The federal judge overseeing the 3M Combat Arms Earplugs version 2 (CAEv2) multidistrict litigation (MDL) has shot down 3M’s attempt to have 9 of its 10 trial losses retried because of delayed depositions made by scientists who did not originally testify in the trials. 

Judge Casey Rodgers of the U.S. District Court for the Northern District of Florida announced on July 12 that 3M should not have shown its hand in requesting new trials before the trials were held. Judge Rodger’s announcement comes one day after 3M told the court that the depositions were made by experts who work for a French-German defense research institute and that their testimony would have painted a different picture than the narrative that was pushed during veterans’ hearing-damage trials, Bloomberg Law reported. 

Due to the delayed depositions, 3M told the court in a brief that 9 of the 10 plaintiff verdicts should be “extinguished” and that these specific bellwether trials should be retried, “unencumbered by the fictions presented the first time around.” 

In striking 3M’s brief from the docket, Judge Rodgers stated, “This filing is plainly improper. Federal court dockets are not repositories for lawyers to preview their future litigation strategies.”

Judge Rodgers is overseeing approximately 290,000 cases related to injuries allegedly caused by the CAEv2 products, filed mostly by former U.S. military veterans who served in Afghanistan and Iraq. Plaintiffs claim that because of a design flaw that caused an imperceptibly loose fit in the earplugs, they developed hearing loss and/or tinnitus, a persistent ringing or buzzing in one or both ears. 

Nearly $300 million has been awarded to 13 plaintiffs in the 10 trials that 3M has lost. The company was cleared of liability in six bellwether trials. Judge Rodgers has ordered several hundred cases to be tried at once in the next phase of trials, should a settlement not be reached. 

Most plaintiffs were not aware of the association between their hearing damage and 3M’s military earplugs until a whistleblower lawsuit was settled in 2018 by the U.S. Department of Justice for $9 million.