3M loses bid to dodge October bellwether trial in earplug mega MDL

Sep 1, 2021

(Reuters) – An upcoming bellwether case over claims that 3M Co’s Combat Arms earplugs were defective and led to hearing damage for U.S. military personnel who used them can go to trial as scheduled next month, a federal judge has ruled.

U.S. District Judge M. Casey Rodgers in Pensacola, Florida on Monday denied 3M’s motion for summary judgment in a lawsuit brought by Michelle Blum, who served in the U.S. Army Reserves, National Guard and Army between 1989 and 2009, rejecting the company’s arguments that her claims were time-barred.

Blum’s case is set to go to trial on Oct. 18, following another bellwether trial set for Sept. 20.

“We look forward to the next bellwether trial next month, and plan to hold 3M fully accountable for the damage they have caused to those who served our nation,” plaintiffs’ lawyers Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; and Christopher Seeger of Seeger Weiss said in a joint statement.

“We are confident in our case and are prepared to vigorously defend ourselves in all upcoming trials,” 3M spokesperson Fanna Haile-Selassie said in an email. The company is represented by lawyers at Kirkland & Ellis including Hariklia Karis, Nick Wasdin and Mark Nomellini.

3M is facing more than 240,000 claims over the earplugs, known as Combat Arms Earplugs Version 2, which were standard issue for many U.S. military service members between 2003 and 2015. The vast majority of those are consolidated before Rodgers in the largest multidistrict litigation in history.

Three bellwether trials have already been held, one of which resulted in a $7.1 million verdict for three plaintiffs and another in a $1.7 million verdict for a single plaintiff, though the jury found 3M only 62% liable in the latter case. 3M was cleared of liability in the third.

In moving for summary judgment against Blum, 3M argued that many of her claims, brought under New York law, were barred by the state’s three- or four-year limitation periods because she sustained hearing damage in 2009 or earlier but did not bring her claims until 2019.

Rodgers, however, wrote that 3M could not rely on the statute of limitations because it was up to the jury to decide whether the company had concealed defects in the earplugs, preventing Blum from bringing timely claims.

The judge said there was “ample record evidence from which a jury could find that defendants affirmatively misrepresented information” about the earplugs to the military and to soldiers.

The ruling came after Rodgers on Friday scheduled five further bellwether trials in November and December, each involving a single plaintiff. Four will be tried by other judges in Rodgers’ district, the Northern District of Florida, and a fifth will be tried in Pensacola by a judge from the Northern District of Alabama.

Rodgers is presiding over the September and October bellwether trials, as well as another bellwether set for January involving three plaintiffs.

The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court for the Northern District of Florida, No. 19-md-2885.

For the plaintiffs: Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; and Christopher Seeger of Seeger Weiss

For 3M: Hariklia Karis, Nick Wasdin and Mark Nomellini of Kirkland & Ellis

Source: Reuters
Author: Brendan Pierson