Federal appeals court judges on Tuesday heard from Paul Clement, a lawyer for Aearo Technologies, a subsidiary of 3M. Clement urged the three-judge panel of the 7th Circuit Court of Appeals in Chicago to reverse a bankruptcy court order which allowed plaintiff lawsuits to move forward against 3M.
Aearo manufactured the combat arms earplugs and filed for bankruptcy last July. Clement argued that there is “complete overlap” between the facts and legal defenses in earplug lawsuits against the two companies, and stated that the “automatic stay” which shields Aearo from lawsuits while it is bankrupt should also apply to 3M.
Judges appeared skeptical of this argument. Judge Frank Easterbrook pressed Clement on Tuesday to explain how there can be exceptions to the bankruptcy law, which applies the shield only to the bankrupt company. He said the U.S. Supreme Court has consistently ruled against exceptions in bankruptcy law.
“If this maneuver works, why won’t it automatically happen every time a defendant in an MDL gets uncomfortable with the MDL court’s rulings?” Judge David Hamilton asked.
David Frederick, representing the plaintiffs, told the panel that 3M “contrived this bankruptcy to help itself, not Aearo or its creditors.”
He argued that as long as 3M is able to cover the earplug liability, there is no reason it should be shielded, and that if 3M ever became unable to pay, it should have to file for bankruptcy itself.
“The point of the bankruptcy process is to take the bitter with the sweet,” he said.
Veterans and service members have called for the dismissal of Aearo’s bankruptcy, as has the judge overseeing the consolidated MDL in Florida, who called the bankruptcy “wholly contrived.”
The litigation against 3M and Aearo is the largest-ever MDL in U.S. history, with nearly 330,000 cases filed and nearly 260,000 pending cases, according to court statistics from March 16. The next-largest MDL, the Johnson & Johnson talc litigation, has 38,000 cases.
3M has lost 10 of the 16 cases that have gone to trial so far, with about $265 million being awarded in total to 13 plaintiffs.
Mediation session scheduled for October 3
A federal judge has ordered additional mediation sessions in the ongoing efforts to settle 3M earplug lawsuits that have been filed on behalf of more than 250,000 military veterans. The initial 3M earplug settlement talks were held on September 15 and 16, before Special Master Randi Ellis. U.S. District Judge Casey Rodgers in the Northern District of Florida, who has been presiding over the multidistrict litigation (MDL), has issued a statement saying that the mediation “was worthwhile and productive” and has ordered Ellis to schedule another session to be conducted by October 3, 2022.
Judge Rodgers is also preparing multiple tracks of claims for trial and issued a separate order, reinstating the deadline for claimants to provide their DD214 forms along with completing census forms and continuing transitioning claims from an administrative docket to an active docket. In reinstating the filing requirements, the Judge added 56 days to the initial deadline to get these materials submitted and/or transitioned.
The Combat Arms earplugs sold to the military by 3M Company and its Aearo Technologies unit proved to be defective and failed to provide adequate protection to the service members who used them between 2004 and 2015. Plaintiffs’ claims vary, and the expected payout per person will range, depending on the extent and duration of each veteran’s hearing loss. Estimates of the total cost of a 3M settlement range between $10 billion and more than $100 billion, depending on how future claims are handled.
Hearing loss is common as we age, and according to the Mayo Clinic, almost half the people in the United States over age 65 have some degree of hearing loss. Hearing loss can be conductive, involving the outer or middle ear, or sensorineural which involves the inner ear, or mixed, which is a combination of both.
Symptoms of Hearing Loss
Signs of hearing loss include:
- Difficulty understanding others speaking
- Trouble hearing consonants
- Needing to ask others to speak louder or repeat what they say
- Needing to turn up the volume or turn on captioning on the TV
- Muffling of speech and other sounds
- Continuous ringing or static sounds in the ears (tinnitus)
Hearing loss can lead to a loss of confidence in social situations and the tendency to withdraw from or avoid conversations. Hearing loss can result in depression and isolation and even cognitive impairment and decline. As hearing loss can occur gradually, you may not notice it at first, but it can have a significant effect on quality of life.
Causes of Hearing Loss
While normal aging is probably the most common risk factor for hearing loss, it can also occur as a result of physical damage to the inner ear or the eardrum. Ear infection and abnormal bone growths or tumors can also cause hearing loss.
Risk factors that can lead to ear damage and hearing loss include long-term or repeated exposure to loud noise, recreational or occupational noise. Those who work in environments like the military, farming, construction, or factory work are at risk of hearing loss. Firearms, jet engines, motorcycling, snowmobiling, loud music, and other activities can have dangerously high noise levels.
In addition, heredity, some medications, and some illnesses can also contribute to ear damage and hearing loss.
3M Combat Arms Earplugs
Military personnel are routinely exposed to high noise levels from gunfire, explosions, aircraft, and heavy machinery and for that reason they are provided with earplugs to protect their hearing and minimize the risk of hearing loss. From 2003 to 2015, the U.S. military issued the 3M Combat Arms version 2 Earplugs to personnel for that purpose. Those specific earplugs were defective, and as a result, thousands of soldiers have suffered hearing loss or tinnitus after believing they were protected. Many veterans are now filing legal claims against 3M for knowingly selling the defective devices to the Department of Defense.