Judge rejects veteran's bid to stop 3M from exiting earplug liability MDL

The 3M logo is seen at its global headquarters in Maplewood, Minnesota, U.S. on March 4, 2020. REUTERS/Nicholas Pfosi
  • Judge says veteran's motion is premature but blasts company's 'duplicity'
  • Bankruptcy court is weighing whether to shield 3M from earplug claims

(Reuters) - A veteran who said he suffered hearing loss from military-issue earplugs has lost a bid to prevent 3M from arguing it isn't liable for claims against a bankrupt subsidiary that made the devices.

U.S. District Judge M. Casey Rodgers in Pensacola, Florida, on Sunday denied plaintiff Guy Cupit's request as premature. She, nonetheless, harshly criticized what she called the "naked duplicity" of 3M's strategy to resolve the cases currently filed against it through the bankruptcy of Aearo Technologies, the original maker of the earplugs at the center of a record-breaking mass tort litigation, which it acquired in 2008.

Rodgers, who is overseeing about 230,000 lawsuits claiming the Combat Arms Earplugs Version 2 (CAEv2) caused hearing loss, said she was "deeply concerned over 3M Company's sudden, bankruptcy-eve about-face regarding the entity responsible for the CAEv2 claims in this litigation."

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A hearing in U.S. bankruptcy court in Indianapolis to consider whether to issue an order stopping the veterans' litigation against 3M, which is not bankrupt, kicked off on Monday.

Rodgers has not ruled on a still-pending motion by another veteran, Richard Valle, seeking a broad order barring 3M from taking any steps to halt the Florida litigation.

Adam Wolfson of Quinn Emanuel Urquhart & Sullivan, a lawyer for Cupit, said Rodgers' decision "was incisive, fair, followed the law to the letter, and showed a complete mastery of the complex litigation before her."

Ashley Keller of Keller Postman, a lawyer for Valle, said his client "remains hopeful that his meritorious motion will be granted."

3M said in a statement that its plan was to resolve the claims in a way that is "more efficient and equitable than the current litigation."


Out of 16 trials to date in the massive multidistrict litigation, involving 19 service members, plaintiffs have won in 10, with about $265 million in combined awards to 13 plaintiffs.

Aearo filed for bankruptcy on July 26 and said it had committed $1 billion to resolve the earplug litigation. Days before the filing, it entered into an agreement to indemnify 3M for all liability related to CAEv2.

3M, which has denied liability, has argued that the earplug cases should now be resolved in bankruptcy court. It has called the MDL "broken beyond repair," blaming Rodgers' decision to allow "unvetted" claims on an administrative docket without filing fees, and rulings excluding its scientific evidence from trials that could have helped the company.

The motions by Cupit and Valle are intended to keep the products liability cases out of bankruptcy court. Cupit asked Rodgers to rule that 3M cannot argue that it is not liable for claims over its subsidiary's earplugs after failing to raise that defense over the last three years of litigation.

Rodgers said Sunday she could not grant Cupit's motion because 3M still has not raised that defense. But she said he was free to file it again if it ever does.

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: Adam Wolfson of Quinn Emanuel Urquhart & Sullivan; Ashley Keller of Keller Postman; Bryan Aylstock, Daniel Thornburgh and Jennifer Hoekstra of Aylstock, Witkin, Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; Chris Seeger of Seeger Weiss; and Joseph Messa of Messa & Associates

For 3M: Kimberly Branscome of Dechert; and Jessica Lauria of White & Case

Read more:

Veterans seek to block 3M's bankruptcy gambit

3M to spin off healthcare business, earplugs unit seeks bankruptcy protection

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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.