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3M Bellwether Trial Update


Almost three years after 3M’s resolution of a whistleblower lawsuit with the United States government, the judge overseeing lawsuits filed by individual servicemembers for hearing loss and tinnitus injuries has concluded the third trial over allegations that 3M and Aero Technologies defectively designed its Dual-Ended Combat Arms™ Earplugs, Version 2, lied to the United States government regarding the level of protection the earplugs would provide to users, and failed to warn the government and users that the earplugs needed an adjustment – specifically, rolling back one of the flanges – to afford proper protection. 

The first bellwether trial began on March 29 and concluded April 30, 2021, with a verdict in favor of three Plaintiffs – Luke Estes, Stephen Hacker, and Lewis Keefer – who all alleged both tinnitus and hearing loss injuries resulting from their use of the 3M Combat Arms earplugs. The total amount of the verdict for the three Plaintiffs combined was over $7 million; $6.3 million of the award was for punitive damages. Punitive damages are damages awarded to punish a Defendant’s conduct where a Plaintiff has shown clear and convincing evidence at trial of intentional misconduct or gross negligence. 

The second bellwether trial began on May 28, 2021, and involved Plaintiff Dustin McCombs, Defendants’ choice for trial. Mr. McCombs served in the U.S. Army from 2008 to 2011. He experienced an IED explosion in Afghanistan in 2009 that started his tinnitus symptoms. Those symptoms worsened when he returned from his deployment and was stationed at Fort Richardson, Alaska. Unfortunately, the jury returned a verdict in favor of the Defendant on May 28, 2021.

The third trial, for Plaintiff Lloyd Baker, began on June 7, 2021, and ended June 18, 2021. Mr. Baker claimed tinnitus and reduced hearing beginning in 2005 during his training.  The jury in the Baker trial found that 3M failed to provide adequate warnings for the earplugs – they did not find the earplugs to be defective. For the failure to warn claim, the jury awarded a verdict in favor of Mr. Baker in the amount of $1.7 million for past and future medical costs, pain and suffering, and disability. The jury found Defendants 62% at fault for Mr. Baker’s injuries and the Plaintiff 32% at fault for his injuries. Because Defendants are not required to pay for the portion of the verdict the jury found was due to the fault of the Plaintiff, Mr. Baker’s verdict will be reduced by 32%. 

Even after 3 trials involving 5 Plaintiffs, Judge Rodgers shows no signs of slowing down her pace. She has scheduled the next trials to begin on September 20, 2021 and October 18, 2021. Judge Rodgers has also consolidated an additional three cases into one trial starting in January 2022.

After the first set of 3M Combat Arms Earplugs trials, Plaintiffs have prevailed 4 out of 5 times. The Defense verdict in the second trial and the comparative negligence finding in the third trial are important.

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