(Reuters) – The federal judge overseeing the record-breaking mass tort litigation against 3M Co over its military-issue earplugs has ordered the company to sit down with plaintiffs’ lawyers for mediation, since a bankruptcy judge refused to stop the litigation and move the claims to bankruptcy court.
U.S. District Judge M. Catharine Rodgers in Pensacola, Florida ruled Tuesday that a special master, attorney Randi Ellis, will hold a multiday mediation within 30 days.
“We continue to believe that the Chapter 11 (bankruptcy) process is the most efficient, expeditious, and equitable way forward, and we remain confident in our legal strategy,” 3M, which has said it will appeal the bankruptcy court’s ruling, said in a statement. “As always, we will productively engage in mediation discussions.”
“We are prepared to again mediate in good faith, or alternatively, try cases in courts across the country, in order to obtain justice for the servicemembers and veterans we represent,” said plaintiffs’ lawyers Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz and Chris Seeger of Seeger Weiss in a joint statement. A previous mediation took place earlier in the summer, shortly before 3M revealed its bankruptcy strategy.
3M subsidiary Aearo Technologies LLC, the earplugs’ original manufacturer, filed for bankruptcy protection in Indianapolis on July 26, seeking to resolve lawsuits alleging that the Combat Arms Earplugs Version 2 (CAEv2) caused hearing damage.
It asked the bankruptcy court to block earplug lawsuits from proceeding against 3M, even though 3M is not bankrupt. Most of those lawsuits – currently more than 220,000 – are consolidated before Rodgers in the largest multidistrict litigation in U.S. history.
Aearo argued that the MDL was unfair because Rodgers had allowed tens of thousands of “unvetted” claims and had not allowed 3M to present crucial evidence in bellwhether trials, which have resulted in awards of $265 million in combined awards to 13 plaintiffs, and that the cases should be resolved in bankruptcy. 3M is appealing some of those verdicts.
However, U.S. Bankruptcy Judge Jeffrey Graham last week denied Aearo’s motion, allowing the MDL to go forward, a move bankruptcy law experts called surprising. The next trial is scheduled in October.
Rodgers has been harshly critical of 3M’s attempts to avoid her jurisdiction. In Tuesday’s mediation order, she said the last month’s developments showed that both sides were now committed to reaching an “efficient, equitable, and expeditious resolution” – quoting Aearo’s brief arguing it could only get such a resolution in bankruptcy.
“This Court stands ready and committed to assist the parties in that endeavor,” Rodgers wrote. “Indeed, the time could not be riper.”
The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court, Northern District of Florida, No. 19-md-2885.