3M Hit with Multimillion Dollar Earplug Verdict

In April 2021, 3M was hit with a $7.1 million verdict in the first bellwether trial for the Combat Arms Earplug multidistrict litigation (MDL). 3M was accused of hiding design flaws, fudging test results, and failing to instruct the military on the proper use of the earplugs used by the Army between 2007 and 2013. A Florida federal jury agreed with three military members’ claims that their hearing was irreparably harmed because 3M’s earplugs did not work. 

The three plaintiffs’ cases are the first to go to trial in the 3M earplug MDL, which contains claims from as many as 240,000 service members. This is the largest mass tort ever brought in federal court.

The Plaintiffs

U.S. soldiers used 3M’s earplugs for years in combat and in training missions in Iraq, Afghanistan, and in the United States. 3M acquired the earplugs when it bought Aearo Technologies in 2008, and it stopped selling the product in 2015. The dual-ended combat arms earplugs were designed with one side blocking all noise and the other letting in voice commands while blocking other harmful loud sounds. 

The three former service members claimed that 3M and a predecessor, Aearo LLC, supplied combat earplugs known as CAEv2s that failed to protect service members against tinnitus and hearing loss caused by battlefield and training noises. 

The jury awarded $2.1 million in punitive damages to each of the plaintiffs: Stephen Hacker, Luke Estes, and Lewis Keefer. Stephen Hacker is a twenty year old Army veteran who started experiencing bilateral tinnitus in 2006 after using the earplugs. The jury awarded Mr. Hacker $160,000 for pain and suffering. Luke Estes is a former tank platoon leader at Fort Benning in Georgia who began to lose his hearing and developed ringing in his ears in 2014 after using the earplugs. The jury awarded Mr. Estes $350,500 for medical costs, lost earnings, and pain and suffering. Lewis Keefer is an Army medic who used the earplugs in training at Fort Benning and in the line of duty in Iraq before starting to lose his hearing. The jury awarded Mr. Keefer $320,000 for medical costs, lost earnings, and pain and suffering. 

The plaintiffs’ attorneys, Bryan Aylstock and Christopher Seeger, stated that the three claimants showed courage in “standing up against 3M on behalf of all the veterans who now face preventable hearing loss and tinnitus as a result of the CAE v2 earplugs. The evidence is clear: 3M knew their earplugs were defective, yet they allowed our service members to suffer these life-altering injuries.”

3M’s Response

After the verdict, 3M stated that the verdict was “just the first step” in the litigation and that the company sees “multiple grounds for appeal. We do not believe the plaintiffs met their burden of proving that the CAEv2 product was defectively or negligently designed or caused each plaintiff’s purported injuries.” 

3M also argued that the U.S. military bears responsibility for the way the earplugs were designed and delivered. U.S. District Judge M. Casey Rodgers acknowledged that the U.S. military did help shape the earplug, but she ruled that 3M cannot tell the jury at trial “that the government dictated, directed, approved, or otherwise exercised discretion with respect to military specifications for any aspect of the design of the CAEv2, or for the content of instructions or warnings.”

What Does This Mean for the 3M Earplug MDL?

Bellwether trials are intended to test the strength of both sides’ claims and gauge damages so the parties could potentially shape a deal to resolve the other MDL cases. These were the first three cases tried of the 240,000 claims in the 3M earplug MDL. There are two more bellwether trials that are scheduled to follow soon. 

Dustin McCombs’ earplug claim is scheduled for trial on May 17, 2021. Mr. McCombs’ tinnitus began after an IED blast in Afghanistan in April 2009 and progressed at Alaska’s Fort Richardson. 

Lloyd Baker’s earplug claim is scheduled for trial on June 7, 2021. Mr. Baker said he suffered tinnitus from urban-warfare training at Fort Lewis in Washington in 2005 and 2006 where he operated a 160-decibel M240 machine gun. 

Torts and mass tort litigation expert Alexandra Lahav of the University of Connecticut said the verdict likely does not have a larger meaning on its own on the future of the 3M earplug MDL: “I would say this is just the beginning; don’t draw any firm concussion until we’ve had a few more trials.”

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The Future of Virtual Trials Due to COVID-19

In response to the COVID-19 pandemic, Congress passed the CARES Act in March 2020 to allow federal courts to conduct most routine court proceedings by telephone and video hookups. Since then, several courts have conducted virtual bench trials which do not require a jury and some courts have even held virtual civil jury trials.  

The Western District of Washington, the Middle District of Florida, and the District of Minnesota have already conducted virtual civil jury trials with jurors serving from their homes. The federal trial courts in Rhode Island and Kansas are currently planning their first civil jury trials. 

Under the CARES Act, the judiciary will end most electronic proceedings after the pandemic emergency is declared to be over. However, judges in many jurisdictions are advocating for continuing virtual court procedures even after the pandemic. 

Western District of Washington

The Western District of Washington started virtual civil jury trials in September 2020, which piloted the Zoom civil jury trial for many other states.

Of the four virtual trials that have already occurred, U.S. District Judge Marsha Pechman has presided over two of them. Regarding the virtual jury trial experience, Judge Pechman said: “Video jury trials are a tool that can be used, and it’s a tool we need to use unless we are going to be backed up forever and ever. It has worked better than my initial expectations, all the way around. The jurors have been very, very diligent. They’ve cleared themselves of distractions and worked hard to pay attention.” 

Judge Pechman initially worried that the required computer equipment might skew the jury pool by reducing the number of elderly and low-income jurors. However, the court addressed this by training jurors who needed computer skills and lending computers to those who did not have equipment.

Judge Pechman also debriefed each juror about their experience: “We asked if you feel like you can pay attention while you’re sitting in your own home. The jurors overwhelmingly said yes. I know the lawyers would say this guy was sitting in his laundry room, and this lady was sitting on her bed, but the point is, we invaded their house, and they found the best space they could in order to pay attention.” 

Judge Pechman noted other benefits such as reduced costs and decreased travel time for jurors, attorneys, and witnesses.

After her experiences, Judge Pechman now advocates for continuing virtual civil trials even after the pandemic:  “I have no backlog. Every single case I had set in 2020 got tried in 2020. I tell my fellow judges this may be the only way the wheels of justice will still turn.”

On February 5, 2021, the Western District of Washington hosted a how-to seminar for virtual trials which attracted more than 900 participants from more than 60 district courts.

Middle District of Florida

Judge Mary Scriven of the Middle District of Florida also highly recommends extending virtual court procedures beyond the pandemic after her experience presiding over a five-day virtual civil trial in late January 2021: “It flowed seamlessly from jury selection through deliberations. I would do it again in a heartbeat, and I highly recommend the virtual trial procedure to other judges in the District facing a backlog of civil cases due to the pandemic.”

She noted that the jurors especially appreciated “the ability to see the exhibits and see and hear the witnesses clearly because everything was magnified on the screen.”

District of Rhode Island

The suspended jury trials and in-person proceedings during the pandemic will create a backlog for the courts once they do reopen. However, judges recognize that virtual civil trials present an opportunity to address the backlog now. 

The District of Rhode Island Chief Judge John McConnell addressed the backlog of cases: “When we realized that once we are able to conduct trials again, we’re going to have to prioritize criminal trials and we aren’t likely this year to get to in-person civil jury trials, we didn’t think it was appropriate not to offer litigants their Seventh Amendment right for that long.”

In response, the federal trial court in Rhode Island is currently preparing for its first virtual civil jury trial. The Rhode Island district court almost held its first virtual civil jury trial recently, but the parties settled the day before trial.

District of Massachusetts

U.S. District Judge Indira Talwani from the District of Massachusetts has presided over two virtual trials. Judge Talwani observed benefits such as jurors being able to see the witnesses’ full faces on a screen 18 inches away instead of an obstructed angle from a witness box. Furthermore, Judge Talwani noted the increased convenience for all parties: “For these parties, the difference of not having to travel here was enormous. To be able to do all of that without everyone having to spend the travel time worked very well. If people are cost conscious, it would make a huge difference.”

Harris County Civil Court in Texas

Judge Tanya Garrison of the Harris County Civil Court in Texas also discussed the benefits of virtual court and expressed that she observed.  She specifically commented on the increased efficiency of hearings, monetary and time savings for clients, decreased hassle and frustration, ease of accommodating witnesses, virtual depositions, and a positive impact on settlement hearings for minors since parents do not need to take time off work.

District of Minnesota

The District of Minnesota’s Chief Judge John Tunheim explained that Minnesota will continue holding Zoom trials for civil court cases after the pandemic due to the plethora of benefits including decreased costs, increased convenience, a decrease in the criminal case backlog, allowing trials to proceed despite Minnesota’s varying weather conditions, and ensuring that the  jury pools reflect a diverse cross-section of the community. To learn more about Minnesota judicial system’s opinion of virtual trials, please read “Judicial Changes in Minnesota Due to COVID-19”

How GoldenbergLaw Can Help

Our team at GoldenbergLaw has been helping clients achieve the Gold standard of advocacy for more than 30 years. COVID-19 has shifted the landscape of litigation and you need a law firm that understands and responds to these changes. We help clients across the country, and we would be honored to speak with you! Contact GoldenbergLaw today for a free consultation!