Last week we got verdicts in the 12th and 13th bellwether test trials in the ongoing 3M earplugs litigation, the largest consolidated mass tort in U.S. history with almost 300,000 plaintiffs. In the 12th trial, Plaintiff Steven Wilkerson was awarded $8 million in damages for his hearing loss claims. The plaintiff in the 13th trial, Luke Vilsmeyer, received $50 million, which is the second-largest verdict to date in the 3M earplugs bellwether trials.
The last 3 bellwether trials have all resulted in significant verdicts against 3M, including the 2 biggest verdicts to date. In this post, we will take a brief look at where we stand in the 3M earplug bellwether trial process and give a summary of the 2 most recent verdicts.
Score Card for the 3M Earplug Bellwether Trial Series
There have now been 13 bellwether trials featuring 16 individual plaintiffs in the 3M earplug lawsuits. The plaintiffs have a win-loss record of 8-5 in the bellwether trials. 8 out of the 13 bellwether trials have resulted in verdicts in favor of the plaintiffs and 5 of the trials have ended in defense victories for 3M. 11 out of the 16 individual bellwether plaintiffs that have gone to trial have received damages.
Juries in the bellwether trials have awarded a total of $219,992,820 in damages to the 11 successful plaintiffs. The lowest award to an individual plaintiff has been $1.1 million (Baker – Rnd. 3) and the largest amount received by a single plaintiff has been $55 million (Sloan/Wayman – Rnd. 11). The average damage award for the 11 successful plaintiffs is just under $20 million. Punitive damages against 3M have accounted for 70% of the $220 million in total damages awarded so far.
Round 12: Steven Wilkerson Awarded $8,000,000
The 12th bellwether case began on March 14, 2022, in the case of Plaintiff Steven Wilkerson. The trial was held in Tallahassee before Judge Mark Walker. Wilkerson was definitely not an ideal plaintiff because he a relatively short window of time during which he used the 3M Combat Arms Earplugs.
Wilkerson was essentially claiming that he suffered hearing damage while using the Army-issued 3M earplugs for a just a few years, which included combat duty in Afghanistan. 3M suggested that Wilkerson’s alleged hearing loss and tinnitus was pre-existing and the result of his playing guitar in a band for many years. In support of this argument, zeroed in on testimony by Wilkerson indicating that his hearing remained fairly “consistent” during his time in Afghanistan.
Ultimately, however, Wilkerson’s shortcomings did not seem to have much of an impact on the outcome of his case. After a 10 day trial, the jury found that Wilkerson had proven all of his claims against 3M and awarded $8 million in damages.
Round 13: Luke Vilsmeyer Gets $50 Million Verdict
At the same time that the Wilkerson trial was being held in Tallahassee, another federal courtroom in Pensacola was hosting the 13th bellwether trial in the case of Plaintiff Luke Vilsmeyer. The Vilsmeyer trial was originally scheduled for May 9, 2022, but it was moved up to accommodate certain witnesses and other scheduling considerations.
In contrast to Steven Wilkerson, Luke Vilsmeyer was an ideal plaintiff with very strong hearing loss claims against 3M. Vilsmeyer served in the Army for 21 years (from 1999 to 2000) covering the entire period during which the 3M Combat Arms Earplugs were standard issue equipment to soldiers. Initially, Vilsmeyer was a howitzer gunner in an artillery division which exposed him to the loudest and most potentially harmful noise levels possible. Later on, Vilsmeyer became Green Beret.
Following a 10-day trial (which has become the standard format for the 3M earplug bellwether trials) the jury took very little time to determine that Vilsmeyer had proven his claims that his hearing loss was caused by defects in the 3M earplugs. The jury awarded Vilsmeyer $50 million in damages. This was the second-largest verdict in the 3M bellwether trials. Only the 11th bellwether trial, which resulted in a $110 million verdict to 2 plaintiffs ($55 million each), was bigger.
Where Do We Stand Now?
3 more bellwether plaintiffs will go to trial in the next 2 months. The 14th bellwether trial in the case of Denise Kelley (7:20-cv-153) begins today. The 15th and 16th bellwether trials are set for May 9, 2022, and will feature plaintiffs James Beal (7:20-cv-006) and Jonathan Vaughn (7:20-cv-134). When these next 3 trials are finished, it will conclude “phase 1” of the bellwether trials.
Based on comments from 3M’s defense attorneys and corporate spokesperson following the verdicts, it seems unlike that 3M is ready to give up and negotiate a global settlement. In response to the verdicts, 3M noted that it would appeal these cases as it has with all of the other bellwether trials. 3M is basically holding out a long-shot hope that it will be able to overturn all of the bellwether verdicts on appeal based on a government contractor defense that has already been rejected by the MDL judge.