3M Earplug Lawsuit Update

This page provides the latest news and updates on the 3M earplug lawsuits. There is some interesting perspective in the comments below from soldiers plaintiffs in the 3M earplug lawsuits on the new reports of a $6 billion settlement that are worth a read.

Our lawyers provide some excellent graphs and charts of how these lawsuits are going that we have updated in September 2023 to reflect the latest 3M verdict, failed effort by 3M to hide behind a bankruptcy court, and new settlement talks in 2023 that have yielded a global settlement.

We summarize where we are today in this litigation overview of the 3M litigation. You can also find our latest thoughts on when the 3M earplug lawsuit will settle in light of recent developments.

3M Earplug Lawsuit News

October 2, 2023: A lot of the questions plaintiffs are asking is how the point system works and when will payments be made.

The point system has not been publicized.  But here is what we have gotten for the expedited payment – with likely payouts next year:

  • Tinnitus Only:  $5,000. This is for tinnitus where there are no contemporaneous records to corroborate or confirm without compensable hearing loss.
  • Recorded Tinnitus:  $10,000.  The tinnitus payment is doubled if there is a diagnosis of tinnitus or the plaintiff sought treatment for symptoms within two years of the last use of earplugs.
  • Slight Hearing Loss:  $10,000. This is defined as 15 db Hearing Loss in a least one testing frequency.
  • Mild Hearing Loss: $16,000.  Defined as a least 20 db but no more than 35 db Hearing Loss in at least one testing frequency.
  • Moderate or Greater Hearing Loss:  $24,000 This is defined as 40db or more hearing loss at least one testing frequency.

For the full evaluation program, the payout schedule will be put out in the future:

October 1, 2025

October 1, 2026

October 1, 2027

October 1, 2028

October 1, 2029

As for which option is best for you, I have opinions about what I think the vast majority of people should do.  But I think that is a discussion you should have with your lawyer.  I believe the lion’s share of people will take the expedited payment option not because it is the best thing for them but because they want money now as opposed to money later.

September 28, 2023: Many people suggest in the comments that they have lawyers willing to tackle the draconian requirements of CMO #57. No one has yet to name a lawyer who has said I’m ready to take opt-out cases for plaintiffs who are not now my clients.

Let’s all be transparent. If you have talked to a lawyer who wants to handle 3M earplug opt-out cases, do everyone a favor and name them in the comments.  If these lawyers are looking for cases, they will be grateful for the free advertising. Otherwise, I fear we are misleading people into thinking there is this pack of lawyers out there ready to jump in if they can only just find them.

September 26, 2023: Wave cases will get higher settlements, so many people want to know if they had a Wave case. You would know you had a Wave case if you had a Wave case. They involved a great deal of case-specific discovery with deposition, etc.

By the way, the comment section was shut down for a few hours today. Sorry for the inconvenience. (But I can’t believe the comments suggesting I shut the page down for questioning the settlement.  Y’all should know me by now.)

September 23, 2023:  Judge Rodgers issued CMO #68 out of frustration that the Identification Order Declarations are missing important information, like social security numbers and birth dates. So this violates CMO #60, and the Judge is mad.

The court’s order requires people submitting incomplete or wrong documents and their lawyers to fix the information. They need to do this by Monday, September 25, 2023. If they don’t fix it by then, their claims will be thrown out, apparently without further warning.

September 22, 2023: Judge Rodgers issued CMO #69, which addresses changes in the requirements and deadlines for submitting certain documents related to a legal case. Initially, there were specific rules ( Pretrial Order Nos. 18 and 81 and Case Management Order No. 40) that outlined when and how people involved in the case needed to provide information, including military records and personal details.

But we have the settlement now, so this new order replaces the old rules and deadlines. The critical change is that accurate and complete information must be provided promptly to avoid issues.

Here are the new deadlines:

  1. Individuals who had claims on the court’s docket by August 29, 2023, and were subject to a census form deadline at that time must submit accurate and complete census forms through MDL Centrality by Thursday, October 5, 2023.   The court lists the names of all of the 1,736 people this applies, and I’m sure Archer will put this online at some point, but I’m not putting people’s names online.
  2. All other eligible claimants must submit accurate and complete census and DD214 forms through MDL Centrality within 14 days after their claim was identified on an Identification Order Declaration but no later than September 26, 2023.

Additionally, a deficiency process is in place for incomplete or incorrect submissions. If your census forms or Plaintiff Fact Sheets have deficiencies, you’ll receive notice and must correct the deficiencies within 14 days.

The tone is harsh. The court points out that the Settlement Data Administrator has the authority to handle these documents and deficiencies. If you fail to meet the requirements and deadlines, your case may be dismissed without a show cause order or any further notice.

September 20, 2023: One source of frustration among veterans is that 3M will not admit responsibility in this settlement.

An admission of guilt was never on the table. Admitting responsibility would open the door for everyone to opt-out and move forward on that admission. Maybe it would be admissible at trial, maybe it would not, but it would be, at a minimum, a sword plaintiffs would hammer 3M with over and over. Admitting guilt would also be harmful to 3 M’s reputation. They have long vigorously denied responsibility – have you ever read what they told shareholders throughout this litigation? – so the optics would be terrible.

And it is not just 3M. You do not see defendants fall on their swords in mass tort settlements.

September 18, 2023: As of this week, the total number of plaintiffs with active cases in the 3M earplug MDL is 242,604. That is 12,000 less than the number of pending cases just three months ago. Why? This actually has nothing to do with the recent settlement deal that won’t start to impact the pending case count for a long time. The recent reduction is attributable to dismissals as part of Judge Rogers’ docket control efforts.

September 13, 2023: I’m still confused by the details and logistics of how this settlement will work. Honestly, I thought it was me. But I keep talking to people “in the know” who have the same questions I have.

We must wait and see how things develop for many of these questions.

September 10, 2023: With much thought, I opened this page for comments a month ago. The best thing we have done here. We are getting so much insight into what people think and real facts about what is happening with your case and what your lawyers are telling you. This helps everyone, and I should have done it five years ago.

September 9, 2023:  The hearing yesterday was noneventful, a point underscored in the comments by the many who attended. There is still not a points system in place. But we also need to know how many people will jump into the first settlement bucket before we know how much money is being spread around.

The one good thing about this deal is there is no clawback provision. In a mass tort settlement, a clawback provision is a contractual mechanism in the settlement agreement that allows the settlement administrator to recover unused funds. In this case, that money would have been returned to 3M.

But in this settlement, the whole $6.05 billion will be distributed, and the money earmarked for people who do not participate or those who take the quicker settlement, all the rest of the money goes to the remaining plaintiffs. That is not how every mass tort settlement works. But until we know the answer to that question, we do not know how much money is in the pool to be distributed using that points system.

Here is a link to the video of the hearing. A very rare video of federal court proceedings.

September 5, 2023: I used to think I was good at making predictions in mass tort cases. I read so many things wrong in this litigation.

I did not think the non-military Minnesota lawsuit would fall into this settlement. I was wrong on that, too.

Judge Rodgers’s new order loops these cases into the settlement per the settlement agreement. Her order modifies Case Management Order No. 62 (ECF No. 3827) by broadening the scope of Minnesota cases eligible for inclusion in the Administrative Docket within the MDL until October 2, 2023. So any Minnesota case filed and/or served by August 29, 2023, can now be added to the MDL’s Administrative Docket.

September 4, 2023:  We have been throwing around this $8,333.33 quick settlement idea, which we derived from doing the math in the settlement agreement. It may be that those quick and easy settlements will come in tiers based on the level of injury, according to what some are speculating. Our source is our comments section below (it may not work on cell phones). When it gets flushed out for certain, we will let you know.

We will remain committed to telling you what we know, when we know it until this thing is finally done. Have a happy Labor Day!

September 1, 2023:  There will be a Case Management Conference on Friday, September 8, 2023, at 9:00 a.m. (CDT) before Judge Rodgers to discuss the 3M earplug settlement program.

August 31, 2023:  Bloomberg had an article yesterday about the possibility of the opt-outs tanking the 3M earplug settlement. This does not appear to be a big concern for most people I have spoken to about the settlement. But you might develop a different take reading the comments to this post.

I think the best claims will see more money than people expect in the comments. First, many quickie settlements will change the average settlement for those who opt-in but submit to the settlement points system.

You are also likely to see many veterans not following through with the necessary paperwork to claim their settlement. The crazy thing – to me, anyway – is that so much of the process – besides the discussion of the decision to opt in – will not be done by the lawyers but by the administrators.

Why does this matter? Many of the plaintiffs in this litigation are not responsive to their lawyers. Will they respond better to an administrator, which may sound like a sales call? I think you will see many victims not participating, which will raise settlement amounts for everyone else. If you add a lot of zeroes to the average, it raises the average for everyone else.

Ultimately, this is America, and we get to make choices, thanks in no small part to the plaintiffs in the litigation. Everyone will have to make individual choices about what they want to do. The key will be working with your lawyer and understanding all the pros and cons. My guess is that when the smoke clears, many veterans – with a lot of bitterness – will determine that participating in the settlement is in their best interests.

In the coming weeks, we should know which way the wind is blowing.

August 30, 2023: Interestingly, veterans groups are on board. The Enlisted Association of the National Guard of the United States represents 5.5 million veterans, and the Military Order of the Purple Heart, which advocates for more than 45,000 wounded vets, are vocally supporting the deal.

Note: This is what Bloomberg is reporting. In the comments below, someone disagreed:

Just spoke to my rep at the Military Order of the Purple Heart (703)-642-5360 , they’re saying that the statement “Military Order of the Purple Heart, which advocates for more than 45,000 wounded vets, are vocally supporting the deal.” is completely incorrect and inaccurate.

August 29, 2023: Earlier this morning, 3M issued a formal press release and submitted a disclosure statement to the Securities and Exchange Commission confirming the general terms of the recent earplugs settlement agreement. 3M will pay a total of $6 billion into a settlement fund, and over the next several years, that fund will be used to pay claims. The SEC filing confirmed that 3 M’s board of directors has formally approved the settlement.

Let’s look at some of the deal terms. I’m doing this quickly so that I may get some of this wrong. Correct me in the comments below if you think I have it wrong. For legal advice, you really need to speak to your own lawyer.

  • 3M can walk away at any time if there is not a 98% – 98%! – participation rate. 3M is unlikely to stick to that number. But goodness, it is aggressive.
  • For $8,333.33 (before fees and costs), you can probably settle your case as early as this year. 3M wants to pay this money out early because it really wants to bait plaintiffs to take the quick money to reduce the claim count. This is not the average settlement. People in the comments are getting this wrong. It is just for those who want to get out before submitting their records and such.
  • There will be a Settlement Administrator whose job is to make sure that any Registered Claimant’s medical debts (“qualified healthcare liens”) are sorted out before they get any money from the settlement. So before anyone with a registered claim gets their settlement money, this Administrator checks that all the medical debts linked to their claim are either already paid or will be paid soon.
  • Once you fill out and submit a Registration Form to be part of the settlement, you can’t change your mind or take it back. This means no person who has registered can, for any reason, try to cancel their form, ask to get their Release or official dismissal document back, or leave the settlement unless the Defendants agree. But…if the Defendants decide to back out (or “Walkaway”), the Settlement Administrator will toss all the releases. There are some exceptions: the documents from the Verdicts Settlement and the Waves Settlement (unless the Defendants back out from that too). 3M also can’t back out of the $8,333,33 settlements (nor would they want to do so).
  • There is 3M stock in this deal… because plaintiffs are so desperate to own some of this company? But they seem to be anticipating a potential problem on this with Judge Rodgers. So she agreed that equity is permissible, and both sides will get together to discuss a different kind of payment instead of those shares. Plaintiffs can back out if they can’t agree on how to fix the problem unless 3M capitulates and just pays the $1 billion in cash.
  • John Perry is the special master for the settlement.
  • The plaintiffs who do not opt into the quick settlement of $8,333.33 but want to settle can go into a not yet disclosed points system process. This is not a part of the settlement but something plaintiffs will set up with the special master.

August 28, 2023: Bloomberg has another article on the 3M earplug settlement this morning that is mostly a rehash of yesterday’s article with more background facts on the litigation.

3M shares are up nearly 5% at last check at 2:00 p.m. today on the news of the “tentative settlement.”

Reuters reports that a “person familiar with the proposal” says 3 M’s board of directors is poised to vote on the settlement proposal.

There is a new Bloomberg article – Bloomberg is the only one really on this – that has this money quote:

“There’s still much unknown about the 3M settlement. Even once a deal is finalized, it will still need to clear a number of legal hurdles, including sufficient buy-in from the plaintiffs. It’s not immediately clear why a majority of plaintiffs would both accept $5.5 billion and allow 3M to pay out the funds under a more generous timeline when Wall Street has broadly coalesced around a $10 billion number — or worse. 3 M’s endeavors in bankruptcy court can’t have endeared it to the other side, and one might ask, if there was a path toward a settlement at roughly half the price analysts were estimating, why did the company even bother with such a contentious maneuver in the first place?”

But, again, we need to see the overall deal before jumping to conclusions.

Our law firm is no longer taking new 3M earplug claims. Will this stop us from updating you on the latest news like we always have? Of course not.

As for the comments below, we are a little confused about whether you can access the comments on a mobile device. But you can certainly see them on a desktop. We cannot answer them all, but we are reading your comments with great interest.

August 27, 2023:  Bloomberg News reports today that 3M Co. is reportedly in the final stages of settling the 3M earplug lawsuits. Forbes also has an article report on Bloomberg’s article.

How Much?

That a settlement is close is not news. We have been telling you this for weeks. What is news is the number:  around $5.5 billion.

We are still learning more. But $5.5 billion will not be the ultimate number under any scenario. There will be many – including many of you who have waded into the comments – who will never accept 3Ms settlement offer, and 3M will have to reckon with you eventually.

Possible Settlement Structure

We think there will be a single-amount settlement offer for plaintiffs who do not have solid claims and just want to accept a low settlement amount and other claims that will be settled with a deep dive into the medical records and the specific injuries. But this is just speculation.

Little More Speculation

One more bit of speculation… everyone seems to be wondering what 3M will do with their case. It may not be on 3M. 3M may offload the responsibility to plaintiffs’ lawyers, which would be a points system (with an appeals process). Again, we have no idea how a 3M earplug settlement would be structured.

Tell Us What You Think

We will tell you more as we learn more. We will keep updating you here long after this settlement is official.

People are already commenting on the settlement news in the comments, so please jump in if you have something you want to say.

August 24, 2023:  We have not mentioned the possible 3M earplug settlement in a while, so here are our latest thoughts.

The conventional wisdom is that these claims will settle sooner rather than later. We have had high hopes of a resolution before that quickly fizzled. But they have never been this high. One canary in the coal mine to watch for – the number of law firms that are no longer taking new cases. This may start happening sooner rather than later.

A settlement could take a lot of different forms, and there is very little information swirling about how a settlement might be structured… or what the average settlement might be. We have tossed around a $50,000 number as a potential mark. That is probably overly optimistic. But weaker cases pull the average down. The bigger question is what will be the average settlement in cases with cases with severe and well documented injuries.

August 22, 2023: In three orders today, Judge Rodgers dismissed 3M claims where the plaintiffs did not submit the paperwork required to maintain a claim.

August 16, 2023:  The latest case count in the MDL is 259,385. New cases are still being filed and dismissed, keeping the total number of cases relatively steady. Judge Rodgers dismissed more cases yesterday, so the actual number is slightly lower.

Note: We reopened the comments section two weeks ago if you want to offer your opinion on this litigation or hear the thoughts of other plaintiffs in the 152 comments we have. Their may be a brief delay in having your comment posted but after your first comment, we make you a “trusted user” whose comments post immediately. We answer many of your questions, but we cannot answer every question and many questions – most notably the “when?” and “how much?” for settlement – are still unanswerable at this point.

August 15, 2023: More dismissals are set for plaintiffs who failed to submit DD214s. Meanwhile, settlement rumors continue to swirl. Are these rumors credible? Who knows?

August 2, 2023: Judge Rogers has given a group of over 350 delinquent plaintiffs in the 3M earplugs MDL yet another chance to keep their cases alive. The group of plaintiffs includes 141 who were facing dismissal based on their failure to submit the required military service documentation and another 240 who failed to submit their plaintiff census forms. Despite the fact that these plaintiffs have been given all sorts of time and extensions, Judge Rogers balked at dismissing their cases. Instead, she issued an Order stating that the plaintiffs on the list will have their cases dismissed if they fail to submit the required documents by August 3, 2023.

July 27, 2023: The MDL judge is on a quest to eliminate cases where the plaintiff is not willing to participate in the litigation, with more dismissals set for early August.

Some have asked in the comments what this really means. Some plaintiffs are not providing census data – the basic questionnaire.

Again, as we talk about below, this is good for real victims with legitimate claims.

July 25, 2023: Barclays analyst Julian Mitchell estimates $8 billion to settle the earplug lawsuits.

The more realistic number is probably higher. Let’s say it is $10 billion, and there are 200,000 legitimate plaintiffs. That is an average settlement of $50,000 per case.

How would that work? Would everyone get $50,000 under that scenario? No. Generally, hearing loss earplug lawsuits would get more; tinnitus lawsuits would get less.

Will some opt-out of a settlement and continue with their case? Absolutely. The only problem will be how long it will take to get a trial date.

July 18, 2023: In the next few weeks, a significant reduction in the number of cases pending in the 3M earplugs MDL is expected as Judge Rogers is poised to dismiss a large group of plaintiffs who have repeatedly failed to produce documents supporting their claims. Meanwhile, the total number of pending cases in the MDL grew by nearly 3,000 over the last 30 days to bring the current total up to 257,449. Finding some way to resolve such a large field of plaintiffs in a way that makes everyone happy is currently the primary obstacle to a global settlement.

July 16, 2023: It was a quiet week in the MDL; there was no meaningful activity. On Monday, Judge Rodgers issued an order about duplicate filings but beyond that, there were no developments. The next significant development is likely to be an appellate ruling on one of many 3M appeals.

July 5, 2023: There is nothing concrete, but the general sentiment is that the chances of settlement in the near future are higher than at the same time last year. One hold-up is 3 M’s misguided belief about its chance in the many appeals out there.

July 1, 2023: Judge Rogers dismissed more than 3M earplug lawsuits on Thursday for failing to comply with census information. The Judge gave plenty of warning to these plaintiffs who did not make the most basic effort to maintain their lawsuits. Another similar deadline for another batch of plaintiffs is July 12, 2023.

June 27, 2023: Yesterday, 3M Co. appealed to the 11th Circuit to reverse Judge Rodgers’ ruling that bars 3M from challenging her decisions in the MDL. The ruling threatens potential contempt charges if 3M attempts to challenge these decisions. This effectively blocks 3M from utilizing Aearo’s Chapter 11 filing as a vehicle to reassess decisions from the MDL, particularly the government contractor defense that 3M still hopes against hope it can win. 3 M’s position is to let the bankruptcy judge (an imaginary judge in this case, as we explain in a second) decide whether relitigation is appropriate.

Plaintiffs’ lawyers maintain that there is a limit to the number of judges 3M can present the same argument. They assert that if 3M disagrees with Judge Rodgers, the correct course of action is to appeal. While 3M has already appealed, plaintiffs argue that 3M should not get a million bites of the apple to find a sympathetic judge.

The goofy part of it all? Aearo’s bankruptcy has already been dismissed. So no bankruptcy could even entertain these arguments. So 3M is bleeding its shareholders for even more legal fees, hoping it wins this current appeal, then it gets a reversal of the dismissal of the bankruptcy, and then it has to win the case within the case – the government contractor defense argument that really has no chance under these facts.

Fun fact: 3M has spent $450 million in defense costs in this litigation.

June 26, 2023: Bloomberg has an article on 3 M’s litigation woes.

June 24, 2023: 3M Co announced this week that they have agreed to a $10.3 billion settlement with various U.S. public water systems.

Does this impact 3M earplug lawsuits? Maybe. 3M stock has been in the gutter in the last few years, with most analysts citing the litigation risk. The market showed 3M that it likes settlements, even settlements in the billions of dollars because it brings more stability and certainty to a stock that has suffered from uncertainty. An earplug settlement would likely have the same impact. This litigation is the last big impediment to 3M getting back on track.

June 21, 2023: Yesterday, 3M Co. appealed to the Eleventh Circuit to set aside a $50 million verdict earplug verdict. The company trotted out its usual argument:  as a government contractor, it should be granted immunity. 3M trotted out a few new arguments as well. One issue was a decision on causation, grounded in what 3M says are unverified conjectures about flaws in CAEv2. The other was a verdict on the superseding cause defense, which according to 3M, prevented the jury from considering the military’s shortcomings in accurately fitting the earplugs and adequately training service members on their use.

The appellate court is unlikely to overturn the $50 million verdict awarded to Luke Vilsmeyer, a U.S. Army veteran. 3M is appealing everything and will likely keep its losing streak going.

June 16, 2023: We saw a decrease in the total number of active plaintiffs in the 3M earplugs MDL for the second consecutive month. There are now 254,943 pending cases in the MDL 2885, roughly 10,000 less than at the start of the year. This number will drop again as Judge Rogers implements docket control measures.

June 14, 2023:  Kirkland & Ellis LLP, a law firm has asked an Indiana federal bankruptcy judge to approve nearly $13 million in fees and costs associated with their representation of 3 M’s subsidiary, Aearo Technologies, in its bankruptcy proceedings from February to April. The appeal follows a judgment dismissing the bankruptcy case as Aearo was deemed financially robust. Kirkland’s request, the third of its kind, adds to an already approved sum exceeding $30 million for representing Aearo Technologies, which filed for Chapter 11 to handle an overwhelming 230,000 liability claims linked to their Combat Arms Earplugs Version 2, or CAEv2.

So Kirkland spent some time and 3 M’s money on this adventure. During the period from February 1 to April 30, Kirkland claims to have spent significant resources and time managing a Seventh Circuit appeal, responding to dismissal motions, and negotiating settlements. The firm has attributed the significant expense to the substantial number of claims faced by the company and intense preparations for the hearing on dismissal motions. More than 11,777 hours were dedicated by Kirkland’s paralegals and attorneys. Kirkland charged Aearo an average hourly rate of $1,073.30 – not a typo –  asserting that the charge was commensurate with the case’s complexity and the time and professional services invested in it.

After this $30 million has been spent, 3M is right back to where it started.

June 14, 2023: Aearo Technologies has been granted permission by the bankruptcy judge to take its Chapter 11 case dismissal appeal directly to the Seventh Circuit. The decision was based on the issues’ public importance and the absence of an authoritative decision from the Seventh Circuit or Supreme Court. Graham’s decision came less than a week after he dismissed Aearo’s Chapter 11 filing due to a lack of a valid reorganization reason. Aearo has two weeks to file a statement to argue for the appeal’s certification.

June 13, 2023: In an effort to continue cleaning up the historically bloated docket in 3M earplugs MDL, Judge Casey Rogers issued several Orders yesterday giving non-compliant plaintiffs one final chance before having their cases dismissed. First, any plaintiffs who have failed to submit the required census forms will have their cases dismissed if the forms are not submitted by June 26th. Second all plaintiffs who have failed to provide the required military service documentation will face dismissal if the failure is not corrected by July 2nd.

June 10, 2023: 3M suffered a blow yesterday when an Indiana bankruptcy judge dismissed the bankruptcy case of Aearo, the 3M subsidiary which was intended to manage over 230,000 liability claims related to allegedly faulty earplugs. The court found that the bankruptcy did not serve a legitimate reorganizational purpose as the subsidiary was financially stable, with significant support from its parent company. There was also no immediate financial risk to either company.

Yet another judge is shooting down 3M. No one is buying what 3M is selling in this litigation.

June 2, 2023: 3M will settle pay over $10 billion to settle lawsuits filed by municipalities claiming 3M PFAS infiltrated their water supply. The money will be paid out over time which frees up money for a 3M earplug settlement. It is hard to say whether this settlement helps or hurts earplug settlement prospects. Certainly, 3M needs to resolve these outstanding Combat Arms lawsuits to get its company and its stock price back on track.

June 1, 2023:  The Eleventh Circuit Court announced on Wednesday that Judge Rodgers improperly levied sanctions of $12,000 on two lawyers from Dechert LLP, Kimberly Branscome and Jay Bhimani, who were defending 3M Co. in a lawsuit concerning defective veterans’ earplugs. The sanctions will now be reconsidered at the lower court level. Yawn. This ruling is of little consequence.

According to the allegations, the lawyers did not adhere to the Judge’s instructions regarding the presentation of a piece of evidence in the final arguments. The Eleventh Circuit stated that Judge Rodgers didn’t give the needed notice before issuing the sanctions, and failed to show that the attorneys had intentionally violated the rules.

May 31, 2023: The settlement talks in the 3M earplug class action lawsuit did not end in a settlement. That does not mean these claims will not settle soon. But it did not get done, and the lawyers are still far apart. One possibility (and this is pure rumor and speculation, okay?) is that some groups of lawyers – probably attorneys with extensive inventories of cases that are not in leadership in the MDL – will try to settle their lawsuits in the range 3M is offering now.

Judge Rodgers has signaled that she does not expect 3M to win on appeal, and it is time to prepare for that reality. To that end, Judge Rodgers anticipates more trials soon and has remanded 31 cases. Remand is the process of sending cases back from an MDL to its original transferor courts (or appropriate court since most lawsuits were direct filed in the MDL) for further proceedings. Once the current stay is lifted (she did not say “if” the stay is lifted), the Middle District of Florida cases will be promptly remanded together. Subsequently, the remaining cases will also be remanded.

If many of these cases are remanded, it would be an absolute circus that would make 3 M’s already ridiculous legal fees seem like chicken feed and would really tax the federal courts all around the country.

May 25, 2023: Today is day one of two days of settlement talks in the 3M earplug MDL.

May 22, 2023:  The 3M settlement talks will continue on May 25, 2023. The CEO of 3M, Mike Roman, is required to attend personally. Mr. Roman is expected to engage directly with the mediators to ensure that his communication with the 3M Board of Directors about the possibility of a global resolution is based on a firsthand understanding of the negotiation status. The mediation aims to resolve a multidistrict litigation comprising around 230,000 plaintiffs and several thousand cases in Minnesota state court, primarily filed by civilian users of the earplugs.

May 15, 2023: Over the last month, nearly 7,000 plaintiffs with pending cases were dismissed from the 3M earplugs class action MDL. That brings the current total case count down to 255,500, the lowest total in over a year. However, even at this reduced size, the 3M earplugs MDL is still seven times the size of the next biggest MDL (Talcum Powder 37,543).

May 8, 2023: 3M wants to continue to mediate these lawsuits in hopes of reaching a global settlement agreement that will help stabilize the company’s stock and reduce all of this uncertainty. But 3M is unhappy with mediation in the MDL. The company has developed an unhealthy attachment to bankruptcy court even after every single court has told the company- or has signaled they will soon tell it – that bankruptcy is not the answer to its woes. 3M really wants to settle these cases in bankruptcy court, not in the MDL.

So while it is exciting that there will be settlement talks in the MDL, it is a concern that 3M is mediating in that forum against its will and only with a court order. Again, it is reasonable to take 3M at its word that it wants to have productive settlement talks, it is also reasonable to be concerned as to whether they will bear any fruit in the short term.

May 3, 2023: Okay, here we go. Mediation will resume in the MDL. The mediation will be handled by two retired judges and a court-appointed official. The Mediation Order came a day after the U.S. Court of Appeals for the Eleventh Circuit heard oral argument in 3 M’s appeals of four verdicts for veterans in early test trials, including an immunity issue with the potential to wipe out the whole litigation. But at least two judges appeared to be leaning hard to affirm the verdicts. So, as I just said, this is a smart window for 3M to make a reasonable settlement offer.

Two retired judges, David R. Herndon and Jeffrey J. Keyes, will handle the mediation alongside a court-appointed official, Randi Ellis, who has been a mediator in the MDL and bankruptcy combat earplug proceedings.

May 2, 2023: How did the 11th Circuit arguments go yesterday? They went well. At one point, Judge Robert R. Wilson says (at 16:00 or so here) says point blank that any possible error would be harmless. It would have been nice to hear the judges ask sharper questions on the alleged precise specifications, although Judge Wilson did press defense counsel a bit on the lack of evidence of government-endorsed reasonably accurate specifications.

But ultimately, it is hard not to walk away from this hearing confident that however the 11th Circuit gets there, it will not overturn these verdicts. The court seemed well aware of multiple paths to affirm this judgment.

May 1, 2023: 3M is taking its long-shot bid to dismiss all 3M cases to the 11th Circuit this morning for oral arguments. Looking to overturn four verdicts against it, 3M will argue that the government contractor defense insulates the company from all liability. We will let you know how the arguments go after the hearing.

April 25, 2023: 3M is laying people off in massive numbers. Is this indirectly related to the 3M earplug litigation? It is. Because 3M has to manage the uncertainty of litigation risk, it is more inclined to lower variable costs. None of this is necessary. These lawsuits should have been settled years ago. 3M has no one to blame but itself.

April 20, 2023: Earlier this week, U.S. Bankruptcy Judge Jeffrey Graham heard both sides’ oral arguments in a motion to dismiss the Chapter 11 bankruptcy filed by 3M earplug subsidiary Aearo Technologies. The same Judge has already refused to extend the stay in this bankruptcy to cover 3M, a ruling currently on an expedited appeal to the 5th Circuit. The outcome of that issue could render the whole Aearo bankruptcy moot. In the meantime, however, the 3M earplug plaintiffs are asking Judge Graham to flat-out dismiss the bankruptcy because Aearo is not under financial duress. Judge Graham will hear more arguments from the parties today before ruling.

April 18, 2023: The 3M earplugs class action lawsuit added 2,834 new plaintiffs over the last 30 days. This brings the total of pending cases back up to 262,426. This is a combination of new cases and dismissals. See the March 31, 2023 update below.

April 15, 2023: Listen to the oral arguments before the 7th Circuit in 3 M’s effort to convince a federal appeals court that an Indiana federal bankruptcy judge had at least three different lines of reasoning available to conclude that mass tort litigation over allegedly defective 3M military earplugs must be put on hold during the Chapter 11 bankruptcy of 3 M’s subsidiary, Aearo Technologies.

It did not go well for 3M. They brought an excellent appellate lawyer to the 7th Circuit. But no one can sell these arguments. It is impossible to imagine 3M winning this appeal.

March 31, 2023: The MDL judge issued had previously issued an order requiring certain MDL plaintiffs to submit a Form DD214 or DoD Military Service Information Report. The Judge warned that failure to do so would result in the dismissal of the plaintiff’s case without prejudice. These plaintiffs submitted census materials indicating they are veterans or gave conflicting answers about their veteran status. The court ruled that dismissal without prejudice for failure to comply with a court order. Active-duty plaintiffs and non-veterans are granted leave to file a motion to reopen their case, accompanied by a statement clarifying their military service status by April 26, 2023.

March 24, 2023: New 3M lawsuits continue to be filed. Alvarez v. 3M Co., et al. (3:23-cv-6661) is an example of a new 3M earplugs lawsuit filed on March 23, 2023.

The plaintiff, a Florida resident, alleges that she used the Dual-Ended Combat Arms Earplug and suffered partial hearing loss and tinnitus in her left and right ears. The hearing loss was presumably suffered during her time in the military, although that detail is not provided in the Short Form Complaint. The suit names all of the possible defendants, including all of the Aearo subsidiaries.

March 17, 2023 Update: CNBC has an article today on the 3M litigation that is more in-depth than most.

March 10, 2023 Update: Judge Rodgers isn’t buying their methods for testing whether their military earplugs caused hearing loss. She called it “problematic” in a filing today because the testing approach leaves out the two hearing frequencies that are most commonly affected by noise, but includes two frequencies that are rarely impacted. Garbage in and garbage out.

On the other hand, she thinks the plaintiffs’ lawyers are also overreaching because the plaintiffs’ testing approach also does not assess an individual’s current hearing loss status.

March 3, 2023 Update: Quote from plaintiffs’ lawyers in Bloomberg article on the 3 M’s estimation motion:

“There is simply no route for 3M to resolve this litigation if it continues to take the offensive and impractical position that 90 percent of service members and veterans are liars with worthless claims.”

This is an excellent summary of where we are in the 3M earplug litigation today.

March 2, 2023 Update: We wrote a separate post on the 3M estimation motion that announced most plaintiffs suffered no injury.

March 1, 2023 Update:  3M today said that most of the “175,000 plaintiffs” in the Combat Arms earplugs lawsuits had normal hearing, according to U.S. Department of Defense records. The data was included in an estimation motion filed by Aearo Technologies, the 3M unit that made the earplugs, in U.S. Bankruptcy Court in Indianapolis.

This is good news for 3M. One small problem…Eleven out of 13 jury verdicts in favor of soldiers would fall into 3 M’s “not harmed” category. This would seem to be a minor problem for 3M. Can you see why 3M wanted to hide from juries in bankruptcy court?

3M chooses its own definitions and its own legal standards. It thinks it gets to define whether someone suffers from a hearing injury. When juries disagree with the positions it takes, it thinks it should get to decide that they should not have to face the judgment of juries.

I’ve said repeatedly that I believe 3M is a good company that just refuses, for whatever reason, to take an honest look and the exposure it has in this litigation. I thought the jury verdicts would do it. But the litigation and appellate calendar allows 3M to put its head in the sand. There will be a day or reckoning. Actually, 3M lost $50 billion in market value. So the reckoning is already here. But no one seems to be connecting those dots.

February 23, 2023 Update: The 3M data day presentation took place this morning as scheduled. It featured opening comments from Judge Rodgers followed by a presentation by the third-party data administrator for the MDL.

The primary theme of the presentation was that both sides have adopted different ways of interpreting the data regarding the hearing loss claims asserted by the plaintiffs. These opposing interpretations yield vastly different results.

Under the metric endorsed by 3M, nearly 85% of the plaintiffs have no evidence of hearing loss and should be excluded from any settlement. The approach applied by the plaintiffs results in a much smaller percentage of plaintiffs being excluded.

According to Judge Rodgers, both sides have dug in on their opposing data interpretations, and the massive gap between the two results is what has prevented any meaningful settlement progress.

February 22, 2023 Update: The Judge in the 3M earplug MDL has scheduled a “Data Day” tomorrow, at which time Brown Greer, the third-party claims administrator for MDL 2885, will make a presentation outlining information about the thousands of hearing loss claims pending against 3M in the litigation.

What is Data Day? Data Day is when both parties in a class action lawsuit come together to exchange and review large volumes of electronic data and information that is relevant to the case.   Data day is often – as it is in this case – facilitated by a third-party vendor who can assist with managing the data and facilitating the review process.

Judge Rodgers explained that the presentation will help educate plaintiffs’ lawyers not on the leadership committees about the nature and scope of the claims. We think this may be an effort by Judge Rodgers to keep the door open for further settlement negotiations as things play in the appellate courts.

February 14, 2023 Update: The hearing on the recent motion by the 3M plaintiffs to immediately dismiss the Aearo Technologies bankruptcy proceedings has been pushed back. Initially, U.S. Bankruptcy Judge Jeffrey Graham was going to hear arguments on the motion this week. Yesterday, however, Judge Graham pushed the hearing date back to April.

February 7, 2023 Update: Plaintiffs’ lawyers smell blood in the water to kill 3M bankruptcy gambit.   The Bankruptcy Court has scheduled a Status Conference to address the Motion to Dismiss recently filed by the 3M earplug MDL plaintiffs. The conference has been set for next Monday, February 13, 2023.

The Motion seeks to have the Aearo Chapter 11 bankruptcy immediately dismissed based on the grounds outlined in the recent ruling by the 3rd Circuit Court of Appeals in the talc bankruptcy initiated by J&J. That bankruptcy was admittedly different in some ways. But none that matter. Like the J&J case, Aearo has a “funding backstop” from its parent, which means it would not face the risk of financial distress because, ironically, a huge company was willing to pay its debts.

But more saliently, the  3 M’s maneuver to change the forum of litigation from civil trials to bankruptcy to avoid the wrath of juries raises “the specter of abuse which must be guarded against to protect the integrity of the bankruptcy system” the court highlighted in J&J talcum powder generated bankruptcy.

January 21, 2023 Update:  This will surprise you if you read our last update. The mediators in bankruptcy court report that good faith negotiations are ongoing, and settlement negotiations will occur formally next month. They disagree with Judge Rodgers’ assessment that settlement talks will not be fruitful.

3M wants to resolve these cases in bankruptcy and wants Judge Rodgers to avoid getting any credit for a global settlement. Veterans care about fair compensation. That’s it. So everyone can win here. Settlement is still an uphill slog. But there is more reason for hope than after Judge Rodgers’ order on Wednesday.

January 20, 2023 Update: On Wednesday, the Judge in the 3M earplugs MDL canceled the court-sponsored earplug settlement mediation that had continued intermittently for the last year and a half.

Judge Rodgers expressed apparent regret and frustration. She explained that the move was necessary because 3M has flatly refused to consider a global settlement of the earplug claims within the MDL.

3 M’s ostrich approach will cost them. The fear is how long it will take for it to pay that price.

January 16, 2023 Update: Read through these comments from 3M investors about the earplug lawsuit as long as you don’t mind sacrificing a few IQ points.

January 8, 2023 Update: Bloomberg reports 3M has spent over $450 million in defense costs in the earplug litigation.

3m trial damage awards
6th and 7th 3m Earplug Verdicts

Last week provided 3M earplug lawsuit verdicts in the 6th and 7th bellwether test trials in the ongoing 3M earplugs litigation, the largest consolidated mass tort in U.S. history.

It did not begin well. The 6th bellwether trial ended in a defense verdict in favor of 3M.

The 67th was a different story. A Tallahassee jury awarded the plaintiff $13.1 million in damages. This marked the largest and most impactful verdict in the 3M earplugs litigation because it included over $12 million in punitive damages.

  • If you have thoughts about the 3m earplug lawsuit, let us know in the comments below. Specifically, we would like your opinion on how much money it would take for you to settle your earplug lawsuit. (You should probably not offer your thoughts on settlement amounts if you use your real name on your Discus handle.)

Call a Lawyer If You Have a 3M Earplug Lawsuit Today

If you have a potential 3M earplug lawsuit and have not brought a claim, call a lawyer. You can call our attorneys at 800-553-8082.

You can call any 3M earplug lawyer. Not just us. The important thing is that you call today so you do not risk missing the deadline to bring a lawsuit. If you miss the statute of limitations, you will not be able to get a settlement for the harm that has been done to you.

Round 6: Defense Verdict

The 6th bellwether trial in the 3M earplugs MDL came in the case of Joseph Palanki v. 3M Co., et al. (3:19-cv-2324). Palanki was a 50-year-old Tennessee resident and veteran of both the U.S. Army and National Guard. Palanki claimed that he suffered hearing damage while using 3 M’s combat arms earplugs while on active duty with the Army at a base in Texas.

Palanki was one of the bellwether cases selected by 3 M’s defense team because they believed it presented favorable facts. The trial was held at the federal courthouse in Pensacola, but it was presided over by a visiting judge from the Northern District of Alabama. Palanki spent nearly two days testifying, during which the defense focused on his medical history.

After hearing closing arguments from both sides, the jury went back to deliberate the case after lunchtime on Friday, November 12. At 3:00 the jury submitted a question to the Judge. By 5:30 the jury had decided that Palanki failed to prove any of his claims against 3M and returned a defense verdict.

The result in Palanki marked the 2nd win in a row for 3M in the bellwether trials (the Blum trial also resulted in a defense verdict). 3M was feeling very bullish immediately after the verdict was returned. In an official company statement, 3M described the verdict in Palanki as “an important demonstration that jurors agree 3 M’s CAEv2 product was safe and effective to use.” But then the big verdict came just a few days later.

Round 7: $13,062,320 Verdict

The 7th bellwether trial was held simultaneously in Tallahassee in the case of Guillermo Camarillorazo v. 3M Company, et al. (7:20-cv-00098). Camarillorazo was the third bellwether case selected by the plaintiff’s lawyers.

Unlike most other plaintiffs, Camarilliorazo is still an active-duty service member with the rank of Sergeant in the U.S. Army. Camarillorazo had much stronger medical evidence to support his alleged hearing loss and tinnitus.

After a 2-week trial before Judge Mark Walker, the jury came back with a verdict Monday afternoon. The jury found in favor of Camarillorazo on all 7 of his tort claims in his military earplugs case and apportioned 100% of the fault on 3M.

The jury awarded total damages of $13,062,320 to Camarillorazo. This award included $816,395 in compensatory damages which broke down as follows:

Past Pain & Suffering         =          $192,000

Future Pain & Suffering      =          $408,000

Future Loss of Earnings     =          $110,645

Future Medical Care            =          $105,750

This was comparable to the compensatory damage awards in prior bellwether cases.

The most shocking aspect of the Camarillorazo verdict was the fact that the jury found that 3M acted with “fraud, malice, or gross negligence” and awarded $12,245,925 in punitive damages. This is the second bellwether trial that resulted in punitive damages. In the first bellwether trial, the jury hit 3M with $7.3 million in punitive damages, but that was split between 3 plaintiffs.

The $12 million in punitive damages awarded to Camarillorazo is a damaging indictment that demonstrates the jury was angered by 3 M’s conduct concerning the defective earplugs. The size of the punitive damage award, in this case, exposes the potential vulnerability of 3M in these cases. If the plaintiffs can consistently get juries to hit 3M with punitive damages in future bellwether trials it could be a major game-changer.

Plaintiffs Are Now 6-3 in 3M Bellwether Trials

There have now been 7 bellwether test trials in the 3M earplugs litigation. 3M claimed defense victories in Rounds 2, 5, and 6. The plaintiffs scored victories in the other Rounds. If we were keeping score by Rounds, the plaintiffs would be ahead 4 to 3. Keeping score by Rounds is somewhat misleading, however, because Round 1 included the consolidated trial of 3 plaintiffs.

If we track wins and losses by individual plaintiffs, we get a more accurate picture of where things stand. So far, 6 out of the 9 bellwether plaintiffs have won their claims against 3M and been awarded damages. The average compensation payout for soldiers who were awarded damages is approximately $3.3 million.

Are 3M earplug lawsuit individual settlement amounts going to go as high as these verdicts? They are not. That is, unfortunately, not how typical mass tort settlements work. But if you do not like the settlement amount you are offered, you can opt-out of the settlement and take your case to a jury.

3M Earplug Lawsuits Results

Luke Estes Pro-Plaintiff $2,450,000
Lewis Keefer Neutral $2,420,000
Stephen Hacker Pro-Defendant $2,260,000
Dustin McCombs Pro-Defendant LOST
Llyod Baker Pro-Plaintiff $1,100,000
Brandon Atkins Pro-Defendant $8,200,000
Michelle Blum Pro-Defendant LOST
Joseph Palanki Pro-Defendant LOST
Guillermo Camarillorazo Pro-Plaintiff $13,062,320
Joseph Finley Pro-Plaintiff $22,500,000
Carlos Montero Pro-Defendant LOST

What Have We Learned from the 3M Lawsuits That Have Gone to Trial?

We have learned that juries do not like what 3M did with these earplugs and they will award a great deal of money if they believed that negligence caused the victim tinnitus or hearing loss.

But we have also learned that 3 M’s bad behavior will not give victims a pass past the burden of proof of showing that their hearing loss was caused by 3 M’s negligence. So juries will not shoehorn 3M negligence and the victim’s hearing injury if the evidence does not support the claim.

Breakdown of Damage Awards in 3M Earplug Trials

There have now been 7 rounds of bellwether trials involving 9 plaintiffs in the 3M earplugs litigation. 3 of the 9 plaintiffs lost and were awarded $0 damages. The 6 plaintiffs who won their cases have been awarded damages totaling $29,429,925.

This works out to an average of $4.9 million per plaintiff. Of the $29.4 million in total damages, 63% have been punitive damages (also referred to as “exemplary damages”) aimed at punishing 3M for fraud or gross negligence.

The average amount of compensatory damages awarded to the 6 successful plaintiffs is $1,216,322, but this average is skewed by the Atkins case in which all $8.2 million in damages were compensatory. The median compensatory damage award is $583,448.

I Never Hear from My Lawyer. Can I Fire My Lawyer and Hire You?

As self-serving as it is to say, our lawyers get this question constantly. Your attorney should be in regular contact with you.

But you have to understand there are over 200,000 lawsuits as of December 2022 and there are few if any developments in individual cases. So hiring another lawyer is unlikely to speed up the path to a 3M earplug settlement.

What Settlement Amounts Do You Expect for the Average Individual 3M Earplug Lawsuit?

Our lawyers have consistently said that the average settlement amount in the first round of settlement will average between $50,000 and $100,000. Many veterans will understandably reject this settlement. But this will get the number of claims down. But these settlement amounts and timing predictions… are just pure speculation.

How to Check the Status of Your 3M Earplug Lawsuit

Want to check if your check is up for dismissal? You can actually check on the status of your 3M earplug lawsuit yourself by accessing the case docket online through the PACER System. First, you will need to create a PACER account (which requires a credit card). Once you have an account, you can log in to PACER then go to the Northern District of Florida (where the 3M MDL is) and search for your case  You can search by your case # or by your name  Once you find your case, click on the link and then click on “Docket Report” to pull up a list of everything that has been filed in the case to dat . Or you can log in to the case docket for the 3M earplug MDL by searching the case # (3:19-md-2885).

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