Bellwether trials involving the company 3M and accusations of negligence over its earplugs continue as plaintiffs are awarded millions, but only if they prove that 3M was responsible for their hearing loss.
So far, six plaintiffs have been awarded a total of $29,429,925 in damages, and three plaintiffs have been awarded nothing after seven rounds of trials. (The first trial involved three plaintiffs.) Juries punished 3M’s egregious behavior by awarding $18,540,852 of the gross amount in punitive damages, about 63 percent of the total.
Between 2003 and 2015, the federal government collaborated with 3M to design the Combat Arms Earplugs Version 2, or CAEv2, which it then purchased under a government contract. But early testing revealed problems with a low noise reduction rating and a design defect related to an improper seal and the too-short earbud, causing the earplugs to fall out during combat.
Complaints and injuries caused the U.S. Attorney General’s office in 2018 to file a formal complaint against 3M for violating the False Claims Act. After showing 3M defrauded it and was presumably aware of the defects before 2003, the government was awarded $9 million.
Military personnel who served between 2003 and 2015, and suffered hearing loss, began filing separate lawsuits for negligence and defective products. The complaints became the most significant consolidated mass tort in history, with the sixth and seventh rounds concluding recently and additional trials underway.
Although the juries awarded generous compensatory and punitive damages, signaling their disgust with 3M’s behavior, they still ruled for 3M when plaintiffs failed to meet the burden of proof in three cases, including the sixth bellwether trial.
Held simultaneously with the sixth trial, the seventh bellwether trial ended with the largest damages award in the 3M litigation to date when a Tallahassee jury awarded the plaintiff $13,062,320, including more than $12 million in punitive damages.
The case of Guillermo Camarillorazo v. 3M Company, et al. (7:20-cv-00098) was also unique because the plaintiff remains on active duty as a Sergeant in the Army. He claimed to have lost some hearing and suffered from tinnitus, which is a constant ringing in the ears.
The trial lasted two weeks and the jury found 3M liable on all seven tort claims, with no contributory negligence on Camarillorazo’s part. The compensatory damages award of $816,395 breaks down to:
Camarillorazo’s compensatory damages award is similar to the awards in earlier cases. The outsized punitive award in excess of $12 million shows that when juries find conclusive evidence of 3M’s nefarious acts, including fraud and gross negligence, they are willing to punish the company severely. The first bellwether trial also resulted in punitive damages of $7.3 million divided between three plaintiffs.
In an earlier bellwether case, a plaintiff was awarded $8.2 million, all in compensatory damages, skewing the average award to $1,216,322, and placing the median compensatory damage award at $583,448.
The 273,000 cases included in the multidistrict litigation (MDL) continue to be heard; the latest in Texas, with plaintiff Denise Kelley. A consistent thread in all the bellwether trials has been the testimony offered by a 3M scientist and department head who designed and developed the earplugs at issue. Elliott Berger, now retired, has testified that the earplugs had a design flaw, and this information was not shared with the government prior to or after purchasing them.
3M’s insurance covers less than $1 billion in damages. Although plaintiffs are hopeful a global settlement will be reached because individual settlements have been favorable, none have occurred to date, and the lawsuits will continue.