The 12th bellwether test trial in the continuing 3M earplugs litigation gets underway today in the case of Wilkerson v. 3M Co. (7:20-cv-00035).
The results in the first 11 test trials, which featured the claims of 14 individual plaintiffs, have been decidedly mixed, but the most recent trial grabbed national attention when a pair of plaintiffs were awarded $110 million.
The trial in the Wilkerson case that begins today marks the first case in “Trial Group D,” which will include 4 additional trials through the end of May. Trial Group D will end the opening phase of the earplug bellwether trials, after which things will get a lot more intense and complicated.
In this post, we will provide a comprehensive overview of the 11 bellwether trials that have been decided so far.
|1||Hacker / Keefer / Estes||5/9/21||$7,100,000|
|11||Sloan / Wayman||1/5/22||Defense Verdict|
Round 1: Hacker / Keefer / Estes ($7.1 million)
The opening 3m earplug bellwether trial began in May of last year and presented the consolidated cases of 3 plaintiffs: Stephen Hacker, Lewis Keefer, and Luke Estes. All 3 were Army veterans with similar service history and comparable hearing damage. After a 3-week trial in Pensacola before Judge Casey Rogers, the jury awarded a total of $7.1 million. Each of the 3 plaintiffs received compensatory damages ranging from $160,000 to $350,000, plus $2.1 million in punitive damages against 3M.
|Pain & Suffering||Punitive Damages|
Round 2: McCombs (Defense Verdict)
The second bellwether trial was held in the case of Dustin McCombs. The trial began on May 17, 2021, immediately after the conclusion of Round 1, and was held in Pensacola before Judge Rogers. McCombs was a relatively weak plaintiff. He only served in the Army from 2008 to 2011 and during that time he was not regularly exposed to loud noises or combat. Moreover, his alleged hearing loss did not occur until several years after he left the Army.
The McCombs trial lasted 2-weeks, following a schedule that would be repeated in future bellwether trials. After a day of deliberations, the jury came with a disappointing defense verdict. 3M’s defense team attempted to make a big deal out of the verdict, issuing defiant public statements in which they vowed to achieve similar victories in future trials.
Round 3: Baker ($1.1 million)
Round 3 of the bellwether trials was held in Sarasota in the case of Llyod Baker. Baker was another Army veteran with a longer length of service and better medical history compared to McCombs. After a 2-week trial, the jury found that Baker had proven 1 of his 4 tort claims against 3M (strict liability for failure to warn). The jury awarded $1.7 in compensatory damages for Baker’s past and future “pain & suffering” related to his hearing loss.
The $1.7 million in damages were reduced, however, because the jury also found that 3M had successfully proven a contributory negligence defense by establishing that Baker himself was partly at-fault for his hearing loss. When asked to apportion fault between 3M, Baker, and the Army, the jury found that the Army was 0% at-fault, Baker was 38% at-fault, and 3M was 62% at-fault. Based on this finding, Baker’s damages were reduced by 38% from $1.7 million down to $1.1 million.
Round 4: Adkins ($8.2 million)
After a pause in August, the 4th bellwether trial got underway last September in the case of Brandon Adkins. The Adkins trial ended in another major win for the plaintiffs. The jury found that Adkins had proven all 5 of his tort claims against 3M and awarded him $8.2 million in compensatory damages. At the time, this was by far the largest award to a single plaintiff.
The $8.2 million awarded to Adkins did not include any economic damages for medical expenses or lost income or any punitive damages against 3M. The entire damage award was compensation for Adkins’ mental pain & suffering resulting from his tinnitus and hearing loss. The jury in Adkins flatly rejected the contributory negligence defense that had been successful in the Baker case. Moreover, the $8.2 million verdict was issued after just 20 min of jury deliberation.
Round 5: Blum (Defense Verdict)
The major win in the Adkins case was quickly followed by another discouraging loss in the Round 5 bellwether trial featuring the first female plaintiff, Michelle Blum. The Blum trial began in mid-October and lasted 2-weeks. The jury found that Blum had not proven any of her tort claims against 3M and issued a defense verdict.
Round 6: Palanki (Defense Verdict)
Joseph Palanki went to trial at the start of November in Round 6 of the bellwether trials. The Palanki trial was one of two 3M earplug bellwether trials (Palanki & Camarillorazo) that took place simultaneously in separate courts for Rounds 6 and 7. Unlike the previous 5 trials which were held by the MDL judge (C. Rogers), the Palanki trial was held in Sarasota and conducted by visiting Judge Liles C. Burke from the District of Alabama.
The Palanki trial concluded on 11/12/21 with another defense verdict in favor of 3M. This marked the low point for the plaintiffs in the 3M earplug bellwether trials because it came just 2 weeks after the defense verdict in the Blum case.
Round 7: Camarillorazo ($13 million)
Just 2 days after the disappointing Round 6 loss in Palanki, a jury in Tallahassee awarded Sgt. Guillermo Camarillorazo total damage of $13,062,320 in Round 7 of the bellwether trials. Guillermo was the first bellwether plaintiff who was still an active service member. The jury found that he proved all of his claims and apportioned 100% of the fault to 3M. After 2 consecutive victories, the $13 million verdict was a major setback for 3M because it was mostly punitive damages aimed at punishing 3M’s conduct. Below is a breakdown of the Camarillorazo verdict:
Past Pain & Suffering = $192,000
Future Pain & Suffering = $408,000
Future Loss of Earnings = $110,645
Future Medical Care = $105,750
Punitive Damages = $12,245,925.
Aside from giving the 3M earplug plaintiffs a much needed win, the Camarillorzo verdict was significant because it marked the 2nd time that a jury had hit 3M with a very large punitive damage award.
Round 8: Finley ($22 million)
The success of the Round 7 Camarillorzo verdict was promptly followed up by an even bigger win in Round 8. Just after Thanksgiving, the trial of plaintiff Theodore Finley concluded with a verdict of $22 million. The Finely verdict included $15 million in punitive damages and $7.5 million in compensatory damages. At the time, it was the biggest bellwether verdict against 3M and the second time in a row that a jury had slapped 3M with a major punitive damage award.
Round 9: Montero (Defense Verdict)
After the big verdicts in Rounds 7 & 8, all the momentum was clearly behind the plaintiffs heading into Round 9 of the bellwether trials which featured the claims of plaintiff Carlos Montero. The trial in Montero was wrapped up a week before Christmas and the result was another victory for 3M. The jury found that Montero filed to prove his claims and issued a defense verdict.
Round 10: Stelling (Defense Verdict)
Round 10 was the trial of Carter Stelling, which took place at the same time as the Montero trial but in a different court. Stelling was a late substitution after a prior bellwether plaintiff dropped out. The Stelling trial resulted in another defense verdict which came out a day after the defense verdict in Montero.
Round 11: Sloan / Wayman ($110 million)
Round 11 featured the consolidated trial of two plaintiffs, Roger Sloan and William Wayman, which began on January 5, 2022. The result was the blockbuster, attention-grabbing verdict that the 3M earplug plaintiffs have been waiting for. The jury awarded total damage of $110 million which included $80 million in punitive damages. The Sloan/Wayman verdict dwarfed all of the prior bellwether victories and instantly changed the whole atmosphere of the earplug litigation for 3M.
The 3M earplug litigation is the largest mass tort in U.S. history with nearly 300,000 individual plaintiffs. However, prior to the Sloan/Wayman verdict, the earplug litigation and its potential liability for 3M had received very little attention from Wall Street and 3M investors. The $110 million verdict changed that immediately. Within a few weeks, after the verdict was issued, the financial markets began to take notice of the potential size of the earplug liability for 3M.