The federal government urged a Florida federal judge to deny a request by 3M to force the U.S. Department of Defense and U.S. Department of Veteran Affairs to produce discovery in sprawling multidistrict litigation over the company’s allegedly defective earplugs, arguing that 3M waited too long.
Even though discovery in this wave of litigation began in November, 3M only started requesting discovery and employee depositions from the government in mid-February to late March. The discovery deadline was April 1, and the company didn’t ask for an extension, let alone explain why one would be justified.
For about two years, the agencies said that they have been processing an “unprecedented” number of document and deposition requests in the litigation, which neither is a party to.
The MDL, consolidated in 2019, includes more than 280,000 service members and others who claim that their hearing was damaged from using 3M’s CAEv2 earplugs. So far, 3M has scored six wins in the 14 test trials to date, while plaintiffs have won verdicts totaling about $200 million in eight bellwether trials.
3M argued that its discovery requests complied with Touhy regulations, which stem from the U.S. Supreme Court’s ruling in ex rel. Touhy v. Ragen and dictate when a government employee may be called to testify by a private party. By preventing 3M from deposing servicemembers’ medical providers, 3M argued that the agencies limited the company’s ability to develop defenses.