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Dechert Lawyers Sanctioned in 3M Combat Earplug Defect Case (1)

June 22, 2021, 6:31 PM; Updated: June 22, 2021, 7:19 PM

Two Dechert lawyers who represented 3M in a defective combat earplug case have to pay a $12,000 sanction for violating a federal judge’s order on how to instruct the jury on a piece of evidence.

Judge M. Casey Rodgers said it was the first time in her 19 years on the bench that she had to summarily sanction an attorney for a “willful disregard” of her orders.

“Today these proceedings and the integrity of the Court were degraded, they were disrespected by the willful violation of my orders by 3M’s counsel,” Rodgers said June 18, according to a transcript of the proceedings.

The National Law Journal first reported the sanctions on Monday.

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

Attorneys Kimberly Branscome and Jay Bhimani were to instruct the jury that they could consider the slide to support or discredit an expert’s opinion but not to consider it as support for the fact that the earplugs had that rating, Rodgers said.

But they didn’t, Rodgers said. “I’m very upset by this,” she said.

She said she wouldn’t strike the slide from evidence because she didn’t want to punish the client “for a very serious violation” of her order that was “potentially very misleading to the jury,” but would instead sanction the attorneys.

Branscome denied she willfully violated the order. “I thought I understood the instruction,” she said.

Rodgers ordered Branscome to pay $10,000 and Bhimani $2,000 within 30 days of the proceeding.

The attorneys declined to comment.

The jury in the case awarded plaintiff Lloyd Baker $1.7 million on June 18.

Baker is a U.S. Army veteran who alleged that earplugs made by 3M Co. and its subsidiary Aearo Technologies LLC were defective and caused his hearing loss and tinnitus,

His case is one of several bellweather trials that are part of consolidated litigation over the earplugs, encompassing about 200,000 claims.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig. (Baker v. 3M Co.), N.D. Fla., No. 7:20-cv-00039, 6/18/21.

(Updated with no comment from sanctioned attorneys in 11th paragraph.)

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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