The federal judge overseeing 3M Combat Arms Earplugs Version 2 (CAEv2) military earplug cases pending in multidistrict litigation (MDL) held a “data day” on Feb. 23, which featured 90 minutes of commentary from a third-party claims administrator.
Judge Casey M. Rodgers is presiding over more than 265,000 claims filed mostly by former U.S. military veterans who allege that they developed hearing loss or damage caused by faulty dual-ended earplugs that 3M supplied to the U.S. military from 2003 until 2015. Judge Rodgers scheduled the data day to summarize the data about plaintiffs’ hearing loss claims, and “to educate those outside of leadership roles in the MDL about the nature and scope of the … claims in this litigation,” according to Miller and Zois, a law firm involved with CAEv2 litigation.
In early February, Judge Rodgers ordered a pause in settlement talks between the plaintiffs and 3M due to the fact that not one CAEv2 hearing damage claim had been resolved. This is despite the fact that 16 bellwether trials have concluded, with juries in 10 of those trials having awarded plaintiffs $300 million in damages.
During the data presentation, 3M and plaintiffs had widely differing interpretations of the metrics. 3M suggested that as much as 85 percent of the plaintiffs should be excluded from any settlement considering that their hearing damage was non-existent. Meanwhile, plaintiffs suggested that based on the data, only a small percentage of the class should be excluded from the settlement.
Judge Rodgers noted that the vastly different data interpretation is one obstacle for both parties reaching a settlement. Legal experts familiar with CAEv2 litigation believe Rodgers ordered the data day presentations as a way to resume settlement talks. Over 2,600 new claims have been added to the MDL since the start of the year.
3M has attempted to shift its CAEv2 liabilities onto a subsidiary unit, Aearo Technologies, and place the subsidiary in Chapter 11 bankruptcy. On Feb. 13, a U.S. Bankruptcy judge postponed a hearing on a motion filed by CAEv2 plaintiffs that seeks a dismissal of the bankruptcy. The hearing is now set for April.