Our law firm handles 3M earplug lawsuits throughout the country. This page provides the latest news and updates on the 3M class action lawsuit for victims.
There is some interesting perspective offered in the comments below from soldiers who are plaintiffs in the 3M earplug lawsuits. Our lawyers also provide some good graphs and charts of how these lawsuits are going that we have updated in October 2022 to reflect the latest 3M verdict, failed effort by 3M to hide behind a bankruptcy court, and new settlement talks on Monday, October 3, 2022.
If you have a potential 3M earplug lawsuit and have not contacted a lawyer, you are making a mistake if you think you want to bring a claim. Reach out to us at 800-553-8082 or connect with us online.
- New Military Claim: Camp Lejeune lawsuits will be permitted for toxic water contamination if the Senate passes a bill to allow claims – despite the statute of limitations – tell your friends if contaminated water impacted them or their families
- 3M’s Selective Deafness: New article with a harsh view of how 3M has handled this litigation
3M Earplug Lawsuit News
October 5, 2022 Update: There is still no 3M earplug settlement. One piece of bad news: the October 24th trial that was creating settlement pressure has been pushed back to February. There is a lot of speculation the trial was pushed back to allow for settlement talks to continue. But the judge was unable to try the case this month for reasons extermal to the 3M litigation.
October 2, 2022 Update: The next round of settlement talks will be tomorrow on Monday, October 3, 2022. This is encouraging news. I don’t think 3M wants to try another case and would like to find a way to settle these claims. Another trial looms on October 26, 2022. If you are 3M, you don’t want to try that case.
September 20, 2022 Update: No global settlement. But settlement talks will continue in the next two weeks and Judge Rogers is encouraged by the progress made during the settlement negotiations.
So this is really great news, right? It is. But right before round two of the settlement mediation ordered by MDL Judge Casey Rogers, top executives at 3M were at a conference spewing nonsense to financial analysts that the company was still “moving forward” with its bankruptcy strategy.
3M’s Chief Legal Affairs Officer, Kevin Rhodes, claimed that the recent decision by the Bankruptcy Court rejecting 3M’s strategy was “wrong” and is being appealed directly to the Seventh Circuit. From there, he just assumes the bankruptcy ruling will get overturned. No serious lawyer agrees with that premise, including 3M’s lawyers. But that is the foundation of his presentation.
Rhodes then devoted the rest of his presentation to claiming that the settlement value of the earplug lawsuits should be $1 billion – a paltry amount that would pay less than $5,000 to each plaintiff. He claims this number is supported by experts, which is truly insanity. 3M’s stock lost billions of dollars when the bankruptcy effort failed because not a single financial analyst or lawyer in America is pricing $1 billion as the settlement value of the 3M lawsuits.
Rhodes then paid lip service to the upcoming mediation session. But he implied that the mediation was aimed at resolving the bankruptcy proceeding, rather than an effort to negotiate a global settlement in the MDL.
You can read the transcript of this for yourself.
Listen, I’m not a financial analyst. But if I was and I heard this presentation predicated on this delusional nonsense, I would short 3M stock like crazy.
September 15, 2022 Update: The 3M earplug settlement talks (Round 2) begin today in Pensacola, Florida.
September 8, 2022 Update: The 3M earplug mediation is scheduled for next week on September 15-16, 2022 at the United States District Court in Pensacola, Florida.
September 7, 2022 Update: After being forced back to another mediation following the rejection of its questionable bankruptcy strategy, 3M is now seeking to have its puppet subsidiary take part in the mediation and involve the bankruptcy judge in that mediation. Acting through its puppet subsidiary Aero Technologies, 3M has asked that the judge in Aero’s chapter 11 bankruptcy, Hon. James M. Carr, be appointed as a second mediator in the MDL settlement mediation.
In response, lawyers for the earplug plaintiffs have stated that while they are not necessarily opposed to the appointment of Judge Carr, they want to make sure that it will not have any impact on the jurisdiction of the MDL court.
It is hard to know how to interpret all of this. But it does not appear to be a good sign for those of us who were hoping that 3M might finally be ready to make a serious effort to settle the earplug lawsuits. The fact that 3M is trying to involve the bankruptcy judge in the mediation suggests that they have no genuine interest in negotiating a settlement right now. If 3M was truly ready to get this litigation settled, there would be no need to involve the bankruptcy judge in that process.
September 1, 2022 Update: Here we go again. Back to the settlement table…
After the Bankruptcy Court rejected 3M’s effort to extend the automatic stay and force the earplug claims to be resolved in bankruptcy, everyone was waiting to see how MDL Judge Casey Rogers would respond.
That response came on Tuesday when Judge Rogers issued an Order requiring 3M to participate in a new settlement mediation. Judge Rogers just recently required the parties to take part in a settlement conference in July, and she was highly irritated when learned that 3M was preparing to launch its bankruptcy strategy the whole time.
Now that the bankruptcy plan has been rejected, Judge Rogers has decided to force 3M to march right back to the settlement table and do it again. Rogers used 3M’s public statements in support of the bankruptcy plan as justification for the settlement mediation redo.
Specifically, Rogers quoted 3M’s announcement regarding the bankruptcy proceeding that it wanted to “efficiently and equitably resolve” the earplug claims as evidence that 3M is now highly motivated to settle.
The denial of the bankruptcy plan has led to intense pressure from Wall Street to get the litigation settled. More than pressure from judges or veterans, that is what will get the 3M earplug lawsuits settled.
August 31, 2022 Update: 3M filed its long-shot appeal of the recent Bankruptcy Court ruling by Judge Graham that blocked its controversial attempt to force the earplug lawsuits to be resolved within a Chapter 11 bankruptcy proceeding. 3M’s appeal will either go to the U.S. District Court for Indiana or the Bankruptcy Appellate Panel. A reasonable time frame to expect a result is about 6 months or more.
August 26, 2022 Update: Today, Judge Graham ruled that 3M will not get bankruptcy protection because its subsidiary declared bankruptcy. The judge found that Aearo’s bankruptcy restructuring could proceed along with the continuation of the 3M earplug lawsuits.
What does this mean? It means 3M’s bankruptcy gambit failed as I predicted from the beginning. 3M now has to offer reasonable settlement amounts to veterans or face scores of jury trials in 2023 that could put the company on the path to real bankruptcy.
August 25, 2022 Update: Today, Judge Rodgers ruled on 3M Emergency Motion for a Stay Pending Appeal. The motion sought a stay on the enforcement of the Court’s recently entered All Writs Act injunction, the ruling that 3M may not ask other courts to reconsider Judge Rodgers’ rulings in the 3M earplug class action lawsuit. The judge granted the motion to stay as to a portion of the injunction but denied 3M’s effort to stay the injunction entirety.
My favorite line from the order: “Furthermore, it is nonsensical to argue—as 3M has—that a stay of the Court’s injunction promotes the public interest….”
August 25, 2022 Update: As of 9:07 a.m. no ruling from Judge Graham.
August 23, 2022 Update: Judge Rogers’s stay on claims against 3M ends tomorrow. So we expect (an incorrect assumption in hindsight) the bankruptcy judge to rule before the end of tomorrow whether 3M lawsuits will be paused for the Aearo bankruptcy in the 3M earplug litigation.
August 17, 2022 Update: On Sunday, Judge Casey Rogers issued an Order denying the recent motion by the earplug plaintiffs asking her to rule that 3M has sole liability for the earplug claims and has waived any successor liability defense.
This ruling would have circumvented 3M’s current effort to force the earplug claims to be resolved in the Aearo bankruptcy.
In her 10-page Order, Judge Rogers portrayed the Aearo bankruptcy as a scam. She points out that “[f]rom the start, Aearo was a party to this litigation in name only.” The judge refers to 3M’s recent strategy to have Aearo assume full liability for the earplug claims and then file bankruptcy as a “scheme” designed to avoid the MDL.
Despite 3M’s “naked duplicity,” Judge Rogers did not provide the relief sought because 3M had not asserted any defense claiming that it was not a proper defendant in the litigation. Until 3M sought to assert such a defense, Judge Rogers found that granting the motion would be premature.
August 11, 2022 Update: Judge Rogers heard arguments today from veterans that Judge Rogers should not allow a bankruptcy court the ability to stay the 3M earplug litigation. The gist of the argument is that any difference between the two companies is pure form over substance. Judge Rogers pointed out that she told juries that the companies were “one and the same” without any objection from defense lawyers.
3M still owes Judge Rogers some financial information. But let’s be real: if the answers were helpful to 3M, they would have gleefully trotted that information out today.
There is a real possibility this bankruptcy – which drove 3M’s stock price through the roof when it was announced – is much ado about nothing.
August 10, 2022 Update: Wait, do we need Aearo in these cases? Judge Casey Rogers will hold a hearing tomorrow to learn about the details of 3M’s acquisition of Aearo Technologies (the subsidiary that is now filing bankruptcy). The hearing will pay particular focus on the details of 3M’s agreement to assume Aearo’s liabilities as part of the deal. You have to remember that a big part of 3M’s screwup with the Aearo purchase is not getting their minds around the litigation risk Aearo posed. So they didn’t buy Aearo planning to one day flip it into bankruptcy. That might be a problem for 3M.
The hearing will help Judge Rogers rule on whether to grant a motion that would prohibit 3M from arguing that it is not a proper defendant in the earplug cases. If granted, this would potentially pave the way for Aearo to be simply dismissed as a defendant in the MDL, thereby side-stepping its recent bankruptcy.
August 4, 2022 Update: The 3M Earplugs MDL Judge (Casey Rogers) issued an Order stopping the process of transferring pending cases from the inactive to the active docket. The Order states that this was made necessary due to “recent developments,” which is a clear reference to bankruptcy recently filed by 3M’s subsidiary unit Aearo Technologies. 3M will try to convince the bankruptcy court in Indiana that the automatic stay triggered by Aearo’s bankruptcy should be extended to protect 3M as well, but this remains unresolved. Meanwhile, however, Judge Rogers’ order means that thousands of earplug plaintiffs can avoid having to produce documents to support their claims and pay filing fees.
August 1, 2022 Update: Only Aearo Technologies (3M’s subsidiary) is protected by the automatic bankruptcy stay right now. This prevents any proceedings from moving forward against Aearo in the earplug lawsuits, but not against 3M.
That could change, however, because 3M’s lawyers have already asked the bankruptcy judge to order that Aearo’s automatic stay protection be extended to 3M. This is garbage – the general rule of the Bankruptcy Code’s powerful automatic stay is that it should not extend to joint tortfeasors.
A ruling on this key issue won’t happen until at least August 18, 2022.
July 29, 2022 Update: In a recently filed brief, 3M argued that its new bankruptcy strategy was necessary because it claims that the earplugs MDL proceeding is “broken beyond repair.” They seemed fine availing themselves to the system until they started getting their brains beaten trial after trial. Then suddenly the system is broken.
3M argued that the earplugs MDL is overrun with bogus claims by plaintiffs who are not being vetted and dismissed from the case. The judge in the earplugs MDL, Casey Rogers, pushed back on 3M and its lawyers at a hearing on Wednesday. Judge Rogers stated that a “perfectly solvent defendant” such as 3M should not be entitled to bankruptcy protection simply because the MDL is not going the way it wants.
Rogers dismissed 3M’s claim that bogus plaintiffs are not being vetted, pointing out that 80,000 claimants have already been dismissed. Judge Rogers is openly questioning whether the 3M settlement talks were in good faith. The judge will issue a show cause order and hold a hearing to determine whether 3M acted in bad faith by filing bankruptcy immediately after participating in a settlement mediation.
July 28, 2022 Update: Does the Aearo bankruptcy mean 3M will get an automatic stay on continued litigation? We will likely find out on August 18, 2022, at the bankruptcy hearing.
Meanwhile, the parties have agreed to continue Wave 3 discovery deadlines within the MDL. 3M did cancel some Wave 3 depositions and the judge ordered 3M to pay the attorneys’ fees and costs associated with the cancellation.
July 27, 2022 Update: 3M’s new strategy to resolve the earplug lawsuits in a bankruptcy proceeding is being directed by new legal counsel that the company recently retained to help deal with their mounting litigation troubles. The new players on 3M’s legal team include Steven Reich, a former Justice Department official who was hired as 3M’s new chief counsel for risk management. The law firm of White & Case was also brought in to help advise 3M on the chapter 11 bankruptcy proceeding for its subsidiary, Aearo Technologies.
The more I think about this bankruptcy, the more I think it is going to backfire on 3M.
July 26, 2022 Update: 3M is trying to play the bankruptcy card, placing Aearo into bankruptcy. 3M The goal is to stop the Wave 3 lawsuits heading for trial.
Aearo will ask the bankruptcy court to pause the litigation. 3M has not declared bankruptcy but it will try to piggyback on the Aearo bankruptcy to stop the litigation from moving forward, hoping to resolve the outstanding claims in bankruptcy court instead of having to face juries that believe their conduct was reprehensible.
I don’t think this is going to work for 3M. I will put more up on this later but I wanted to get something posted so you all knew what was happening.
July 25, 2022 Update: In the 10 days following the settlement mediation that was ordered by MDL Judge Casey Rogers, the plaintiffs’ lawyers have filed several motions pushing wave cases forward. The message is clear: if you do not want to offer reasonable settlement amounts, you better gear up for a massive wave of additional trials next year.
Plaintiffs’ attorneys also filed an 84-page motion seeking to exclude or limit testimony from all of 3M’s expert witnesses going into Wave 3 of the trial cases. The plaintiffs also filed a motion asking Judge Rogers to preserve her prior Daubert rulings moving forward.
July 18, 2022 Update: There was no global settlement in the 3M class action earplug lawsuit this weekend.
July 16, 2022 Update: Should you be optimistic or pessimistic going into the settlement talks heading into Day 2 today?
There are two sides to this coin. You should be optimistic because Judge Rodgers is right – the lawyers and parties know more about the strengths and weaknesses of this litigation than any other piece of litigation in America. And it is the right time for 3M to settle these cases. The size of the 3M earplug settlement is likely to shock the market. But 3M is viewed as risky stock right now, which is not where it wants to be.
There is also reason to be pessimistic. With no upcoming trial dates, there is no great pressure on 3M and the company has shown an unwillingness to be serious about offering reasonable earplug settlement amounts to resolve this litigation. The strategy has been to kick the can down the road. Moreover, we have 220,000 plaintiffs. Settling these cases is sure to be complex. It might involve settlements for the lawsuit inventory of specific law firms, as opposed to a global settlement for all plaintiffs.
July 12, 2022 Update: The 3M earplug lawsuit continues to beat down the 3M stock price.
June 27, 2022 Update: The Sunday edition of the Wall Street Journal featured an article entitled 3M Faces Billions in Liabilities Over $7.63 Earplugs. The story – which is behind a paywall, of course – offers a general overview of the earplug lawsuits against 3M and an explanation of how the massive size of the litigation could end up costing 3M billions in liabilities.
The mandatory settlement conference ordered by the MDL Judge for next month appears to be what captured this recent attention. The WSJ article could prove to be a turning point in the litigation because it is the first time the 3M earplug lawsuits have received top-level attention from a major media outlet. If nothing else, it is good momentum going into the 3M earplug settlement talks set to being on July 15, 2022.
The 3M earplugs MDL is the biggest consolidated mass tort in history, but until now it has been off the radar. 3M has used anonymity to its advantage because it has not had to deal with the intense external pressure of investors pushing for a resolution. The bright spotlight of the WSJ story could end that.
June 15, 2022 Update: Settlement conference in 3M lawsuit set for July 15, 2022. This is big news.
On Friday, 3M Earplugs MDL Judge Casey Rogers issued an Order requiring the parties to participate in settlement mediation. The Order appoints Randi S. Ellis as the special master to oversee the negotiations and required that the mediation last a minimum of three days and be scheduled by July 15, 2022.
In her Order, Judge Rogers explained that a settlement would help relieve the federal court system of the massive burden that the earplugs cases will present moving forward. There are currently about 233,000 cases in the MDL (down from the high of 282,902) and these cases will soon be returned to their home districts for trial in massive blocks of 500 lawsuits at a time.
There are no guarantees. The 3M earplug lawsuits will be very hard to settle even with parties motivated to settle and a federal judge breaking down the lawyers’ backs. But it is very encouraging news that a settlement could be in the works.
June 6, 2022 Update: One thing that might push a 3M earplug settlement: litigation costs. 3M’s are going through the roof.
June 1, 2022 Update: MDL Judge Casey Rogers reduced the $55 million verdict awarded to William Wayman, one of the two plaintiffs in the 11th bellwether trial that resulted in a blockbuster $110 million verdict.
The verdict was reduced – as expected – because Wayman’s case is governed by Colorado law and the $55 million exceeded Colorado’s statute damages cap.
Judge Rogers also issued a new Case Management Order identifying a third wave of 500 additional cases to be prepared for the next phase of trials. 1,500 active cases have now been sent for trial prep for 2023.
May 20, 2022 Update: Good golly! Beal was awarded $77.5 million!
So the 16th and final bellwether trial concluded this afternoon with this massive $77.5 million verdict for the plaintiff, Army veteran James Beal. After 16 bellwether test trials, the plaintiffs ended up with a win-loss record of 10-6 with total damages of over $300 million. So the average trial – a few had multiple plaintiffs – results in an average payout of $30 million per trial. That is incredible.
May 19, 2022 Update: On the 8th day of trial, 3M put their expert, Dr. John Casali, on the stand. Dr. Casali is the director of the Auditory Systems Laboratory at Virginia Tech and an expert in hearing loss and protection. 3M has used Casali as an expert in all of the previous trials. 3M also presented the jury with video deposition testimony clips from a handful of fact witnesses, including Heather Beal, the plaintiff’s wife.
May 18, 2022 Update: We stopped updating the trials and got so blowback from soldiers and former soldiers who wanted an update on the last bellwether trial. So here goes for old times’ sake…
Most of the opening 2 days of the trial were devoted to the testimony of bioacoustics engineer Richard McKinley. No question, McKinley is the most important expert witness for the plaintiffs. He testified for nearly 8 hours. McKinley has testified in all the previous bellwether trials, although this is the longest time he has spent on the stand.
On the 3rd day of trial, the plaintiffs presented the testimony of Elliott Berger. If you are following this litigation, Berger needs no introduction. Berger was in the middle of every key piece of the relevant facts. Now retired, he was the former head of the 3M Personal Safety Division and an audiology scientist. Berger was personally involved in the development and testing of the Combat Arms earplugs.
The plaintiff, James Beal, took the stand on the morning of Day 4. Beal’s testimony was followed in the afternoon by another expert witness for the plaintiff, Dr. Christopher Spankovich, an audiologist, and professor at the University of Mississippi Medical Center.
On Day 5, the jury heard from Dr. Mark Packer, an Ear Nose & Throat expert from Mercy Hospital in St. Louis. Dr. Packer has been an effective witness in prior trials. He played a key role in the Sloan/Wayman trial that ended in a $110 million verdict against 3M.
On Day 6, the jury was presented with short video deposition clips from several different fact witnesses including the plaintiff’s wife, Heather Beal, and several other people who are presumably friends or family members of the plaintiff.
On the 7th day of trial, the defense presented live testimony from Dr. James Crawford and Eric Fallon. Dr. Crawford is an ENT doctor and hearing protection specialist. Fallow is an audiologist and Technical Senior Service, Specialist. Both Fallon and Crawford also spent over 20 years in the Army.
May 16, 2022 Update: On Friday, as the first week of the Beal bellwether test trial concluded, the earplugs MDL Judge (M. Casey Rogers) ordered 3M’s defense counsel to show cause why they should not be hit with sanctions for “willful abuse of the trial process.”
I don’t understand 3M’s thinking on how they are approaching this litigation. This dust-up is just another extension of that. I don’t know what they hope to gain.
Judge Rogers has repeatedly admonished 3M’s lawyers for attempting to bend the rules over the last two years. Aggressive lawyering is good. But this is antagonizing the most important person in the litigation with no real upside. This most recent battle stems from 3M’s defense team ignoring long-standing rules of procedure the court had set regarding the designation of deposition testimony at trial.
3M’s lawyers filed their response to the show cause order this morning, a 19-page motion that argues that Judge Rodgers needs to provide more detail regarding their prior bad conduct to give them due process. Do you think this is a tough argument when the judge’s premise is you are wasting everyone’s time?
But given the judge’s history of frustration, it seems likely that Judge Rogers will impose some type of sanctions. Will they be meaningful in the big picture of the litigation? No. But it is not a good look.
May 11, 2022 Update: The 3M MDL class action judge dismissed over 20,000 cases because the plaintiffs failed to produce documentation (mostly official military service records) required to support their claims.
This sounds like a bad thing, right? But it is not. Too many lawyers have filed 3M earplug lawsuits without making sure their clients have a viable claim. These dismissals may seem like a setback for the plaintiffs, but they actually might help to facilitate a global settlement of the remaining earplug claims. The biggest roadblock to a mass settlement with 3M at this point is the raw number of plaintiffs (290,779 before the recent dismissals). 3M believes that a large percentage of these plaintiffs do not have legitimate claims. We need to prove the basic elements of the claim and being in the military is one of those basic elements. I think this is one point on which our 3M earplug lawyer and 3M have common ground. Only soldiers who have been harmed should receive settlement compensation.
May 10, 2022 Update: Yesterday marked the beginning of the end of the 3M earplug lawsuit bellwether trials. Plaintiff James Beal, an Army veteran, began his 3M earplug trial against 3M yesterday in Pensacola, Florida, the epicenter of this litigation so far. But this is the last of the 3M earplug bellwether trials.
The Beal trial will be conducted by Judge Robin Rosenberg. It is scheduled for 2 weeks. A seasoned judge who has been on the federal bench for eight years, this will be Judge Rosenberg’s first earplug trial.
We are off to a good start. Last week, the MDL judge granted a motion filed by Beal which effectively blocks 3M’s defense team from presenting their contributory negligence and other affirmative defenses at trial.
It would be nice to close out Trial #16 with a win. But the verdict is unlikely to move the needle in settlement negotiations.
May 4, 2022 Update: A new phase of the 3M earplug lawsuit is coming. The MDL judge yesterday ordered over 20,000 lawsuits parked on the administrative docket transferred to the active docket within60 days.
This order puts new pressure on 3M lawyers on both sides to reach a settlement. Preparing this many cases is a logistical nightmare.
How does this work practically? Attorneys will conduct fact discovery in these hearing injury lawsuits and then the lawsuits will be returned to their home districts for trial.
These 3M trials will have to be consolidated into groups of 50 soldiers to try at one time. It is hard to predict how long one of these mega trials might take. The earplug bellwether trials so far have been two weeks each and they only involved one plaintiff in all but two trials.
There is no question that the logistical challenges in the 3M earplug lawsuit also extend to settlement. You won’t hear me speak up for 3m much, right? But a 3M earplug settlement will be complicated and will be fraught with peril for 3M.
One big issue no one can answer: how many truly viable 3M lawsuits are there? Even soldier plaintiffs I’ve talked to believe a percentage of the soldiers that applied administratively for the 3M lawsuit do not have legitimate claims.
I suspect the vast majority of these hearing loss and tinnitus lawsuits are strong claims. But is the number 95% or 80? Will all these plaintiffs show up for their deposition? How does 3M go about determining which plaintiffs have tinnitus or hearing loss that could be connected to the 3M earplugs? How do you efficiently sort out 300,000 claims to figure it out? I’m sorry for all of the rhetorical questions. But this has never been done before with this many victims.
May 3, 2022 Update: We have one last MDL trial before Judge Rodgers sends these cases back to their local federal district courts in waves. I’m betting on a global settlement before trials start getting tried outside of the MDL. Am I certain of this prediction? Hardly.
April 29, 2022 Update #2: A Florida jury awarded U.S. Army veteran Jonathan Vaughn $2.2 million. Is that a lot of money? It is. It is incredible it does not feel like a lot anymore with all of the huge verdicts that we have had. Vaughn was a case with a lot of weaknesses. 3M lawyers had a great deal to work with in cross-examining him. The jury still awarded $2.2 million. Because, in the end, 3M bought a company that made an awful product that hurt people that served our country. 3M needs to wake up and offer reasonable settlement amounts to these soldiers.
April 29, 2022 Update: Closing statements were given yesterday in Vaughn and the jury began to deliberate. The jury returned today to continue deliberations. Those deliberations have now extended into the afternoon.
April 13, 2022 Update: A majority of the nearly 300,000 plaintiffs with 3M earplug lawsuits in the MDL have their cases resting on the “administrative docket,” which means they can avoid the $402 filing fee until their case is activated. The administrative docket helps lawyers on both sides.
3M filed a motion seeking to force all these plaintiffs to immediately pay their filing fees or have their case dismissed. But the MDL Judge flatly rejected the motion and criticized 3M’s lawyers for even bothering to file it. The judge also provided 3M with a harsh truth: “Though [300,000 lawsuits] may be a tough pill to swallow, the numbers are what they are.”
April 11, 2022 Update: My take on the Kelley 3M verdict.
April 8, 2022 Update #2: A defense verdict for 3M in the Kelley trial today.
April 8, 2022 Update: The 8th day of the trial featured the cross-examination of 3M’s witness Dr. Casali. The remainder of the day was spent on 3M’s final expert witness, Dr. James Crawford. Dr. Crawford is an ENT doctor who spent 24 years in the Army where he specialized in hearing protection. 3M also filed a motion objecting to the plaintiff’s request to present rebuttal testimony from their expert Dr. Gershwin. The objection is based on procedural grounds and will likely be granted.
April 7, 2022 Update: 3M presented two expert witnesses on Day 7: Jennifer LaBorde and Dr. John Casali. LaBorde is a doctor of audiology and head of the Hearing Center MCC in Pensacola with expertise in hearing aid technology. Dr. Casali is a professor at Virginia Tech University and a prominent expert in the field of hearing protection and acoustics. Casali has testified in previous bellwether trials.
April 6, 2022 Update: 3M began its defense on Day 6 of the trial (Monday). The first defense witness was 3M scientist Dr. Eric Fallon, former chief Audiologist at Walter Reed Medical Center. 3M’s defense team also filed a Motion for Judgment as a Matter of Law, arguing that punitive damages should not be permitted because the plaintiff failed to meet certain evidentiary burdens under Texas law. This is a procedural motion. 3M’s lawyers know it will not be granted. It has filed similar motions in all previous trials under Texas law. None of which have been granted.
April 3, 2022 Update: This is the third anniversary of the 3M earplug lawsuit class action MDL.
March 30, 2022 Update: Day 2 of the Denise Kelley trial featured 7 hours of testimony from Elliott Berger. Berger is a former 3M scientist and division head (now retired) who was part of the team that originally designed and developed the Combat Arms Earplugs. His testimony has been used to establish that the earplugs were defective and that this design flaw was not communicated to the military. Berger has testified in all of the bellwether trials.
March 29, 2022 Update: 3M earplug trials follow a typical pattern, and this new lawsuit to go to trial fits easily in that pattern. Day 1 of the Kelley trial saw the jury selected by midday and opening statements for both sides. The day finished up with video testimony from former Aearo employee Ronald Kieper. Our 3M earplug lawyers talk about Keiper’s role in a page on another bellwether CAEv2 lawsuit.
March 28, 2022 Update: The action continues in the 3M litigation. The next bellwether trial begins today in the case of Denise Kelley. Kelley will be the second female bellwether plaintiff. The trial is set for two weeks. Plaintiff will have 35 hours to present their case with the remaining 29 hours going to the defense. I want to predict a big verdict in Kelly as the death knell for 3M. But didn’t that already happen this weekend?
Contributory negligence will not be at issue in this trial as Judge Rogers granted summary judgment on that issue to the plaintiff earlier this month.
We talked to many soldiers over the weekend about the 3M earplug lawsuit. The questions we got most are
- when is 3M going to give up? and,
- how many earplug trials are left?
3M was hoping to get some wins to decrease settlement amounts. That plan has not worked. As for how many 3M trials are left… the trials will go on and on until there is a global settlement deal.
March 26, 2022 Update: Wilkerson verdict: $ 8 million. That is $58 million in 3M verdicts this weekend.
In Luke Vilsmeyer’s trial, the jury awarded $50 million yesterday. We were following the Wilkerson trial more closely and the jury is out in that case and will likely issue its verdict on Monday. The Vilsmeyer verdict is yet another incredible victory that should push settlement amounts higher as 3M has to be in a full-scale panic at this point. Incredibly, the $50 million was all compensatory damages (there are no punitive damages available under Indiana law).
March 25, 2022 Update: Yesterday, Judge Walker issued a 1-page order denying 3M’s Motion for Judgment as a Matter of Law that was filed at the close of the plaintiff’s case. His reasons for the denial were articulated by the Judge from the bench during the trial.
March 24, 2022 Update: In the Vilsmeyer trial in Pensacola, the Defendants’ expert, Dr. Stan Phillips, testified that the cumulative trauma of the plaintiff’s shoulder and neck injuries somehow contributed to his tinnitus. This is a tough argument to make.
March 22, 2022 Update: Plaintiff Steven Wilkerson closed his case yesterday and 3M immediately filed a motion for judgment as a matter of law. The motion argues that Wilkerson failed to establish that his hearing loss was caused by the 3M earplugs. 3M also argues that punitive damages should be off the table. 3M has filed similar motions in all of the previous bellwether trials and all of them have been denied. We fully expect the same result in this case.
March 21, 2022 Update: The current bellwether trial is proceeding on schedule and should conclude at the end of this week with a final verdict hopefully coming Friday afternoon. On Sunday, Judge Mark Walker issued an order resolving the various objections by both sides to the proposed jury instructions. Counsel for 3M also filed a stipulation stating that the company’s net worth is currently $12.39 billion (assets, presumably, the company is worth over $80 billion). This will be used by the jury to help calculate the appropriate amount of punitive damages to award (if any).
March 15, 2022 Update: The Wilkerson and Vilsmeyer bellwether trials began today. 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 Chp. 13 under which his creditors were being repaid in full. So failing to list the 3M lawsuit as an asset made zero difference.
March 10, 2022 Update: Yesterday, the plaintiff in the upcoming bellwether trial (Steven Wilkerson) scored a solid victory when Judge Casey Rogers granted his motion for summary judgment on all but one of three 3M’s affirmative defenses. Wilkerson was seeking summary judgment on 3M’s 5 affirmative defenses (learned intermediary, superseding cause, failure to mitigate, open and obvious danger, and statute of limitations defense), all of which were governed by Wisconsin law.
In her memorandum order, Judge Rogers explained that Wilkerson was entitled to summary judgment on four out of the five affirmative defenses. Judge Rogers stopped short of granting summary judgment on the statute of limitations defense and deferred ruling on that issue until the relevant facts have been presented at trial. The likelihood of 3M succeeding with the statute of limitations defense now or later down the line is almost zero, so this decision is almost a complete victory for Wilkerson.
March 3, 2022 Update: We are now 11 days from the next trial on the Steve Wilkerson case, an Afghanistan veteran. The question most people reading this have is will the 3M earplug class action reach a settlement before this trial? The pressure on 3M to offer reasonable settlement amounts and get the bulk of the 288,000 and climbing lawsuits settled has increased with the last big verdict. My best guess – and it is a guess – is that the 3M earplug claims will settle this year but not before Wilkerson. I think 3M believes it will win this case and will be in a stronger settlement position after a victory.
3M also filed its appeal to the first bellwether trial. That motion has to scare lawyers on both sides. If 3M were to prevail on an issue that is common to every 3M earplug lawsuit – the government contractor defense – these cases would all amount to nothing if that ruling stood (unless Congress stepped in). Conversely, if this appeal fails as I strongly suspect that it will, 3M’s quiver is empty and settlements become that much harder. So this is a roundabout way of saying I think the bulk of these suits will settle before the 11th Circuit rules later this year.
- Breakdown of the 3M earplug verdict appeal
February 14, 2022 Update: My belief has always been that 3M needs real pressure to come to the settlement table ready to offer reasonable compensation payouts. The $110 million verdict against 3M in the Sloan/Wayman bellwether trial is starting to draw the attention of people 3M cares about – Wall Street analysts and investors.
There will soon be 300,000 lawsuits filed. The earplug litigation is by far the largest mass tort in history. This did not get Wall Street’s attention until recently. Last week, however, a top JP Morgan cautioned that 3M’s litigation liabilities could exceed the $33 billion the investment bank says is already baked into the price of 3M stock. (For context, this $33 billion also includes the PFAS lawsuits.) If anything will push 3M to offer reasonable individual settlement amounts in the earplug lawsuits, it will be pressure from Wall Street for 3M to take its lumps and wrap up this litigation.
Like Bayer in the Roundup lawsuits, 3M’s biggest mistake that led to this debacle was buying a company without doing enough due diligence as to the potential litigation liabilities. The executives at 3M that decided to buy Aearo Technologies need to accept this mistake and move on.
February 9, 2022, 3M Earplug Bellwether Trial Update: The $110 million verdict in the Sloan/Wayman trial was the final case in bellwether trial group C. After a pause in February, trials will begin in group D starting on Monday, March 14, 2022, in Tallahassee. This 3M earplug lawsuit was filed by Army veteran Steven Wilkerson. The next trial in group D will follow immediately after in Pensacola on Monday, March 28, 2022, with the case of Denise Kelley. Both trials are scheduled to last two weeks and then more 3M earplug lawsuits are set to go to trial in April and May.
February 7, 2022 3M Earplug Bellwether Trial Update: The first 3M earplug lawsuit trial of 2022 ended two weeks ago for two soldier plaintiffs (Wayman and Sloan). The verdict? $110 million. Can I repeat that? $110 million. The story of the trial is below (and more on Wayman and Sloan)
With a slight pause as we switch to the Group D set of trials, we will see if 3M sees the wisdom in stopping the bleeding and offers soldiers reasonable settlement amounts. For the first time, this litigation has meaningfully impacted 3M’s stock price. We will see if this is the catalyst for meaningful settlement talks to resolve the 3M earplug class action lawsuit.
Meanwhile, the huge verdict is bringing in more new soldiers who otherwise may have never heard of the claims. Our lawyers are getting more 3M earplug calls than ever. If might want to bring a claim, hurry. There are deadlines to sue. You can call us at 800-553-8082. (And if you know a fellow soldier who suffered a hearing-related injury that does not know of the litigation, call that soldier and tell him or her to call a lawyer. )
- More on the aftershocks of the $110 million verdict
Day 12 of the trial marked the close of 3M’s defense case. After presenting short bits of video testimony from a handful of witnesses, 3M rested. The plaintiffs’ counsel presented a short 40-minute rebuttal case and then the court heard oral arguments from both sides in support of their motions for judgment as a matter of law on various issues. Judge Rogers granted the plaintiffs’ motions for judgment on several issues including mitigation, comparative fault, and 3M’s statute of limitations defense. Hopefully, later today or tomorrow, we are reporting on a large verdict for Mr. Sloan and Mr. Wayman.
Day 10-11 has been the plaintiffs’ key experts. This 3M lawsuit may go to the jury as early as tomorrow.
Day 7-9 has been a parade of experts and fact witnesses for the plaintiff. The plaintiffs’ are still in their case so don’t expect a verdict soon.
Day 6, Tuesday, January 18th, saw the expert testimony of Dr. Marc Bennett. This Vanderbilt doctor has testified before in this litigation. He spoke to the jury about the hearing injuries suffered.
Monday was a day off from the MLK holiday. The trial resumed on Tuesday. Friday morning (January 14, 2022) was Day 5. This trial day mostly involved the testimony of Richard McKinley, a key expert for soldiers in the 3M earplug lawsuits on why the earplugs were defective.
Thursday morning on Day 4 in the Sloan/Wayman trial, the jury heard short video deposition testimony from three fact witnesses. Then at 11:00 a.m., the plaintiff, Ronald Sloan, took the stand to tell his story. The direct examination of Sloan lasted until 2:00 pm with a break for lunch. Sloan was then cross-examined by 3M’s lawyers for about 90 minutes. Sloan’s testimony and the jury’s reaction to him will have a huge impact on the outcome of the case.
On Wednesday, the plaintiffs presented the testimony of Elliott Berger (via Zoom video call). Mr. Berger is a retired scientist from 3M’s Personal Safety Division and an expert in audiology. Berger was directly involved in the original product design and testing of the Combat Arms earplugs. The plaintiffs have subpoenaed Berger as a witness in all of the 3M bellwether trials because his testimony is critical to establishing that there were known design flaws in the earplugs and they were not fully communicated to the Army.
On Tuesday in the Sloan/Wayman bellwether, the day included some fact witnesses and a nearly full day of testimony from Dr. Mark Packer, a critical expert witness for the plaintiffs. Dr. Packer told the jury that Sloan and Wayman suffered hearing damage during their time in the Army as a direct result of defects in the 3M Combat Arms earplugs. Dr. Packer’s direct examination lasted almost 5 hours, followed by a 2-hour cross-exam.
On Monday, a jury was picked and the parties gave opening statements.
- A more detailed 3M earplug trial update
January 3, 2022 Update: The 3M earplug bellwether trials will resume on Monday with a pair of simultaneous trials featuring plaintiffs Ronald E. Sloan and Williams Wayman. Wayman is an Army veteran who is claiming that 3M’s defective earplugs caused him to develop tinnitus which has made his PTSD condition worse. Sloan is another Army vet who is alleging that the Combat Arms earplugs failed to protect him resulting in both hearing loss and tinnitus. Judge Rogers ruled on pretrial motions in both cases earlier this week and the trials should begin on January 10, 2022. I am always saying these are big earplug trials. But these are big trials in this litigation. Because 3M – if it has any sense – will want to settle these lawsuits before trials are remanded to be tried locally. Victories in both of these 3M earplug lawsuits may jump-start settlement talks and get reasonable settlement compensation payouts for victims from 3M.
December 20, 2021 Update: Another bellwether test trial concluded last week in the 3M Combat Arms Earplugs litigation. The trial resulted in another defense verdict for 3M as the jury found that the plaintiff, Carlos Montero, failed to prove that his hearing loss was the result of defects in the 3M earplugs. This victory for 3M follows its biggest loss in the earplug bellwether trials. Just a week earlier, a jury in Tallahassee awarded $22.5 million in the 8th bellwether trial, the largest verdict to date. In nine bellwether trials, the plaintiffs have won 5 times and 3M has won 4 times. Two more test trials are set for January 2022.
December 15, 2021 Update: $22.5 million verdict in Finley last Friday. Finley was not the easiest case. There were some real weaknesses in that case for the victim in terms of prior inconsistent statements and other causes it could point to as sources of his pain and suffering. It was far from a perfect case from the plaintiffs’ perspective. But the result was stunning: $7.5 in compensatory damages; $15 million in punitive damages.
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 6th 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 3M’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 3M’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 3M’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 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 3M’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
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 3M’s bad behavior will not give victims a pass past the burden of proof of showing that their hearing loss was caused by 3M’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 288,000 lawsuits as of March 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. We think this will happen in 2022. But these settlement amounts and timing predictions… are just pure speculation.
Hiring Our Lawyers for Your 3M Earplug Lawsuit
If you have a potential 3m earplug lawsuit, you may be pushing up against the deadline to sue. Call a lawyer today. You can reach our earplug lawyers at 800-553-8082 for a free consultation. You can also get a free online consultation.