Multi-district litigation (MDL) can move slowly, and that risk is even greater with a massive pool of plaintiffs. The 3M Combat Arms Earplugs (Version 2) litigation is currently the largest MDL in U.S. history. But, earlier this fall, U.S. District Court Judge M. Casey Rodgers (Northern District of Florida) signalled that she’s not going to let the large-scale litigation bog down.
In late August, Rodgers ordered plaintiffs’ counsel to move 1,358 cases onto the court’s active docket, and advised that similar future orders would involve blocks of 10,000 to 20,000 cases. The Court advised that it would be issuing a series of “wave orders,” which would require the parties to work up approximately 500 cases simultaneously. While each wave will involve an eight-month discovery schedule, the plan is to start a new wave every three months.
That’s a very ambitious schedule for both plaintiffs and defendants, which may put pressure on both sides to consider settlement agreements.
The bellwether trial schedule is also ambitious. Four cases have already been tried, with the fifth scheduled to begin on October 18. Two recent orders have added multiple trials to the MDL schedule, currently slated to begin on:
- November 1, 2021 (Camarillorazo)
- November 1, 2021 (Palanko)
- November 30, 2021 (Finley)
- December 6, 2021 (Stelling)
- December 6, 2021 (Montero)
- January 10, 2022 (Hensley, Sloan & Wayman)
Additional cases are scheduled for the spring of 2022.
Will Every Case Have to Be Tried Separately?
The 3M earplug MDL isn’t a class action. That means each claim is considered separately. But, that doesn’t mean there will be 259,000 trials. First, the court has already started consolidating some cases for trial. For instance, the January 10, 2022 trial will involve three plaintiffs whose cases the court has determined involved “common questions of law or fact.” Given that key elements are similar among the 3M earplug cases, we may well see further consolidation of cases for trial as the MDL proceeds.
More significantly, one goal of the bellwether trials is to give both parties the information they need to consider the possible benefit of settling remaining cases and better understand their value. That usually means that most cases in MDL are resolved without going to trial.
Why is the Trial Schedule So Aggressive in the 3M Case?
The size of the MDL is undoubtedly one reason Judge Rodgers is pushing the Combat Arms Earplugs case steadily forward. While multi-district litigation was designed to consolidate discovery and other pre-trial matters in a large number of closely-related cases, the number of plaintiffs in the 3M MDL is unprecedented. More than a quarter of a million people are already asserting claims, and there may be hundreds of thousands of additional plaintiffs who haven’t yet come forward.
According to Reuters, the average product liability MDL in recent years involved 2,257 cases. The 3M earplugs MDL is already more than 110 times that size.
Plaintiff’s attorneys hope that trying multiple additional cases in a relatively short time will push 3M toward a more reasonable settlement position. Despite having lost three of the four bellwether cases tried so far and a key summary judgment motion in the case scheduled for October 18, the company continues to maintain that it has done nothing wrong and is prepared to defend against each claim filed. The more large verdicts pile up against 3M, the more sense it will make for the company to negotiate settlements.
Next Steps for Veterans with Hearing Loss or Tinnitus
If you served in the U.S. military between 2003 and 2015, relied on standard-issue earplugs during your service, and suffered hearing loss or have been diagnosed with tinnitus, you owe it to yourself to explore your options. You may be entitled to compensation for your injuries.
To learn more about your rights and options, fill out the form on this page right now.
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