Recent Developments in Defective 3M Earplug Litigation

Recently, the two jury verdicts, both rendered in Florida federal courts, differed entirely. One verdict in the 3M litigation found one case in favor of the defendant manufacturer. The other awarded over $13 million in damages to the service member plaintiff.

The latest two of a total of seven bellwether trials, these latest verdicts indicate a continued split in 3M liability. Four out of the seven trial verdicts were rendered in favor of the plaintiffs. Previously, the cases were consolidated into a multidistrict litigation (MDL) in the U.S. District Court for the Northern District of Florida. The 3M cases are ramping up to become one of the largest MDLs in U.S. history. This MDL even surpassed the historic asbestos lawsuits of past years. With bellwether trials often setting the tone for future litigation, these recent verdicts suggest that the future is still unknown for 3M and the 270,000 pending claims against them filed by service members and military personnel.

A Split in Verdicts

Joseph Palanki v. 3M Company, et. al.

On November 12, a Pensacola federal jury rejected claims made by plaintiff Joseph Palanki. Palanki is a Tennessee veteran of the U.S. Army and National Guard. He claimed 3M’s Combat Arms CAEv2 earplugs caused his hearing loss and tinnitus. The company immediately released a statement praising the verdict. The statement stated that it “is an important demonstration that jurors agree 3M’s CAEv2 product was safe and effective to use,” and that “[t]his result, along with previous outcomes, supports our position in this and future litigation on this matter.”

Guillermo Camarillorazo v. 3M Company, et al.

A mere 72 hours later, on November 15, another jury came to a different conclusion. A federal jury in Tallahassee awarded plaintiff Guillermo Camarillorazo, a 47-year-old U.S. Army sergeant, over $13 million in damages. The amount was $816,395 in compensatory damages and $12.2 million in punitive damages. The damages were for hearing loss and tinnitus developed from his use of 3M earplugs.

The plaintiff successfully argued that the earplugs were defective and failed to protect him from injury. The plaintiff further claimed that 3M failed to properly warn him about the defects. 3M indicated that it disagrees with the awarded damages and intends to appeal, maintaining that “[a]t all times 3M’s conduct with respect to the CAEv2 product was consistent with the company’s values and longtime commitment to keeping our U.S. military safe.” The company also noted that the plaintiffs selected Camarillorazo’s case for a bellwether trial. The defendants and the court chose other bellwethers.

Camarillorazo is the ninth service member to obtain a jury verdict (Palanki is the eighth). Prior to these two cases, there have been four individual trials, and one consolidated trial of three veterans. The court awarded a total of five service members damages of nearly $17 million. With Camarillorazo now added to the list, 3M will pay over $30 million in plaintiff verdicts.

The Alleged Defects

Sales Contract With the Military

The number of remaining plaintiffs—over 270,000—is due, in part, to the proliferation of 3M’s earplugs over a long timeframe. The company sold over 5.2 million pairs of its Combat Arms earplugs between 1999 and 2009. This was due to a sales contract entered into between Aearo Technologies, Inc. and the United States military. 3M acquired Aearo Technologies, Inc. in 2008. The earplugs became a standard issue for service members through 2015, with the purpose of preventing auditory injuries during combat. However, in 2018, 3M settled a government whistleblower lawsuit which alleged that the company knew, since at least 2000, that its earplugs had dangerous design defects that it had failed to fix or warn about. The company then paid a $9.1 million settlement. Later, several plaintiffs filed lawsuits alleging similar claims.

Design Defect

The company marketed the Combat Arms Earplugs, Version 2, as a dual-purpose design. Inserting the plugs into the ear in one direction would allow the user to hear some noise, such as speech or orders from others. The other end of the plug would provide protection from damaging noises. According to the plaintiffs’ claims, the earplugs could not insert properly into the ear. This rendered the earplugs defective and left service members subject to auditory injuries from loud noises.

The court also unsealed internal documents. Within the documents, a 3M scientist admitted in a November 1999 email that they “have no data on the actual version” of the earplugs. It was found that the earplugs’ stems were too short. Moreover, it could not fit properly into the ear canal to provide noise protection. As alleged in numerous lawsuits, the company manipulated its product testing results. Per internal emails, the company admitted that the problem with the earplugs would persist unless the user instructions were revised to instruct the user how to fold back a particular piece of the earplug to increase protection. However, the company never advised users of the earplugs.

The Future of 3M Litigation

Judge M. Casey Rodgers of the Northern District of Florida is presiding over the multidistrict litigation. Over a quarter-million claims are still pending. As such, she has announced that the court will accelerate the upcoming bellwether cases scheduled for next year. Additionally, the plaintiffs’ counsel has been ordered to convert pending cases to the active docket, at 10,000 to 20,000 cases at a time. Judge Rodgers has indicated that discovery production will be ordered in 500-case “waves.” This leaves a relatively short discovery period before the cases are sent back to their originating courts for trial.

With such rapid pre-trial discovery and a large number of trials likely on the horizon, it is all the more reason for counsel on both sides to prepare accordingly. The most recent trials have indicated that whether 3M’s earplug designs were defective is the crux of the cases. Previous trials were not unanimous. As such, it’s likely that each upcoming trial will hinge on the testimony of experts in the field of auditory protection design. In prior trials, bioacoustics experts testified on whether the earplugs’ designs, quality control, and assurance processes were deficient. Likewise, attorneys also retained medical doctors to opine on whether 3M violated the general industry norms regarding labeling warnings on the earplugs.

Overall, it is likely 2022 will see a wave of further developments in 3M litigation.