Big Story 10

How 3M earplug litigation got to be biggest MDL in history

(Reuters) - Since Congress created the multidistrict litigation system in 1968, no MDL has taken off like the one over 3M Co’s military-issue earplugs.

With close to 230,000 actions pending in Pensacola, Florida federal court, it had grown to be the largest MDL in history, surpassing even the mammoth asbestos MDL, in just two years. It dwarfs the next largest MDL, over Johnson & Johnson’s talc products, which has about 30,000 cases, and accounts for almost all of the massive jump in cumulative MDL cases, from 750,000 to over 1 million, between 2020 and 2021.

The plaintiffs, U.S. military veterans and servicemembers, allege that they suffered hearing damage as a result of using 3M’s Combat Arms Earplugs, Version 2 (CAEv2), which they say were defective. 3M in 2018 paid $9.1 million to settle claims by the U.S. government that it concealed defects in the plugs, but did not admit liability.

Multiple factors likely contributed to the MDL’s rapid growth, experts say.

One is that military veterans are likely to be attuned to existing networks and organizations, making it easier for word to spread, said Elizabeth Burch of the University of Georgia School of Law, who has studied trends in mass tort litigation extensively.

“It’s obviously helpful when the organization predates the litigation,” she said. “Just the fact that these are military people, that they have that network in place.”

A related factor is that it is very easy to ascertain who potential plaintiffs are, said Alexandra Lahav of the University of Connecticut Law School.

“If you had earplugs and you were in the military, that’s a thing you would know about yourself,” she said. In other mass torts, such as those over the painkiller Vioxx or Bayer’s weedkiller Roundup, people are much less likely to remember whether they used the product, or how much, at some point in the past, she said.

The 3M earplugs were widely used in both Afghanistan and Iraq between 2001 and 2015. More than 2 million servicemembers were deployed during that time, and hearing damage is the single leading cause of disability reported to the Department of Veterans’ Affairs.

“We’re dealing with a relatively standardized product widely distributed through a military procurement process,” said Adam Zimmerman, a professor at Loyola Law School. “The defense department and the military, it’s so huge. When something goes wrong, lots of people are impacted.”

Another possible factor is the relative scarcity of parallel litigation in state courts. While more than 190,000 actions were consolidated in the asbestos MDL, a much larger number were filed in various state courts, since plaintiffs were often able to sue defendants in their own states and avoid federal jurisdiction.

That is not the case for 3M’s earplugs, where the company is the only defendant. A few hundred cases have been brought in state courts in Minnesota, where the company is based, but the rest are funneled into the MDL.

Whether the MDL’s size will work in favor of one side or another is not clear. The first test - a bellwether trial featuring three army veterans - is currently underway.

Traditionally, defendants have favored MDLs as an opportunity to dispose of large numbers of cases by winning favorable pretrial rulings, but Lahav said that may be changing as mass torts get more public attention.

“It’s beneficial to plaintiffs because it looks very large,” she said, potentially pushing shareholders to call for a settlement. “A consolidation kind of raises the profile of a litigation, makes it loom large, and that creates pressure on the defendant.”

On the other hand, she said, having actions in multiple venues gives plaintiffs more chances to win.

“It could benefit either side,” she said. “It sort of depends how things play out and how the judge rules.”

The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court for the Northern District of Florida, No. 19-md-2885.

For the plaintiffs: Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz, Shelley Hutson of Clark, Love & Hutson and Christopher Seeger of Seeger Weiss

For 3M: Mike Brock of Kirkland & Ellis

Additional reporting by Rick Linsk