Jury decides against 3M in third trial over military earplugs

3M has lost two of three bellwether trials in a massive legal battle over whether it sold defective earplugs to the U.S. military, causing hearing damage to soldiers.

A federal jury in Pensacola, Fla., on Friday awarded $1.7 million to Lloyd Baker, one of more than 230,000 military personnel or veterans who have sued Maplewood-based 3M in one of the largest mass torts ever.

The jury ruled in favor of Baker, of Wyoming, on his "failure to warn" claim about the earplugs' risks. The jury held 3M 62% liable for Baker's hearing injuries and Baker himself 38% liable, meaning he will receive closer to $1.1 million.

3M noted that the jury rejected four other claims made by Baker.

"We are exploring our appellate options with respect to the remainder of the jury's verdict," the company said in a press statement. "Friday's outcome, as well as our win in the last bellwether trial, affirms our confidence in our case, and we will continue to defend ourselves in this litigation."

However, the plaintiffs' attorneys noted that juries have awarded significant compensation to all but one earplug plaintiff.

"Ultimately, 3M cannot escape the fact that a jury has entered a verdict in favor of four out of the five service members to go to trial to date," said Pensacola-based Bryan Aylstock, a lead attorney for the plaintiffs.

In the first bellwether trial in April, a jury awarded $7.1 million — mostly in punitive damages — to three U.S. Army veterans. In the second trial in May, 3M prevailed when the jury rejected the plaintiff's claims.

The average settlement per bellwether plaintiff — including the one who lost his case — is well over $1 million. Multiply that times the number of cases pending and 3M could be liable for damages in the hundreds of billions of dollars, plaintiffs' attorney say.

"They are staring down the barrel of over 200,000 cases," said Michael Sacchet, an attorney at Ceresi Conlin in Minneapolis who is on the earplug plaintiffs' steering committee and was a trial attorney in the most recent case.

"3M will have to fold," Sacchet said, referring to the prospect of a settlement.

But the company said it has no such plans and that the bellwether trials will continue.

"The litigation is not over, and this verdict is just one of several initial steps, with many more cases to be tried before different juries," 3M said in a blog post Monday. "Each case must be proven on its own facts."

At least two more earplug bellwether trials are already scheduled in U.S. District Court in Pensacola, one each in September and October.

The litigation centers on Combat Arms Earplugs Version 2 (CAEv2), which were sold to the military from 1999 to 2015.

The Combat Arms lawsuits are roped together in a multidistrict litigation (MDL) case, which is used in the federal court system for complex product liability matters with many separate claims. MDLs commonly feature bellwether trials, which set a tone for resolving all claims.

The less variance in the bellwether trial outcomes, the more likely a settlement.

3M became a giant in the military earplug market when it bought Aearo Technologies in 2008. The company maintains that Combat Arms plugs were designed properly and worked as they should.

Plaintiffs say 3M made earplugs that were knowingly defective, causing hearing loss and tinnitus.

The wave of veterans' claims against 3M came after the company settled a whistleblower suit in 2018.

That suit was brought by rival earplug maker Moldex-Metric on the U.S. government's behalf, after an inquiry by the Army Criminal Investigation Command. The suit claimed Aearo knew about "dangerous design defects" in its earplugs in 2000.

In a 2018 report, the Army concluded that had the government known about tests Aearo ran in 2000, it might not have purchased Combat Arms earplugs. In the whistleblower settlement, 3M paid a $9.1 million penalty but denied all claims and did not admit liability.