3M Earplugs Bellwether Trial: So far a Draw

Pensacola, FLThe second 3M earplug lawsuit ended with a win for the defense.  The Combat Arms Earplug manufacturer lost the first bellwether trial that ended with a $7.1 million win for veterans. Now, hundreds of thousands of victims with hearing loss allegedly from defective earplugs await the third and final trial on June 7th in Pensacola.

The Florida jury on May 28 sided with 3M, determining the company was not liable, negligent or fraudulent when selling earplugs to the military, according to court documents and reported by Reuters.  In this second trial, Dustin McCombs, an addiction counselor in Ohio, claimed his tinnitus began following an IED blast in Afghanistan in April 2009 and escalated at Alaska's Fort Richardson.

3M Earplugs Multidistrict Litigation and Bellwether Trials

The majority of the claims have been consolidated in front of U.S. District Judge M. Casey Rodgers in Pensacola – the multidistrict litigation is set up to help manage hundreds of thousands of similar claims. Judge Rodgers selected plaintiffs for three bellwether trials, which will give both 3M and plaintiffs an idea of likely outcomes.

All three bellwether lawsuits involve the combat arms CAEv2s earplugs, which 3M designed to fully block noise if inserted into the ear in one direction, with the other side intended to let in nearby voices but protect the ear from harmful ballistic noises.

3M Earplugs Defense and Plaintiff Expert Witness Opinions Disallowed 

Both 3M Earplugs defense and plaintiffs’ expert witness testimonies in the second trial were in part rejected due to opinion, not first-hand knowledge.

According to Law360, Judge Rodgers nixed the opinion of Dennis Driscoll, a mechanical engineer and noise control engineer, saying he was not qualified to diagnose McCombs with a hearing loss disorder. The judge said that an expert cannot base his opinion entirely on other experts' findings.

The plaintiff also planned on having audiologist expert Dr. Marc Fagelson testify that his tinnitus exacerbated PTSD and sleep disorder. However, the judge agreed with 3M that  Fagelson was not qualified to diagnose McCombs with either condition.

"We are pleased with today's verdict and will continue to vigorously defend ourselves in upcoming trials. The Combat Arms Earplug Version 2 product is and has always been safe and effective to use," 3M representatives said in a statement, and reported by Reuters. Plaintiff’s lawyers Bryan Aylstock and Christopher Seeger said that, although they were disappointed by this verdict they look forward to the third trial. Stay tuned…