Products Liability
For the most recent November 2023 updates on the new $6 billion settlement and other news, see our main 3M earplug lawsuit page.
The purpose of this page is that our website has page size limits. We have been updating this page for so long. So these are more updates that didn’t make the main page or were later moved because they were less critical. For example, the Aearo bankruptcy was a big deal at the time but insignificant now (thankfully).
2021-22 3M LAWSUIT UPDATES
September 16, 2022 Update: As the parties begin Day 2 of court-ordered settlement talks, the number of lawsuits listed as active and pending in the 3M Earplugs MDL went down for the first time since the start of the litigation.
A month ago, there were 293,831 cases listed as pending in the MDL. In the most recent monthly report from the JPML, that number is now down to 254,134. The reduction is the delayed result of steps Judge Rogers took earlier this year to clear cases off the docket where the plaintiffs were unable or unwilling to provide military service records to support their claims. Reducing the number of total claims is good for 3M and victims who want to get a global settlement done.
September 8, 2022 Update: We have a 3M earplug lawsuit mediation date. The two-day settlement talks begin next Thursday, September 15, 2022, at the U.S. District Court in Pensacola, Florida.
August 11, 2022: The 3M Earplugs MDL Judge held her hearing today on the recent motion that would hold 3M solely liable for the defective earplugs claims, thereby circumventing the recent attempt by 3M to pull the MDL into the bankruptcy filed on behalf of its subsidiary Aearo Technologies. Judge Rogers had harsh comments for 3M during the hearing. She blasted 3M for intentionally creating the financial situation that allowed Aearo to file for bankruptcy. Before making a final decision, Judge Rogers is awaiting further information and documents from 3M.
August 10, 2022: It has been over two weeks since 3M put Aearo into bankruptcy. Judge Rogers will hold a hearing tomorrow to dive deep into 3M’s acquisition of its Aearo Technologies. The hearing will focus on the terms of 3M’s assumption of Aearo’s liabilities as part of that acquisition.
3M is a defendant in all of these lawsuits. The hearing will aid Judge Rogers in deciding whether to grant a motion that would prevent 3M from arguing that it is not the appropriate defendant in the over 200,000 earplug lawsuits. If 3M is a proper defendant because it agreed to take on all of Aearo’s debts and liabilities, the end run around this cynical bankruptcy might be to drop Aearo as a defendant so that the 3M earplug class action lawsuit can move forward against 3M only.
August 17, 2022: Earlier this week, Judge Rogers issued an Order reluctantly denying the motion for a ruling that 3M has sole liability for the earplug lawsuits. But the judge did not hide her frustration with 3M.
In the Order, Judge Rogers notes that “from the start, Aearo was a party to this litigation in name only,” and she describes the recent bankruptcy filing by Aearo as a “scheme to escape the MDL and this Court for good.”
Despite her obvious irritation with 3M’s duplicitous conduct, however, Judge Rogers ruled that she could not grant the relief sought in the motion unless and until 3M asserts the defense that it is the wrong party in the earplug litigation. Until 3M asserts that defense, Judge Rogers found that granting the relief sought in the motion would be a premature advisory decision.
August 5, 2022: The judge in the MDL class action lawsuit issued a new order halting the ongoing process of transferring cases in the MDL from the inactive docket to the active docket. The Order states that halting this process was necessary due to “recent developments” – a clear reference to the Chapter 11 bankruptcy filed by 3M subsidiary Aearo Technologies.
All eyes now turn to Indiana Will the bankruptcy court in Indiana will agree to extend the automatic stay to 3M? This would effectively put the breaks, at least temporarily, on the entire 3M earplug class action lawsuit. This would be incredibly unfair to victims and our lawyers do not think a judge will do it. But Judge Rodgers is looking to avoid burdening plaintiffs – and the court that is overwhelmed by the paperwork – if the litigation is slowed or stopped. So Judge Rogers is relieving thousands of plaintiffs of their obligation to produce documents to support their claim and pay the filing fees.
This order puts 3M under great pressure and alleviates pressure all at the same time. 3M’s lawyers will be under great pressure to prepare this many lawsuits for trial. It is a Herculean task for the attorneys.
But settlement pressure-wise, the sobering reality of this order is that there will not be another 3M earplug trial in 2022. So if 3M chooses to kick the can down the road, it can pay a reasonable settlement amount for the cases on appeal to avoid a final ruling and drag this out into 2023.
Our lawyers do not think this will happen. We think the 3M earplug class action will settle in 2022. But that is just a guess and a hope.
May 31, 2022: As expected, Judge Rodgers cut the verdict in Wayman from $55 million to $21.7 million The reason for the reduction is simply limits on punitive damage awards under Colorado law.
May 19, 2022: Day 8 of the trial featured live testimony from 3M expert witness Dr. John Casali from Virginia Tech University. Casali is 3M’s go-to expert, a foremost authority in audiology, acoustics, and hearing protection. 3M has used him as an expert in all bellwether trials. In addition to Casali’s testimony, 3M’s lawyers presented the jury with clips of video deposition testimony from several witnesses, including the plaintiff’s wife.
May 18, 2022: On Day 7 of the trial, 3M’s defense team presented testimony from Eric Fallon and Dr. James Crawford. Fallon holds a doctorate in audiology and works for 3M as a Technical Senior Service Specialist. Dr. Crawford is an ENT doctor specializing in hearing protection. Both Fallon and Crawford also spent over 20 years in the Army.
May 17, 2022: Let’s get you up to speed on what is happening in the Beal trial. The first two days of the trial featured nearly eight hours of testimony from the plaintiffs’ leading expert witness, bioacoustics engineer Richard McKinley. McKinley has been a prominent witness in all of the previous bellwether trials.
On Day 3 of the trial, the plaintiffs presented testimony from Elliott Berger. Berger, as every reader of these updates knows, is a former 3M audiology scientist and head of the 3M Personal Safety Division. Berger was one of the people directly involved in the original design and testing of the 3M earplugs at issue in the lawsuits and he has been a critical witness in all of the cases.
On Day 4 of the trial, the plaintiff James Beal took the stand in the morning. Beal’s testimony was followed in the afternoon by the plaintiff’s expert Dr. Christopher Spankovich, a clinical audiologist at the University of Mississippi Medical Center.
On the 5th day of trial, the plaintiffs presented testimony from another expert, Dr. Mark Packer. Dr. Packer is an Ear, Nose & Throat specialist at Mercy Hospital in St. Louis. Dr. Packer was a key witness in the Sloan/Wayman bellwether trial that resulted in a $110 million verdict against 3M.
Day 6 of the trial featured a series of short video deposition clips and testimony from the plaintiff’s wife, Heather Beal, and several other fact witnesses, including friends or family members of Mr. Beal.
May 17, 2022: In March, bellwether plaintiff Ronald Sloan was awarded $55 million on his earplug lawsuits against 3M, which included $15 million in compensatory and $40 million in punitive damages. 3M has appealed and has not paid the verdict. Sloan filed a motion asking for prejudgment interest on the $15 million in compensatory damages. Judge Rodgers denied that motion. Why? Sloan’s claims are governed by Kentucky law. Judge Rodgers ruled that KY law does not allow prejudgment interest on awards for “bodily harm.”
May 16, 2022: Just as the first week of the Beal bellwether trial was wrapping up on Friday, the MDL Judge issued a show cause order threatening to hit 3M’s defense lawyers with sanctions for “willful abuse of the trial process.” Judge Rodgers has had a long history of frustration with 3M’s defense counsel dating back over two years. This latest admonishment came after 3M’s lawyers sought to defy long-standing procedural rules regarding deposition designations.
This morning, 3M’s lawyers filed a response to the show cause order attempting to justify their position. This ongoing dispute between Judge Rodgers and 3M’s defense attorneys won’t impact the outcome of the Beal trial. But 3M’s lawyers are frustrated. There is often turmoil on losing teams. But it seems unwise to go out of your way to create enmity with the judge and the judge trying the Beal case. (Even more bizarrely, the judge trying Beal is the Zantac MDL judge, and this same law firm is defending Zantac lawsuits). It is inexplicable and it is not advancing 3M’s interests. It is also a distraction from the path to a fair settlement that is in everyone’s interest. 3M should focus on settlement talks as opposed to this nonsense.
May 11, 2022: Over 20,000 3M earplug lawsuits were dismissed from the 3M earplug class action lawsuit this week after the plaintiffs failed to file the necessary paperwork required to keep their case active. The missing paperwork that prompted most dismissals was the plaintiff’s military service record (DD214).
We never like to see plaintiffs have their cases dismissed. But this might get us closer to a global settlement of the earplug lawsuits. One of the main obstacles to a 3M earplug settlement is the massive number of plaintiffs (around 270,000). 3M is convinced that not all of these plaintiffs have valid claims. Our lawyers and many soldiers we have talked to agree with 3M on this point. Getting this class action down to the soldiers who were truly harmed will advance an earplug settlement.
May 9, 2022: The last 3M earplug bellwether trial begins today for Army veteran James Beal. The trial is scheduled to last two weeks and will be conducted before Judge Robin L. Rosenberg at the federal courthouse in Pensacola. The trial is already off to a good start. Last week, the MDL judge granted a summary judgment motion by Beal, which effectively blocks 3M from presenting nearly all of their affirmative defenses, including contributory negligence.
One encouraging thing our 3M earplug lawyers saw over the weekend was an article by NBC News on the 3M earplug lawsuit. Getting the 3M litigation into the mainstream media has oddly been a struggle given there are 300,000 soldiers bringing claims. This unwanted attention might help grease the wheels for settlement talks and a global compensation payout for victims.
May 4, 2022: Yesterday, the 3M earplug MDL judge issued a new Case Management Order (CMO # 44) ordering 20,197 earplug lawsuits in the MDL to be moved from the administrative docket onto the active docket.
This appears to be the first initial step toward Phase 2 of the earplug bellwether trials. The plan is for these 20,197 earplug lawsuits to go through pretrial discovery – a daunting process with such a massive group of plaintiffs. The claims would then be sent to their home federal court districts for trial. Each trial will involve large blocks of consolidated plaintiffs.
The logistics of actually taking these cases to trial are hard to imagine. It is easy to forget that a sample size of one for an MDL class action of this size. This is the largest MDL in history.
The earplug bellwether trials with one plaintiff have required two weeks each. A consolidated trial involving 20 or 40 plaintiffs could last for months and would place 3M at a significant disadvantage, battling against that many soldiers and their families in a courtroom.
3M has two choices it seems. Risk the entire company on a long-shot appeal. Or offer our soldiers reasonable settlement compensation payouts to resolve these cases.
April 19, 2022: The Vaughn trial started yesterday. The trial is expected to take two weeks and will be tried before Judge Stephen Grimberg.
April 14, 2022 Update: One of the most common questions our lawyers get from soldiers is when will the 3M lawsuits settle? No one knows. But June 27, 2022, is an important date to file away. This is the plaintiffs’ deadline to file their opposition brief in Hacker/Estes/Keefer. After this brief is filed, there will be oral arguments and a ruling from the 11th Circuit.
April 13, 2022 Update: Most of the nearly 300,000 plaintiffs in the 3M earplugs litigation have their cases on the “administrative docket.” This allows these soldiers – their lawyers, really, – to hold off on paying the $402 federal filing fee while their lawsuit is in “hold” mode. 3M filed a motion seeking to force all these plaintiffs to pay their filing fees immediately or be dismissed. But “spite” is not a ground to have a motion granted.
Everyone can agree there are some frivolous 3M earplug lawsuits in the 300,000 that are in the MDL class action. But the motion 3M’s lawyers filed does not weed out those cases. As the judge said in denying the motion, “Filing frivolous motions will not ‘winnow’ frivolous cases.”
April 8, 2022 Update #2: Unfortunately, the jury found 3M in the Kelley trial. This was a difficult case for the plaintiff. This is a good time to remember that the average jury payout in a 3M earplug lawsuit in the last 30 days has dropped to just over $19 million.
April 8, 2022 Update: On Day 8 of the trial, 3M wrapped up the testimony of Dr. Casali in the morning and devoted the remainder of the day to present expert testimony from Dr. James Crawford. Dr. Crawford is an otolaryngologist who spent 24 years as a doctor in the U.S. Army, specializing in hearing conservation. 3M also filed a motion to bar the plaintiff from offering rebuttal testimony from Dr. Eric Gershwin on procedural grounds.
April 7, 2022 Update: Day 7 of the Kelley trial featured testimony from 2 of 3M’s expert witnesses. In the morning, the jury heard from Jennifer LaBorde, doctor of audiology and hearing aid specialist from the Hearing Center MCC. After lunch, Dr. John Casali took the stand. Casali is 3M’s go-to expert in its fight against soldiers seeking compensation for their hearing-related injuries. He is a well-known expert in the field of hearing protection and acoustics and a professor at Virginia Tech University.
April 6, 2022 Update: 3M began presenting its defense with the testimony of Dr. Eric Fallon. Dr. Fallon is the former chief Audiologist at Walter Reed Medical Center. So he sounds pretty credible at first glance. Who does he work for now? 3M.
As they have done in all of the previous bellwether trials, attorneys for 3M also filed a Motion for Judgment as a Matter of Law arguing that punitive damages should be off the table because the plaintiff failed to meet her burden under Texas law.
March 30, 2022 Update: Day 2 of the Kelley trial was devoted to the testimony of Elliott Berger. Berger is retired a 3M scientist and former head of the company’s Personal Safety Division. His testimony has been a focus of all 13 3M earplug bellwether trials. Berger’s testimony is crucial because he was a central figure in the original design and development of the Combat Arms Earplugs. Berger has been critical in establishing that there were design flaws in the earplugs that were not revealed to the Army.
March 29, 2022 Update: On the opening day of the Kelley trial, jury selection began in the morning and was finished by lunchtime. Opening statements for both sides began around 2 p.m. and ended two hours later. Then the jury heard video testimony from Ron Kieper, a former employee at 3M with knowledge of the company’s handling of issues with the earplugs.
March 27, 2022 Update: In a historical weekend in the 3M earplug litigation, the Wilkerson jury came back yesterday with an $8 million verdict. 3M was counting on winning Wilkerson to keep afloat the idea that “they win some, we win some” and only the best 3M earplug lawsuits have real value. The company is running out of arguments for its shareholders for not offering fair compensation payouts to victims.
March 26, 2022 Update: The jury awarded $50 million in the bellwether trial of Luke Vilsmeyer yesterday. This is another game-changing verdict for plaintiffs that is sure to drive settlement amounts in these cases north. It proves that the $110 million verdict was not a one-off. This is a huge victory. Big verdicts are becoming the norm.
Let’s put this in context. This stunning award marks three consecutive verdicts that were more than $50 million. This is pretty much the nightmare scenario for 3M. Sure, 3M can say it has won 5 trials out of 12 and juries have gone back and forth. But the stunning size of these verdicts is not what anyone expected. This case was tried under Indiana law (and Washington law, too, it is confusing) so there were no punitive damages available. Punitive damages drove the Sloan/Wayman verdicts. So incredibly, this jury awarded $50 million in purely compensatory damages.
The jury is still out in Wilkerson and there will likely be a verdict on Monday. Another 3M earplug trial starts Monday, too. 3M needs to shut this down and offer victims reasonable settlement amounts before taking any more verdicts. At some point, 3M needs to rationalize/accept that buying Aearo was a mistake made by a lot of people who no longer work for 3M. Shouldn’t it just pay for that mistake and move on before 3M is destroyed for a generation by this litigation?
March 21, 2022 Update: The Wilkerson bellwether trial appears to be running on schedule and we will hopefully get a verdict Friday afternoon. Over the weekend, Judge Mark Walker ruled on the various objections to the proposed jury instructions and 3M filed a stipulation as to the company’s current net worth ($12.39 billion). If the jury decides to award punitive damages, 3M’s net worth stipulation will be used to help determine the appropriate amount.
March 16, 2022 Update: The 12th, 13th, and 14th bellwether trials are underway in Tallahassee. Watch our recent video for an overview of the results from the 3M earplug bellwether trials so far.
March 8, 2022 Update: The judge in the 3M earplugs MDL granted summary judgment for the plaintiff in the upcoming bellwether trial for Steven Wilkerson. Wilkerson was seeking summary judgment on all 3M’s affirmative defenses – learned intermediary, superseding cause, failure to mitigate, open and obvious danger, and statute of limitations defense. Wisconsin law controls this lawsuit.
Judge Rogers ruled in favor of Wilkerson and granted summary judgment on four out of the five affirmative defenses. The only affirmative defense that Judge Rogers denied summary judgment on was the statute of limitations. Judge Rogers deferred a ruling on the statute of limitations until the evidence unfolds at trial.
You hope the statute of limitations question is not on the jury sheet. But the judge might still kick out this defense before trial. Moreover, it is unlikely a jury will hear the evidence in this case and rule against Wilkerson on the statute of limitations but would have otherwise given him an award. So this solid victory for Wilkerson overall.
March 12, 2022 Update: Shortly before the Wilkerson trial, 3M filed a motion arguing (among other things) that Wilkerson’s claims should be dismissed under the judicial estoppel rule because he failed to list his lawsuit against 3M as an asset in his recent bankruptcy. Judge Rogers rejected this argument and denied the motion. In her memorandum Order, Judge Rogers explained that 3M’s argument failed because there was no evidence that Wilkerson intentionally concealed his claims against 3M to manipulate his bankruptcy. Judge Rogers correctly pointed out that Wilkerson’s bankruptcy was a Chapter 13 under which his creditors were being repaid in full, therefore, failing to list the 3M lawsuit as an asset made zero difference.
February 3, 2022 Update: It is quiet in the aftermath of the big $110 million verdict in which both plaintiffs received $15 million in compensatory damages and $40 million in punitive damages. Our lawyers are still waiting for the aftershocks and hoping to see 3M finally offer real settlement amounts to victims. Will that happen? There will be a pause until the Group B trials start in March. We should know soon if 3M is ready to begin real settlement negotiations.
Below is a summary of this case day by day. We said this was a big trial in this litigation, right? But we had no idea it would be this big.
Let’s put this in context. Plaintiffs are now 9-5 in the 3M earplug lawsuit trials. Plaintiffs are 9-5 in 11 trials (3 with multiple plaintiffs). The total compensation awarded has been $162,992,820. The average compensation payout has been $17.9 million for the 9 winning plaintiffs ($11.6 million is the average for 3M lawsuits that have gone to trial when you factor in the losses). It is stunning. Our lawyers had high expectations for these cases but no one could have predicted this.
March 3, 2022 Update: With the next trials less than two weeks away, 3M has docketed its first 3M earplug verdict appeal. Most gist of the appeal is the Feres Doctrine and the government contractor defense our lawyers dissect at length below. The 3M’s lawyers have one quote in their brief with which our attorneys could not agree more: “The size and importance of this MDL is hard to overstate.”
February 25, 2022 Update: What we have learned so far in the 14 verdicts in these cases: the plaintiff matters. So with the next 3M trial, just days away, let’s look at the operative facts in the 3M earplug lawsuit.
Steven Wilkerson enlisted in the United States Army in 1999. He served for three years. In 2005, he began eight years of service in the Army National Guard. Wilkerson was stationed at Fort Bragg, North Carolina, Fort McCoy, Wisconsin, and Lucedale, Mississippi.
From 2010 to 2011, Wilkerson was deployed in Afghanistan. Like other soldiers, he wore the CAEv2. Mr. Wilkerson was exposed to typical noises of war in Afghanistan you would expect. He suffers from bilateral tinnitus and noise-induced hearing loss. Medical experts are expected to testify on this behalf that his bilateral tinnitus and noise-induced hearing loss were caused by the lack of protection the CAEv2 provided to him in Afghanistan.
Wisconsin law, which has a high bar and a cap on punitive damages, will apply to this case. This is one of the reasons, along with mild hearing loss and only 11 months of earplug use, 3M wants to try this case and why our lawyers believe a settlement is unlikely before this trial.
Luke Vilsmeyer was a Green Beret who suffers tinnitus and hearing loss. His case will be tried in Florida under Indiana law (no punitive damages in Indiana).
February 14, 2022 Update: After the $110 million verdict in the most recent bellwether trial, Wall Street is finally starting to pay attention to the 3M earplug litigation. With around 280,000 individual plaintiffs, the earplug litigation against 3M is the biggest consolidated mass tort in history. But it has gone largely unnoticed by 3M investors and financial analysts. Last week, however, a top analyst at JP Morgan warned that 3M’s potential litigation liabilities could potentially top $100 billion. This type of sober analysis might compel 3M to consider offering reasonable settlement amounts to resolve these lawsuits.
January 27, 2022 Update: The 12th day of the trial yesterday featured short video testimony from seven different defense witnesses. 3M rested its case near the end of the day. The plaintiffs’ counsel then presented a 40-minute rebuttal case with excerpts of video testimony from numerous witnesses. The day ended with Judge Rogers ruling on several motions for judgment as a matter of law filed by both parties. Judge Rogers granted the plaintiffs’ motions on various issues including 3M’s statute of limitations defense for both plaintiffs.
January 26, 2022 Update: Trial Day 11 Tuesday was the second day of 3M’s defense case. Most of the day was devoted to testimony from Dr. Gregory Flamme, Associate Professor of Speech Pathology and Audiology at Western Michigan University, a primary expert witness for the defense, Dr. Flamme’s scientific expertise is in the field of hearing loss prevention and the evaluation and treatment of hearing impairment. Just as he has in previous trials, Dr. Flamme will weigh in on the allegations of tinnitus and hearing impairment made by both of the plaintiffs.
January 25, 2022 Update: Day 10 on Monday was the start of 3M’s defense case. 3M began with testimony from its star expert witness, Professor John Casali. His claim to fame is that he won an Academy Award for best sound for his work on Bohemian Rhapsody, which you can be sure 3M is hoping impresses the jury.
Casali is also an auditory scientist and Director of the Auditory Systems Laboratory at Virginia Tech University. His testimony is about the benefits of training on and fitting earplugs, part and parcel of 3M passing the blame defense to the 3M earplug lawsuit.
One interesting thing about Casali is the plaintiffs’ have contended that he was “critical of the performance and design of the CAEv2 earplugs and was critical of 3M’s response to his criticism…”
January 21, 2022 Update: A trial with two plaintiffs takes longer than one. 3M lawyers are still in the plaintiffs’ case. Dr. Spankovich’s testimony concluded yesterday as did Dr. Lawrence Lustig, another plaintiffs’ expert, who testified that 3M CAEv2 earplugs did not provide adequate warnings of the risks.
January 20, 2022 Update: Today, Dr. Chris Spankovich will provide expert testimony regarding abnormal hearing standards (below 25 decibels). Yesterday, Day 7 of the trial, was taken up mostly with Mr. Wayman’s testimony, one of the two plaintiffs in this earplug trial. The Day 6 focus on Tuesday was the expert testimony of Dr. Marc Bennett who spoke about the plaintiff’s hearing-related injuries. Earlier in the day, two short fact witnesses, an audiology technician at the Department of Defense and a nurse practitioner, provided testimony. With two plaintiffs and the day off for MLK Day, it is unrealistic to expect this trial to end this week.
January 17, 2022 Update: Day 5 (Friday) was mostly taken up by the expert testimony of Richard McKinley. This plaintiffs’ expert is a bioacoustics engineer with 40 years of experience developing hearing protection products for our military. Monday is a day off. Testimony resumes on Tuesday.
January 14, 2022 Update: The highlight of Day 4 in the Wayman/Sloan trial was the testimony of the plaintiff, Ronald E. Sloan. Sloan took the stand just before lunch after the jury heard very short video deposition testimony from 3 other minor witnesses. The direct examination of Sloan lasted 2 hours and was followed by a slightly longer cross-examination which focused on Sloan’s health history.
January 13, 2022 Update: The Day 3 of the Sloan/Wayman trial was devoted to the testimony of Elliott Berger (via Zoom video conference). Mr. Berger is a retired 3M scientist who was directly involved in the design and testing of the Combat Arms earplugs. Berger has been subpoenaed as a witness for the plaintiffs in all of the bellwether trials because his testimony is key to establishing the nature of the design flaws in the earplugs and the alleged concealment of those flaws from the Army.
January 12, 2022 Update: The opening day of testimony in the Sloan/Wayman trial featured Dr. Mark Packer. Dr. Packer is a key expert witness for the plaintiffs and his testimony will help establish the cornerstone allegation that defects in 3M’s earplugs caused Sloan and Wayman to suffer hearing damage. Dr. Packer spent the entire day on the witness starting with 5 hours of direct examination, followed by two hours of cross-examination by lawyers for 3M.
January 11, 2022 Update: Yesterday, a jury was picked and lawyers on both sides presented opening statements. Testimony will begin today.
3M lawyers’ efforts to delay yesterday’s 3M earplug lawsuit trial failed. On Friday, 3M’s attorneys filed a last-minute motion requesting a continuance of the trial because several team members had tested positive for COVID-19.
That motion was denied the following day. Judge Rogers noted that a continuance was not justified because all of the team members were fully vaccinated and, therefore, based on CDC guidelines they were eligible to resume activities. Judge Rogers also pointed out that granting the continuance would have imposed a significant burden on the court and the plaintiffs.
December 28, 2021 Update: The 9th bellwether trial in the continuing 3M earplugs litigation concluded last week with another disappointing result. The jury found that the plaintiff, Carlos Montero, failed to prove that 3M’s earplugs were responsible for his hearing loss and issued a defense verdict.
This latest victory for 3M in the earplugs lawsuits comes just a week after its biggest loss with the $22.5 million verdict in the Finley bellwether trial. There have now been 9 bellwether trials featuring 11 individual plaintiffs. Seven out of the 11 bellwether plaintiffs have been awarded damages while the remaining 4 have lost at trial.
There is now a calm before the storm continues with a new trial with two plaintiffs on January 10, 2022.
December 16, 2021 Update: Christmas came early for Theodore Finley and 270,000 3M earplug lawsuit plaintiffs last Friday: a $22.5 million verdict in Florida. The jury awarded $7.5 million in compensatory damages and $15 million in punitive damages.
The punitive damages were derivative of the jury’s finding that 3M committed fraud beyond a reasonable doubt. That is an unusually high bar for plaintiffs to meet. This underscores just how offended the jury was by 3M’s conduct.
Finley, while a legitimate military hero, was not a perfect case for plaintiffs. 3M’s attorneys had weapons for cross-examination (including unhelpful Facebook posts the plaintiff deleted in anticipation of his trial). 3M’s attorneys fought hard to get the judge to allow every imaginable character assassination into evidence at trial. (Reading the motions will make you cringe.)
The judge allowed some of this evidence and rejected others. But after all that, the 3M wisely abandoned most of the character attacks at trial and chose to embrace the extent of Finley’s noise exposure.
So 3M lawyers argued that just like his Kevlar helmet did not prevent his TBI in combat and his body armor did not prevent his back injuries, these perfect earplugs could not prevent his hearing injuries. At the same time, 3M argued Finley’s hearing injuries were minimal. Even the best lawyers will have a hard time making an argument like that without a jury seeing it for exactly what it is. Which is what happened in this case.
So what impact does a $22.5 million payout have on veterans who might have taken a smaller settlement amount before seeing all these verdicts? The price to settle a military earplug claim is going up.
History might look back on this $22.5 million award as the catalyst for 3M to finally come to their senses and start getting serious about offering settlement compensation payouts to fairly compensate these soldiers.
3M seemed to think that hiring great lawyers and fighting like these veterans and their attorneys at every turn is the path to paying a few billion to settle these lawsuits. But that is not going to work. 3M cannot get around the facts.
December 7, 2021 Update: Another 3M earplug trial began on Tuesday. The case, Finley, will be one of the more interesting 3M cases to go to trial. While we do not know how much of his accomplishments will come into evidence, the plaintiff is a legitimate war hero who fought with great honor and distinction in Afghanistan.
That is a problem for 3M. War heroes make good plaintiffs. 3M’s defense to these earplug lawsuits is making it about the weaknesses in the plaintiff’s case as opposed defendant its conduct. These punitive damage awards are sending a loud message. So 3M’s defense lawyers want to focus on the weakness in individual cases. This might be harder without someone who fought valiantly for his country.
But we do not want to oversell the strengths of this case because the Finley case is messy, too. The plaintiff has not always been consistent in his story about his hearing injury. Inconsistencies in recollection may be what a jury might expect from a war hero that is likely suffering from PTSD.
So the case is likely to ride on whether the jury believes the plaintiff’s explanations for inconsistencies in his story and exactly what the judge lets into evidence at trial.
November 24, 2021 Update: The 3M earplug MDL class action judge has ordered the parties to prepare groups of 500 3M earplug lawsuits for trial. The plan is to continue to order 500 cases every few months until there is a settlement.
So more 3M lawsuits will be pushed with greater velocity to trial until the lawyers can agree on a reasonable settlement amount for these military veterans.
November 23, 2021 Update: $13.063 million verdict in Camarillorazo with $800,000 in compensatory damages and $12 million in punitive damages. The largest 3M earplug lawsuit verdict yet!
Unfortunately, as we talk about below, Palanki was a tougher case for plaintiffs. That case ended in a defense verdict for 3M.
So how do you want to look at these verdicts? 3M earplug plaintiff won 50% of these two new verdicts. That does not sound great. The average earplug verdict is over $6 million. That sounds pretty good, right?
[November 1, 2021 Update: Defense verdict on Friday afternoon on all counts. The jury found that the plaintiff, Michelle Blum, failed to that 3M was liable for hearing damage she allegedly suffered while wearing 3M’s earplugs in the Army.Plaintiff’s hearing loss lawyers attempted to bail out of the case three months before trial. This is a clear sign her attorneys knew her case would be difficult to win.
Fortunately, the 6th and 7th bellwether trials started simultaneously in different courtrooms today so we won’t have to wait long for a better outcome.
Stay tuned for a status report of both of these 3M earplug lawsuits.] [October 29, 2021 Update: 3M’s motion for judgment was denied and lawyers on both sides gave closing arguments.
3M put up six short witnesses on Wednesday. Tuesday, Elliott Burger, the “inventor of foam earplugs” testified for 3M. Burger was instrumental in key decisions in making and designing the Aearo earplug.
On Monday, the plaintiff’s earplug lawyers rested her case. 3M’s put on its first witness, Jennifer Laborde, a Pensacola audiologist.
On Friday, Rear Admiral Allie Leslie testified that the earplugs 3M promised and what it delivered were very different. On Thursday, plaintiff’s experts Elliott Berger and Richard McKinley testified, as did Ms. Blum and Lt. Col. Dan Ohama.
Earplug lawyers on both sides are moving through the case remarkably quickly as mandated by the MDL judge who keeps attorneys on track. There have been a lot of Friday verdicts in this litigation and we could get another Friday verdict tomorrow.
Hopefully, the Blum verdict will look like Adkins. Earlier this month, Army veteran Brandon Adkins was awarded $8.2 million in another incredible win for veterans in the 3M earplug lawsuit. The 35-year-old army veteran’s lawsuit alleges he suffered hearing loss and bilateral tinnitus from 3M’s defective earplugs.
Mr. Adkins was on 3M’s list of lawsuits it submitted to the judge that it wanted to try because it believed the facts were favorable to 3M. So the surefire winner for 3M – in their minds – ends with an $8.2 million verdict. This is a big deal.
What impact does this have on future settlement compensation payouts when these suits finally reach a global settlement? We now know that the 3M earplug lawsuit that the defendant thinks is a winner for them is worth $8.2 million. There are a quarter of a million 3M earplug lawsuits.
This math has to terrify 3M. It may shake 3M into reality on what appropriate settlement amounts should be to provide compensation for these veterans.
In addition to the new trial that started this week, the MDL Judge has scheduled four additional test trials between now and February 2022. The aggressive schedule in this second wave of bellwether will likely continue to put settlement pressure on 3M.
With over 272,416 earplug cases still pending as of November 15th, this puts incredible pressure on 3M and their lawyers to negotiate a global settlement. The upcoming gauntlet of trials may accelerate the pace of this settlement.
[October 20, 2021 Update: The losses keep piling up for 3M in these lawsuits. Today, the 8th Circuit denied 3M’s request to keep all earplug lawsuits in federal court. 3M had reasoned that all because it designed the CAEv2 earplugs in conjunction with the military for military purposes, federal courts had exclusive jurisdiction over all earplug lawsuits.This means that the civilian lawsuits will return to Minnesota state court but the military contractors’ actions will join the Aearo earplug lawsuit. This will mean more lawsuits 3M must defend which should put additional settlement pressure on the company.] [August 15, 2021 Update: These four verdicts have not advanced 3M earplug lawsuit settlement talks like our lawyers expected. This is disappointing. Our attorneys know the injured soldiers we help want to get their settlement money. But if you had told our 3M earplug lawyers at the beginning of the year that soldiers would be 4-1 and the average verdict would be over $2 million, we would be very happy.
This litigation is progressing better than the plaintiffs’ lawyers expected. Still, we may need more trials to get 3M and their shareholders to take an honest look at what reasonable settlement amounts are in these 3M lawsuits. The 3M trials resumed on September 20th and they could be the trigger for a final settlement.] [June 28, 2021 Update: Verdict #3: Another win for in the 3M earplug lawsuits. A Florida jury awarded $1.7 but found Lloyd Baker 38 percent at fault. So the real award for this soldier is $1.1 million. This is a huge win for victims looking for a just settlement compensation payout in the 3M earplug lawsuits. Victims are now 4-1 in 3M hearing damage litigation. This sends a message to 3M that these hearing injuries have real value and an average settlement of $10,000 will not get these cases settled.]
[June 7, 2021 Update: Verdict #2 – The second 3M trial ended last week with a win for the 3M, unfortunately. This was a tinnitus case. The plaintiff, an addiction counselor in Ohio, claimed his earplugs failed him while serving in the Army in Afghanistan where he was exposed to machine guns fire.]
[April 30, 2021 Update: Verdict #1 – We have a verdict! Three earplug plaintiffs were awarded $7.1 million by a federal jury in Florida. The jury awarded $2.1 million in punitive damages per victim. The verdict shows the jury was angry at 3M’s conduct. This will impact the settlement amounts in the 3M earplug lawsuit. Our lawyers hope this stunning verdict after a five-week trial will have a game-changing effect on the individual settlement compensation payouts in these hearing loss claims. Below we talk about the potential settlement compensation payouts in these cases.]
So, let’s summarize the current status of the 3M earplug lawsuits. As of November 17, 2021, we have nine completed trials. The plaintiffs are 6-3 and the jury has awarded the first three bellwether test trials in the 3M earplugs MDL have been completed. Plaintiffs have been awarded over $30 million with an average verdict of $3.34 million. Things are going well!
| PLAINTIFF | CASE NO. | TRIAL | RESULT |
| Atkins, Brandon | 7:20cv012 | 9-20-21 | $8,200,000 |
| Baker, Lloyd Eugene | 7:20cv039 | 6-7-21 | $1,100,000 |
| Blum, Michelle Marie | 7:20cv122 | 10-18-21 | Defense Verdict |
| Camarillorazo, Guillermo | 7:20cv098 | 11-1-21 | $13,063,000 Verdict |
| Estes, Luke | 7:20cv137 | 5-9-21 | $2,450,000 |
| Finley, Theodore | 7:20cv170 | 11-30-21 | $12,500,000 |
| Garcia, Sigifredo | 7:20cv072 | Dismissed | |
| Hacker, Stephen | 7:20cv131 | 5-9-21 | $2,260,000 |
| Hensley, Marcus | 7:20cv093 | Dismissed | |
| Keefer, Lewis | 7:20cv104 | 5-9-21 | $2,420,000 |
| Kelley, Denise | 7:20cv153 | 3-28-22 | |
| King, Jared Lee | 7:20cv132 | Dismissed | |
| Lopez, Kevin | 7:20cv060 | n/a | |
| McCombs, Dustin | 7:20cv094 | 5-28-21 | Defense Verdict |
| McNeal, Chad S. | 7:20cv066 | 3-14-22 | |
| Palanki, Joseph | 3:19cv2324 | 11-1-21 | Defense Verdict |
| Sloan, Ronald Elliot | 7:20cv001 | 1-10-22 | Defense Verdict |
| Taylor, Joseph | 7:20cv071 | Dismissed | |
| Vaughn, Jonathan Wade | 7:20cv134 | 4-18-21 | |
| Vilsmeyer, Luke | 7:20cv113 | 5-9-21 | |
| Wayman, William | 7:20cv149 | 1-10-22 |
These first bellwether 3M earplug verdicts are a big deal. It takes great effort to get to trial in an MDL class action. If the plaintiffs continue winning these hearing damage cases, as our lawyers expect, you could see a 3M global class action settlement faster than you think. Our lawyers provide more 3M earplug trial updates below.]
The stakes are high. The MDL judge reported a mind-blowing 272,416 registered in federal court in the MDL as of November 15, 2021. There are also approximately 1,000 3M earplug lawsuits pending in state court in Minnesota.
This is the biggest MDL class action in American history. This litigation might lead to one of the largest settlements ever. These cases were moving quickly. Plaintiffs’ lawyers are excited about how they are developing and the trial now underway.
Typical victims in these cases are veterans between the ages of 30 and 49 who served in the Army and allege a combination of tinnitus and hearing loss.