3M Makes Misleading Claim that 90% if Earplug Plaintiffs Have No Hearing Loss

Yesterday afternoon 3M filed a motion in the Aearo Technologies bankruptcy which provided an estimate of how much it would cost to resolve the earplug litigation. In that motion, 3M claimed that medical testing records recently produced by the Department of Defense show 90% of the earplug plaintiffs have no hearing loss. Based on this interpretation of the DOD data, 3M estimated the settlement value of the litigation at just $1 billion, prompting shares of 3M to rise 4% in reaction.

Not surprisingly, 3M’s claim that 90% of the earplug plaintiffs have no hearing loss is not accurate. It is a misleading estimate based on a 3M’s highly flawed and self-serving method of interpreting the medical testing data from the DOD. 3M’s claim also ignores the fact that 16 bellwether trials resulted in nearly $300 million in damages awarded by juries. Based on 3M’s interpretation of the DOD data, most of the plaintiffs in these bellwether trials were among the 90% with no hearing loss.

In this post, we will look at 3M’s valuation of the earplug claims as set forth in the estimation motion filed in the Aearo bankruptcy. We will also explain why 3M’s interpretation of the DOD data is flawed and misleading.

What Is an Estimation in Bankruptcy?

In bankruptcy, estimation is a process used to estimate the aggregate value of claims against the debtor. This is often done in mass tort cases where there are a large number of claims that need to be resolved, and it would be impractical to resolve each claim individually. During an estimation proceeding, the court will hear evidence and arguments from both the debtor and the claimants to determine the aggregate value of the claims.


The evidence can include testimony from experts, such as economists or actuaries, and documents such as financial statements or medical records. Once the court has made an estimation of the aggregate value of the claims, it can be used to help determine a settlement or plan of reorganization.

For example, if the estimation is lower than the amount of money available for distribution to claimants, the parties may be more likely to reach a settlement. On the other hand, if the estimation is higher than the amount of money available, the debtor may need to negotiate with the claimants to reduce the amount of the claims.

3M’s Position in the Estimation

3M says plaintiffs’ attorneys have claimed that the Debtors and 3M Company face significant liability due to claims that hundreds of thousands of veterans suffered permanent hearing damage from using defective earplugs supplied by 3M. In December 2022, the Department of Defense finally produced medical records, including audiometric hearing test data for over 175,000 active MDL plaintiffs.  3M hired an economic consulting firm (Bates White) hired to analyze the data and provide an interpretation favorable to 3M’s position.

The results of that analysis by Bates White are what 3M set forth in the recent estimation motion filed in the Aearo bankruptcy proceeding. According to 3M, the DOD medical records show that almost 90% of the plaintiffs for whom data were produced have no hearing impairment under the American Medical Association’s (AMA) methodology, and over 85% have normal hearing under the World Health Organization’s (WHO) standard.

3M asserts that based on this interpretation of the data, the vast majority of MDL plaintiffs do not have hearing loss injuries under these medically accepted standards. 3M also argued that for the small percentage of plaintiffs who do have hearing loss, the DOD data raises questions about whether that hearing damage can be attributed to the 3M earplugs. For instance, 3M claims that most of the hearing loss displayed by MDL plaintiffs can be attributed to age. 3M notes that nearly 30% of the plaintiff population is currently over 50, and more than 60% of the plaintiff population is over 40. There is an indisputable correlation between rates of hearing loss and tinnitus and age.

3M’s Angle on the Bellwether Verdicts

Juries have creamed 3M in this litigation. There were 16 bellwether test trials featuring the claims of 19 individual plaintiffs (2 of the trials involved multiple plaintiffs). The plaintiffs won 10 of the 16 trials and the juries in those cases awarded a total of nearly $300 million in damages. The results of the bellwether trials present a major challenge to 3M’s lowball valuation of the earplug litigation based on the DOD records.

In the estimation motion, 3M goes to great lengths in an effort to spin the bellwether trial results to fit their narrative. First, 3M expands the 16 trials to “27 bellwether cases” for the parties to litigate.  Out of 27 cases, eight were dismissed by the plaintiffs before trial, six resulted in complete defense verdicts, and 13 resulted in plaintiff verdicts.

3M concedes that not a single jury award was under $1 million.  The awards ranged from $1.4 million to $77.5 million. But at the same time, 3M seeks to discredit these results by noting that 7 appeals from the bellwether trials are currently pending in the Eleventh Circuit, and the MDL court has yet to rule on the defendants’ post-trial motions in six other bellwether cases.

According to 3M, however, the results of all these bellwether trials are completely meaningless and tell us nothing about the potential value of the thousands of other cases. Why?   3M claims that the bellwether trials were random and did not provide enough meaningful information to estimate the total value of the remaining earplug claims. This argument is somewhat incredible considering that the 16 bellwether trials in the 3M litigation is the most extensive bellwether test trial program in the history of MDLs.

The Settlement Value of Earplug Litigation Should be Based on the Bellwether Trials

In an MDL the whole purpose of having bellwether trials is to give the parties a sample of what to expect if all of the cases in the litigation went to trial. After all, all 268,000 earplug plaintiffs are theoretically entitled to have their day in court. In reality, that could never happen, but the settlement value of the litigation is supposed to be based on what the likely outcome would be if that did happen. That is why the bellwether trials are critically important.

3M’s argument that the bellwether trials don’t provide enough information is completely hollow. In most MDLs you may get 2 or 3 bellwether trials at most. There were 16 bellwether test trials in this MDL featuring 19 individual plaintiffs. Moreover, 3M admits that many of these bellwether plaintiffs who were awarded millions in damages had no hearing loss and fell into the 90% category according to 3M’s interpretation of the DOD data. This completely undercuts 3M’s rationale that the DOD somehow correlates to what percentage of plaintiffs have valid hear loss claims.

Here is the simple reality that 3M does not want to acknowledge …. if you took all of the earplug cases to trial (including the 90% of plaintiffs who 3M claims have no hearing loss) the results would be very similar to what we got out of the bellwether trials. The plaintiffs would win 70% of the time and the average verdict would be anywhere from $1 million to $10 million (at least). No artful interpretation of the DOD data on hearing loss can change that.

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