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3M Combat Arms Earplug Lawsuit Attorneys - Part 2


Below are our archived pre-Sloan/Wayman verdict in January 2022.  But it has updates from that trial. For the most recent May 2022 updates, see our main 3M earplug lawsuit page.

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.

There should be a verdict today or tomorrow. Fingers crossed.

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!

The jury awarded $816,395 in compensatory damages and $12.245 million in punitive damages so the award is over $13 million.

Plaintiffs are now 6-3 in the 3M earplug lawsuits. The average compensation payout has been $3.34 million. For the six 3M lawsuits where there was a victory, the average award from the jury is over $5 million.

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?

  • Video: What the $13 million verdict means (and does not mean)

[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!

Atkins, Brandon7:20cv0129-20-21$8,200,000
Baker, Lloyd Eugene7:20cv0396-7-21$1,100,000
Blum, Michelle Marie7:20cv12210-18-21Defense Verdict
Camarillorazo, Guillermo7:20cv09811-1-21$13,063,000 Verdict
Estes, Luke7:20cv1375-9-21$2,450,000
Finley, Theodore7:20cv17011-30-21$12,500,000
Garcia, Sigifredo7:20cv072Dismissed
Hacker, Stephen7:20cv1315-9-21$2,260,000
Hensley, Marcus7:20cv093Dismissed
Keefer, Lewis7:20cv1045-9-21$2,420,000
Kelley, Denise7:20cv1533-28-22
King, Jared Lee7:20cv132Dismissed
Lopez, Kevin7:20cv060n/a
McCombs, Dustin7:20cv0945-28-21Defense Verdict
McNeal, Chad S.7:20cv0663-14-22
Palanki, Joseph3:19cv232411-1-21Defense Verdict
Sloan, Ronald Elliot7:20cv0011-10-22Defense Verdict
Taylor, Joseph7:20cv071Dismissed
Vaughn, Jonathan Wade7:20cv1344-18-21
Vilsmeyer, Luke7:20cv1135-9-21
Wayman, William7:20cv1491-10-22

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.

Our law firm is getting calls, web inquires, and emails from veterans and active-duty military personnel with hearing issues seven days a week In the 3M CAEv2 earplug lawsuits, it's our turn as lawyers to fight for the same brave men and women that have fought to protect us all.

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