3M Evens Its Record in Defective Earplug Trials

by | Feb 10, 2022 | Injuries

A recent two-game win streak for the troubled manufacturing giant brings the defective earplug bellwether trial record to five wins for plaintiffs and five wins for 3M.

Jurors awarded the five victorious plaintiffs over $50 million in compensatory and punitive damages. Before the civil litigation began, 3M paid a $9 million fine after a whistleblower exposed a defect in combat earplugs that the company sold to the Department of Defense. But the matter is far from one-sided. 3M lawyers have successfully defended these claims, even though a federal judge ruled that the company’s most effective defense was unavailable.

Six bellwether trials are scheduled for 2022. So far, over 250,000 veterans have filed hearing loss claims in this area.

A Closer Look at Multidistrict Litigation

Defective products usually harm thousands or millions of victims. The federal government rarely recalls such products, even if there is overwhelming evidence of a serious drug side-effect or device hazard. User fees provide about half of the revenue for the The Food and Drug Administration, the primary federal watchdog in this area. So, the more products these bureaucrats recall, the less money device makers earn, and the less money the FDA gets.

Given the size of these cases, courts cannot possibly handle them piecemeal. However, these cases usually are not similar enough to qualify for class action status. Veterans could be old or young, men or women, sick or healthy, and the list goes on.

Enter multidistrict litigation, which is outlined in an obscure provision in the U.S. Judicial Code. Until recently, MDL litigation was almost unheard of. Now, these matters are rather common. Basically, MDL consolidates similar cases, but not identical cases, for pretrial purposes.

The federal MDL panel consolidated all defective 3M earplug claims in the Northern District of Florida. This court’s main location is in Gainesville. Satellite locations, some of which were closed or partially closed due to coronavirus, are in Panama City, Tallahassee, and Pensacola. 

These cities are relatively large, but they aren’t giant urban areas. Therefore, this federal court division has considerable resources but not a very large regular docket. Furthermore, these cities are easily accessible. So, the NDF was a good choice for nationwide MDL litigation.

Procedurally, a special master, who usually has experience in a given area, resolves pretrial matters, like summary judgment motions and discovery disputes. The master also oversees settlement negotiations, ensuring that everyone negotiates in good faith. 

If cases do not settle, they usually return to their home jurisdictions for trial. Alternatively, the case could stay in the MDL court, as long as jurors use the right law (e.g. if the plaintiff is from Kansas, the court must use Kansas law, even if it is in another state).

Bellwether trials are basically testing-the-water trials which allow both sides to assess the strength of their claims and defenses.

Before recent advances in electronic communication, MDL consolidation significantly benefited defendants. It was very expensive for Lexington personal injury lawyers to fly back and forth, often several times a month. Today, MDL consolidation benefits victims. Judges usually conduct procedural hearings via Zoom or a similar platform. Furthermore, once one case settles on favorable terms, the dominos usually start falling, and more cases settle on similar terms.

Defective Product Claims

Dangerous drug matters, which we briefly mentioned above, usually hinge on failure to warn claims. Frequently, drug makers know about serious side-effects. But, to prop up sales, they don’t adequately warn consumers about them.

Device defects, like the 3M combat earplugs, are different. They usually involve one of the following issues:

  • Manufacturing Defect: 3M combat earplugs arguably suffer from a manufacturing defect. These earplugs basically have two parts. There’s a tiny gap between these two parts which allows sound to penetrate the earplug and full volume. So, these combat earplugs reduce the risk of hearing loss, but certainly don’t eliminate it altogether.
  • Design Defect: 3M combat earplugs could also have a design defect. Many earplugs have extremely small gaps, to allow normal-volume sounds to penetrate the plug. The 3M earplug’s gap was simply too large. Perhaps designers thought that users needed more of their hearing while they were in combat.

The facts and that law usually dictate which approach a Lexington personal injury attorney should take. 

Because of differences in the aforementioned discovery process, the evidence in these cases is not always the same. Sometimes, the evidence in a specific case points one way or the other. Legally, some states require victim/plaintiffs in design defect claims to prove a reasonably safe alternative design was available.

Damages in a defective product claim usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available as well. 

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters. #goodelawyers