3M Military Earplugs Court Issues 5th Case Management Order

Published on October 4, 2019 by Sandy Liebhard

Thousands of lawsuits involving the 3M Company’s Combat Arms Earplugs, Version 2, continue to move forward in the U.S. District Court, Northern District of Florida.

3M Military Earplugs Discovery and Depositions Progressing

The Court issued the litigation’s fifth Case Management Order on October 3^rd, indicating significant progress has been made in regards to discovery.

The second 30(b)(6) deposition is scheduled to begin on Monday, November 11, 2019. However, the parties disagree on the number of days that may be used for the deposition. Therefore, simultaneous briefs on this issue must be filed by Tuesday, October 15, 2019. In their filing, Defendants must advise whether they intend to cross-notice this deposition. Finally, if any additional 30(b)(6) notices will be forthcoming, Plaintiffs to 3M military earplugs lawsuits must advise Defendants by Friday, October 4, 2019.

The Court also indicated it would be appointing a special master to help manage the discovery process for issues related to the affirmative defenses and to assist in moving the affirmative defenses into a posture for dispositive motion practice.

Motions to Remand, Multi-Plaintiff Cases, and Confidentiality Order

Plaintiffs in 77 3M military earplugs lawsuits are seeking remand to Minnesota state courts. The parties are conferring about the possibility of the Court resolving all of these issues at once, following Phase 1 discovery. They are to advise the Court of their proposed plan by Tuesday, October 15, 2019.

Another 200 pending cases are multi-plaintiff actions, many of which name more than 100 un-related plaintiffs. While the Court is inclined to order those cases severed, it has deferred ruling on the matter and will allow the parties to submit briefs, if they wish to do so, before any action is taken. Plaintiff Leadership was directed to confer with individual plaintiffs’ counsel, as well as defense counsel, on a process for addressing multi-plaintiff actions—both the currently pending actions and future filed cases. The parties must be prepared to meaningfully discuss this issue at the next Case Management Conference, which is scheduled for Friday, October 25, 2019 at 9:30 a.m.

Finally, the Court is considering modifying the Stipulated Order Governing Confidentiality and Privilege, to narrow the categories of information that may be filed under seal to materials that are entitled to be protected from public disclosure by law. The parties were ordered to confer on this matter and be prepared to address the issue during the upcoming conference.

3M Military Earplugs Allegations

Combat Arms Earplugs, Version 2 were developed by Aearo Technologies, Inc., which won an exclusive contract to provide the military earplugs to the U.S. Defense Logistics Agency in 2002. The 3M Company became responsible for the military earplugs contract after acquiring Aearo in 2008.

From 2003 through 2015, Combat Arms Earplugs, Version 2, were standard issue for all United States’ active duty personnel participating in live-fire training exercises or on combat deployments. When the dual-ended earplugs’ green end was inserted, Combat Arms Earplugs, Version 2, blocked all sound, in the manner of a traditional earplug. The yellow end was intended to protect the eardrum from concussive sounds commonly encountered in combat, while allowing the wearer to hear battlefield commands and other low-level noises.

But according to 3M military earplugs lawsuits, the devices were actually too short to fit properly in certain individuals and could loosen without the wearer even noticing. The complaints further assert that these alleged defects likely caused thousands of users to develop permanent hearing loss and tinnitus.

While plaintiffs claim that Aearo Technologies and the 3M Company knew about these problems by 2000, they were never disclosed to the U.S. Defense Logistics Agency. Instead, the defendants allegedly manipulated test results and falsely certified that Combat Arms Earplugs, Version 2, met all standards of the military contract.