A case in the nation’s largest multidistrict litigation — 3M’s Combat Arms Earplugs Version 2 (CAEv2) — has resulted in the most decisive plaintiff victory in four bellwether trials and marks the third case 3M has lost.
On Oct. 1, a jury in the Northern District of Florida found that 3M was liable for causing hearing damage to Army veteran Brandon Atkins and awarded him $8.2 million for his hearing loss and tinnitus.
Atkins is one of over 250,000 plaintiffs in CAEv2 litigation, in which plaintiffs allege that an imperceptible design flaw in the earplugs caused the device to fit too loosely, failing to protect soldiers from loud noises during training exercises and during the wars in Iraq and Afghanistan.
Atkins’ claims included design flaw, failure to warn and concealment of evidence. 3M was spared punitive damages. However, the jury found the company 100% responsible for Atkins’ hearing damage.
3M asserted that Atkins did not file his lawsuit until several years after he allegedly began experiencing hearing problems (statute of limitations) and that Atkins and the military share a portion of the blame.
Atkins’ defense team successfully argued that since 3M withheld information from the U.S. military about the design flaw in the earplugs, the statute of limitations does not apply.
In another case, a jury found that Lloyd Baker, an Army veteran, was 38% responsible for his hearing loss. Baker was awarded $1.1 million in damages.
Besides the fact that Atkins’ lawsuit has been the most economically damaging to 3M in the early stages of the MDL, what’s more concerning for the company is that it hand-picked the case.
In bellwether trials, the plaintiffs and defendants alternately select which cases they want tried. 3M selected the case for the second Combat Arms earplug trial, the only one of the four trials a jury has not found 3M liable for hearing damage claims.
In the first trial, three veterans were each awarded over $2 million. Atkins’ $8.2 million award was only for pain and suffering, not for medical reimbursements.
The fifth bellwether trial is set for mid-October. Judge Casey Rodgers, who is presiding over the MDL, has ordered several more cases moved to the active docket, scheduling them from November through February of next year. If plaintiffs emerge victorious in the next bellwether trial, 3M may consider resolving the MDL with a settlement.