More Settlement Talks and a Bid for Summary Judgment to Keep 3M Earplug Lawsuits Out of Bankruptcy Court

3M headquarters

Mediation continues, and plaintiffs on October 11 asked the court to hold 3M solely and independently liable for injuries caused by defective earplugs manufactured by its subsidiary, Aearo Technologies. 3M is trying to force resolution of the lawsuits into bankruptcy court after Aearo’s filing in August. A federal judge in September ordered additional sessions in the ongoing attempt to settle the lawsuits brought by a quarter of a million military veterans who blame the product for their hearing loss.

Multidistrict Litigation, Veterans’ Claims, and 3M’s Bankruptcy Strategy

Plaintiffs uniformly claim that 3M Company and its subsidiary, Aearo Technologies, sold version 2 of the Combat Arms Earplugs (CAEv2) to the U.S. military, knowing the design was defective. The earplugs were standard issues for military personnel deployed between 2004 and 2015. The claims in the federal court system have been concentrated in multidistrict litigation (MDL) presided over by U.S. District Judge Casey Rodgers in the Northern District of Florida in preparation for litigation next year.

Judge Rodgers earlier had questioned 3M’s strategy of bankrupting Aearo to prevent the litigation from moving to the next phase. However, litigation is indeed moving forward, with Judge Rodgers preparing multiple claims for trial. On September 22, she reinstated the deadline for each claimant to submit Form DD214 concerning military service dates and continues to move claims from an administrative to an active docket.

Settlement Talks Continue

In July, Judge Rodgers ordered initial settlement talks, which were held September 15 and 16 before Special Master Randi Ellis. Attorneys for plaintiffs who filed claims in Minnesota state court, where Aearo maintains its U.S. headquarters, were also present.

Judge Rodgers reported the September talks with Mediator Ellis were “worthwhile and productive” and scheduled another session for October 3 in hopes of settling the lawsuits. However, the judge also reminded all participants that they were subject to a confidentiality agreement and were precluded from discussing the details of the talks.

The October 3 settlement talks did not resolve the lawsuits. The trial set for October 24, which plaintiffs believed put pressure on 3M to settle, was moved to February because the judge had a scheduling conflict.

3M appealed in the Seventh Circuit the court’s rejection of its plan to move the lawsuits into bankruptcy court, which plaintiffs’ attorneys objected to because the injured veterans would not be heard in court. The plaintiffs’ motion for summary judgment was filed in the MDL. It concerns whether 3M can be held entirely responsible for veterans’ injuries. If granted, 3M’s hopes to resolve the lawsuits in bankruptcy court would be dashed, and its appeal could be moot if summary judgment is granted.

The MDL in August denied a similar motion to block 3M’s bankruptcy strategy, saying summary judgment at that time was premature, although legal strategists believe Judge Rodgers might be amenable to granting it now.

Scope of the Claims

The U.S. Judicial Panel on Multidistrict Litigation (JPML) reported on September 15 that Judge Rodgers is currently presiding over at least 254,134 active faulty earplug claims, although more than 60,000 lawsuits have been dismissed and thousands more may not meet the criteria for a settlement.

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