First Bellwether Starts in Massive 3M Earplugs MDL

    In late March 2021, the massive consolidated case concerning defective 3M combat earplugs lurched forward with a bellwether. This bellwether consolidates three cases (of the MDL’s 229,397 actions) in Florida’s Northern District Court. It’s intended as a harbinger of how the other separate actions could play out in one of the largest U.S. mass torts. If successful, plaintiffs’ damages will certainly reach hundreds of millions of dollars.

    Judge Sets a Tight Timeline

    Judge M. Casey Rodgers of Florida’s Northern District, Pensacola Division is set on a speedy and efficient trial. In her January 29, 2021 Order, Judge Rodgers set out a tight calendar and timeframes for the bellwether trial. Judge Rodgers is allowing 22 business days (165 hours) for the trial. She has also excluded two days for jury selection, opening/closing statements, closing arguments, and instructions. The court characterized this calendar as generous, if not “overly generous.” The judge wants things to move quickly in this civil MDL because next the courts will start the criminal trials.

    Splitting the Time

    Judge Rodgers also decided that the plaintiffs and defendants will split the trial time 50/50. This move is perhaps in anticipation of lengthy plaintiff arguments—each of whom must prove their own case. Judge Rodgers commented that the defendants are due equal time because one of their affirmative defenses will “require considerable time.” She also expects both sides to shoulder the burden of educating the jury on the complex science involved in the case.

    Faulty Earplugs

    The 3M Company, 3M Occupational Safety LLC, Aearo Holding LLC, Aearo Intermediate LLC, Aearo LLC, and Aearo Technologies LLC are all defendants in the first bellwether case. Class plaintiffs claim Aearo (acquired by 3M in 2008) manufactured Dual-Ended Combat Arms Earplugs that leaked noise. This leakage was significant enough to cause damage to soldiers’ hearing. The earplugs’ distribution was also significant—Aearo sold $30 million of earplugs to the U.S. Army from 1999-2000.

    3M insists that the U.S. Army asked Aearo to shorten the first-generation plugs “so they would fit in a standard-issue military carrying case.” When Aearo lab tests revealed that the shorter earplug didn’t always function properly unless inserted in a particular way, 3M claims it informed the military. This put the onus on the military to train soldiers on how to properly insert the earplugs, per 3M.

    Three Army Vets and Bellwether Claims

    The three cases lassoed together in this bellwether trial are Estes, No. 7:20cv137, Hacker, No. 7:20cv131, and Keefer, No. 7:20cv104. The plaintiffs are all Army veterans. They each filed a Master Short Form Complaint and Jury Trial Demand to join the lawsuit, alleging they suffered injuries and/or side effects from using the Dual-Ended Combat Arms Earplugs. Keefer and Hacker claim they suffered hearing loss and tinnitus. Estes claims hearing loss and sequelae of hearing loss. This is a condition that occurs as the consequence of a previous hearing loss or injury.

    Expect Intense Factual Fights

    The facts in the case are complex and scientific in nature. In fact, the parties have already disputed certain points in early proceedings. Expect the factual fights to continue at trial as both sides try to win over the jury. There will certainly be fierce discussion on whether 3M properly informed the army about careful insertion. The parties will also dispute who was responsible for educating soldiers on proper earplug insertion.

    Design Collaboration

    The parties will also debate the Army’s level of involvement in the redesign of Aearo earplugs. In fact, this collaboration between the Army and 3M dates back to 1997. This was when the two parties first met to discuss a dual-ended combat earplug. Both Doug Ohlin, an audiologist and the hearing conservation manager at the Army’s Center for Health Promotion and Preventive Medicine, and Elliott Berger, an acoustical scientist and Aearo founder, attended these talks. A 3M executive later stated during deposition, “Doug was the one that pretty much dictated how we were to provide hearing protection to the military.” Doug Ohlin also reportedly instructed Aearo in 1999 to shorten the earplugs.

    Yet Judge Rodgers wrote in an earlier ruling that “[N]o reasonable jury could conclude that Dr. Ohlin [Army audiologist] or the Army made Aearo do anything.” Judge Rodgers also ruled that the Army never issued a request for an earplug redesign. This remains a topic to watch at trial.

    Lab Results Communication

    3M will no doubt call a witness to testify that the company informed the Army regarding the earplug fitting issue. Although, in a deposition, Aearo’s Elliott Berger testified that he didn’t recollect providing test data to Doug Ohlin. He added that the “entire development project was discussed with him and the issues from shortening [the earplug] to how it affected our testing were reviewed.”

    Expect the prosecution to present a 2018 Army report explaining if the government had known about the defects, it may not have purchased earplugs. More powerful yet, prosecutors will tell the jury that Judge Rodgers already ruled that the lab report, known as the Flange Report, was never shared with the Army. Despite this, 3M remains adamant that it shared key parts of the report on the fitting issue with the Army. This claim would make the military responsible for proper insertion training for those using the earplugs. It will be an epic battle on these and other issues as the bellwether proceeds.