3M’s Request for Combat Earplug Users to Pay Filing Fee Blasted

3M Co.'s request that service members be made to pay filing fees to proceed with their hearing-loss claims over combat earplugs is moot, a federal court in Florida said in a swift rebuke to the company.

“Filing fees and the statutory requirements for filing a case have never been ‘waived’ in this MDL,” Judge M. Casey Rodgers said Wednesday, referring to the consolidated multidistrict litigation.

The large administrative docket that 3M and its subsidiary Aearo Technologies LLC targeted in their motion is an organizational tool created partly for their own benefit, Rodgers said for the U.S. District Court for the Northern District of Florida. The ruling came just a day after 3M and Aearo submitted their brief.

“Filing frivolous motions will not ‘winnow’ frivolous cases,” Rodgers said.

The service members allege Aearo Combat Arms version 2 earplugs failed to protect their hearing. They allege they sustained hearing loss and tinnitus as a result. More than a dozen bellwether trials have taken place, and appeals are pending.

Meanwhile, Rodgers has begun ordering plaintiffs’ counsel to convert the MDL’s administratively filed cases to the active docket, 10,000 to 20,000 cases at a time.

3M and Aearo say that as of March 20, more than 265,000 individuals have filed claims in the administrative docket.

The companies complained about the “un-vetted” claims in their brief. “The waiver of an initial filing fee and other basic requirements for initiating a case cannot be reconciled with statutory filing requirements and has dramatically inflated the size of this MDL,” they said.

But there was no waiver, Rodgers said, pointing to her orders to transition cases to the active docket. “The transition process is staggered to accommodate the indispensable work of the Clerk’s Office, which must process each case, accompanying filing fee, and pro hac vice motions, a burden the Defendants have no concept of,” she said.

More than 86% of plaintiffs in the first transition waves moved to the active docket, demonstrating that the filing fees aren’t an “MDL-killer,” she said.

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

Kirkland & Ellis LLP and Dechert LLP submitted the brief for 3M and Aearo.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig., 2022 BL 120250, N.D. Fla., No. 3:19-md-02885, 4/6/22.