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3M Preview of Redo Quest in Earplug Trials Rebuffed by Court (1)

July 12, 2022, 5:43 PMUpdated: July 12, 2022, 10:50 PM

3M Co. shouldn’t have announced its intention to seek new trials in nine combat earplug cases ahead of time, a federal court in Florida said Tuesday.

The company told the US District Court for the Northern District of Florida Monday that delayed depositions of scientists who worked for a French-German defense research institute show a different narrative of the development of 3M Co.'s combat earplugs from the one presented at veterans’ hearing-loss trials.

Judgments in nine cases that 3M lost should be “extinguished,” the company said in a brief notifying the court of the recent testimony.

The test trials should be conducted again, “unencumbered by the fictions presented the first time around,” 3M said.

But Judge M. Casey Rodgers, who oversees the multidistrict litigation, struck the brief from the docket. “This filing is plainly improper,” she said. “Federal court dockets are not repositories for lawyers to preview their future litigation strategies.”

3M and its Aearo Technologies LLC subsidiary are currently litigating legal issues related to the development and approval of the Aearo Combat Arms version 2 earplugs in an appeal to the US Court of Appeals for the Eleventh Circuit.

Servicemembers in about 290,000 cases in consolidated litigation in the Northern District of Florida allege the earplugs were ineffective and caused them to develop hearing loss and tinnitus.

In the 16 bellwether trials conducted to date, 3M has won 6 and lost 10. Two of the trials with verdicts for servicemembers involved more than one case, for a total of 13 prevailing plaintiffs. Here, 3M is challenging the veterans’ narrative in the cases it lost but hasn’t yet appealed.

Two researchers from the French-German Institute of St. Louis “exposed the central underpinning of Plaintiffs’ design and development chronicle as a complete fiction” in their recent deposition testimony, 3M said in its brief.

The scientists testified that Aearo, ISL, and the US military worked together on the earplugs’ development, and it was ISL that created the dual-ended earplug design, according to 3M.

3M intends to ask for relief from the judgments once the official transcripts are available, it said.

Lead plaintiffs’ counsel includes Aylstock Witkin Kreis & Overholtz PLLC; Clark, Love & Hutson; and Seeger Weiss LLP.

Kirkland & Ellis LLP; Moore, Hill & Westmoreland PA; and Dechert LLP represent 3M and Aearo.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig. (Beal v. 3M Co.), N.D. Fla., No. 7:20-cv-00006, brief 7/11/22.

(Updated with court response in first and fifth paragraphs.)

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; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com