PENSACOLA, Fla. (Legal Newsline) - Plaintiff lawyers tout litigation against 3M over its Combat Arms 2 military earplugs as “the biggest MDL class action in American history,” with a “mind-blowing” 230,000 claimants.
The reality is less dramatic. So far, 3M has been served with several thousand lawsuits on behalf of around 13,000 plaintiffs, nearly all of them concentrated in multidistrict proceedings before U.S. District Judge Casey Rodgers in Pensacola. Judge Rodgers created an “administrative docket” so her court could obtain the military records of potential claimants.
The administrative docket is little more than a list of names of military veterans, however, useful as a bargaining chip in settlement negotiations but devoid of details such as where the veterans served, whether they’ve been diagnosed with hearing loss and whether they ever actually used 3M’s products.
“It is not a docket full of verified claims,” said Eric Rucker, internal counsel for 3M in charge of the Combat Arms litigation. “It’s a docket full of unverified and unfiled claims.”
Such are the mechanics of modern multidistrict litigation, where plaintiff lawyers use extensive advertising campaigns to recruit tens of thousands of clients to try and force companies into a mass settlement. Both sides know it is impossible to try every case to judgment. But plaintiffs know they can win ruinous jury verdicts if they get to the right venues, and corporate defendants know they can’t take on too much risk without running afoul of their fiduciary duties to shareholders.
Johnson & Johnson learned that lesson when the U.S. Supreme Court refused to overturn a $2.1 billion talc verdict that the company complained was the product of seriously flawed legal process in Missouri, including a trial where jurors awarded identical damages to more than 20 women despite their widely varying ages, exposures and level of disease.
The stakes aren’t nearly so high for 3M in the earplug litigation – yet. Judge Rodgers has held three bellwether trials so far to test plaintiff theories and defenses, ending with inconclusive results. Plaintiffs won the first trial involving three claimants, with the jury ruling 3M’s earplugs were defective and awarding each plaintiff several hundred thousand dollars in compensation and $2.1 million in punitive damages. 3M won the second trial, with the jury rejecting all claims, and in the third trial the jury rejected claims the Combat Arms earplugs were defective but awarded the plaintiff about $700,000 for failure to warn.
More trials are set for the fall and next year. Plaintiffs and defendant are now engaged in fierce pretrial maneuvering even as 3M prepares to appeal the adverse rulings so far. Under scheduling rules she hasn’t fully explained, plaintiff lawyers, 3M and the judge each get to select plaintiffs for upcoming bellwether trials, sometimes with a single plaintiff, sometimes with several.
3M picked one of the plaintiffs who won in the first trial and selected the losing plaintiff in the second trial, who complained of tinnitus but failed to convince the jury he had been injured. Plaintiff lawyers picked the claimant in the third trial, who won on the narrow claim of failure to warn.
3M picked a former military service member named Michelle Blum for an October trial, only to have her lawyers file to dismiss the case without prejudice, meaning she could preserve her claims for a future trial. 3M objected, saying Blum’s lawyers didn’t want to try a weak case, while Blum said she couldn’t attend trial because she is the single parent of a special-needs child. Judge Rodgers rejected her request to dismiss the case, instead requiring Blum to attend trial by video if necessary.
Rucker said 3M intends to proceed with more bellwether trials because each case presents unique evidence about hearing loss, use of the Combat Arms 2 earplugs and whether claimants were exposed to excessive noise. The policy of the U.S. military is to conduct hearing tests on service members before, during and at the end their tours, he said, providing critical evidence about whether the earplugs worked as intended.
In the second trial, plaintiff Dustin McCombs said he suffered from tinnitus after he was deployed to Afghanistan in 2009, but 3M said he never provided medical evidence his hearing was impaired.
“He was in a loud environment, used our product, and none of his medical records showed he had an injury during the time he was in the military,” Rucker said. “The product worked.”
Other plaintiffs have convinced jurors the Combat Arms 2 earplugs were poorly designed, or the company didn’t provide adequate instructions to users, even though the government approved the design and handed them out as standard equipment from 2008 to 2015. 3M paid $9.1 million to the government in 2018 to settle, without admitting fault, claims it failed to disclose a design defect that could allow the earplugs to malfunction in certain users.
The earplugs featured a traditional noise-muffling end, which shut out nearly all loud sounds, and a yellow end that muffled sharp “impulse noises” like gunshots and explosions while allowing users to hear voices. The military sought this two-function design because soldiers refused to wear traditional ear protection out of fear they couldn’t hear commands they needed to stay safe.
“What the first two bellwether trials have shown is each plaintiff’s claim is unique and individualized to them,” Rucker said. “There isn’t any way to try these cases without taking into account each service member’s service history.”
3M plans to appeal one of Judge Rodgers’ earliest rulings, denying the company’s plea to present the “government contractor defense,” that it made the earplugs to government specifications and provided the proper warnings to the military. If it can overturn the judge’s ruling, Rucker said, 3M is “essentially immune from state tort liability for that product.”
Lawsuits in the MDL, while filed in federal court, assert claims based upon the varying state laws of the individual plaintiffs, such as strict product liability, failure to warn and fraud.
In theory, Judge Rodgers is in charge of coordinating pretrial activities such as evidence discovery and deposing witnesses, as well as conducting a limited number of bellwether trials. After that, unless 3M settles, she is supposed to send the individual lawsuits back to the federal district courts where they originated for trial. That almost never happens in the real world, although legal scholars such as Elizabeth Burch of the University of Georgia Law School have mounted an increasingly vocal campaign to give more MDL plaintiffs a shot at a live jury.
“Remands are good for so many reasons—more judicial eyes on the case, plaintiffs can credibly threaten trial, defendants are likely to face fewer questionable cases, etc.,” Burch said, in an e-mail.
Rucker seemed to agree.
“What is likely going to happen is, Judge Rodgers will try a series of bellwethers, and at some point she will have deemed the bellwether process to be complete and cases will be remanded back to states,” he said.
Eventually, he said, “we’ll win enough trials or the appeal and the plaintiffs go away, or we won’t and we may explore resolution.” But that’s “at least three trials and a year away," he said.