Last week, the 15th bellwether trial concluded in the 3M earplug mass tort MDL. The case featured in this round was Jonathan Vaughn v. 3M Co., et al. (7:20-cv-134). After the standard 2-week trial (which has become a familiar format in the earplug bellwether cases), the jury found in favor of the plaintiff on all counts, rejected all of 3M’s affirmative defenses, and awarded $2.2 million in damages. The last trial in phase 1 of the bellwether cases will start next week.
- May 20, 2022 Update: $77.5 million verdict in Beal
Background on the 3M Earplug Lawsuits and Bellwether Trials
The defective earplug litigation against 3M has evolved into the largest consolidated mass tort in history. As of April 15, 2022, there were 290,772 pending cases in the 3M earplug MDL. All of the plaintiffs in these cases are claiming that 3M’s Combat Arms Earplugs, which were standard issue equipment for the U.S. Army for over 10 years, were defectively designed and caused users to suffer hearing damage.
The gigantic mass tort has been consolidated before a single federal judge (Hon. Casey Rogers) in the Northern District of Florida. In a process carefully overseen by Judge Rogers, the parties selected a handful of cases for test trials, commonly known as “bellwether trials.” The purpose of bellwether trials in a large, mass tort MDL is to give both sides an idea of what they could expect if all of the cases went to trial. This is then supposed to help the parties negotiate some type of global settlement in which the defendant(s) agrees to pay a lump sum to resolve all pending cases and claims.
Bellwether trials are a common feature in mass tort MDLs, but the bellwether trials in the 3M earplug cases are like nothing we have seen in the past. In prior MDLs, a global settlement was reached after just a few bellwether test trials. The earplug bellwether trials against 3M have been going on for a full year now.
We have had 15 3M bellwether trials featuring 18 individual plaintiffs. The plaintiffs have a win-loss record of 9-6 in the 15 trials, with 12 out of the 18 individual plaintiffs being awarded damages. The 12 successful plaintiffs have been awarded a total of $222,192,820 in damages. The most damages awarded to a single plaintiff have been $55 million and the smallest award has been $1.1 million.
Jonathan Vaughn Wins Round 15
The 15th bellwether trial in the 3M earplug litigation featured the case of Jonathan Vaughn. Like all of the other bellwether plaintiffs so far, Vaughn was a veteran of the U.S. Army who claims that he used 3M’s Combat Arms Earplugs during his service. Vaughn also claimed that defects in the earplugs caused him to suffer hearing damage while wearing the earplugs.
The Vaughn trial was presided over by Judge Steven Grimberg, a visiting judge from the Northern District of Georgia who came to Pensacola to handle the trial. This was the second time a judge from another federal district traveled to Florida for a 3M bellwether trial.
Based on some of the pretrial motions filed by lawyers for 3M, it was very clear that a major part of the defense strategy in this case was to attack the plaintiff’s credibility. This has been a standard tactic for 3M’s defense team in many of the previous bellwether trials and they have had some success with it. The 14th bellwether trial ended in a defense verdict last month in large part because 3M made the plaintiff, Denise Kelley, look like a liar who was out for money.
3M did not have the same success with this tactic in the Vaughn trial. After hearing closing arguments from both sides on Thursday, the jury spent just a few hours of deliberation on Friday before issuing their verdict. The jury found that the plaintiff had proven all of his claims. This included a finding that 3M fraudulently concealed the alleged defects in the earplugs.
The jury awarded Vaughn a total of $2,200,000 in compensatory damages. All of the damages were for “pain & suffering” with no economic damages for medical expenses or lost income. This ranks as one of the smaller earplug bellwether verdicts but it was a solid win nonetheless.
The lone bright spot for 3M was that the jury declined to award any punitive damages. In previous bellwether trials, several juries have come down very hard on 3M with large punitive damage awards. In fact, punitive damages have accounted for 51% of the $222 million in total damages awarded to the bellwether plaintiffs so far.
Next Up: The Final Phase 1 Bellwether Trial
The final trial in Phase 1 of the 3M earplug bellwether schedule will begin next week on May 9, 2022. The case will be James Beal v. 3M Co., et al. (7:20-cv-006). This trial will end Phase 1 and it could be the last earplug trial we see for the rest of 2022. The details for next phase of the bellwether trials in the 3M earplug lawsuits are still being worked out, but Judge Rogers has previously indicated that she intends the next round of trials to feature large blocks of consolidated plaintiffs. This means 20-50 plaintiffs will go to trial together, which would be a disaster for 3M.