3M Earplug Lawsuit Trial Update

There are over 250,000 plaintiffs, mostly military veterans, that have filed a 3M earplug lawsuit against 3M alleging that the company’s Combat Arms earplugs were defective and failed to protect them from hearing damage.  The 3M earplug lawsuits have been consolidated into the largest “class action” MDL in history – the 3M Earplugs MDL in the Northern District of Florida. Our law firm is taking 3M earplug lawsuits in all 50 states and the District of Columbia.

This page provides all recent updates on the 3M earplug lawsuit.  The last update was on Saturday, January 23, 2022, at 9:40 a.m.

3M Earplug Lawsuit Trial Update January 23, 2022

3M Trial Day 9:

Many of us are getting used to Friday verdicts in 3M trials.  No luck today yesterday.  The plaintiffs are still in their case so we are a bit away from a verdict.  Two plaintiffs’ experts and one fact witness testified today.

We have gotten a number of calls over the weekend asking if there will be a verdict on Monday. There will not.  But we expect one next week.

3M Trial Day 8:

Today will be the continued testimony of  Dr. Chris Spankovich.

3M Trial Day 7

Yesterday, as mostly Plaintiff Wayman’s trial testimony.  His therapist also testified.

3M Trial Day 6

Day 6 on January 18, 2022, the first day back from the holiday, featured the testimony of Dr. Marc Bennett, who testified about the soldiers’ hearing injuries.  Two fact witnesses also provided testimony.

3M Trial Day 5

Richard McKinley, a bioacoustics engineer, testified about why the 3M earplugs are defective.  His critical testimony took up most of the day.

3M Trial Day 4

Day 4a big day in the Sloan/Wayman trial. After hearing very short video deposition testimony from 3 minor fact witnesses, the plaintiff Ronald Sloan took the stand. Sloan testified under direct questioning from his lawyer for about 2 hours. The cross examination by 3M’s defense team lasted slightly longer and was followed by a 10-minute redirect. The jury’s reaction to Sloan will play a large role in the ultimate outcome of the case.

3M Trial Day 3

On Wednesday, the plaintiffs presented the testimony of Elliott Berger (via Zoom video call). Mr. Berger is a retired scientist from 3M’s Personal Safety Division and an expert in audiology. Berger was directly involved in the original product design and testing of the Combat Arms earplugs. The plaintiffs have subpoenaed Berger as a witness in all of the 3M bellwether trials because his testimony is critical to establishing that there were known design flaws in the earplugs and they were not fully communicated to the Army.

3M Trial Day 2

Tuesday was the first first day of witness testimony in the Sloan/Wayman bellwether trial featured the plaintiffs’ expert Dr. Mark Packer. Dr. Packer is a critical witness for the plaintiffs and he spent 5 hours on direct examination explaining to the jury how defects in the 3M’s earplugs caused Sloan and Wayman to suffer hearing damage. Two hours of intense cross-examination followed that challenged the basis of Dr. Packer’s opinions and his methodology.

3M Trial Day 1

A jury was picked and the parties gave opening statements.

More on Sloan and Wayman 3M Earplug Trial

Ronald E. Sloan and William Wayman will be the next two bellwether plaintiffs to take their 3M earplug cases to trial. Sloan and Wayman will be tried together starting today, January 10, 2022. Sloan and Wayman are both veterans of the Army.  The hearing injury claims are typical of this litigation. Wayman is claiming tinnitus and PTSD. Sloan is alleging that he suffered hearing loss and tinnitus.  These cases are both ready to go.  The pretrial motions were ruled at the end of the month and the trial should kick off as scheduled.

[Funny side note: 3M tried to get out of the trial starting today using the most 2022 excuse possible: COVID-19.  3M lawyers filed a motion requesting a 1-week postponement because several members of their trial team tested positive for COVID-19.  Judge Rogers denied that motion on Saturday.  Judge Rogers pointed out that all the lawyers who tested positive were fully vaccinated and, therefore, under the current CDC guidelines they could end their self-quarantine by Sunday, January 9. This fact, combined with the substantial prejudice to the plaintiffs and burden on the court warranted denial of the continuance request.  It is true.  The logistics of getting all these witnesses and experts ready for trial is Herculean.]

Sloan and Wayman 3M Earplug Verdict Is Important in Settlement Talks

Every verdict in these cases is a path to determining the settlement amounts in the 3M earplug lawsuits.  But this consolidated trial with two plaintiffs seems particularly important.  We are on the eve of seriously expediting the pace of this litigation.

That is an exhausting prospect for every 3M earplug lawyer in the trenches.  But it is a more exhausting prospect for 3M.  Do they really want to pile on millions more in verdicts?  If these cases are ever ripe for settlement, it is before these 3M lawsuits go to trial in massive numbers.

Montero Defense Verdict

Just before Christmas, 3M got a win with a defense verdict in the Montero case.  This was unfortunate and I did not dwell on it much, mostly because of the holidays.  But the massive Finley verdict still eclipses that news.

Finley Verdict on December 10th:  $22 Million

In Theodore Finley v. 3M Co., et al. (7:20-cv-170), a federal jury in Tallahassee ruled that 3M must pay a combat veteran $22.5 million.  The compensatory damages award was $7.5 million.  The jury added $15 million in punitive damages.

Keep in mind this case as a defense pick.  This was a case 3M wanted to push forward to trial.  The case had real weaknesses as we talk about below. Yet, still, $22.5 million.  It is stunning and the expected settlement amounts in these cases continue to move north.

That is now $52 million in verdicts in the 3M earplug lawsuits for 10 plaintiffs.  There are 270,000 plaintiffs.  This math is brutal for 3M. (Yet 3M stock is up in the futures market this morning after this $22 million verdict.  For the life of me, I just don’t get it.)

If you intend to bring a 3M lawsuit, do not delay.  You can contact us for a free consultation online or call 800-553-8082.  But do not miss out because you missed the deadline to sue.

Results of the First 7 Bellwether Trials Against 3M

So far there have been 7 bellwether test trials in the 3M earplugs MDL. The first bellwether trial featured the claims of 3 individual plaintiffs (1 defense pick, 1 plaintiff pick, and 1 picked by the Judge) and resulted in a major loss for 3M. The jury awarded $7.1 million in total damages to the 3 plaintiffs. This included $2.1 million in punitive damage for each plaintiff.

https://www.millerandzois.com/blog/wp-content/uploads/2021/11/Bellwether-Plaintiffs-Trial-Date-Result-1st-Estes-Luke-720cv098-Hacker-Stephen-720cv072-Keefer-Lewis-720cv104-5-9-21-7.1-million-verdict-2nd-McCombs-Dustin-720cv094-5-28-21-Defense-ver-2.pngThe 2nd bellwether trial was held in a case picked by 3M’s defense team (Dustin McCombs v. 3M Co.). 3M won a defense verdict in this case. Round 3 involved a plaintiff selected by the Judge (Llyod Baker v. 3M Co.) and the trial resulted in a solid victory for the plaintiffs. The jury awarded Baker $1.7 million but found him partly at fault and reduced that award by 38%.

The 4th bellwether trial was another case picked by 3M’s defense team (Brandon Atkins v. 3M Co.), but it resulted in a decisive win for the plaintiffs. The jury awarded Atkins $8.2 million in compensatory damages.

The 5th and 6th bellwether trials were defense picks and both cases resulted in disappointing losses for the plaintiffs. This setback was quickly followed by the 7th bellwether trial which generated the largest verdict to date. Plaintiff Guillermo Camarillorazo was awarded $13 million in total damages including $12 million in punitive damages against 3M.

Preview of 8th Bellwether Trial (Finley)

The next bellwether trial (Round 8) in the 3M earplug MDL will be held in the case of Theodore Finley v. 3M Co. (7:20-cv-170) and it is scheduled to kick off tomorrow. The trial will be held before Judge Mark Walker in the Tallahassee division.

Finley Was a Distinguished Combat Solider

The plaintiff in this bellwether trial is Theodore Finley. Finley served in the Army from October 2006 to May 2014. He used the 3M Combat Arms earplugs during that entire time. Finley served in Afghanistan and was involved in actual combat duty.  War hero level stuff, apparently. He was exposed to loud noises from a variety of weapons and equipment.

Finley’s medical experts performed differential etiologies and determined that his bilateral tinnitus and noise-induced hearing loss were caused by a lack of protection from the 3M earplugs. He is seeking compensatory damages and punitive damages.

3M’s Defense in Finley

3M’s defense in the Finely case will have two focal points.

Hearing Injury Not from Earplug Use

First, 3M is going to argue that Finley’s hearing damage was caused by other factors and was not related to the effectiveness of his 3M earplugs. In support of this defense, 3M will present evidence highlighting apparent inconsistencies in his allegations versus his medical treatment records.

Alternative Sources of Pain and Suffering

3M is also prepared to introduce evidence of various events in Finley’s personal life that could be sources of his alleged pain and suffering. Judge Rogers also put some major limits on the extent to which 3M will be allowed to put Finley’s personal life on display to show potential causes (other than his hearing loss) for his emotional pain and suffering.

So 3M’s lawyers will attack Finley’s claim that he has suffered emotional stress and mental suffering as a result of his hearing loss and tinnitus. 3M will present evidence to suggest that Finley’s emotional pain and suffering is due to other factors or events in his life and has nothing to do with his hearing damage.

For instance, 3M will present medical treatment records showing that before filing his lawsuit against 3M, Finley never claimed that his hearing loss was a source of stress. 3M is also going to use this argument as a platform to challenge Finley’s general credibility. If the appropriate opportunity presents itself, 3M is going to suggest that Finley is fabricating or exaggerating his claims simply to make money.

Once again, Judge Rogers has already put some limits on the extent to which 3M’s defense team can attack Finley’s credibility. For instance, Judge Rogers has blocked 3M from presenting evidence of Finley’s financial problems to attack his credibility or imply that he is exaggerating his injuries for financial gain.

Judge Rogers also ruled that 3M cannot introduce videos from Finley’s YouTube channel showing him playing violent, first-person shooter video games. 3M will be permitted to present some of Finley’s social media posts if they are relevant to claims in his case.

Predictions for the Finley Case

The Finley case is a little bit of a one-off. There are maybe more crosswinds in this case than any other that has gone to trial.  Finley’s valor in combat might move the jury – to the extent his military records come into evidence – or it might be frustrated by the inconsistencies in his story.

The outcome of this bellwether trial will hinge largely on Finley’s testimony and how the jury views him. Most of 3M’s defense strategy, in this case, seems to be based on the implication that Finley is just fabricating his claims for financial gain.

If 3M can convince the jury that Finley is basically making things up or twisting facts in order to cash in on his lawsuit, we may see another defense verdict. On the other hand, if Finley comes across as a good, honest person during his testimony, the jury will probably overlook some shortcomings in his case and rule in his favor.

More 3M Lawsuit Updates

November 15, 2021:  The 6th and 7th bellwether trials in the 3M earplugs litigation delivered both disappointment and major success. On Friday, a jury in the case of Joseph Palanki came back with another defense verdict in favor of 3M.

Today, this setback was followed by the biggest victory yet for the 3M earplug plaintiffs. After a 2-week trial in Tallahassee, the jury found in favor of the plaintiff (Sgt. Guillermo Camarillorazo) and awarded $800,000 in compensatory damages and a staggering $12 million in punitive damages. 

Our 3M earplug lawyers have to see any victim lose – but an average jury compensation payout of over $6 million in these two cases sends a loud message to 3M, right? Why the 3M shareholders are sleeping on the risk this litigation poses to 3M is a mystery to me. (3M stock dropped today on the verdict. But not much. )

November 11, 2021 (Veterans Day): Our lawyers believe we will see verdicts in two trials tomorrow (update: wrong!).  Both cases are being tried in Florida with one using Texas law and the other Tennessee law.  In the next few months, you will see several 3M earplug lawsuit verdicts and these cases will be used to calculate the settlement amounts in these claims.

3m earplug verdictOctober 29, 2021, Blum Trial Update:  Defense verdict in Blum this afternoon.  I don’t enjoy giving this update. 

For a while, I was thinking that maybe the facts were so bad for 3M in this litigation that plaintiffs would win even the tough cases like Blum that were selected by 3M defense lawyers to try.  Maybe that thinking was a reach. We will know more in two weeks when we should get two more earplug verdicts. 

3M’s victory in the 6th bellwether test trial came after a two-week trial.  The jury found that the plaintiff, Army veteran Michelle Blum, failed to prove her case against 3M alleging that the company’s defective earplugs caused her to suffer hearing damage.

The defense verdict is a small setback for the remaining 270,000 plaintiffs in the 3M earplug lawsuits. But maybe we all got a little too giddy after the $8.2 million verdict in Adkins.  Blum had a comparatively weak case against 3M with legitimate questions about the extent of her alleged hearing loss.

3M’s defense lawyers hand-picked Blum out of thousands of other cases for exactly this reason. Fortunately, two more bellwether trials started today simultaneously in separate courtrooms and should give a chance for two better outcomes.

Take home message: Our lawyers still believe that soldiers will win a lot more 3M earplug lawsuits than we lose.  Again, keep in mind that the defense experts were prepared to give Ms. Blum a hearing loss rating of 0% in both ears.  Cases like that are tough to win under any circumstances.  

We get back at it next week with a new trial.  I’ll write more about those cases today or tomorrow.  

Below is my pre-Blum verdict update that includes my thoughts on how long it will take to get 3M to make meaningful compensation payouts to victims.

Could the Blum Verdict Approach the Adkins Verdict?

Hopefully, the Blum result will be similar to the $8.2 MILLION VERDICT earlier this month.   That huge verdict was in a case on 3M’s list of earplug lawsuits 3M wanted to go to trial.  Why did 3M put the Adkins case on a list of cases it wanted to go to trial?    Because 3M thought that case was a good draw for the defendant.  (Slight warning: Blum was on that same list but 3M wanted to try Blum more than Adkins.  But… punitive damages are available in Blum so the chance of a blowout verdict is higher.)

So a weak 3M earplug lawsuit is worth $8.2 million.  This new verdict has huge implications for an eventual 3M earplug settlement.  Juries are speaking loud and clear about what it thinks of what 3M did in these cases.

Billions of dollars are at state.  Yet, frustratingly for many victims, there are few 3M trial updates about the status of the litigation or where we are in the current 3M trial.

I assume 3M will let this case go to trial.  But my goodness, things keep getting worse and worse with every suit that goes to trial.

The purpose of the page is to update you on the latest in the 3M lawsuits as of October 28, 2021. 

The Blum Case

Plaintiff Michelle Blum served in the United States Army Reserves, National Guard, and Army from 1989 through 2009.

While in the Army, she used 3M earplugs at issue in this litigation both in training at Fort Drum and South Korea and when deployed to Afghanistan.  During training and in Afghanistan, she was exposed to loud noises from weapons fire, grenades, and mortars. Today, she suffers from bilateral hearing loss and tinnitus.

3M Expert Opinions Tossed in Blum

3M had two experts — Derek Jones and Jennifer LaBorde — set to testify that Ms. Blum had no hearing loss in either ear, a 0% permanent impairment ratings for hearing loss. These expert opinions were based on the 1996 Florida Uniform Permanent Impairment Rating Schedule (“FUPIRS”) that the court ruled should only be used in workers’ compensation cases (and inapplicable to Ms. Blum anyway because her hearing loss is admittedly progressive and not stable and FUPIRS is not applicable in those cases even if this were a workers’ compensation case).

It is pretty remarkable how many expert witnesses 3M lawyers have brought to these trials only to have the experts’ expected testimony gutted by the judge because the witness is unqualified or their testimony is not grounded in good science.

To be honest, plaintiffs’ lawyers usually have this problem more than defense lawyers in mass torts.  In this litigation, the roles have reversed and the defense lawyers are struggling to find credible witnesses who are qualified to say what they want to say.  (In a definitely related story, the average verdict in the 3M earplug lawsuits is over $2.5 million.)

3M Earplug Lawsuits Are a Class Action MDL

In MDLs, a large group of similar cases is consolidated before a single judge for a group discovery process. When the consolidated discovery phase is completed, a handful of individual cases are selected out of the larger group and scheduled for jury trials. These are called “bellwether trials” because the results of the trials are used to guide the course of settlement negotiations or further litigation.

There have already been 3 bellwether trials in the 3M earplugs litigation. Right now, we are 4 days into a trial in the 4th bellwether case. This post will bring you up to speed on the results in the first 3 bellwether trials and give a status update on the trial that is currently underway in the U.S. District Court in Sarasota.

3M earplug trial

Federal Building, Sarasota, FL

3M Bellwether Trials: Rounds 1-4

If you are scoring the results of the opening three rounds of bellwether trials in the 3M earplug litigation, it would be 2-1 in favor of the plaintiffs.

Round 1 featured 3 plaintiffs (1 picked by 3M, one by the plaintiffs, and one by the judge) and resulted in a major loss for 3M. The jury awarded $7.1 million in total damages to the 3 plaintiffs. This included $2.1 million in punitive damage for each plaintiff. More on 1st 3M Earplug Verdict

The plaintiff in the second bellwether trial was hand-picked by the defense team. The trial, in that case, resulted in a defense verdict for 3M.

The 3rd round of the bellwether trials featured a plaintiff who was selected by the MDL judge.

The trial resulted in another win for the plaintiffs. The jury awarded $1.7 million in damages but that was reduced by 38% based on their finding that the plaintiff himself was partly at fault. More on 3rd 3M Earplug Verdict.

The 4th round was the best!  An $8.2 million verdict for Brandon Adkins! (Of course, the $13.1 million verdict topped Adkins just a month later.)

Why Atkins Instead of Taylor?

In May 2021, the MDL judge nearly dismissed Taylor’s case after he failed to produce certain records in compliance with discovery deadlines. (There is some evidence he was not cooperating with his lawyers.)

In June, Taylor was penciled in for the 4th bellwether trial to begin on September 20, 2021.  Less than a month later, he filed a notice of voluntary dismissal of his case “with prejudice” and also agreed to pay 3M’s defense costs in the case.

Following the dismissal of Taylor, the parties had to find another plaintiff for the September bellwether trial.

Lawyers for 3M requested that Michelle Blum, the plaintiff scheduled for the 5th bellwether trial in October, be moved up to the September slot. The MDL judge balked at that request and instead substituted another plaintiff, Brandon Adkins. Adkins was also a defense pick and, like Taylor, his case is governed by Washington law.

September 2021 3M Trial Update

(This is dated now but I will leave it up because the information is helpful.) The Adkins case went to trial last week as scheduled.  Today will be the 6th day of the trial, which is expected to take 3 weeks to complete. So far, the jury has heard testimony from several experts for the plaintiff.  So far they have included:

  • Dr. Marc Bennett, a medical doctor who testified as to Mr. Atkins bilateral tinnitus and hearing loss injuries
  • Rear Admiral Allie Coetzee Leslie, who testified that what 3M promised and what it delivered were not the same
  • Richard McKinney, a bioacoustics expert to testify that the Combat Arms earplugs were defectively designed and that Aearo/3M’s quality control and assurance processes for the CAEv2 were also deficient
  • Dr. Lawrence Lustig, a medical doctor from Columbia University, Dr. Lustig testified that 3M/Aearo violated general industry norms regarding the labeling on the CAEv2 did not provide adequate warnings to the military.

On Thursday of last week, Mr. Adkins himself took the stand to testify and face cross-examination. Mr. Adkin’s testimony was uneventful and surprisingly short. He was only on the witness stand for 1 hour and 7 minutes.

What’s Next in the 3M Lawsuits?

The Adkins $8.2 million verdict was huge.  If the current bellwether trial results in a big verdict for Ms. Blum, it should have a major ripple effect on 3M and the course of the litigation moving forward. Blum is a plaintiff who was selected by 3M’s defense team.  So was Adkins, by the way, but they wanted this case even more.

If 3M loses on this third defense pick plaintiff, it will make the victory in round look more like an outlier and erode 3M’s confidence they can win these claims.

The MDL judge scheduled 6 additional bellwether trials from November 2021 to February 2022, with even more after that. If 3M loses these next 2 trials, they may decide to cut their losses and ask the judge to stay further proceedings while they negotiate a global settlement.

Who Are the Defense Experts in the 3M Earplug Lawsuit?

3M has two kinds of experts in the Combat Arms earplug lawsuits.  One set of experts testifies as to plaintiffs’ injuries or lack thereof.  The other set offers testimony on the 3M earplugs and whether the design is defective and whether 3M failed to warn of the risk associated with its earplugs.  This is a partial list:

  • Dr. John Casali (design, development, and performance of the CAEv2)
  • Dr. James Crawford (expert opinions related to the Department of Defense and Army’s hearing conservation efforts – he also offered case-specific opinions in Adkins)
  • Dr. Gregory Flamme (blames individual hearing problems on the Army’s inadequate implementation of its hearing conservation program)
  • Dr. Mark Stephenson (same as Dr. Famme to the point where the judge calls their opinions Flamme-Stephenson)
  • Dr. Harri Kytomaa (an electrical engineer who used a software program to model the CAEv2 0- the judge has limited much of testimony Dr. Kytomaa intended to give)
  • Dr. Richard Neitzel (industrial hygienist and exposure scientist who offers opinions related to the Army’s hearing conservation efforts and also has case-specific opinions for some plaintiffs, including Michele Blum (the judge excluded much of his testimony based on “qualifications grounds and/or as lacking a reliable basis, unhelpful, speculative, improper conduits for hearsay, and/or impermissible legal conclusions”).
  • Lt. Col Vickie Tuten (opinions related to lack of resources in the Army and Department of Defense Hearing Program and its regulations and requirements – she specifically cannot testify about any Army Public Health Command relating to any recommendation to roll the last flange of the plug back to get a better insertion.
  • Dennis Driscoll (a mechanical engineer and board-certified noise control engineer whose testimony was severely limited by the court – but he is permitted to testify about the noise exposures of individual plaintiffs and the impact that exposure might have on that plaintiff)
  • Dr. John House (board-certified otolaryngologist and neurotologist who offers case-specific testimony that the solider’s hearing loss was not from military service)
  • Dr. Douglas Jacobs (board-certified psychiatrist and associate professor at Harvard Medical School [nice guy, I’ve met him before in another piece of litigation] –  testifies that many of the complications individual soldiers are suffering are from underlying psychiatric conditions)
  • Dr. Derek Jones (wanted to offer permanent hearing impairment ratings but was prohibited by the judge)
  • Dr. Jennifer LaBorde (same as Dr. Jones)

What Is Hidden Hearing Loss?

Hidden hearing loss is a hearing injury that does not show up on a standard hearing test. Victims usually describe difficult interpreting background noise. This makes understanding speech more difficult in certain environments.

At the 3M earplug trial, the defendants sought to exclude testimony about hidden hearing loss because the science does not support hidden hearing loss in humans.  But even the medical literature the defendants relied upon up in their Daubert motion supported the existence of HHL.

The MDL judge, however, did not allow HHL testimony in Atkins by the MDL trial by Dr. Marc Bennett or Marc Fagelson because “neither doctor performed any diagnostic test for ‘hidden’ auditory injuries…”

3M Earplug Litigation MDL

3M is defending over 250,000 product liability lawsuits filed by military veterans claiming that they suffered hearing damage because the 3M earplugs they were issued failed to protect them. The 3M earplugs cases have been consolidated into a class action MDL before Judge M. Casey Rogers in the Northern District of Florida.

In mass tort MDLs, similar cases are consolidated before a single judge for purposes of pre-trial discovery. After the discovery phase is completed, a handful of individual test cases are selected for “bellwether” trials. The outcomes of the bellwether trials are very significant because they are generally used to facilitate the terms of a global settlement of all pending cases.

Your 3M Earplug Lawsuit

If you have a potential 3M earplug lawsuit, you should need to get a lawyer.  Today.  You can contact us online or call 800-553-8082. Or call another attorney. But do not sleep on your rights.