3M hit with $8.2 million verdict in fourth military earplug trial

The 3M logo is seen at its global headquarters in Maplewood, Minnesota. REUTERS/Nicholas Pfosi

(Reuters) - A federal jury on Friday awarded a U.S. Army veteran $8.2 million after finding that combat earplugs sold by 3M Co caused him to suffer hearing loss and tinnitus, the biggest verdict yet against the company in mass tort litigation over the product.

Jurors in Pensacola, Florida sided with former U.S. Army soldier Brandon Adkins after finding the earplugs had a design defect and that 3M failed to provide adequate safety warnings. His lawsuit was the fourth to go to trial of more than 259,000 cases pending in the largest multidistrict litigation ever.

The lead lawyers for the plaintiffs in the litigation – Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; and Christopher Seeger of Seeger Weiss – noted the case was 3M's third trial loss.

"We plan to hold 3M fully accountable for the damage they have caused to those who served our nation," they said in a joint statement.

3M in a statement said it was disappointed by the verdict and remained "ready to defend ourselves against plaintiffs' allegations at all upcoming trials."

The next trial is on Oct. 18, before U.S. District Judge M. Casey Rodgers, who oversees the MDL.

Plaintiffs allege the company hid design flaws, fudged test results and failed to provide instruction in the proper use of Combat Arms Earplugs Version 2, which were used by the Army from 2007 to 2013. 3M denies the allegations.

Adkins' case, which was selected by the defense for trial, was the fourth so-called "bellwether" to go to trial. Such cases are used to help both sides gauge the range of damages and define settlement options.

The first trial resulted in $7.1 million verdict for three plaintiffs in April, while the second ended in a victory for 3M in May. Jurors in a third trial found 3M 62% liable for the $1.7 million in damages a veteran sustained.

The earplugs were developed by Aearo Technologies LLC, which 3M bought in 2008.

For the earplugs to work properly, the flexible cups on the side protruding from the ear sometimes had to be folded back. If not, the plugs would slowly loosen and noise would seep in.

Veterans contend 3M failed to convey the need to fold the plugs and that they only learned about the issue when 3M in 2018 paid $9.1 million to resolve government claims it failed to disclose the defects.

Adam Wolfson, a lawyer for Adkins at Quinn Emanuel Urquhart & Sullivan, told jurors the 35-year-old, who served in the Army from 2004 to 2009 and did two tours in Afghanistan, suffers from tinnitus, or a ringing in his ears, and hearing loss, injuries the combat earplugs should have protected him against.

"It was preventable but for one company's crime," he said in his opening statement on Sept. 20.

Hariklia Karis, 3M's lawyer at Kirkland & Ellis, had countered that the company "cannot be held responsible for injuries that are unrelated to any defect in the Combat Arms Earplug with respect to Mr. Adkins."

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

For Adkins: Adam Wolfson and Matthew Hosen of Quinn Emanuel Urquhart & Sullivan; Bryan Aylstock, Neil Overholtz and Jennifer Hoekstra of Aylstock, Witkin, Kreis & Overholtz; and Michael Sacchet, Megan Odom of Ciresi Conlin; and Robert Cowan of Bailey Cowan Heckaman

For 3M: Hariklia Karis, Mark Nomellini, Nicholas Wasdin, Ashley Neglia and Saghar Esfandiarifard of Kirkland & Ellis; and Charles Beall of Moore, Hill & Westmoreland

Read more:

3M hit with $6 mln punitive damages by U.S. jury in first combat earplug trial

3M loses third trial in huge military earplug mass tort

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.