A U.S. appeals court will begin hearing oral arguments on May 1 over a jury verdict that awarded a former U.S. soldier $8 million for hearing damage allegedly caused by faulty military earplugs sold to the U.S. government by the 3M Corporation. 

The jury verdict for former U.S. National Guardsman, Steven Wilkerson, was reached in March 2022 and was the 12th bellwether trial in the Combat Arms Earplugs Version 2 (CAEv2) multidistrict litigation, which is believed to be the nation’s largest mass tort in history, involving over 300,000 plaintiffs at one time. 

Wilkerson, in a brief filed March 15, called the move by 3M as “yet another desperate attempt" to "subvert yet another unanimous jury verdict,” Law360 reported. 

3M is seeking a reversal of the MDL ruling in the Northern District of Florida or a retrial. Wilkerson’s jury award is the third CAEv2 decision 3M has appealed to the 11th Circuit Court. 3M has lost 10 of 16 bellwether trials, in which plaintiffs have made personal injury claims for hearing loss and/or tinnitus, a frequent phantom ringing in the ears. In the 10 bellwether trials that have returned plaintiff verdicts, juries have awarded 13 plaintiffs $300 million in damages. 

3M attempted to escape paying for earplug trial losses by offloading its legal liabilities onto a subsidiary unit, Aearo Technologies, and then having the subsidiary declare bankruptcy. Usually, when bankruptcy protection is granted to the subunit, there is a stay on litigation against the parent company while a bankruptcy court reviews Chapter 11 proceedings for the subsidiary. 

In March, a bankruptcy judge in Indiana rejected the stay of litigation against 3M. The judge’s decision also shattered 3M’s end goal of having the MDL dissolved and settling CAEv2 claims through the bankruptcy court. 

According to court documents, per Law360, Wilkerson served in the U.S. Army as a combat engineer during the Afghanistan War from 2005 to 2013. 3M maintains that Wilkerson never presented any evidence to the jury that he received misleading information about the earplugs. However, Wilkerson alleges that a civilian, possibly an employee of 3M, personally instructed him on how to use the earplugs, and claimed that if the green end of the dual-ended earplugs were used, all sound would be blocked. 

A former sales manager for 3M testified at Wilkerson’s trial that he would travel to various military bases and instruct soldiers on how to use the earplugs. 

If the appeal fails, 3M may be able to file a higher appeal to put it before the supreme court. This would not be the first time that 3M sought supreme court intervention.