Welcome

3M Held Liable for Vets’ Hearing Loss in Earplug Test Trial

April 30, 2021, 6:57 PM

3M Co. and its subsidiary Aearo Technologies LLC are liable for three former service members’ hearing loss and tinnitus, and the company must pay more than $7 million in damages, a federal jury in Florida decided Friday in the first test trial in mass tort litigation over the companies’ combat earplugs.

The three plaintiffs were awarded $2.1 million each in punitive damages by a jury in the U.S. District Court for the Northern District of Florida, with additional damages for medical expenses, lost earnings, and pain and suffering.

The court is overseeing consolidated litigation over the earplugs, encompassing about 200,000 claims, many only “administratively” filed in a placeholder arrangement. The plaintiffs are current and former members of the military, along with some civilians, who allege they developed hearing loss and tinnitus.

“The evidence is clear: 3M knew their earplugs were defective, yet they allowed our servicemembers to suffer these life-altering injuries,” plaintiffs’ attorney Bryan Aylstock said in a statement. “We look forward to beginning the second bellwether trial on May 17, and to fully holding 3M accountable for the damage they have caused to those who served our nation.”

More than 500 similar cases are proceeding in state court in Minnesota, where 3M is headquartered.

“We do not believe the plaintiffs met their burden of proving that the CAEv2 product was defectively or negligently designed or caused each plaintiff’s purported injuries,” 3M said in a statement. “While we are disappointed and disagree with today’s verdicts, they are just the first step in this litigation.”

The test trial, which began March 29 and lasted about four weeks, involved the claims of Luke Estes, Lewis Keefer, and Stephen Hacker. Two more bellwether trials, each involving one service member’s case, will follow. The trials are intended to provide some measure of the strength of the plaintiffs’ claims and 3M’s defenses.

The conclusion of the trials will also allow 3M to appeal Judge M. Casey Rodgers’ denial of its defense that Aearo designed the Combat Arms Earplug Version 2 as a government contractor, as well as adverse rulings on other issues. Rodgers blocked immediate review of the government contractor decision in August 2020, saying that could wait until a judgment in an individual case.

“We believe there are multiple grounds for appeal, including those outlined in our filed mistrial motion, and we are evaluating our legal options. We remain confident in our case and are ready to defend ourselves against plaintiffs’ allegations at the upcoming trials,” 3M’s statement said.

The court made numerous other consequential rulings in the run-up to the trial, particularly about what evidence from the U.S. military 3M could use as it sought to pin responsibility on the government.

Plaintiffs’ counsel includes Aylstock, Witkin, Kreis & Overholtz PLLC; Clark, Love & Hutson GP; Seeger Weiss LLP; Levin Papantonio Rafferty; Mostyn Law; Ciresi Conlin LLP; Laminack, Pirtle & Martines; Pulaski Kherkher Firm PLLC; OnderLaw LLC; Gori Law Firm; and Wagstaff & Cartmell.

Kirkland & Ellis LLP; Moore, Hill & Westmoreland PA; Bradley Arant Boult Cummings LLP; and Dechert LLP represent the defendants.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig. (Estes v. 3M Co.), N.D. Fla., No. 7:20-cv-00137, verdict 4/30/21.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.