3M Scores Victory In 9th Combat Earplug Bellwether Trial

A Florida federal jury cleared 3M of liability Wednesday in the ninth bellwether trial in military members' mass litigation over hearing loss caused by faulty combat earplugs, defeating plaintiff service members' claims for the fourth time.

The Pensacola jury determined the earplugs, produced by 3M subsidiary Aearo Technologies LLC, were not defectively designed or unreasonably dangerous. The verdict said hearing loss sustained by former U.S. Army soldier Carlos Montero wasn't the fault of 3M. He served from 1995 to 2018.

In a statement provided by a spokeswoman, the company said it is pleased "another jury has sided with 3M and found that the CAEv2 product was safe and effective to use. This decision is further evidence that plaintiffs will face significant challenges as they litigate the cases going forward. We will defend ourselves in all upcoming trials."

However, this 3M victory comes less than a week after the company's most costly trial loss. A Tallahassee jury determined that these same earplugs were in fact defective and caused Theodore Finley, a former soldier, to suffer hearing loss. The jurors granted him a $22.5 million award, with $15 million of that being punitive damages.

Attorneys for the plaintiffs — Bryan Aylstock of Aylstock Witkin, Shelley Hutson of Clark Love and Christopher Seeger of Seeger Weiss — said in the statement they are disappointed by the conclusion of Montero's case, but noted that service members are winning more often than losing.

"A majority [of juries] thus far have found that 3M's earplugs were defective and that they are responsible for causing irreparable hearing damage to those who served our country," they said in a statement to Law360.

"We are confident that future juries will arrive at the same conclusion as the juries in five other bellwether trials, which collectively awarded more than $52 million to seven plaintiffs," the attorneys said. "Additionally, every jury that could award punitive damages has thus far done so, underscoring the strength of these cases and the severity of 3M's misconduct."

Of the nine cases that have gone forward, plaintiffs have succeeded in five. An Army sergeant convinced a jury of 3M's liability in November and got a more than $13 million verdict.

Meanwhile, a three-plaintiff trial in April resulted in a $7.1 million award, an October trial ended with an $8.2 million award for an Army veteran, and a jury in June determined that 3M was mostly responsible for a machine gun operator's hearing loss and awarded him $1.7 million.

More than 250,000 service members and other individuals are included in the MDL, with six more trials set for next year. However, 3M has previously told Law360 that few of the hundreds of thousands of claims have merit.

3M beat previous claims in the second, fifth and sixth bellwether trials, which ended in defense verdicts.

In the cases, plaintiffs allege 3M and Aearo supplied CAEv2 earplugs that were defective and did not protect against service-related tinnitus and hearing loss. Meanwhile, 3M argues that the military bears some responsibility for how the earplugs were designed and delivered.

Montero was represented by Nicole Berg of Keller Lenkner LLC. Lead counsel for the MDL are Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC, Shelley Hutson of Clark Love & Hutson GP and Christopher Seeger of Seeger Weiss LLP.

3M is represented by Robert C. Brock and Mark J. Nomellini of Kirkland & Ellis LLP and Kimberly Branscome of Dechert LLP.

The case is Montero v. 3M Co. et al., case number 7:20-cv-00067, in the U.S. District Court for the Northern District of Florida.

The MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, in the same court.