PENSACOLA, Fla. (Legal Newsline) - A plaintiff who was chastised by the judge earlier this year for his “unresponsiveness to counsel” dropped his lawsuit accusing 3M of selling defective military earplugs, avoiding a September bellwether trial intended to test the viability of thousands of similar cases.
In his notice of dismissal with prejudice, Joseph Taylor also agreed to pay 3M $18,600 in costs. By dismissing his case, Taylor abandoned any chance of suing 3M over his claimed hearing loss.
3M, in a statement, said the dismissal “demonstrates how plaintiffs will clearly face significant challenges as each case must be proven on its own facts, and in this case, the facts were not there.” Lawyers for Taylor didn’t immediately respond to requests for comment.
The manufacturer faces thousands of lawsuits that have been consolidated in the Pensacola, Fla. court of U.S. District Judge Casey Rodgers, who also maintains an “administrative docket” containing the names of some 200,000 present and former military service members who say 3M’s Combat Arms 2 earplug was defective and caused hearing loss.
Judge Rodgers allowed plaintiff lawyers and 3M to select cases for a series of bellwether trials designed to identify the strengths and weaknesses of each side’s case. Plaintiffs won the first trial involving three claimants, one of them selected by 3M, 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 selected the plaintiff in the second trial and won, with the jury rejecting all claims. In the third trial, the jury rejected claims the Combat Arms earplugs were defective but awarded the plaintiff, selected by the plaintiffs’ side, about $700,000 for failure to warn. 3M says it plans to appeal every adverse verdict.
Taylor filed a standardized complaint in January 2020, complaining of hearing loss, and 3M quickly selected the case for a bellwether trial. Judge Rodgers added it to the list in February 2020 but by May of this year, the judge was threatening to dismiss Taylor’s case due to his “unresponsiveness to counsel” and failure to turn over records to the defense. Taylor blamed it on the birth of a child and a severe case of the flu and the judge dropped her threat after he turned over the required documents.
In June, Judge Rodgers set Taylor’s case for trial starting Sept 20. On July 28, Taylor’s lawyers filed the notice of dismissal, agreeing to pay 3M’s costs. The company immediately moved to substitute in as a plaintiff in the Sept. 20 trial Michelle Blum, who is scheduled for trial in October, but Judge Rodgers rejected that request and substituted instead Brandon Atkins, a defense pick who like Taylor is suing under Washington law.
Earlier this year, Blum sought to dismiss her case without prejudice, meaning it could be filed again, claiming the difficulty of attending to a special-needs child. Judge Rodgers rejected her request.
Plaintiff lawyers claim Combat Arms 2 earplugs distributed to service members from 2008 to 2015 were defective due to poor design and because 3M failed to provide adequate instructions. 3M says the earplugs were designed to military specifications and protected against hearing loss. The company 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.