3M Earplug Lawsuit Update

This page is about the 3M earplug lawsuit.  Our lawyers are handling these claims in all 50 states.

If you are a plaintiff in these lawsuits, you want to know when the 3M lawsuit will be settled, what the individual settlement amounts might be, and get the latest update in the class action.  I start with the latest 3M earplug lawsuit update and then get into the rest.

May 2023 Update

A lot has happened in the 3M earplug litigation since last summer. First, the U.S. Bankruptcy Court in Indiana rejected 3M’s controversial plan to pull the 3M earplug cases out of the MDL and force them to be resolved in a bankruptcy proceeding. 3M immediately filed an appeal of that ruling directly to the 7th Circuit Court of Appeals. In light of the significant implications of the decision, the 7th Circuit agreed to hear 3M’s appeal of the bankruptcy ruling on an expedited basis.

Throughout September, 3M made it seem like they were continuing to seriously engage in settlement negotiations with the earplug plaintiffs. In early October, however, 3M abruptly terminated those settlement discussions and made it clear that they were determined on pushing the bankruptcy plan through. A month later, in November, MDL Judge Casey Rodgers ordered the parties to resume settlement negotiations.  Settlement talks are proceeding in February 2023 with mediators in the maybe soon-to-be-disbanded bankruptcy court.

On December 23, 2023, the judge in the 3M earplug MDL (Hon. Casey Rodgers) brought down a major hammer on 3m. Judge Rodgers issued an Order imposing sanctions on 3M and its attorneys for unleashing their bankruptcy strategy after nearly 3 years of litigating in the MDL. Judge Rodgers labeled 3M’s conduct as a “brazen abuse of the litigation process” and her sanction was to expressly prohibit 3M from attempting pawn liability for the earplug claims off onto its Aearo subsidiary. The unprecedented sanction effectively blocks 3M from pursuing the bankruptcy strategy at all and imposing sole liability on 3M alone.

Judge Rodgers did agree to make her ruling immediately appealable, and that is exactly what 3M is now doing. While the appeal of the sanctions ruling by Judge Rogers plays out, however, the appeal of the bankruptcy court ruling continues. Meanwhile, however, the 3rd Circuit rejected a similar effort by Johnson & Johnson to spin off its talc liabilities into bankruptcy. The ruling by the 3rd Circuit makes it even less likely that 3M will prevail on its appeal of the bankruptcy decision.

Even if 3M were to win its appeal to the 7th Circuit, the bankruptcy issue will essentially be a moot point if the sanctions imposed by Judge Rogers are upheld on appeal. The sanctions imposed by Judge Rodgers block 3M from forcing the earplug lawsuits into bankruptcy, so if that sanction is valid, it won’t matter whether the bankruptcy proceeding is valid.

Meanwhile, on February 13, 2023, the hearing regarding the motion made by the 3M plaintiffs to dismiss the Aearo Technologies bankruptcy proceedings was rescheduled. The hearing, initially set to occur this week, has been postponed by U.S. Bankruptcy Judge Jeffrey Graham and is now scheduled to take place at the end of April.

Certainly 3M continues to bury its head in the sand.  In March 2023, 3M filed a motion in the Aearo bankruptcy in which 3M claimed that medical records recently provided by the Department of Defense show that 90% of the 3M plaintiffs have no evidence of hearing loss. The statement is highly misleading and is based on a questionable method of interpreting the meaning of the DOD hearing test data.

On March 10, 2023,  Judge Casey Rodgers questioned 3M’s testing methods for hearing loss and called them “problematic.” Additionally, the plaintiffs’ testing approach was criticized for its lack of accounting for specific causation -(did the earplug’s defects cause the injury?).  Judge Rodgers advised both parties to exercise their “duty of candor” to the court and the public and to not rely solely on the “questionable” data used to evaluate the claimants’ hearing loss.

In April 2023, the 7th Circuit heard oral arguments in 3M’s appeal of not getting a stay in the 3M litigation from the Aearo bankruptcy.  The court seemed highly skeptical of 3M’s arguments.

On May 2, 2023, the MDL judge ordered continued settlement talks.

Everything All at Once

The 3M earplug litigation has been extremely busy in recent months, with over 230,000 CAEv2 cases pending in the MDL and thousands of cases in Minnesota state court.  The MDL court has already begun ruling on motions in preparation for immediate remand following the Eleventh Circuit Court of Appeals’ decision on the interlocutory appeal regarding successor liability (in other words, the court is confident about which way that ruling will break).

Bellwether trials against 3M are also scheduled for later this year. The bankruptcy court soon to rule on motions to dismiss Aearo’s bankruptcy cases and/or appoint a Chapter 11 trustee for the debtors’ estates. The Seventh Circuit is also currently considering Aearo’s direct appeal of the bankruptcy court’s order.

3m settlement estimateOlder Updates

August 27, 2022: Filing bankruptcy protection for its subsidiary does not excuse 3M from defending lawsuits in the 3M earplug class action, a federal bankruptcy judge ruled yesterday.  This means the 3M earplug trials for 2023 are back on track.

March 15, 2022: The Wilkerson bellwether trial is underway. A few weeks ago, 3M filed a motion seeking to dismiss all claims because Wilkerson failed to list the 3M lawsuit as an asset when he filed bankruptcy. Over the weekend, Judge Rogers issued an order denying the motion because 3M failed to show that Wilkerson intentionally concealed the 3M lawsuit to manipulate his bankruptcy proceedings. She also pointed out that the omission was irrelevant because Wilkerson’s bankruptcy was a Chp. 13, which proposed full repayment of his creditors.

March 7, 2022:  Next Monday, we will start another one. The next bellwether trial in the 3M earplug litigation will begin in the case of Steven Wilkerson v. 3M Co.

A pre-trial conference was held last week before Magistrate Judge Gary Jones. The conference resolved various housekeeping issues, such as schedule, protocol, and logistics for the trial.

Judge Jones also resolved a dispute by ruling that neither side would be permitted to use “demonstrative aides” during their opening statements (I’m not a huge fan of this ruling). The parties will submit their statements of the case and proposed verdict forms by the end of this week.

February 24, 2022: The number of 3M earplug lawsuits in the MDL has increased to 288,601.  Since the $110 million verdict, our law firm’s 3M calls have nearly doubled.  Those cases have not made it into the class action lawsuit yet.  So you can expect even more CAEv2 lawsuits as the largest mass tort in history progresses.

February 10, 2022:  Next 3M earplug trial is set for March 14, 2022.  The plaintiff is U.S. Army veteran Steven Wilkerson.  I think this trial and the next two weeks later will go.

Why do I think settlement talks will fail?  3M is raising their dividend and sticking their head in the sand.  Mark my words, investors are going to sue 3M, alleging that they did not correctly apprise investors of the litigation risk of the 3M earplug lawsuits.

January 28, 2022 Status: Stunning $110 million verdict yesterday.  The link above breaks down every day of the Sloan/Wayman verdict.

January 13, 2022 Status: Yesterday was dedicated to Elliott Berger’s testimony.  The now-retired Berger is a central figure in the 3M earplug lawsuits.  He was involved in the design of the CAEv2 earplugs.  On Tuesday, the first day of testimony, plaintiffs offered fact witness testimony and a key expert.

January 11, 2022 Status: The next bellwether trial in the 3M earplugs MDL began as scheduled today as both parties gave opening statements.  Two 3M earplug lawsuits will be tried together in this case.  This weekend, Judge Rogers denied a last-minute motion for a continuance filed by 3M.  The one-week continuance was requested after several 3M’s defense team members tested positive for COVID-19 on January 4th. Judge Rogers found that a continuance was unnecessary because, under CDC guidelines, all the team members could come out of quarantine by January 9th.

December 13, 2021 Status: A $22.5 million verdict on Friday in Finley.  The largest 3M earplug lawsuit yet by over 50%.  The jury awarded $7.5 million in compensatory damages and added $15 million in punitive damages.

3M needs to understand that juries have had lots of looks at their conduct. They didn’t just lose this trial.  It was not like the jury found 3M made a bad earplug in good faith. The jury is saying you should be punished for what you did and we think that punishment should be $15 million.

3M needs to offer reasonable settlement amounts to resolve this litigation before the future viability of this company becomes contingent on the 3M earplug litigation.  I’ve been writing about this for a while.  Stock analysts will soon see what I have been saying all along: this stock should be sold/shorted because the litigation risk is not baked into the 3M stock price.  I read somewhere that the worst-case scenario for 3M is $20 billion.  That is not the worst-case scenario.

[December 1, 2021 Update: New trial started yesterday in Finley.  This is an interesting case that our 3M lawyers preview elsewhere.]

[November 15, 2021 Update: $13 million verdict in Camarillorazo this afternoon!  The jury was unhappy with 3M – $12 million in punitive damages. Specifically, the verdict was $816,395 in compensatory damages and a stunning $12.245 million in punitive damages for a total of $10.06 million.  That jury was extremely angry at 3M.

But there was a defense verdict in Palanaki, which was a defense pick.  Click on the link above for more details.]

[October 29, 2021, 2:29 p.m. — Shoot.  Defense verdict.  You can click on the link above for all of the details.]

[October 29, 2021 — Today was Day 10 of the Michele Blum 3M earplug lawsuit.  3M is put on witnesses for the last four days.  The jury now has the case.  It deliberated for over 5 hours yesterday.   Hopefully, we get a verdict today, and, even more hopefully, it will be similar to the last one on October 1st: $8.2 million!  The Atkins verdict was yet another incredible verdict. Our lawyers hope Blum follows suit and wakes up 3M and its shareholders to the fact that the earplug settlement amounts they hoped for in this litigation are not the settlement amounts they will ultimately pay.

[September 17, 2021 — The next 3M earplug lawsuit goes to trial next week.  I say this before every 3M trial, I guess, but this is a big trial in this litigation.  Hopefully, a big verdict will drive 3M to resolve these lawsuits and pay the victims what they deserve.  The MDL class action judge is now putting on more pressure to set more trial dates and get cases ready to go to trial.  This puts pressure on all the lawyers but especially the 3M lawyers.]

[June 23, 2021 — Another huge win on Friday in the 3M earplug lawsuits: a $1.7 million verdict reduced to $1.1 for the victim’s contributory negligence.  How 3M avoids meaningful settlement talks now is anyone’s guess.]

[Update: June 10, 2021 — Unfortunately,  3M earplug victims lost the second 3M earplug lawsuit that has gone to trial last week.  This was a tinnitus case and a tougher case for the plaintiff.  The third trial is underway and the verdict will be incredibly important in determining settlement amounts in the 3M lawsuits.]

[Update: April 30,2021 — 3M Earplug Verdict!   A whopping $7.1 million verdict with $2.1 million in punitive damages for each of the three plaintiffs!

What does this mean?  First, it means the jury was extremely angry with 3M.  The punitive damages were far greater than the compensation.  Second, these bellwether trials set settlement values.  So the per-person settlement compensation payout projections of the 3M lawsuits just got a lot higher. 

Get a 3M Earplug Lawyer Sooner Rather Than Later

Call our lawyers today (we are taking calls all weekend, too) if you would like us to review your earplug lawsuit.  Our injury lawyers are handling duel-ended 3M combat arms earplug cases around the country.

If you have a claim anywhere in the country, we will evaluate your case at no cost to you and tell you your legal options. You really want to get your defective product claim started today.  And it is easy to do. Free consultation at 800-553-8082 for victims anywhere in the country.]

Our law firm has represented many wonderful people over the years.  As a class, these are the best plaintiffs you could ever find.  These are the people who put their lives on the line to protect us.  Our lawyers think we owe them great thanks. We also think 3M owes them a great deal of money for the injuries they have suffered.  So far, juries have mostly agreed.

The 3M Earplug Litigation in a Nutshell

This page provides an update to the CAEv2 3M Combat Arms earplug litigation that already has thousands of suits around the country.  These MDL class action suits allege that our soldiers were falsely promised the Combat Arms earplugs would protect their ears from dangerous impulse noises.

Specifically, The 3M earplug lawsuits are about allegations that 3M Company and its subsidiary, Aearo Technologies, sold defective dual-ended Combat Arms Earplugs Version 2 (CAEv2) to the United States military between 2003 and 2015. The earplugs were standard issue to U.S. military service members during that time and were supposed to provide hearing protection in combat and training situations.

But soldiers and their lawyers allege the earplugs were too short and could loosen without the wearer realizing it, causing hearing damage and leading to conditions such as tinnitus and hearing loss. The lawsuits claim that 3M knew about the defect and failed to disclose it to the military or take adequate steps to correct the problem. As a result, thousands of military service members have filed lawsuits against 3M seeking compensation for their hearing injuries.

That is bad enough, right?   But these claims further. They alleged that internal testing that revealed these promises of protecting soldiers were not true. Yet they buried this information and put the users’ ears at risk.  As a result, nearly 300,000 lawsuits have been filed by retired and active-duty soldiers who suffered significant hearing loss and tinnitus.

Defective 3M’s Combat Arms Earplugs

Minnesota industrial giant 3M, one of the world’s largest manufacturing companies, recently admitted that it had been selling defective earplugs to the Defense Logistics Agency for our military and others for over 10 years. 3M’s Combat Arms Earplugs were one of the most popular and widely used protective earplugs on the market.

3M Company had a long-term, exclusive contract to supply the earplugs to all branches of the U.S. Armed Forces. From 2002 to 2015, the Combat Arms Earplugs were standard issue safety equipment to military servicemen and women. [Technically, Aearo Technologies designed and manufactured the earplugs.  3M bought the Aearo in 2008.]

Over that time period, hundreds of thousands of military personnel used the dual-ended Combat Arms earplugs almost every day. Military personnel used them on the assumption that the foam earplugs were protecting their ears from the damaging effects of high-level noise exposure.  But the sound reduction rating of these earplugs was not what our soldiers had every right to expect that they were.

We have long known how these injuries were affecting our military personnel.  The U.S. Department of Veterans Affairs told us hearing problems are “the most prevalent service-connected disability among American veterans.”  What we did not fully understand until now is why.

During the 3M earplug lawsuit, a judge allowed records produced in discovery in the MDL class action litigation to be made public.  These internal company documents show that 3M was making an absolute killing.   Earplugs sold to the military made up 5% of the company revenue in the United States and 20% of its operating income.  How were these earplugs so lucrative?   When it costs you 85 cents to make something but you sell them for $7.63, you need not be an economics major to figure it out.

3M EarplugWhistleblower Lawsuit

A whistleblower lawsuit got this litigation jump-started.  A recent federal whistleblower suit forced the company to admit that its earplugs rarely protected users from noise exposure because of a design defect that the company knew about all along. Once inserted, the Combat Arms Earplugs were supposed to seal off the outer ear canal and block out high-level noises.

Unfortunately, the earplugs were not shaped correctly for this and often became loose or “unsealed” shortly after being inserted. This design flaw rendered them mostly ineffective at protecting the ear from loud noise damage.

Most users never realized the problem and exposed themselves to extreme noise levels thinking their Combat Arms Earplugs were protecting them. 3M was apparently well aware of the issue from the beginning. But it never disclosed the concerns about the defect 3m earplugs to the military or the public.

Many veterans who relied on the defective earplugs for hearing protection are suffering from tinnitus – a chronic and maddening ringing, hissing, or buzzing in the ears which impairs hearing. Their tinnitus directly results from the undisclosed design defect in the earplugs. Sometimes, the tinnitus is so severe that the individual’s hearing is almost fully impaired.

Whistleblower Lawsuit Triggered 3M Earplug Lawsuits

When 3M settled the whistleblower lawsuit for over $9 million, plaintiffs’ lawyers realized the earplug lawsuits had incredible potential. Because you have great plaintiffs – the soldiers fighting for us – and a real bad guy corporate defendant who failed to protect our heroes to make a few bucks.

3M lawyers do not seem to fully comprehend this dynamic and they apparently are advising their client to go to trial even though every focus group they are doing has to be telling them that these lawsuits are a dead loser for them.

Lack of Instructions for Using Earplugs

Besides the fact that these earplugs just fell out of our soldiers’ ears (see below), another related problem with these earplugs is poor instruction on how to use them.  The plaintiffs’ attorneys claim that the defendants need to tell soldiers using 3M’s Combat Arms earplugs to fold back the flanges on the open/unblocked end of the plug before inserting the closed/blocked end of the plug into their ears.

This seems to be secondary to the larger product defect.  But proper insertion is the key to this device.  So it is an issue that plaintiffs’ lawyers are fully exploring in the MDL class action.

Earplug Lawsuits Against 3M


Click to enlarge

Whenever a manufacturer publicly admits that a product was defective and may have caused harm, a large wave of individual product liability claims always follows. There is typically a period of several years following a manufacturer’s admission during which potential plaintiffs who were harmed by the product gradually come forward and start filing suits across the country.

This is exactly where we are right now with the Combat Arms Earplugs lawsuits. 3M’s forced acknowledgment that its earplugs were defective just recently occurred in July 2018.

The admission came in the form of an agreement to pay $9.1 million to the U.S. Department of Justice to settle claims that the company violated the False Claims Act by knowingly selling its defective earplugs to the U.S. Military.

The field of potential plaintiffs in the Combat Arms Earplugs litigation is potentially very large. Keep in mind that the Combat Arms Earplugs were standard issue equipment for all branches of the U.S. Military for over a decade.  (The most hit branch of the military was the Army.)  During that time period, hundreds of thousands of soldiers may have used the defective earplugs daily to protect themselves from extreme noise exposure.

There is good evidence for plaintiffs in these cases. At a deposition, a plaintiffs’ lawyer asked Martin Salon, a former vice president at Aearo Technologies, as he thought it was appropriate for 3M to conceal information about potential defects in the earplug from the government. His response was “I suppose it is, if the product is working in most cases.”  This same witness also said it was acceptable “to sell a product and conceal information where it will have a negative effect on our soldiers.”  Can you imagine?

Earplug MDL Class Action Trials (5-1)

These claims have been consolidated in a “sort of” class action called an MDL.  This is a mechanism by which the lawsuits are consolidated.  Here, MDL  the claims are consolidated in federal court in Florida.  So if you file a lawsuit in federal court in New York, California, or Texas, we transfer the case to Florida for pre-trial discovery.  This mechanism is a benefit to lawyers for efficiency. It also may help facilitate a global settlement for all the earplug cases.

The earplug lawsuits are really taking off because there are so many victims.  Over 235,000 soldiers have already hired a lawyer and filed a 3M earplug lawsuit.  Earplug trials started in March 2021 before Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida.

So far, we have won five 3M earplug trials and only lost one.  The victims, as we mentioned at the beginning of this post, won a huge $7.1 million verdict in the first trial.  On May 28, 2021, a jury awarded 3M a defense verdict after an earplug lawsuit from an Afghanistan war veteran.  A $1.7 million verdict (reduced to $1.1 million for contributory negligence) was followed up with the big $8.2 million verdict earlier this month.

MDL Motion to Dismiss

In April 2020, Judge Rodgers has a motion to dismiss these lawsuits sitting in front of her.  In its motion for summary judgment, 3M contends that all these cases should be dismissed without a jury trial because the when military received the CAEv2 prototypes 22 years ago, it asked the manufacturer to shorten earplugs by a quarter inch.

They claim this is because they needed it to fit into standard-issue carrying cases and because they feared it might make it hard for the wearer to fasten the chin strap on their helmet. I don’t think the court will grant this motion.  As I talk about more below, this is all a part of the plan to blame the military or hide behind her skirt.  I don’t think it will work.

May 203 Update: It did not work as hundreds of million of dollars of verdicts demonstrate, although these verdicts are on appeal.

All Military Veterans with Tinnitus or Hearing Loss May Be Entitled to Compensation

Anyone who served in the U.S. armed forces between 2002-2015 and suffers from tinnitus or hearing damage may be entitled to financial compensation from 3M. To have a valid earplug action, you will need to meet the following additional requirements:

  1. You were issued Combat Arms Earplugs (Version 2)
  2. You were exposed to high noise levels (gun/ordinance fire, aircraft noise, etc.) at some point during your service and suffered an ear injury
  3. You used the Combat Arms Earplugs for ear protection

If you meet these requirements, you should have a valid claim for compensation against 3M. The amount of financial compensation you may be entitled to will depend on the length and severity of your hearing damage. Damage to the inner ear resulting from 3M’s defective earplugs has been linked to:

  • Tinnitus: a persistent ringing in the ears that impair hearing function
  • Loss of Hearing: generalized impairment of hearing not related to tinnitus
  • Auditory Processing Disorder: a condition in which a person cannot normally process and interpret audible sounds

Potential plaintiffs in the earplug litigation include service members who were regularly exposed to loud noise as part of their duties. This would include gunners, artillery, pilots, aircraft support personnel, infantry, mechanics or engineers, and any other jobs involving high continuous high-level sound exposure.  For most law firms to consider your case, including ours, you need test results that show a hearing injury.

In some cases, a single exposure to extreme noise can be enough to cause permanent tinnitus. A single explosion or .50 caliber gunfire near the eardrum can be more than enough to cause irreparable damage to the ear resulting in permanent hearing loss or tinnitus.

What Was the Biggest Problem with the 3M Earplugs?

The biggest problem with the 3M earplugs was they would not say in the soldier’s ears. The Combat Arms earplugs would become loose because the basal edge of the third flange of the non-inserted end pressed against the soldier’s ear canals. Then it would fold right back to its original shape. So the now loosened seal would cause the earplugs to fall out without the user even knowing.

Compounding that problem, the stem was too short which exacerbated the falling out problem.  So instead of reducing sound by the promised 25-40 decibels, it did not reduce the sound at all.

Could Defective 3M Earplug Cases Be Preempted?

There has been some recent discussion that the lawsuits against 3M regarding the Combat Arms earplugs might be barred under the Feres preemption doctrine.  3M has said in federal court in Florida that it will assert the “federal government contractor defense” and the “combatant activities defense.”

Any lawyer representing victims has a right to be concerned about this potential defense from 3M. But a careful review of the relevant law suggests that this issue will probably be decided in favor of the plaintiffs.3m earplug defense

The Feres doctrine came from the U.S. Supreme Court decision in Feres v. United States, 340 U.S. 135 (1950) that lays out the framework for when a claim for injuries sustained may be filed by a service member. Initially, the preemption doctrine was only applied when a service member’s injury was sustained by another service member. Over time, however, preemption under Feres was expanded to apply to civilian government employees.

In its simplest terms, the Feres doctrine bars service members from suing the U.S. government for injuries that either arose out of or were incurred while engaged in a course of activity “incident to service.”

Currently, there are several government contractors and officials who are pushing to further extend the doctrine to preempt state liability laws and provide immunity.

This could be problematic for active duty service members who have incurred permanent injuries because of 3M’s defective earplugs because the activities they were injured by could not be construed in any other way than “incident to service.” As a result, their claims could be pre-empted.

We do not think they will be, however, thanks to Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Supreme Court articulated a three-part test for applying preemption in product liability contexts. Under this test state laws on product liability will be preempted if (1) the U.S. approved reasonably precise specifications, and (2) if the equipment conformed to those precise specifications, and (3) if the supplier warned the U.S. of the danger associated with the equipment that was not known to the U.S. but only to the supplier.

When we apply these tests to the facts we know about the defective earplugs, the company clearly knew of the dangers associated with the Combat Arms earplugs. In fact, 3M may have been aware of the flaws in the earplugs even before they started supplying them to the U.S. military.

There is currently no evidence or any reports suggesting that 3M actually disclosed this design flaw to the military. If, in fact, they were aware of it before the military supply contract it seems highly unlikely that 3M would have disclosed the problem after the fact.

It was not until a whistleblower filed claims against 3M that the U.S was apparently aware of the defective condition of the earplugs. In short, if 3M had disclosed the design defects to the military they probably never would have paid $9 million to settle the false claims action.

For these reasons, we do not think 3M will satisfy the third prong of the Boyle test and as a result; the claims coming against them will not likely be pre-empted. Both service members and civilians should still be able to recover.

Infographic explaining loud noises and hearing loss

Click to enlarge

3M Defense #2: Hide Behind Military’s Skirt

Here is what 3M has said about the earplug lawsuit:

3M has great respect for the brave men and women who protect us around the world, and their safety is our priority. We have a long history of partnering with the U.S. military, and we continue to make products to help protect our troops and support their missions. The company worked in close coordination with the U.S. military on the Combat Arms Earplugs Version 2 product, and its design reflected the direction and feedback of individuals acting on the military’s behalf. We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations.

Since then, 3M has said in federal court filings that the military’s involvement in designing the defective earplugs “went beyond merely establishing standards. Its involvement also included such operational features.”

So the defense is that the product was not defectively designed.  But if you won’t believe this nonsense, 3M argues alternative that they were really putting out the exact product the Department of Defense wanted.  This, my friends, is what failure to take responsibility looks like.

Federal Multi-District Litigation (MDL) for 3M Cases

Let’s get back into the MDL. Currently, there are approximately 235,000 Combat Arms lawsuits pending against 3M in the federal court system.

All the cases raise similar claims of hearing damage or tinnitus in service members after using allegedly defective earplugs. Given the similarity in all the complaints, the U.S. Judicial Panel on Multidistrict Litigation recently centralized and consolidated the Combat Arms cases into a new MDL.

The Combat Arms MDL is in the Northern District of Florida before Judge Casey Rodgers. This judge has a great deal of prior MDL experience, including the Abilify gambling litigation that eventually reached a comprehensive global settlement.

Both lawyers for the manufacturer and counsel for the various plaintiffs were in agreement that an MDL should be established to handle the growing number of earplug lawsuits. However, there was apparently fierce debate over where the MDL should be located. 3M argued that the MDL should be located in the company’s home state of Minnesota. Most plaintiffs’ lawyers were opposed to this. Ultimately, the JPML selected Florida’s northern district as the most appropriate location.


Has a Trial Date Been Set for a 3M Earplugs Case?

The next trial date is September 22, 2021. The first Combat Arms earplug case in the MDL went to trial in April 2021.  This case ended with a $7,150,000 verdict for three plaintiffs.  Plaintiffs also won the third trial.  The second 3M lawsuit that went to trial resulted in a defense verdict.

Should I Expect an Earplug Lawsuit Settlement Payout of $2.36 Million Per Person?

Understandably, hearing injury victims were excited by the first 3M earplug lawsuit verdict that awarded three veterans $7.1 million. That is a 3M lawsuit settlement payout per person of $2.36 million. Add in the new verdict on October 1, 2021, and you have an even higher average compensation payout per 3M earplug lawsuit that has gone to trial. But you should not expect individual earplug settlements to come anywhere near that figure.  Mass tort settlement will almost invariably be less than the average trial verdict. 

How Much for the Total 3M Earplug Settlement Amount?

Let’s start with what Finding Alpha said on August 9, 2021:

3M is also at risk to ongoing litigation (including potential class action suits) regarding defective military ear plugs; the company has lost two of three early test cases, while total settlement costs will probably be in the neighborhood of $3B-$4B (based on comparable past settlements), they could be as high as $20B in a worse-case outcome.

There are 250,000 lawsuits filed in the MDL.  Let’s assume that 200,000 of those suits are viable with documented injury.   That would make the average individual settlement payout between $15,000 and $100,000, based on this Finding Alpha estimate.

But I think this estimated settlement amount is off and I think the worst-case scenario for 3M is more than $200 billion.

How many veterans do they think are going to settle their hearing injury lawsuit for $10,000 to $15,000 when they are seeing average verdicts of well of $1 million in the cases that have gone to trial?  The average 3M compensation payout from a jury is over $2.7 million.

I’m not sure what “comparable past settlements” Finding Alpha is talking about.  But there is no precedent for this injury, with this many claims, with the plaintiffs being soldiers who are fighting for their country.

So I think the range is more like $10 billion and $30 billion.  The longer 3M waits to settle these claims, the greater the risk of getting closer to that $30 billion.   

What Is the 3M Earplug Lawsuit Deadline (Statute of Limitations)?

The deadline to file a 3M earplug lawsuit depends on which state the claim would have been filed in but for the class action lawsuit.

But the statute of limitations deadlines is complicated in every mass tort and particularly true in the 3M lawsuits because of the challenges in determining which state’s procedural laws apply. Most of these injuries occurred in Iraq or Afghanistan.

If you are unsure of your deadline, call a lawyer immediately.

When Will 3M Settle the Earplug Lawsuit?

There is a gap right now between the average per person settlement amount plaintiffs’ lawyers envision and what 3M stakeholders believe the settlement compensation payouts in these claims will be.

This is what is holding up settlements. What will make this change? More plaintiffs’ verdicts. Hopefully, veterans get another win tomorrow (October 28th).

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