Judge blasts 3M's 'frivolous' motion over filing fees in earplug MDL

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The logo of 3M is seen at the 3M Tilloy plant in Tilloy-Lez-Cambrai, France, August 18, 2019. REUTERS/Pascal Rossignol

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  • Judge rules motion moot, as process requiring fees already underway
  • Says 'numbers are what they are'
  • Urges 3M to 'work cooperatively' with plaintiffs

(Reuters) - The federal judge overseeing claims that 3M Co's military-issue earplugs caused hearing damage on Wednesday sharply rebuked the company for its motion to force all plaintiffs to pay filing fees immediately in a bid to pare down the unprecedentedly massive multidistrict litigation.

"It is hard to divine what defendants, in good faith, hoped to accomplish here," wrote U.S. District Judge M. Casey Rodgers in Pensacola, saying that 3M's request was moot because a process to move plaintiffs from an administrative docket to the active court docket, requiring them to pay fees, was already underway.

The lead plaintiffs' lawyers - Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, Shelley Hutson of Clark, Love & Hutson and Christopher Seeger of Seeger Weiss - said in a statement they agreed with Rodgers. 3M said it disagreed.

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Minnesota-based 3M in a motion on Tuesday blamed the use of an administrative docket, in which plaintiffs could lodge claims without the typical $402 per case fee, allowed the MDL to "explode" into the largest in history. A preliminary "administrative" docket is sometimes used for larger MDLs.

As of March 16, more than 288,000 actions were pending before Rodgers, according to data from the Judicial Panel on Multidistrict Litigation. Plaintiffs claim the company's Combat Arms Earplugs version 2 (CAEv2) are defective and damaged their hearing.

Rodgers said Wednesday that plaintiffs were being moved from the administrative docket to the active docket in batches so that the court clerk's office had time to process the filings, "a burden the defendants have no concept of."

She said the process so far showed that filing fees were "not the fantastical MDL-killer pretended by defendants," as 86% of the plaintiffs in the first three batches, accounting for more than 42,000 cases, had paid their fees and moved to the active docket.

"Though it may be a tough pill to swallow, the numbers are what they are," Rodgers wrote. "Filing frivolous motions will not 'winnow' frivolous cases. A more productive and beneficial approach would be to continue to work cooperatively with the court and - dare it be said - plaintiffs to find a mutually agreeable solution to the complications presented by the inventory."

Plaintiffs won verdicts totaling about $200 million over eight bellwether trials, while juries have sided with 3M in five trials. 3M has argued that the military was responsible for the earplugs' design.

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

For the plaintiffs: Bryan Aylstock, Daniel Thornburgh and Jennifer Hoekstra of Aylstock, Witkin, Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; Chris Seeger and Caleb Seeley of Seeger Weiss; and Joseph Messa of Messa & Associates

For 3M: Kimberly Branscome of Dechert

Read more:

3M tries to scale back massive earplug litigation through filing fees

3M owes $58 million to two veterans in latest combat earplug trials

3M on appeal says first trial in massive earplug litigation went 'off the rails'

3M hit with $110 million verdict in latest U.S. military earplug trial

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.