Dechert Attorneys Get 3M Earplug Trial Sanctions Thrown Out

A federal judge overseeing veterans’ earplug defect cases against 3M Co. acted incorrectly when imposing sanctions totaling $12,000 on two Dechert LLP trial attorneys who represented the company, the Eleventh Circuit said Wednesday.

The sanctions issue will return to the lower court for a fresh determination.

The ruling marks the second time a panel of the US Court of Appeals for the Eleventh Circuit has stayed Judge M. Casey Rodgers’ hand in the multidistrict litigation over combat earplugs made by 3M and its subsidiary, Aearo Technologies LLC.

In October 2022, the appeals court court—without comment—granted 3M’s procedural request that it be allowed to continue making certain arguments in bankruptcy court while it pursued its appeal of Rodgers’ prohibition of those arguments.

Meanwhile, an appeal currently pending before a different panel at the Eleventh Circuit raises an immunity issue that could wipe out the whole litigation.

Hearing Loss Claims

About 230,000 current and former service members are suing 3M and Aearo, alleging Aearo’s Combat Arms version 2 earplugs were ineffective and left users with hearing loss and tinnitus. The devices were intended to block loud noises while allowing voices to be heard. Aearo has filed for Chapter 11 protection in the US Bankruptcy Court for the Southern District of Indiana.

Rodgers sanctioned the two Dechert lawyers, Kimberly Branscome and Jay Bhimani, at the end of a June 2021 test trial for violating her order about how to present a piece of evidence in closing arguments. The plaintiff, Lloyd Baker, was among 13 service members who prevailed in bellwether trials. 3M won six trials.

The controversy centered on a slide that said the earplugs had a specific noise reduction rating.

Branscome was to instruct jurors that they could consider the slide to support or discredit an expert’s opinion but not to consider it as support that the earplugs had that rating, Rodgers told Bhimani in a conference that Branscome wasn’t present for, according to the Eleventh Circuit.

But Branscome failed to tell the jury on her own that they couldn’t consider the noise reduction rating for its truth, Rodgers said.

When the jury was deliberating, Rodgers told Branscome and Bhimani that “right now my intent is to enter monetary sanctions against one or both of you,” and seven hours later she asked to hear from them. In a written order, she said the attorneys’ “conduct cannot be reasonably construed as anything other than willful.”

The Eleventh Circuit said that Rodgers didn’t give them the necessary notice.

Further, “because the district court imposed sanctions under its inherent power to do so,” it needed “to find that the attorneys subjectively engaged in bad faith,” Judge Barbara Lagoa said for the court. But Rodgers didn’t do that when saying the conduct couldn’t be construed as other than willful, Lagoa said.

On remand, Rodgers should apply the bad faith standard, she said, joined by Judges Robin S. Rosenbaum and Britt C. Grant.

The case is Baker v. Branscome, 2023 BL 184176, 11th Cir., No. 21-12393, unpublished 5/31/23.