensive, and still costly, settlement process for US soldiers who claim hearing damage.”
August 27, 2022: We have a ruling. 3M loses. Again. The bankruptcy effort failed. Justice triumphs (this time). Judge Graham ruled that Aearo’s bankruptcy should have no ruling on the earplug lawsuits pending against 3M.
Oh, and 3M stock is down 10% on the news, its worst day in three years. Corporations taking responsibility is a profitable path. But it is the road less taken in 2022.
Now is the moment for 3M to step up and offer veterans reasonable 3M earplug settlement amounts. 3M is a historically significant company, a piece of America. This litigation threatens to tarnish their legacy forever. Now is the time to do the right thing.
August 1, 2022: The automatic stay granted to 3M’s subsidiary, Aearo Technologies, does not apply to 3M. This means that the proceedings in the earplug lawsuits can technically continue against 3M.
But, of course, 3M has already asked the bankruptcy judge to extend the automatic stay to protect 3M and Aearo. Because that was the point of this whole scheme to hide from juries behind the Bankruptcy Code.
July 30, 2022: In a recently filed brief, 3M argued that its new bankruptcy strategy was necessary and justified because it claims that the earplugs MDL proceeding is “broken beyond repair.” 3M argued that the earplugs MDL is overrun with bogus claims by plaintiffs who are not being vetted and dismissed from the case.
The judge in the earplugs MDL, Casey Rodgers, harshly rebuked 3M and its lawyers at a hearing on Wednesday. Judge Rodgers stated that a “perfectly solvent defendant” such as 3M should not be entitled to bankruptcy protection simply because the MDL is not going the way it wants.
Rodgers dismissed 3M’s claim that bogus plaintiffs are not being vetted, pointing out that 80,000 claimants have already been dismissed. Judge Rodgers concluded by announcing that she will be issuing a show cause order and holding a hearing to determine whether 3M acted in bad faith by filing bankruptcy immediately after participating in a settlement mediation.
July 26, 2022: 3M announced today that it will seek to resolve the earplug claims in bankruptcy. 3M’s subsidiary, Aearo Technologies (which made the earplugs at the center of the litigation) filed a voluntary chapter 11 bankruptcy today and will seek to create a trust fund for settlement of the thousands of pending earplug claims.
If 3M is allowed to move forward with the bankruptcy, the current earplug lawsuits will be automatically stayed and the current plaintiffs will become “creditors.” The bankruptcy court will appoint a plaintiffs’ lawyer committee to negotiate with 3M on a global settlement of all claims.
So what exactly will this mean for 3M earplug plaintiffs? Ultimately, the earplug plaintiffs will get a global settlement one way or the other. The problem with bankruptcy, however, is that it will slow down the settlement process, and the amount of the settlement payouts will probably be lower. Currently, 3M is facing enormous pressure from the possibility of hundreds of trials next year.
The bankruptcy stay will immediately relieve that pressure and give 3M more leverage in the negotiations. 3M has already set aside $1.2 billion to fund the proposed bankruptcy trust for the settlement of the earplug claims. This insultingly low amount would net each plaintiff a mere $5,000.
July 25, 2022: The week after the mandatory settlement mediation ordered by MDL Judge Casey Rodgers, the parties filed motions to gear up for the next massive wave of trials. Lead counsel for the plaintiffs filed a major motion seeking to exclude or limit 3M’s expert testimony and opinions going into Wave 3 of the earplug cases, which could involve thousands of plaintiffs going to trial in large blocks starting next year.
So when will the 3M earplug lawsuit settle? That is the question many veterans have asked our lawyers in the last week. The 3M earplug lawsuit will settle when 3M finally realizes that it cannot keep deferring the resolution of this litigation.
We do not think the stock market – still! – has not baked the cost of a 3M earplug settlement into 3M’s stock price. Our thinking, and it is just our lawyers’ speculation, is that 3M executives want to keep delaying taking that hit in the stock price and the pain that will come with that. So they keep kicking the can down the road while hoping for a miracle from the 11th Circuit.
July 18, 2022: There was no 3M earplug settlement from the mediation this weekend. We still believe the majority of these lawsuits will settle in 2022. But a settlement of this magnitude will be a complex endeavor.
July 15, 2022: The 3M earplug settlement talks began today and will go through the weekend in Florida. Just how likely is a 3M earplug settlement?
Progress toward an earplug settlement is probably likely. But a global 3M earplug settlement after three days of negotiations seems unlikely. Earplug victims are frustrated with the pace of settlement. Understandably. And a global 3M earplug settlement is not out of reach. But it is just not likely this weekend.
July 13, 2022: 3M filed a brief asking the court to extinguish judgments in the nine cases they lost. Why 3M’s lawyers bother with this motion is anyone’s guess. Judge Rodgers stuck the motion as improper, chastising 3M that the court docket is not a repository “for lawyers to preview future litigation strategies.”
July 11, 2022: The one thing we do not want to do in a 3M earplug settlement is minimize the differences between the strength of the claims in the final settlement amounts. The fear of this kind of damage averaging is larger claims will get settlement offers that undervalue their claims.
This creates a problem not only for those more seriously injured but also for 3M. Why? If the best cases do not receive settlement offers commensurate with the harm done to them, those plaintiffs will just reject the settlement amounts offered and opt to go to trial.
The point of all of this is that lawyers have to measure twice and cut once before any 3M earplug settlement.
July 8, 2022: 3M wants to weed out every 3M earplug lawsuit that is not a viable claim. Judge Rodgers is helping their efforts. Judge Rodgers granted a defense motion requiring plaintiffs who have not complied with court orders to produce basic information to show cause why their case should not be dismissed.
This sounds like a bad thing. It is not. If you have a solid claim, you support this, too. We want to eliminate the claims that are not meritorious because that will facilitate a 3M earplug settlement that makes sense for all parties.
July 5, 2022: Settlement talks are now just ten days away. Our 3M earplug lawyers have not used these updates as a “call us” plug. But if there is a settlement, it will be tough to find a lawyer after a settlement is reached. So if you are sitting on the sidelines and have not brought a 3M earplug lawsuit but are considering it, now is the time to act. There are few of you out there who have yet to bring a lawsuit. But if you have yet to speak to a lawyer about your case, now is the time. You can call us at 800-553-8082 or reach out online for a free consultation.
June 29, 2022: Plaintiffs Luke Estes, Lewis Keefer, Stephen Hacker, and Lloyd Baker filed their response to 3M’s 11th Circuit appeal this week. The battleground is the government contractor defense our earplug lawyers talked about from Day 1 of this litigation. Plaintiff’s lawyers contend in this brief and throughout this litigation that 3M is not a government contractor entitled to protection under the Feres Doctrine. This is because 3M did not give precise specifications or even have a real contract with the military to provide these earplugs. Our lawyers believe 3M has a minimal chance of winning this appeal. Hopefully, 3M will offer reasonable settlement amounts to these plaintiffs and thousands next month before a ruling is needed.
June 28, 2022: On Sunday, the Wall Street Journal released a story entitled 3M Faces Billions in Liabilities Over $7.63 Earplugs. The WSJ article briefly explains the massive size of the 3M earplug lawsuit and how it could cost 3M billions. The article was prompted by news of the recent mandatory settlement mediation ordered by the MDL class action judge.
To help push the settlement negotiations, Judge Rodgers appointed Randi S. Ellis as the special master for the mediation. Retired judge Mark Falk and veteran settlement negotiator Ellen Reisman will assist Ms. Ellis.
When will the 3M earplug lawsuit settle? These court-ordered settlement talks are the brightest glimmer of hope we have had for veterans to get reasonable settlement amounts in the foreseeable future.
May 20, 2022: $77.5 Million Verdict! The final 3M earplug bellwether trial concluded this afternoon and the result was the most significant amount awarded to a single plaintiff. After a 2-week trial, the federal jury in Pensacola awarded Army veteran James Beal a total of $77.5 million in damages for his claims that 3M’s defective earplugs caused hearing loss and tinnitus. This award brings the total amount of damages in the bellwether trials to $300 million.
May 3, 2022: The 16th and last MDL trial will start Monday, May 9, 2022, for James Beal’s injury claim against 3M for its defective earplugs. After this trial, Judge Rodgers will send these lawsuits around the country to be tried in waves. This is not a good dynamic for 3M who would rather not battle a group of soldiers in the courtroom. At the same time, the plaintiffs’ brief in response to 3M’s appeal is due in the 11th Circuit early next month.
If you follow the history of mass tort settlements, there is no question that this moment seems opportune for a global settlement deal in the 3M litigation. But there are no guarantees.
This will be the big test of 3M’s government contractor defense. Our lawyers have always said 3M would be foolish to let the 11th Circuit rule on this before settling the lion’s share of these lawsuits. Why? Because if it loses and the U.S. Supreme Court refuses to take the case, 3M will have fired the last arrow in its quiver. At that point, why not keep trying these cases when the average successful jury payout is around $20 million?
Failing to settle before that ruling would be an existential threat to 3M, a company founded 120 years ago. Hard to believe that would be a risk worth taking.
September 16, 2022 Update: As the parties begin Day 2 of court-ordered settlement talks, the number of lawsuits listed as active and pending in the 3M Earplugs MDL went down for the first time since the start of the litigation.
A month ago, there were 293,831 cases listed as pending in the MDL. In the most recent monthly report from the JPML, that number is now down to 254,134. The reduction is the delayed result of steps Judge Rogers took earlier this year to clear cases off the docket where the plaintiffs were unable or unwilling to provide military service records to support their claims. Reducing the number of total claims is good for 3M and victims who want to get a global settlement done.
September 8, 2022 Update: We have a 3M earplug lawsuit mediation date. The two-day settlement talks begin next Thursday, September 15, 2022, at the U.S. District Court in Pensacola, Florida.
August 11, 2022: The 3M Earplugs MDL Judge held her hearing today on the recent motion that would hold 3M solely liable for the defective earplugs claims, thereby circumventing the recent attempt by 3M to pull the MDL into the bankruptcy filed on behalf of its subsidiary Aearo Technologies. Judge Rogers had harsh comments for 3M during the hearing. She blasted 3M for intentionally creating the financial situation that allowed Aearo to file for bankruptcy. Before making a final decision, Judge Rogers is awaiting further information and documents from 3M.
August 10, 2022: It has been over two weeks since 3M put Aearo into bankruptcy. Judge Rogers will hold a hearing tomorrow to dive deep into 3M’s acquisition of its Aearo Technologies. The hearing will focus on the terms of 3M’s assumption of Aearo’s liabilities as part of that acquisition.
3M is a defendant in all of these lawsuits. The hearing will aid Judge Rogers in deciding whether to grant a motion that would prevent 3M from arguing that it is not the appropriate defendant in the over 200,000 earplug lawsuits. If 3M is a proper defendant because it agreed to take on all of Aearo’s debts and liabilities, the end run around this cynical bankruptcy might be to drop Aearo as a defendant so that the 3M earplug class action lawsuit can move forward against 3M only.
August 17, 2022: Earlier this week, Judge Rogers issued an Order reluctantly denying the motion for a ruling that 3M has sole liability for the earplug lawsuits. But the judge did not hide her frustration with 3M.
In the Order, Judge Rogers notes that “from the start, Aearo was a party to this litigation in name only,” and she describes the recent bankruptcy filing by Aearo as a “scheme to escape the MDL and this Court for good.”
Despite her obvious irritation with 3M’s duplicitous conduct, however, Judge Rogers ruled that she could not grant the relief sought in the motion unless and until 3M asserts the defense that it is the wrong party in the earplug litigation. Until 3M asserts that defense, Judge Rogers found that granting the relief sought in the motion would be a premature advisory decision.
August 5, 2022: The judge in the MDL class action lawsuit issued a new order halting the ongoing process of transferring cases in the MDL from the inactive docket to the active docket. The Order states that halting this process was necessary due to “recent developments” – a clear reference to the Chapter 11 bankruptcy filed by 3M subsidiary Aearo Technologies.
All eyes now turn to Indiana Will the bankruptcy court in Indiana will agree to extend the automatic stay to 3M? This would effectively put the breaks, at least temporarily, on the entire 3M earplug class action lawsuit. This would be incredibly unfair to victims and our lawyers do not think a judge will do it. But Judge Rodgers is looking to avoid burdening plaintiffs – and the court that is overwhelmed by the paperwork – if the litigation is slowed or stopped. So Judge Rogers is relieving thousands of plaintiffs of their obligation to produce documents to support their claim and pay the filing fees.
This order puts 3M under great pressure and alleviates pressure all at the same time. 3M’s lawyers will be under great pressure to prepare this many lawsuits for trial. It is a Herculean task for the attorneys.
But settlement pressure-wise, the sobering reality of this order is that there will not be another 3M earplug trial in 2022. So if 3M chooses to kick the can down the road, it can pay a reasonable settlement amount for the cases on appeal to avoid a final ruling and drag this out into 2023.
Our lawyers do not think this will happen. We think the 3M earplug class action will settle in 2022. But that is just a guess and a hope.
May 31, 2022: As expected, Judge Rodgers cut the verdict in Wayman from $55 million to $21.7 million The reason for the reduction is simply limits on punitive damage awards under Colorado law.
May 19, 2022: Day 8 of the trial featured live testimony from 3M expert witness Dr. John Casali from Virginia Tech University. Casali is 3M’s go-to expert, a foremost authority in audiology, acoustics, and hearing protection. 3M has used him as an expert in all bellwether trials. In addition to Casali’s testimony, 3M’s lawyers presented the jury with clips of video deposition testimony from several witnesses, including the plaintiff’s wife.
May 18, 2022: On Day 7 of the trial, 3M’s defense team presented testimony from Eric Fallon and Dr. James Crawford. Fallon holds a doctorate in audiology and works for 3M as a Technical Senior Service Specialist. Dr. Crawford is an ENT doctor specializing in hearing protection. Both Fallon and Crawford also spent over 20 years in the Army.
May 17, 2022: Let’s get you up to speed on what is happening in the Beal trial. The first two days of the trial featured nearly eight hours of testimony from the plaintiffs’ leading expert witness, bioacoustics engineer Richard McKinley. McKinley has been a prominent witness in all of the previous bellwether trials.
On Day 3 of the trial, the plaintiffs presented testimony from Elliott Berger. Berger, as every reader of these updates knows, is a former 3M audiology scientist and head of the 3M Personal Safety Division. Berger was one of the people directly involved in the original design and testing of the 3M earplugs at issue in the lawsuits and he has been a critical witness in all of the cases.
On Day 4 of the trial, the plaintiff James Beal took the stand in the morning. Beal’s testimony was followed in the afternoon by the plaintiff’s expert Dr. Christopher Spankovich, a clinical audiologist at the University of Mississippi Medical Center.
On the 5th day of trial, the plaintiffs presented testimony from another expert, Dr. Mark Packer. Dr. Packer is an Ear, Nose & Throat specialist at Mercy Hospital in St. Louis. Dr. Packer was a key witness in the Sloan/Wayman bellwether trial that resulted in a $110 million verdict against 3M.
Day 6 of the trial featured a series of short video deposition clips and testimony from the plaintiff’s wife, Heather Beal, and several other fact witnesses, including friends or family members of Mr. Beal.
May 17, 2022: In March, bellwether plaintiff Ronald Sloan was awarded $55 million on his earplug lawsuits against 3M, which included $15 million in compensatory and $40 million in punitive damages. 3M has appealed and has not paid the verdict. Sloan filed a motion asking for prejudgment interest on the $15 million in compensatory damages. Judge Rodgers denied that motion. Why? Sloan’s claims are governed by Kentucky law. Judge Rodgers ruled that KY law does not allow prejudgment interest on awards for “bodily harm.”
May 16, 2022: Just as the first week of the Beal bellwether trial was wrapping up on Friday, the MDL Judge issued a show cause order threatening to hit 3M’s defense lawyers with sanctions for “willful abuse of the trial process.” Judge Rodgers has had a long history of frustration with 3M’s defense counsel dating back over two years. This latest admonishment came after 3M’s lawyers sought to defy long-standing procedural rules regarding deposition designations.
This morning, 3M’s lawyers filed a response to the show cause order attempting to justify their position. This ongoing dispute between Judge Rodgers and 3M’s defense attorneys won’t impact the outcome of the Beal trial. But 3M’s lawyers are frustrated. There is often turmoil on losing teams. But it seems unwise to go out of your way to create enmity with the judge and the judge trying the Beal case. (Even more bizarrely, the judge trying Beal is the Zantac MDL judge, and this same law firm is defending Zantac lawsuits). It is inexplicable and it is not advancing 3M’s interests. It is also a distraction from the path to a fair settlement that is in everyone’s interest. 3M should focus on settlement talks as opposed to this nonsense.
May 11, 2022: Over 20,000 3M earplug lawsuits were dismissed from the 3M earplug class action lawsuit this week after the plaintiffs failed to file the necessary paperwork required to keep their case active. The missing paperwork that prompted most dismissals was the plaintiff’s military service record (DD214).
We never like to see plaintiffs have their cases dismissed. But this might get us closer to a global settlement of the earplug lawsuits. One of the main obstacles to a 3M earplug settlement is the massive number of plaintiffs (around 270,000). 3M is convinced that not all of these plaintiffs have valid claims. Our lawyers and many soldiers we have talked to agree with 3M on this point. Getting this class action down to the soldiers who were truly harmed will advance an earplug settlement.
May 9, 2022: The last 3M earplug bellwether trial begins today for Army veteran James Beal. The trial is scheduled to last two weeks and will be conducted before Judge Robin L. Rosenberg at the federal courthouse in Pensacola. The trial is already off to a good start. Last week, the MDL judge granted a summary judgment motion by Beal, which effectively blocks 3M from presenting nearly all of their affirmative defenses, including contributory negligence.
One encouraging thing our 3M earplug lawyers saw over the weekend was an article by NBC News on the 3M earplug lawsuit. Getting the 3M litigation into the mainstream media has oddly been a struggle given there are 300,000 soldiers bringing claims. This unwanted attention might help grease the wheels for settlement talks and a global compensation payout for victims.
May 4, 2022: Yesterday, the 3M earplug MDL judge issued a new Case Management Order (CMO # 44) ordering 20,197 earplug lawsuits in the MDL to be moved from the administrative docket onto the active docket.
This appears to be the first initial step toward Phase 2 of the earplug bellwether trials. The plan is for these 20,197 earplug lawsuits to go through pretrial discovery – a daunting process with such a massive group of plaintiffs. The claims would then be sent to their home federal court districts for trial. Each trial will involve large blocks of consolidated plaintiffs.
The logistics of actually taking these cases to trial are hard to imagine. It is easy to forget that a sample size of one for an MDL class action of this size. This is the largest MDL in history.
The earplug bellwether trials with one plaintiff have required two weeks each. A consolidated trial involving 20 or 40 plaintiffs could last for months and would place 3M at a significant disadvantage, battling against that many soldiers and their families in a courtroom.
3M has two choices it seems. Risk the entire company on a long-shot appeal. Or offer our soldiers reasonable settlement compensation payouts to resolve these cases.
April 19, 2022: The Vaughn trial started yesterday. The trial is expected to take two weeks and will be tried before Judge Stephen Grimberg.
April 14, 2022 Update: One of the most common questions our lawyers get from soldiers is when will the 3M lawsuits settle? No one knows. But June 27, 2022, is an important date to file away. This is the plaintiffs’ deadline to file their opposition brief in Hacker/Estes/Keefer. After this brief is filed, there will be oral arguments and a ruling from the 11th Circuit.
April 13, 2022 Update: Most of the nearly 300,000 plaintiffs in the 3M earplugs litigation have their cases on the “administrative docket.” This allows these soldiers – their lawyers, really, – to hold off on paying the $402 federal filing fee while their lawsuit is in “hold” mode. 3M filed a motion seeking to force all these plaintiffs to pay their filing fees immediately or be dismissed. But “spite” is not a ground to have a motion granted.
Everyone can agree there are some frivolous 3M earplug lawsuits in the 300,000 that are in the MDL class action. But the motion 3M’s lawyers filed does not weed out those cases. As the judge said in denying the motion, “Filing frivolous motions will not ‘winnow’ frivolous cases.”
April 8, 2022 Update #2: Unfortunately, the jury found 3M in the Kelley trial. This was a difficult case for the plaintiff. This is a good time to remember that the average jury payout in a 3M earplug lawsuit in the last 30 days has dropped to just over $19 million.
April 8, 2022 Update: On Day 8 of the trial, 3M wrapped up the testimony of Dr. Casali in the morning and devoted the remainder of the day to present expert testimony from Dr. James Crawford. Dr. Crawford is an otolaryngologist who spent 24 years as a doctor in the U.S. Army, specializing in hearing conservation. 3M also filed a motion to bar the plaintiff from offering rebuttal testimony from Dr. Eric Gershwin on procedural grounds.
April 7, 2022 Update: Day 7 of the Kelley trial featured testimony from 2 of 3M’s expert witnesses. In the morning, the jury heard from Jennifer LaBorde, doctor of audiology and hearing aid specialist from the Hearing Center MCC. After lunch, Dr. John Casali took the stand. Casali is 3M’s go-to expert in its fight against soldiers seeking compensation for their hearing-related injuries. He is a well-known expert in the field of hearing protection and acoustics and a professor at Virginia Tech University.
April 6, 2022 Update: 3M began presenting its defense with the testimony of Dr. Eric Fallon. Dr. Fallon is the former chief Audiologist at Walter Reed Medical Center. So he sounds pretty credible at first glance. Who does he work for now? 3M.
As they have done in all of the previous bellwether trials, attorneys for 3M also filed a Motion for Judgment as a Matter of Law arguing that punitive damages should be off the table because the plaintiff failed to meet her burden under Texas law.
March 30, 2022 Update: Day 2 of the Kelley trial was devoted to the testimony of Elliott Berger. Berger is retired a 3M scientist and former head of the company’s Personal Safety Division. His testimony has been a focus of all 13 3M earplug bellwether trials. Berger’s testimony is crucial because he was a central figure in the original design and development of the Combat Arms Earplugs. Berger has been critical in establishing that there were design flaws in the earplugs that were not revealed to the Army.
March 29, 2022 Update: On the opening day of the Kelley trial, jury selection began in the morning and was finished by lunchtime. Opening statements for both sides began around 2 p.m. and ended two hours later. Then the jury heard video testimony from Ron Kieper, a former employee at 3M with knowledge of the company’s handling of issues with the earplugs.
March 27, 2022 Update: In a historical weekend in the 3M earplug litigation, the Wilkerson jury came back yesterday with an $8 million verdict. 3M was counting on winning Wilkerson to keep afloat the idea that “they win some, we win some” and only the best 3M earplug lawsuits have real value. The company is running out of arguments for its shareholders for not offering fair compensation payouts to victims.
March 26, 2022 Update: The jury awarded $50 million in the bellwether trial of Luke Vilsmeyer yesterday. This is another game-changing verdict for plaintiffs that is sure to drive settlement amounts in these cases north. It proves that the $110 million verdict was not a one-off. This is a huge victory. Big verdicts are becoming the norm.
Let’s put this in context. This stunning award marks three consecutive verdicts that were more than $50 million. This is pretty much the nightmare scenario for 3M. Sure, 3M can say it has won 5 trials out of 12 and juries have gone back and forth. But the stunning size of these verdicts is not what anyone expected. This case was tried under Indiana law (and Washington law, too, it is confusing) so there were no punitive damages available. Punitive damages drove the Sloan/Wayman verdicts. So incredibly, this jury awarded $50 million in purely compensatory damages.
The jury is still out in Wilkerson and there will likely be a verdict on Monday. Another 3M earplug trial starts Monday, too. 3M needs to shut this down and offer victims reasonable settlement amounts before taking any more verdicts. At some point, 3M needs to rationalize/accept that buying Aearo was a mistake made by a lot of people who no longer work for 3M. Shouldn’t it just pay for that mistake and move on before 3M is destroyed for a generation by this litigation?
March 21, 2022 Update: The Wilkerson bellwether trial appears to be running on schedule and we will hopefully get a verdict Friday afternoon. Over the weekend, Judge Mark Walker ruled on the various objections to the proposed jury instructions and 3M filed a stipulation as to the company’s current net worth ($12.39 billion). If the jury decides to award punitive damages, 3M’s net worth stipulation will be used to help determine the appropriate amount.
March 16, 2022 Update: The 12th, 13th, and 14th bellwether trials are underway in Tallahassee. Watch our recent video for an overview of the results from the 3M earplug bellwether trials so far.
March 8, 2022 Update: The judge in the 3M earplugs MDL granted summary judgment for the plaintiff in the upcoming bellwether trial for Steven Wilkerson. Wilkerson was seeking summary judgment on all 3M’s affirmative defenses – learned intermediary, superseding cause, failure to mitigate, open and obvious danger, and statute of limitations defense. Wisconsin law controls this lawsuit.
Judge Rogers ruled in favor of Wilkerson and granted summary judgment on four out of the five affirmative defenses. The only affirmative defense that Judge Rogers denied summary judgment on was the statute of limitations. Judge Rogers deferred a ruling on the statute of limitations until the evidence unfolds at trial.
You hope the statute of limitations question is not on the jury sheet. But the judge might still kick out this defense before trial. Moreover, it is unlikely a jury will hear the evidence in this case and rule against Wilkerson on the statute of limitations but would have otherwise given him an award. So this solid victory for Wilkerson overall.
March 12, 2022 Update: Shortly before the Wilkerson trial, 3M filed a motion arguing (among other things) that Wilkerson’s claims should be dismissed under the judicial estoppel rule because he failed to list his lawsuit against 3M as an asset in his recent bankruptcy. Judge Rogers rejected this argument and denied the motion. In her memorandum Order, Judge Rogers explained that 3M’s argument failed because there was no evidence that Wilkerson intentionally concealed his claims against 3M to manipulate his bankruptcy. Judge Rogers correctly pointed out that Wilkerson’s bankruptcy was a Chapter 13 under which his creditors were being repaid in full, therefore, failing to list the 3M lawsuit as an asset made zero difference.
February 3, 2022 Update: It is quiet in the aftermath of the big $110 million verdict in which both plaintiffs received $15 million in compensatory damages and $40 million in punitive damages. Our lawyers are still waiting for the aftershocks and hoping to see 3M finally offer real settlement amounts to victims. Will that happen? There will be a pause until the Group B trials start in March. We should know soon if 3M is ready to begin real settlement negotiations.
Below is a summary of this case day by day. We said this was a big trial in this litigation, right? But we had no idea it would be this big.
Let’s put this in context. Plaintiffs are now 9-5 in the 3M earplug lawsuit trials. Plaintiffs are 9-5 in 11 trials (3 with multiple plaintiffs). The total compensation awarded has been $162,992,820. The average compensation payout has been $17.9 million for the 9 winning plaintiffs ($11.6 million is the average for 3M lawsuits that have gone to trial when you factor in the losses). It is stunning. Our lawyers had high expectations for these cases but no one could have predicted this.
March 3, 2022 Update: With the next trials less than two weeks away, 3M has docketed its first 3M earplug verdict appeal. Most gist of the appeal is the Feres Doctrine and the government contractor defense our lawyers dissect at length below. The 3M’s lawyers have one quote in their brief with which our attorneys could not agree more: “The size and importance of this MDL is hard to overstate.”
February 25, 2022 Update: What we have learned so far in the 14 verdicts in these cases: the plaintiff matters. So with the next 3M trial, just days away, let’s look at the operative facts in the 3M earplug lawsuit.
Steven Wilkerson enlisted in the United States Army in 1999. He served for three years. In 2005, he began eight years of service in the Army National Guard. Wilkerson was stationed at Fort Bragg, North Carolina, Fort McCoy, Wisconsin, and Lucedale, Mississippi.
From 2010 to 2011, Wilkerson was deployed in Afghanistan. Like other soldiers, he wore the CAEv2. Mr. Wilkerson was exposed to typical noises of war in Afghanistan you would expect. He suffers from bilateral tinnitus and noise-induced hearing loss. Medical experts are expected to testify on this behalf that his bilateral tinnitus and noise-induced hearing loss were caused by the lack of protection the CAEv2 provided to him in Afghanistan.
Wisconsin law, which has a high bar and a cap on punitive damages, will apply to this case. This is one of the reasons, along with mild hearing loss and only 11 months of earplug use, 3M wants to try this case and why our lawyers believe a settlement is unlikely before this trial.
Luke Vilsmeyer was a Green Beret who suffers tinnitus and hearing loss. His case will be tried in Florida under Indiana law (no punitive damages in Indiana).
February 14, 2022 Update: After the $110 million verdict in the most recent bellwether trial, Wall Street is finally starting to pay attention to the 3M earplug litigation. With around 280,000 individual plaintiffs, the earplug litigation against 3M is the biggest consolidated mass tort in history. But it has gone largely unnoticed by 3M investors and financial analysts. Last week, however, a top analyst at JP Morgan warned that 3M’s potential litigation liabilities could potentially top $100 billion. This type of sober analysis might compel 3M to consider offering reasonable settlement amounts to resolve these lawsuits.
January 27, 2022 Update: The 12th day of the trial yesterday featured short video testimony from seven different defense witnesses. 3M rested its case near the end of the day. The plaintiffs’ counsel then presented a 40-minute rebuttal case with excerpts of video testimony from numerous witnesses. The day ended with Judge Rogers ruling on several motions for judgment as a matter of law filed by both parties. Judge Rogers granted the plaintiffs’ motions on various issues including 3M’s statute of limitations defense for both plaintiffs.
January 26, 2022 Update: Trial Day 11 Tuesday was the second day of 3M’s defense case. Most of the day was devoted to testimony from Dr. Gregory Flamme, Associate Professor of Speech Pathology and Audiology at Western Michigan University, a primary expert witness for the defense, Dr. Flamme’s scientific expertise is in the field of hearing loss prevention and the evaluation and treatment of hearing impairment. Just as he has in previous trials, Dr. Flamme will weigh in on the allegations of tinnitus and hearing impairment made by both of the plaintiffs.
January 25, 2022 Update: Day 10 on Monday was the start of 3M’s defense case. 3M began with testimony from its star expert witness, Professor John Casali. His claim to fame is that he won an Academy Award for best sound for his work on Bohemian Rhapsody, which you can be sure 3M is hoping impresses the jury.
Casali is also an auditory scientist and Director of the Auditory Systems Laboratory at Virginia Tech University. His testimony is about the benefits of training on and fitting earplugs, part and parcel of 3M passing the blame defense to the 3M earplug lawsuit.
One interesting thing about Casali is the plaintiffs’ have contended that he was “critical of the performance and design of the CAEv2 earplugs and was critical of 3M’s response to his criticism…”
January 21, 2022 Update: A trial with two plaintiffs takes longer than one. 3M lawyers are still in the plaintiffs’ case. Dr. Spankovich’s testimony concluded yesterday as did Dr. Lawrence Lustig, another plaintiffs’ expert, who testified that 3M CAEv2 earplugs did not provide adequate warnings of the risks.
January 20, 2022 Update: Today, Dr. Chris Spankovich will provide expert testimony regarding abnormal hearing standards (below 25 decibels). Yesterday, Day 7 of the trial, was taken up mostly with Mr. Wayman’s testimony, one of the two plaintiffs in this earplug trial. The Day 6 focus on Tuesday was the expert testimony of Dr. Marc Bennett who spoke about the plaintiff’s hearing-related injuries. Earlier in the day, two short fact witnesses, an audiology technician at the Department of Defense and a nurse practitioner, provided testimony. With two plaintiffs and the day off for MLK Day, it is unrealistic to expect this trial to end this week.
January 17, 2022 Update: Day 5 (Friday) was mostly taken up by the expert testimony of Richard McKinley. This plaintiffs’ expert is a bioacoustics engineer with 40 years of experience developing hearing protection products for our military. Monday is a day off. Testimony resumes on Tuesday.
January 14, 2022 Update: The highlight of Day 4 in the Wayman/Sloan trial was the testimony of the plaintiff, Ronald E. Sloan. Sloan took the stand just before lunch after the jury heard very short video deposition testimony from 3 other minor witnesses. The direct examination of Sloan lasted 2 hours and was followed by a slightly longer cross-examination which focused on Sloan’s health history.
January 13, 2022 Update: The Day 3 of the Sloan/Wayman trial was devoted to the testimony of Elliott Berger (via Zoom video conference). Mr. Berger is a retired 3M scientist who was directly involved in the design and testing of the Combat Arms earplugs. Berger has been subpoenaed as a witness for the plaintiffs in all of the bellwether trials because his testimony is key to establishing the nature of the design flaws in the earplugs and the alleged concealment of those flaws from the Army.
January 12, 2022 Update: The opening day of testimony in the Sloan/Wayman trial featured Dr. Mark Packer. Dr. Packer is a key expert witness for the plaintiffs and his testimony will help establish the cornerstone allegation that defects in 3M’s earplugs caused Sloan and Wayman to suffer hearing damage. Dr. Packer spent the entire day on the witness starting with 5 hours of direct examination, followed by two hours of cross-examination by lawyers for 3M.
January 11, 2022 Update: Yesterday, a jury was picked and lawyers on both sides presented opening statements. Testimony will begin today.
3M lawyers’ efforts to delay yesterday’s 3M earplug lawsuit trial failed. On Friday, 3M’s attorneys filed a last-minute motion requesting a continuance of the trial because several team members had tested positive for COVID-19.
That motion was denied the following day. Judge Rogers noted that a continuance was not justified because all of the team members were fully vaccinated and, therefore, based on CDC guidelines they were eligible to resume activities. Judge Rogers also pointed out that granting the continuance would have imposed a significant burden on the court and the plaintiffs.
December 28, 2021 Update: The 9th bellwether trial in the continuing 3M earplugs litigation concluded last week with another disappointing result. The jury found that the plaintiff, Carlos Montero, failed to prove that 3M’s earplugs were responsible for his hearing loss and issued a defense verdict.
This latest victory for 3M in the earplugs lawsuits comes just a week after its biggest loss with the $22.5 million verdict in the Finley bellwether trial. There have now been 9 bellwether trials featuring 11 individual plaintiffs. Seven out of the 11 bellwether plaintiffs have been awarded damages while the remaining 4 have lost at trial.
There is now a calm before the storm continues with a new trial with two plaintiffs on January 10, 2022.
December 16, 2021 Update: Christmas came early for Theodore Finley and 270,000 3M earplug lawsuit plaintiffs last Friday: a $22.5 million verdict in Florida. The jury awarded $7.5 million in compensatory damages and $15 million in punitive damages.
The punitive damages were derivative of the jury’s finding that 3M committed fraud beyond a reasonable doubt. That is an unusually high bar for plaintiffs to meet. This underscores just how offended the jury was by 3M’s conduct.
Finley, while a legitimate military hero, was not a perfect case for plaintiffs. 3M’s attorneys had weapons for cross-examination (including unhelpful Facebook posts the plaintiff deleted in anticipation of his trial). 3M’s attorneys fought hard to get the judge to allow every imaginable character assassination into evidence at trial. (Reading the motions will make you cringe.)
The judge allowed some of this evidence and rejected others. But after all that, the 3M wisely abandoned most of the character attacks at trial and chose to embrace the extent of Finley’s noise exposure.
So 3M lawyers argued that just like his Kevlar helmet did not prevent his TBI in combat and his body armor did not prevent his back injuries, these perfect earplugs could not prevent his hearing injuries. At the same time, 3M argued Finley’s hearing injuries were minimal. Even the best lawyers will have a hard time making an argument like that without a jury seeing it for exactly what it is. Which is what happened in this case.
So what impact does a $22.5 million payout have on veterans who might have taken a smaller settlement amount before seeing all these verdicts? The price to settle a military earplug claim is going up.
History might look back on this $22.5 million award as the catalyst for 3M to finally come to their senses and start getting serious about offering settlement compensation payouts to fairly compensate these soldiers.
3M seemed to think that hiring great lawyers and fighting like these veterans and their attorneys at every turn is the path to paying a few billion to settle these lawsuits. But that is not going to work. 3M cannot get around the facts.
December 7, 2021 Update: Another 3M earplug trial began on Tuesday. The case, Finley, will be one of the more interesting 3M cases to go to trial. While we do not know how much of his accomplishments will come into evidence, the plaintiff is a legitimate war hero who fought with great honor and distinction in Afghanistan.
That is a problem for 3M. War heroes make good plaintiffs. 3M’s defense to these earplug lawsuits is making it about the weaknesses in the plaintiff’s case as opposed defendant its conduct. These punitive damage awards are sending a loud message. So 3M’s defense lawyers want to focus on the weakness in individual cases. This might be harder without someone who fought valiantly for his country.
But we do not want to oversell the strengths of this case because the Finley case is messy, too. The plaintiff has not always been consistent in his story about his hearing injury. Inconsistencies in recollection may be what a jury might expect from a war hero that is likely suffering from PTSD.
So the case is likely to ride on whether the jury believes the plaintiff’s explanations for inconsistencies in his story and exactly what the judge lets into evidence at trial.
November 24, 2021 Update: The 3M earplug MDL class action judge has ordered the parties to prepare groups of 500 3M earplug lawsuits for trial. The plan is to continue to order 500 cases every few months until there is a settlement.
So more 3M lawsuits will be pushed with greater velocity to trial until the lawyers can agree on a reasonable settlement amount for these military veterans.
November 23, 2021 Update: $13.063 million verdict in Camarillorazo with $800,000 in compensatory damages and $12 million in punitive damages. The largest 3M earplug lawsuit verdict yet!
Unfortunately, as we talk about below, Palanki was a tougher case for plaintiffs. That case ended in a defense verdict for 3M.
So how do you want to look at these verdicts? 3M earplug plaintiff won 50% of these two new verdicts. That does not sound great. The average earplug verdict is over $6 million. That sounds pretty good, right?
[November 1, 2021 Update: Defense verdict on Friday afternoon on all counts. The jury found that the plaintiff, Michelle Blum, failed to that 3M was liable for hearing damage she allegedly suffered while wearing 3M’s earplugs in the Army.Plaintiff’s hearing loss lawyers attempted to bail out of the case three months before trial. This is a clear sign her attorneys knew her case would be difficult to win.
Fortunately, the 6th and 7th bellwether trials started simultaneously in different courtrooms today so we won’t have to wait long for a better outcome.
Stay tuned for a status report of both of these 3M earplug lawsuits.] [October 29, 2021 Update: 3M’s motion for judgment was denied and lawyers on both sides gave closing arguments.
3M put up six short witnesses on Wednesday. Tuesday, Elliott Burger, the “inventor of foam earplugs” testified for 3M. Burger was instrumental in key decisions in making and designing the Aearo earplug.
On Monday, the plaintiff’s earplug lawyers rested her case. 3M’s put on its first witness, Jennifer Laborde, a Pensacola audiologist.
On Friday, Rear Admiral Allie Leslie testified that the earplugs 3M promised and what it delivered were very different. On Thursday, plaintiff’s experts Elliott Berger and Richard McKinley testified, as did Ms. Blum and Lt. Col. Dan Ohama.
Earplug lawyers on both sides are moving through the case remarkably quickly as mandated by the MDL judge who keeps attorneys on track. There have been a lot of Friday verdicts in this litigation and we could get another Friday verdict tomorrow.
Hopefully, the Blum verdict will look like Adkins. Earlier this month, Army veteran Brandon Adkins was awarded $8.2 million in another incredible win for veterans in the 3M earplug lawsuit. The 35-year-old army veteran’s lawsuit alleges he suffered hearing loss and bilateral tinnitus from 3M’s defective earplugs.
Mr. Adkins was on 3M’s list of lawsuits it submitted to the judge that it wanted to try because it believed the facts were favorable to 3M. So the surefire winner for 3M – in their minds – ends with an $8.2 million verdict. This is a big deal.
What impact does this have on future settlement compensation payouts when these suits finally reach a global settlement? We now know that the 3M earplug lawsuit that the defendant thinks is a winner for them is worth $8.2 million. There are a quarter of a million 3M earplug lawsuits.
This math has to terrify 3M. It may shake 3M into reality on what appropriate settlement amounts should be to provide compensation for these veterans.
In addition to the new trial that started this week, the MDL Judge has scheduled four additional test trials between now and February 2022. The aggressive schedule in this second wave of bellwether will likely continue to put settlement pressure on 3M.
With over 272,416 earplug cases still pending as of November 15th, this puts incredible pressure on 3M and their lawyers to negotiate a global settlement. The upcoming gauntlet of trials may accelerate the pace of this settlement.
[October 20, 2021 Update: The losses keep piling up for 3M in these lawsuits. Today, the 8th Circuit denied 3M’s request to keep all earplug lawsuits in federal court. 3M had reasoned that all because it designed the CAEv2 earplugs in conjunction with the military for military purposes, federal courts had exclusive jurisdiction over all earplug lawsuits.This means that the civilian lawsuits will return to Minnesota state court but the military contractors’ actions will join the Aearo earplug lawsuit. This will mean more lawsuits 3M must defend which should put additional settlement pressure on the company.] [August 15, 2021 Update: These four verdicts have not advanced 3M earplug lawsuit settlement talks like our lawyers expected. This is disappointing. Our attorneys know the injured soldiers we help want to get their settlement money. But if you had told our 3M earplug lawyers at the beginning of the year that soldiers would be 4-1 and the average verdict would be over $2 million, we would be very happy.
This litigation is progressing better than the plaintiffs’ lawyers expected. Still, we may need more trials to get 3M and their shareholders to take an honest look at what reasonable settlement amounts are in these 3M lawsuits. The 3M trials resumed on September 20th and they could be the trigger for a final settlement.] [June 28, 2021 Update: Verdict #3: Another win for in the 3M earplug lawsuits. A Florida jury awarded $1.7 but found Lloyd Baker 38 percent at fault. So the real award for this soldier is $1.1 million. This is a huge win for victims looking for a just settlement compensation payout in the 3M earplug lawsuits. Victims are now 4-1 in 3M hearing damage litigation. This sends a message to 3M that these hearing injuries have real value and an average settlement of $10,000 will not get these cases settled.]
[June 7, 2021 Update: Verdict #2 – The second 3M trial ended last week with a win for the 3M, unfortunately. This was a tinnitus case. The plaintiff, an addiction counselor in Ohio, claimed his earplugs failed him while serving in the Army in Afghanistan where he was exposed to machine guns fire.]
[April 30, 2021 Update: Verdict #1 – We have a verdict! Three earplug plaintiffs were awarded $7.1 million by a federal jury in Florida. The jury awarded $2.1 million in punitive damages per victim. The verdict shows the jury was angry at 3M’s conduct. This will impact the settlement amounts in the 3M earplug lawsuit. Our lawyers hope this stunning verdict after a five-week trial will have a game-changing effect on the individual settlement compensation payouts in these hearing loss claims. Below we talk about the potential settlement compensation payouts in these cases.]
So, let’s summarize the current status of the 3M earplug lawsuits. As of November 17, 2021, we have nine completed trials. The plaintiffs are 6-3 and the jury has awarded the first three bellwether test trials in the 3M earplugs MDL have been completed. Plaintiffs have been awarded over $30 million with an average verdict of $3.34 million. Things are going well!
| PLAINTIFF | CASE NO. | TRIAL | RESULT |
| Atkins, Brandon | 7:20cv012 | 9-20-21 | $8,200,000 |
| Baker, Lloyd Eugene | 7:20cv039 | 6-7-21 | $1,100,000 |
| Blum, Michelle Marie | 7:20cv122 | 10-18-21 | Defense Verdict |
| Camarillorazo, Guillermo | 7:20cv098 | 11-1-21 | $13,063,000 Verdict |
| Estes, Luke | 7:20cv137 | 5-9-21 | $2,450,000 |
| Finley, Theodore | 7:20cv170 | 11-30-21 | $12,500,000 |
| Garcia, Sigifredo | 7:20cv072 | Dismissed | |
| Hacker, Stephen | 7:20cv131 | 5-9-21 | $2,260,000 |
| Hensley, Marcus | 7:20cv093 | Dismissed | |
| Keefer, Lewis | 7:20cv104 | 5-9-21 | $2,420,000 |
| Kelley, Denise | 7:20cv153 | 3-28-22 | |
| King, Jared Lee | 7:20cv132 | Dismissed | |
| Lopez, Kevin | 7:20cv060 | n/a | |
| McCombs, Dustin | 7:20cv094 | 5-28-21 | Defense Verdict |
| McNeal, Chad S. | 7:20cv066 | 3-14-22 | |
| Palanki, Joseph | 3:19cv2324 | 11-1-21 | Defense Verdict |
| Sloan, Ronald Elliot | 7:20cv001 | 1-10-22 | Defense Verdict |
| Taylor, Joseph | 7:20cv071 | Dismissed | |
| Vaughn, Jonathan Wade | 7:20cv134 | 4-18-21 | |
| Vilsmeyer, Luke | 7:20cv113 | 5-9-21 | |
| Wayman, William | 7:20cv149 | 1-10-22 |
These first bellwether 3M earplug verdicts are a big deal. It takes great effort to get to trial in an MDL class action. If the plaintiffs continue winning these hearing damage cases, as our lawyers expect, you could see a 3M global class action settlement faster than you think. Our lawyers provide more 3M earplug trial updates below.]
The stakes are high. The MDL judge reported a mind-blowing 272,416 registered in federal court in the MDL as of November 15, 2021. There are also approximately 1,000 3M earplug lawsuits pending in state court in Minnesota.
This is the biggest MDL class action in American history. This litigation might lead to one of the largest settlements ever. These cases were moving quickly. Plaintiffs’ lawyers are excited about how they are developing and the trial now underway.
Typical victims in these cases are veterans between the ages of 30 and 49 who served in the Army and allege a combination of tinnitus and hearing loss.