3M Combat Earplug Hearing-Loss Claims Return to Formal Mediation

Mediation between 3M Co. and service members over allegedly ineffective combat earplugs will resume after a break of three months, ordered by the court overseeing the hearing-loss claims.

Aspects of the earplug dispute pending in bankruptcy and appellate courts “present difficult issues and considerable risk for both sides, which warrant renewed exploration of a mutually agreeable resolution,” Judge M. Casey Rodgers said Tuesday. Rodgers oversees the 230,000-plaintiff multidistrict litigation pending in the US District Court for the Northern District of Florida.

The order came a day after the US Court of Appeals for the Eleventh Circuit heard oral argument in 3M’s appeals of four verdicts for veterans in early test trials, including an immunity issue with the potential to wipe out the whole litigation. At least two of the judges appeared open to affirming the verdicts and keeping the wider litigation alive.

The current and former service members are suing 3M and its Aearo Technologies LLC subsidiary in the MDL overseen by Rodgers. They allege Aearo’s earplugs, which were intended to block loud noises while allowing voices to be heard, failed to protect their hearing.

3M has prevailed in six of the 16 test trials to date. The other 10 trials yielded cumulative verdicts totaling more than $250 million. Large verdicts in some of the trials have led to aggregate liability estimates in the billions, with analysts struggling to assign a dollar range.

3M sought to avert the mass tort litigation and limit the companies’ financial hit by having Aearo file for Chapter 11 in the US Bankruptcy Court for the Southern District of Indiana. But the bankruptcy court declined to protect 3M from the suits. The US Court of Appeals for the Seventh Circuit is reviewing that decision.

For months, 3M has sought to settle the cases globally through the bankruptcy process. It opposed the service members’ request that the MDL court reinstate mediation toward a settlement that likely wouldn’t capture all the tort claims.

But Rodgers said that “the bankruptcy mediation process has not borne fruit.” Service members’ representatives there have asked to end mediation there, citing “an unbreakable impasse on numerous key issues—both structural and financial,” according to Rodgers.

Two retired judges, David R. Herndon and Jeffrey J. Keyes, will handle the mediation alongside a court-appointed official, Randi Ellis, who has been a mediator in the MDL and bankruptcy combat earplug proceedings.

The settlement talks would also encompass the several thousand earplug cases, mostly brought by civilian earplug users, pending in Minnesota state court.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig., N.D. Fla., No. 3:19-md-02885, 5/2/23.