3M loses third trial in huge military earplug mass tort

(Reuters) – A federal jury on Friday found that 3M Co failed to provide adequate safety warnings for its combat earplugs and that a U.S. Army veteran who said he developed tinnitus after using them sustained $1.7 million in damages, the second such verdict against the company.

The ultimate amount that 3M would have pay to Lloyd Baker will be smaller, as the jury in Pensacola, Florida, found the company only 62% liable, according to a spokesperson for the plaintiffs’ lawyers in the federal mass tort.

Jurors found that 3M failed to provide adequate warnings for the earplugs, according to the plaintiffs’ lawyers, Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, Shelley Hutson of Clark, Love & Hutson and Christopher Seeger of Seeger Weiss.

“Two juries have now determined that 3M knew their earplugs were defective, yet they allowed our servicemembers to suffer these life-altering injuries,” they said in a statement. “We plan to hold 3M fully accountable for the damage they have caused to those who served our nation.

Jurors also said that Baker, who served in the U.S. Army from 2005 to 2012, was 38% liable for his damages. 3M, which was represented at trial by Kimberly Branscome of Dechert and Robert Brock of Kirkland & Ellis, said they rejected his claims that the product was defective.

“We are exploring our appellate options with respect to the remainder of the jury’s verdict,” 3M said in a statement. “Friday’s outcome, as well as our win in the last bellwether trial, affirms our confidence in our case, and we will continue to defend ourselves in this litigation.”

Baker’s case was the third over the earplugs to go to trial. The first trial resulted in a verdict of $7.1 million for three plaintiffs in April, while the second ended in a victory for 3M in May.

3M is facing more than 230,000 claims by veterans and service members over the earplugs, known as Combat Arms Earplugs Version 2, in the Florida court, in the largest consolidated federal mass tort in U.S. history.

Plaintiffs have accused the company of hiding design flaws, fudging test results and failing to provide instruction in the proper use of the earplugs, which were used by the Army between 2007 and 2013. The company has denied the allegations.

The cases that have gone to trial were chosen as so-called bellwethers, meant to test the strength of the evidence and gauge damages to facilitate a settlement.

The first trial included one case chosen by the plaintiffs’ attorneys, one by 3M and one by U.S. District Judge M. Casey Rodgers, who is presiding over the litigation. The second bellwether case was chosen by 3M, and Baker’s case was chosen by the plaintiffs’ attorneys.

More than 1 million veterans receive compensation for hearing loss, which is the leading service-related disability, according to 2015 government data.

The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court, Northern District of Florida, No. 19-md-2885.

For Baker: Sean Tracey of Tracey Fox King & Walters and David Buchanan of Seeger Weiss

For 3M: Kimberly Branscome of Dechert and Mike Brock of Kirkland & Ellis