First 3M Earplug Bellwether Trial Case Set For April 5, 2021

Introduction

On June 29, U.S. District Judge Casey Rodgers issued a pretrial order indicating that the first 3M combat earplug bellwether case will go to trial on April 5, 2021.

In March 2020, the court identified a group of 25 cases to be a part of the first bellwether trial pool, known as Group A. The agenda of the group asks for plaintiff depositions in those cases to be completed by July 31, the fact discovery to be completed by October 9, and the challenges to case-specific expert witness testimony by January 8, 2021.

Judge Rodgers also issued another case management order, calling the parties to submit a schedule for bellwether trial cases in Groups B, C, and D by month-end, when the next Case Management Conference will be held on July 29. The order also indicates that the court will schedule a second Science Day before the conference, particularly to discuss the discovery protocol for ototoxic medications and illicit substances.

In April, 3M Company attempted to dismiss the lawsuits filed against it by filing a summary judgment stating that it was relying on the “government contractor defense,” and distributed the earplugs as per the guidelines provided by the military. However, in response, the veterans argued that the company's plea should not be accepted as it is blaming the military for its own mistakes and misdeeds.

In July 2018, the company made a settlement of $9.1 million with the Department of Justice, resolving claims that it defrauded the government by deliberately selling the defective earplugs.

The Combat Arms Earplugs Version 2 (CAEv2) was manufactured by Aearo Technologies, Inc. before being taken over by 3M in 2008. The dual-ended 3M CAEv2 combat earplugs served as a standard form of military hearing protection in foreign conflicts for more than a decade, from 2002 to 2016. The 3M military earplugs are made of green and yellow with a double-ended design. The green end is inserted to block all sound, and the insertion of the yellow end reduces the sound of gunfire and explosives but still allowed the service personnel to be part of a conversation. According to several lawsuits filed, the defective military earplugs cause two primary medical issues, tinnitus and hearing loss, mostly among veterans in the Navy and Air Force. The product was discontinued in 2015.

Currently, more than 150,000 claims are filed by veterans, each raising similar allegations that the hearing loss injuries were caused by defective 3M earplugs that were standard issue by the military between 2003 and 2015. The lawsuits are consolidated under MDL No. 2885 (In Re: 3M Combat Arms Earplug Litigation) in the Northern District of Florida.

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