The 14th bellwether test trial in the 3M earplugs litigation ended last week with another defense verdict for 3M. The victory for 3M comes on the heels of 3 straight losses in the last few bellwether trials, including the blockbuster $110 million verdict in the Solan/Wayman trial. 3 more bellwether trials are scheduled over the next 2 months, after which we will move into Phase 2 of the 3M earplug bellwether trials where things will get much more complicated.
Summary of the 3M Earplug Bellwether Trials
There are now almost 300,000 plaintiffs with pending cases against 3M Company involving alleged defects in the company’s Combat Arms earplugs. The 3M claims have been consolidated into a mass tort multidistrict litigation (MDL) in federal court in Florida. A small handful of cases have been selected and sent for trial in what is referred to as “bellwether” or test trials.
The main purpose of bellwether trials in mass tort MDL litigation is to give the parties a sample of what to expect if all of the cases went to trial. This is then used to facilitate some type of global settlement which resolves all of the pending claims. In most MDLs, only a handful of bellwether cases go to trial before a global settlement is negotiated.
The bellwether trials in the 3M earplugs MDL have been underway for almost 1 year now (the 1st trial concluded on 5/9/21). Last week’s trial was the 14th bellwether trial against 3M featuring 17 plaintiffs (Round 1 involved the consolidated claims of 3 plaintiffs and Round 11 was a consolidated trial with 2 plaintiffs). If we are keeping score by “rounds,” the plaintiffs have a win-loss record of 8-6 and 11 out of the 17 bellwether plaintiffs have been awarded damages for their claims.
About the 14th Bellwether Trial: Denise Kelley v. 3M Co.
The case that was selected for the 14th 3M earplug bellwether trial was Denise Kelley v. 3M Company, et al. (7:20-cv-001153). Like all previous 3M bellwether plaintiffs, Denise Kelley was a U.S. Army veteran claiming hearing loss and tinnitus. Kelley allegedly used Combat Arms Earplugs during her time serving in the Army, although in contrast to many of the previous bellwether plaintiffs, Kelley did not have any combat service or significant exposure to loud noises outside of periodic weapons training.
Kelley was also just 1 of 2 female bellwether plaintiffs. The only other female bellwether plaintiff was Michelle Blum. Blum’s case was the 5th bellwether test trial last September. It also ended in a defense verdict for 3M. One thing Kelley and Blum had in common was that they had relatively limited loud noise exposure during their service compared to the other plaintiffs.
In fact, one of the problems that arose during the trial last week was that when Kelley took the stand, she may have tried to exaggerate the extent of her military noise exposure. Kelley’s job in the Army did not regularly expose her to loud noises, so her time doing weapons training on the gun range comprised most of her noise exposure. During discovery, Kelley was only able to produce evidence that she went to the gun range twice during 2007.
During her trial testimony, however, Kelley claimed that she had gone to gun range training “at least” 30 more times. She even said that she had the gun range scorecards to prove it, but when pressed on why she didn’t produce the gun range cards in discovery Kelley backtracked and claimed that she may have lost the scorecards when she moved.
This was apparently a key moment in the trial that 3M’s defense team exploited to their advantage. Kelley appeared to be exaggerating the number of times she went to the gun range in a deliberate effort to create the impression that her military noise exposure was more extensive than it was. This may have fatally damaged Kelley’s credibility with the jury and played a large role in the outcome of the trial.
The plaintiff’s credibility is always important in personal injury cases, but it is particularly critical in the 3M earplug lawsuits. When the plaintiffs in the 3M cases are viewed as heroes who honorably served their country, juries reward them with big verdicts. To maintain this image, however, 3M plaintiffs need to appear honest and virtuous when they take the stand. If they get caught exaggerating or being less than forthcoming the hero image is quickly pierced.
What’s Next for the 3M Bellwether Trials
We should get results in 2 additional bellwether trials between now and the end of May. The 15th bellwether trial is set to begin next week, April 18th in the case of Jonathan Vaugh v. 3M Co. (7:20-cv-00134) (update: that was a 2.2 million verdict). That will be followed by the 16th bellwether trial on May 9th in the case of James Beal v. 3M Co. (7:20-cv-00006).
The 16th trial (Beal) will be the last trial in “Phase 1” of the 3M earplug bellwether trials. The details of the next phase of bellwether trials are still being worked out, but the level of intensity is going to step up significantly. The MDL judge has previously indicated that she plans to schedule Phase 2 bellwether trials in large blocks in which 20 or even 50 plaintiffs will be consolidated into a single trial.
Bellwether trials featuring massive blocks of 20 consolidated plaintiffs would be a huge disadvantage for 3M. So far, 3M has scored victories by discrediting individual plaintiffs. It will be much more difficult to discredit 20 or 50 plaintiffs all making the exact same allegations. Moreover, the jury verdicts in these mega bellwether cases could be massive. In the Sloan/Wayman trial a pair of plaintiffs got $110 million. If that same jury sat for a case involving 50 plaintiffs, the verdict would be $5.5 billion.
Is it hard to imagine 3M taking that kind of risk? It is. That is why I predict a settlement in the 3M lawsuits in 2022.