Lawsuit Information Center
Almost 300,000 plaintiffs (mostly military veterans) have filed product liability lawsuits against 3M alleging that defects in the design of 3M’s Combat Arms Earplugs caused them to suffer hearing damage. The first 3M earplug lawsuits started getting filed in 2019 and new cases are still being filed now.
Now that were are 3+ years into the 3M earplug litigation, one question that is becoming increasingly significant is when will it be too late for veterans with hearing loss to file their own earplug lawsuit? The answer depends on what the applicable statute of limitations is and when it expires.
How Does a Statute of Limitation Work?
Every state has a statute of limitations which is basically like a legal deadline for filing a lawsuit. Prospective plaintiffs must bring their lawsuit before the applicable statute limitation deadline expires or they will lose their right to sue. The statute of limitations deadline period varies by state, but it is usually between 2-4 years.
The more significant question, however, is when the plaintiff’s claims “accrues” because that is when the clock on the 2-4 year statute of limitation period begins to run. For example, let’s say your state has a 3-year statute of limitation. If your claim “accrues” in 2020 you will have until 2023 before the SOL expires.
Most states follow what is known as the “discovery rule” for determining when a claim “accrues” and the SOL clock starts running. Under the discovery rule, a tort claim “accrues” when the plaintiff should have realized that they had a potential lawsuit against someone. This means that the defendant has knowledge of their injury AND has reason to believe the injury may have been caused by the defendant’s actions.
There are various circumstances that can extend the time when a claim accrues under the discovery rule. Common examples include when the defendant actively conceals their wrongdoing, when the plaintiff is under 18, or when the plaintiff is in active military service.
Statute of Limitations Deadline to Sue in 3M Earplug Lawsuits
So how would the discovery rule apply to 3M earplug lawsuits? Under the discovery rule, a 3M earplug lawsuit claim would “accrue” when two things happen: (1) the plaintiff discovers that they have hearing loss or tinnitus, and (2) the plaintiff should have realized that their hearing loss might have been caused by 3M’s defective earplugs. The real trigger here, obviously, is when 3M plaintiffs “should” have realized that they had a potential earplug lawsuit against 3M.
When Plaintiffs “Should” Have You Known About 3M Earplug Lawsuits
For most prospective plaintiffs in the 3M earplug litigation, their claims probably accrued for statute of limitations purposes when they “could have discovered,” through reasonable diligence, that their hearing loss was the result of defects in the 3M earplugs. In other words, what was the earliest possible time that veterans could have easily figured out that their hearing loss was related to defects in the 3M earplugs.
3M’s lawyers have argued that the plaintiffs’ claims accrued when they were first diagnosed with hearing loss or tinnitus. As discussed below, however, the MDL Judge has repeatedly rejected this argument based on her finding that 3M actively concealed the defects in their earplugs which prevented servicemembers from discovering that this might be the cause of their hearing damage.
The position taken by the plaintiffs (and implicitly affirmed by the judge in the MDL) is that the earliest that prospective plaintiffs could have learned about the defects in the 3M earplugs was July 2018. July 2018 is when it was publicly announced that 3M settled a qui tam lawsuit with the Department of Justice in which 3M was accused of defrauding the military by selling knowingly selling them defective earplugs. Based on our review of the relevant case law, we agree that the announcement of the qui tam settlement in July 2018 would be the absolute earliest date that any 3M earplug claims would accrue.
We also think, however, that a very compelling argument could be made that the actual date for when the 3M earplug claims accrued should be several months after the qui tam settlement in July 2018. In our opinion, the announcement of the settlement by itself was not enough to put an average person on notice that their hearing loss might be related to the 3M earplugs. For starters, 3M did not admit liability in the qui tam settlement. In fact, they expressly stated that the settlement was not an admission of wrongdoing.
The average veteran who goes online and reads about the qui tam settlement in which 3M denied any wrongdoing is probably not going to be expected to realize that this means they may have a product liability claim against 3M. A more reasonable approach would be to charge prospective plaintiffs with inquiry notice of the 3M earplug lawsuits 6 months after the qui tam settlement. By that time, a simple google search would have yielded numerous results from lawyers notifying prospective plaintiffs.
Rulings on the Statue of Limitations Issue in the 3M Earplug MDL
3M’s defense lawyers have raised the statute of limitations as an affirmative defense (usually in a summary judgment motion prior to trial) in several of the MDL bellwether cases. So far, however, this defense has not been successful. The judge in the 3M Earplug MDL has repeatedly denied 3M’s motions for summary judgment on the statute of limitations issue.
In this post, we will take a closer look at 3M’s statute of limitations argument in several of the bellwether cases and explain:
(1) why the judge rejected 3M’s argument and allowed the cases to move forward; and
(2) how the statute of limitations issue may play out for future 3M earplug plaintiffs in light of the rulings so far.
Limitations Defense Rejected in Blum
One of the first cases in which 3M asserted a significant statute of limitations defense was the case of Michelle Blum v. 3M Co. (7:20-cv-112), which was the 5th bellwether case to go to trial. Prior to trial, 3M sought summary judgment on the grounds that Blum’s claims were barred under New York’s 3-year statute of limitations.
In the motion, 3M argued that Blum’s claims accrued in 2009 when she first experienced hearing loss and tinnitus. In her opposition, Blum asserted that under the discovery rule her claims did not accrue until much later. She argued that the doctrine of equitable estoppel applied because 3M actively concealed the defects in the earplug which prevented her from discovering her claim.
Judge Rogers agreed with Blum’s analysis and issued an order flatly rejecting 3M’s statute of limitation argument:
there is ample record evidence from which a jury could find that Defendants affirmatively misrepresented information regarding the CAEv2 to both the military and to soldiers. … [T]here is evidence in this case that Defendants were aware . . . that the CAEv2 had design defects and . . . arguably concealed these reports and continued to issue false advertising …[.]
Order (ECF No. 53) at 7. Judge Rogers denied 3M’s request for summary judgment on the statute of limitations and allowed the issue to go to the jury. Although the Blum case eventually resulted in a defense verdict for 3M, the jury did not find that Blum’s claims were barred by the statute of limitations.
Statute of Repose Defense in Palanki
In the 6th bellwether trial case, Joseph Palanki v. 3M Co. (3:19-cv-2324), 3M sought summary judge under Tennessee’s statute of repose. A statute of repose is similar to a statute of limitation except that a repose statute puts a hard deadline within which a claim must be brought regardless of when the claim “accrues.”
Under the Tennessee statute of repose (Tenn. Code Ann. §29-28-103(a)) all product liability claims must be filed within 6 years of the “date of the injury” and 10 years of when the product was first purchased or used. Palanki first used the 3M earplug in 2005, which would have put his claim beyond the 10-year limit.
Judge Rogers denied 3M’s summary judgment motion on the grounds that the time limits under the Tennessee statute of repose were “tolled” during the 8 years that he was on active “military service.” This ruling was based on a federal law called the Servicemembers Civil Relief Act (“SCRA”) (50 U.S.C. §§ 3901 et seq.) which tolls appliable statutes of limitation and response when individuals are actively serving in the military.
Statute of Limitations Defense in Wilkerson
3M also raised the statute of limitations defense in Steven Wilkerson v. 3M Co. (7:20-cv-00035), the 12th bellwether case that went to trial this week. This time Judge Rogers did not deny 3M’s request for summary judgment on the statute of limitations but instead deferred her decision until after the relevant facts were developed at trial:
Wilkerson moves for summary judgment on Defendants’ statute of limitations defense regarding Wilkerson’s personal injury and fraud claims, arguing that these claims are timely as a matter of law because he could not have discovered the cause of his injuries until 2018. ECF No. 54 at 11. Under Wisconsin law, Wilkerson’s personal injury and fraud claims are subject to a three year statute of limitations. Wis. Stat. § 893.54(1m)(a) … Wilkerson filed his claims on January 17, 2020. ECF No. 1. Thus, his claims are timely if they accrued on or before January 17, 2017.
Wisconsin courts apply the discovery rule as the general accrual rule for all tort and fraud claims. . . . Hansen v. A.H. Robins Co., Inc., 335 N.W.2d 578, 583 (Wis. 1983) (“[W]e adopt the discovery rule for all tort actions . . . .”). Under Wisconsin’s discovery rule, a tort claim accrues when “the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant’s conduct or product,” . . . Statute of limitations defenses under the discovery rule require fact intensive inquiries, normally presenting issues of fact. See Gumz v. N. States Power Co., 742 N.W.2d 271, 280 (Wis. 2007) (“Statute of limitations defenses based on failure to exercise reasonable diligence will often present questions of fact . . . .”). Thus, determining the timeliness of Wilkerson’s claims is more appropriately considered once the relevant facts have been presented at trial. Accordingly, the Court defers ruling on Defendants’ statute of limitations defense to trial.
Order [ECF 133].