3M Earplug Tinnitus Lawsuit

The 3M earplugs litigation is now the largest consolidated mass tort in U.S. history. At its peak, there were nearly 300,000 individual plaintiffs (mostly military veterans or active service members) with cases pending in the MDL. The litigation has been a long saga with ups and downs for both sides.

The 3M earplugs litigation is unique among mass torts in that we can actually identify a single time and event as the origin of the entire litigation. In July 2018, 3M agreed to pay $9.1 million to resolve a False Claims Act lawsuit. The government accused 3M of defrauding the U.S. Army by selling defective earplugs over 15 years.

News of this settlement is what led to the subsequent mass tort litigation. As word of the settlement and the admission that the Army had been giving soldiers defective earplugs spread, military veterans around the country began filing product liability lawsuits against 3M. The lawsuits alleged that the veterans suffered hearing loss and tinnitus because the defective 3M earplugs failed to protect the soldiers from the damaging effects of loud noise.

The 3M earplug lawsuits pending in the federal court system were soon consolidated into a new class action MDL assigned to Judge M. Casey Rogers in the Northern District of Florida (3M Prod. Liab. Lit., MDL No. 2885). The size of the 3M earplugs class action rapidly expanded as more and more Army veterans with hearing loss came forward to file claims. Within 16 months after the MDL was created, it had become the biggest mass tort ever with over 150,000 plaintiffs.

In May of 2021, the first bellwether test trial was held and resulted in a federal jury in Florida awarding a group of 3 plaintiffs $7.1 million in damages. From that point forward, the bellwether test trials just kept coming. We saw 5 trials in the Summer and Fall and in November and December of 2021, we got results in 5 separate bellwether trials. 6 more cases went to trial between January and May 2022.

In the end, there were 16 bellwether test trials involving the claims of 19 individual plaintiffs. The plaintiffs won 10 out of the 6 trials, and total damages awarded against 3M were just under $300 million.

3M’s Bankruptcy Strategy

Heading into Summer 2022, there was optimism that the 3M earplugs class action might be getting close to the global settlement. The bellwether trials were over, and 3M was under pressure from investors to resolve the ongoing liability and move forward. 3M even participated in a court-ordered settlement mediation session in July.

In August 2022, however, 3M surprised everyone by unveiling a highly controversial plan designed to pull the earplug claims out of the MDL and force them to be resolved in a bankruptcy proceeding.

3M attempted to do this by suddenly claiming that the party responsible for the earplug claims was actually its subsidiary Aearo Technologies (“Aearo”). The 3M immediately had Aearo file bankruptcy to push the earplug lawsuits into bankruptcy where 3M could leverage a better settlement deal.

Aearo originally designed and made the 3M earplugs at the heart of the litigation (the Combat Arms earplugs). But in 2008 3M acquired Aearo, which became a paper subsidiary and essentially ceased to exist. Aearo’s products, employees, offices, and everything else became 3M’s products and employees.

During the first 3 years of the litigation, 3M never suggested that Aearo was a separate, independent entity. 3M never claimed that Aearo, and not 3M, was the party with liability for the earplug lawsuits.  It wasn’t until 3M devised its bankruptcy strategy that it suddenly claimed that Aearo was a separate company and was responsible for the earplug claims.

A bankruptcy judge in Indiana promptly rejected 3M’s request to have the Aearo bankruptcy stay extended to 3M. This decision effectively denied 3M’s entire strategy. The ruling is currently on appeal to the 7^th Circuit.

MDL Judge Issues Unprecedented Sanctions Against 3M

In December 2022, the 3M earplug MDL Judge (Hon. Casey Rodgers) imposed a judicial sanction barring 3M from attempting to pawn liability for the earplug claims off onto Aearo (or any other subsidiary). The sanction ruling effectively blows 3M’s entire bankruptcy strategy out of the water by forcing 3M to face sole liability for the earplug lawsuits.

Judge Rodgers issued the sanction ruling based on what she found to be 3M’s blatant abuse of the judicial process. The abuse of the judicial process occurred when 3M went through 3 years of litigation in the MDL without ever asserting that Aearo was the real party in interest, then suddenly asserting it as a defense when they were unhappy with the results in the MDL.

Judge Rodgers could have based her ruling on judicial estoppel or other civil procedure rules, but instead, she deliberately chose to use the courts’ power to impose sanctions. We believe that Judge Rodgers did this because the decision will be less likely to be overturned on appeal, since sanctions are within the trial court’s discretion and subject to limited review on appeal.