3M Earplug Third Trial

The third bellwether test trial in the massive 3M earplug lawsuits resulted in another solid victory for the plaintiffs.  Last week the jury in the U.S District Court for the Northern District of Florida awarded Army veteran Llyod Baker $1.7 million in total damages in his lawsuit against 3M.

Like thousands of other plaintiffs in the Combat Arms earplugs litigation, Baker claimed that he suffered hearing damage (tinnitus) during his time in the Army because 3M’s earplugs were defective and failed to protect him. Baker sought to hold 3M liable under a number of different product liability theories, including:

• Strict Liability (design defect)
• Strict Liability (failure to warn and/or instruct)
• Negligence (failure to warn and/or instruct)
• Fraudulent Misrepresentation/Concealment

The Sarasota jury found that only Baker’s claim of strict liability based on failure to warn or instruct was proven. All of the remaining claims were found not proven. The jury awarded Baker $1,700,000 in compensatory damages. All of the $1.7 million was for Baker’s past and future pain and suffering related to his hearing loss.

3M’s Contributory Negligence Defense

3M did score a small, partial victory on its contributory negligence defense. 3M asserted that both Baker and the Army were contributorily negligent in causing Baker’s alleged injuries. This defense failed with respect to the Army but was partly successful with respect to Baker himself. In their apportionment of fault, the jury found that 3M was 62% at-fault, Baker was 38% at-fault, and the U.S. Army was 0% at-fault.

Since he was found to be 38% at fault for his injuries, Baker’s compensatory damages were proportionally reduced from $1,700,000 to $1,100,000 based on the applicable contributory negligence rules.

The Bellwether Trial Score Card

Llyod Baker’s case was the 3^rd bellwether test trial in the 3M earplugs litigation. The bellwether cases are handpicked test cases that are sent to trial in order to evaluate the strength of the evidence and the likely case values in order to facilitate a settlement of the remaining cases.

The first bellwether trial in the earplugs MDL involved 3 separate plaintiffs. One plaintiff was selected by the plaintiffs’ attorneys, another was picked by 3M’s defense team, and the third was picked by the MDL judge. This initial bellwether trial concluded at the end of April and resulted in a verdict of $7.1 million for the 3 plaintiffs (including $2.1 in punitive damages).

The second bellwether case involved a single plaintiff (Dustin McCombs) who was hand-picked by 3M’s defense attorneys (presumably based on the weakness of his claims). This 2^nd bellwether trial ended in a victory for 3M. The plaintiffs’ attorneys selected Mr. Baker as their plaintiff for the 3^rd bellwether trial, resulting in the $1.7 million verdict.

If we were scoring the results of the 3M earplug bellwether trials round-by-round, it would be 2-1 in favor of the plaintiffs. However, this is somewhat misleading because the first test case involved 3 plaintiffs (one of which was actually hand-picked by 3M). If we keep score by individual plaintiffs, the picture looks much different. As the chart below indicates, 4 of 5 bellwether plaintiffs have won verdicts of over $1 million and the only plaintiff to lose was 3M’s hand-picked case in round 2.

PLAINTIFF	SELECTION BIAS	RESULT
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

Upcoming 3M Earplug Bellwether Trials

3M is still facing more than 230,000 claims by former service members making the Combat Arms MDL litigation the largest consolidated mass tort in U.S. history. The plaintiffs in these cases have accused 3M of deliberately hiding design flaws, faking testing reports, and failing to give proper warnings about their earplugs. So the question is what can we expect next in this litigation?

There were originally 20 plaintiffs selected for the bellwether trial program in the Combat Arms MDL so we currently have 5 down and 15 more to go. The next 2 bellwether trials have already been scheduled for the end of this summer. The trial in the case of Plaintiff Joseph Taylor (7:20-cv-071) is set to begin on September 18, 2021, followed by Plaintiff Michelle Blum (7:20-cv-122) on October 18, 2021.

Based on the results of the first 3 bellwether trials, and the limited public comments from 3M’s defense team, we fully expect 3M to go forward with these next 2 bellwether trials in September. After their win in round two, 3M’s attorneys seemed to be bristling with overconfidence.

Unfortunately, the most recent loss in round 3 probably did very little to dent that confidence. In fact, the comments from 3M’s attorneys after the verdict almost seemed to claim victory based on the contributory negligence reduction.  I’m not sure what planet they are living on.

It seems obvious to me that 3M’s defense team will at least take a shot at another big win in the next 2 rounds before even considering a negotiated settlement. It also helps that Wall Street seems to be oblivious to the broader implications of this litigation for 3M.

In other mass tort cases, losses in bellwether cases usually generate a sharp drop in the defendant’s stock price which puts additional external pressure on the company to settle.  Our lawyers have seen this recently with Bayer in the Roundup litigation and Johnson & Johnson in the talcum powder MDL.

At some point, however, 3M and the stock market will be forced to pay attention.  Bellwether verdicts of $1 and $2 million may not seem like much to a giant like 3M, but there are over 200,000 individual cases still pending against 3M in this litigation.