As the first bellwether trial is scheduled for April, the litigation against 3M Co. over defective military earplugs has passed a milestone. More than 200,000 lawsuits have been filed against the Minnesota conglomerate, making this the largest mass tort in history. The actions filed since 2018 over the 3M Combat Arms Earplugs Version 2 now outnumber suits filed against Asbestos Products, litigation that has been pending since 1991.
In its 2020 fiscal year report, the United States Judicial Panel on Multidistrict Litigation cited 203,020 suits against 3M are pending. The defendants with the next highest number of multidistrict cases filed against them are Johnson & Johnson and Xarelto. More than 20,000 litigants have filed against Johnson & Johnson claiming the company’s baby powder caused ovarian cancer, while there are 17,000 suits against Xarelto, a blood thinner that litigants say caused serious bleeding issues.
Hundreds of law firms in every state have links and headlines on their websites inviting potential clients to learn more about the multidistrict litigation against 3M and find out if they qualify. The Legal Examiner previously reported on the issue in September. Members of all four branches of the military who used the Combat Arms Earplugs any time between 2003 to 2015 may have suffered hearing issues as a result of the defective earplugs.
The court has selected four bellwether trial groups consisting of six cases in each group and the first will start in April. Bellwethers are cases selected to provide the parties and the court with information on the strengths and weaknesses of various claims and defenses and the settlement value of cases.
Attorney Bryan Aylstock and his firm, Aylstock, Witkin, Kreis & Overholtz in Pensacola, FL, are representing more than 10,000 current and former service members who have suffered hearing loss and tinnitus allegedly caused by the defective 3M earplugs.
“3M has continued to blame our nation’s military for its defective earplugs, despite the company’s own internal emails and testimony showing they were aware of the defect, failed to inform the military, and then joked about how they profited from this deception,” Aylstock said. “Through this litigation, we seek to hold 3M accountable for the harm they caused and to seek justice for our service members. We look forward to beginning trials in April 2021.”
If the words “3M ear plugs lawsuit” are typed into a Google search, 540,000 results are found.
On its website, Washington, D.C. law firm Miller & Zois estimates litigants could receive between $25,000 to $300,000 for cases that go to trial. It adds the amount will be less for settled cases. The firm warns potential plaintiffs that the “wheels of a mass tort claim move slowly,” adding that any compensation most likely won’t come until late 2021 or 2022.
This is not a class action lawsuit, so damages will vary greatly and will be based on the specifics of each plaintiff.
3M spokesman Tim Post said in a recent interview with the Charleston Post and Courier newspaper that the number of cases is a result of the broad marketing appeals from lawyers more than the merits of the case against 3M.
The company has a statement on its website regarding the lawsuits and accusations.
“(3M) worked in close coordination with the U.S. military on the CAEv2 product, and its design reflected the direction and feedback of individuals acting on the military’s behalf. We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations,” it says.
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Contact Katherine Snow Smith at Katherine@legalexaminer.com. Follow her on Twitter at @snowsmith.