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UPDATE: Defense Verdict in Latest 3M Defective Earplug Case

lady justice with gavel


More than 300,000 military veterans and active service members have filed claims against 3M for defects in the company’s combat earplugs that caused varying levels of hearing loss and tinnitus. The number of plaintiffs makes this the largest mass tort in history called a Multi-District Litigation (MDL), which is being overseen by the Federal District Court of the Northern District of Florida.

As explained in past posts, this is not a class action in which there is one case and one plaintiff that represents the entire class of 300,000 plaintiffs. In this MDL, there are over 300,000 individual plaintiffs who have individual cases. Certain cases are selected by the Court to be tried. These are called “Bellwether Cases,” and the parties analyze the results of these cases in order to then craft a settlement to resolve the remaining hundreds of thousands of cases.

Thus, the results of the Bellwether Cases significantly impact the ultimate outcome for every other plaintiff who has a claim.

Defense Verdict

Unfortunately, the 14th Bellwether Case that went to trial last week ended in a defense verdict for 3M, meaning the veteran received no money for her alleged hearing loss. This is a big victory for 3M. That said, there have been big victories for plaintiffs in several of the Bellwether Cases over the last year, including a massive $110 million verdict in the Solan/Wayman trial.

There are three more Bellwether Cases scheduled for trial in the next two months, and then the Court will move the cases into “Phase 2.”

Wins & Losses

In the past year, there have been 14 Bellwether Cases tried, involving 17 plaintiffs. Plaintiffs have won 8 of the 14 cases (including the $110 million verdict mentioned above, a $50 million verdict, and a $22.5 million verdict) while 3M has won 6, meaning the plaintiffs received nothing. It’s a tight race in many ways, and we can only hope that the next round of cases will feature meritorious claims with strong and honest plaintiffs who deserve adequate compensation for the hearing loss sustained while in the service of this country.

Lessons Learned from the Defense Verdict

Denise Kelley was the plaintiff in the 14th Bellwether Case that ended in a defense verdict for 3M. And it’s important to remember that each of these cases is its own case with a unique set of circumstances and individual plaintiffs with their own strengths and weaknesses and their own personalities. Of course, like all the other plaintiffs, Kelley alleged that she has suffered hearing loss and tinnitus from the defective 3M earplugs. But unlike some of the other plaintiffs, Kelley was not exposed to loud noises as consistently and did not have any combat experience.

Kelley also may not have been as honest or forthright as she presented her case to the jury. According to one of the law firms closely following this case:

…One of the problems that arose during the trial last week was that when Kelley took the stand, she may have tried to exaggerate the extent of her military noise exposure. Kelley’s job in the Army did not regularly expose her to loud noises, so her time doing weapons training on the gun range comprised most of her noise exposure. During discovery, Kelley was only able to produce evidence that she went to the gun range twice during 2007.

During her trial testimony, however, Kelley claimed that she went to gun range training “at least” 30 more times. She even said that she had the gun range scorecards to prove it, but when pressed on why she didn’t produce the gun range cards in discovery Kelley backtracked and claimed that she may have lost the scorecards when she moved.

Backtracking, exaggeration, and failure to come through with producing evidence of claims are very damaging to any personal injury claim, but this is perhaps particularly true in a case where the jury perceives a military veteran to be a hero. In these cases, the veteran needs to deliver on that image by being honest about his claims and honest with the proof of those claims. Credibility is key, and thankfully, many of the prior Bellwether plaintiffs have presented strong and credible claims.

Presenting Your 3M Earplug Case

If you or someone you know used the 3M earplugs in the military between 2003 and 2015 and sustained hearing loss or now deals with tinnitus or some other hearing issue, it’s time to speak to a personal injury attorney who understands the litigation against 3M and can help you get the compensation you deserve. Please call Doug Bailey at Bailey | Stock | Harmon | Cottam | Lopez LLP right away for a free consultation. He will evaluate your claim, make sure you have the necessary proof, and help you to be confident with the truth of your case.

In the meantime:

  1. Hold onto your 3M earplugs (CAEv2) if you still have them.
  2. Gather any photos or videos showing you wearing the CAEv2 earplugs.
  3. Make a list of the base(s) you served on while using your CAEv2 earplugs.
  4. Summarize your exposure to IEDs or EFPs during your service.
  5. Keep a copy of your DD Form 214 and any other military paperwork dealing with hearing loss, discharge, or service-related disability.
  6. Gather your medical records that show the treatment you’ve received for your hearing loss or other hearing issues.