A Florida federal judge said 3M can’t get a redo of the first bellwether trial in multidistrict litigation over veterans’ claims that its earplugs damage their hearing, which resulted in a $7.1 million verdict against the company, saying 3M hadn’t shown it was prejudiced.

U.S. District Judge M. Casey Rodgers said 3M wasn’t entitled to a new trial because the company hasn’t identified any errors that resulted in enough injustice to warrant another trial in short order.

The ruling keeps in place a $7.1 million verdict awarded to three former service members who claimed 3M and a predecessor, Aearo LLC, supplied combat arms earplugs called CAEv2s that failed to protect against hearing loss and tinnitus from battlefield and training noise.

3M has argued that the military bears responsibility for the way the earplugs were designed and delivered.

But while military interactions did help shape the earplug, as acknowledged by the judge, she has also ruled 3M cannot tell the juries “that the government dictated, directed, approved or otherwise exercised discretion with respect to military specifications for any aspect of the design of the CAEv2, or for the content of instructions or warnings.”

At the end of the first trial in the massive litigation, a Pensacola jury in April awarded $2.1 million in punitive damages to each of the plaintiffs: Stephen Hacker, a 20-year Army vet who started experiencing bilateral tinnitus in 2006; Luke Estes, a former tank platoon leader at Fort Benning in Georgia who started losing hearing and developed ringing in both ears in 2014; and Lewis Keefer, an Army medic who used the earplugs at Fort Benning and in the line of duty in Iraq who gradually starting to lose his hearing. In the second trial, 3M prevailed, but the third was a loss for the company, with a jury award of $1.7 million to a former infantryman.

3M is facing another bellwether trial in September. That case is brought by Brandon Adkins, who claims he suffered hearing loss and bilateral tinnitus while using 3M’s combat earplugs.

In late July, Judge Rodgers refused to delay the trial after another service member, Joseph Taylor, dropped his claims. Taylor was set to go to trial on the same date and serve as the fourth bellwether.

Despite the late change, 3M should be prepared to face Adkins’ case. Adkins and Taylor have maintained the same pretrial schedule and discovery and deposition deadlines.

LAW360: https://www.law360.com/aerospace/articles/1412065/3m-again-denied-new-trial-in-earplug-suit-after-1-7m-loss

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