3M Faces Earplug Test Trial as Vast Litigation Takes Shape

A jury should decide whether an Army veteran filed timely hearing-loss claims against 3M Co. over its combat earplugs, as well as aspects of her fraud-based claims, a federal court in Florida ruled in an upcoming test case set for trial.

3M and its Aearo Technologies LLC subsidiary also aren’t entitled to summary judgment on Michelle Blum’s New York consumer-protection claim on the basis that she used the earplugs as a soldier rather than as a consumer, Judge M. Casey Rodgers said Monday for the U.S. District Court for the Northern District of Florida. The companies’ marketing campaign was consumer-oriented, said Rodgers, who is overseeing consolidated multidistrict litigation over the Aearo Combat Arms version 2 earplugs.

Rodgers also set trial dates for five test cases in a separate order on Monday, with the cases to be tried by other judges in federal courts in Florida. Rodgers scheduled the trials soon after announcing she would accelerate the bellwether cases and begin ordering plaintiffs’ counsel to convert the MDL’s 250,000 “administratively” filed cases to the active docket, 10,000 to 20,000 cases at a time.

Rodgers also anticipates ordering discovery in 500-case “waves,” after which she will send the cases back to their originating courts for trial.

In Blum’s case, 3M argued her hearing-loss and tinnitus symptoms before her 2009 discharge made most of her claims, deemed to have been filed 10 years later, untimely.

But a defendant’s concealment of information, if proved, can preclude its use of a statute-of-limitations defense under New York law, Rodgers said. Here, triable issues remain for a jury on that issue, she said.

A jury should also decide key elements of the fraud-based claims, Rodgers said—whether Blum reasonably relied on 3M and Aearo’s representations, and whether the companies owed her a duty to disclose information about the earplugs.

The ruling allowing the consumer-protection claim to proceed could apply to other New York cases as well.

Blum’s trial is set for October, after another trial in the second batch of bellwethers.

Aylstock, Witkin, Kreis & Overholtz PLLC and Mostyn Law represent Blum. Kirkland & Ellis LLP; Moore, Hill & Westmoreland PA; and Dechert LLP represent the defendants in the case.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig. (Blum v. 3M Co.), N.D. Fla., No. 7:20-cv-00122, 8/30/21.