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Mass Tort Lawsuit In Pensacola Against 3M Set To Begin In March

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A trial date has been set for a lawsuit that affects thousands of veterans and current military members.

"There are now more than 220,000 service members who have filed suit,” said Bryan Aylstock, an attorney at the Aylstock, Witkin, Kreis and Overholtz law firm in Pensacola. The suit has been filed against the company 3M over defective ear protection the company made for the military that led to hearing loss for the people who used them.

The suit will be heard in Pensacola by Judge Casey Rodgers, Chief U.S. District Judge for the Northern District of Florida.

“In cases like this, when there is a ‘mass tort,’ a lot of times one federal judge will be appointed to oversee the entire litigation, and that judge is Judge Rodgers in this case. She has worked hard, and the parties, both sides, have worked hard at advancing the case. And we now have a trial set for late March involving three service members. And then two subsequent trials involving single service members, what we call ‘bellwether trials,’ to help the parties and the court determine what the evidence is, what the facts show, and how to proceed following those trials.”

Aylstock says this type of “mass tort” lawsuit is very different from a class-action lawsuit.

“In personal injury suits, and certainly in the 3M ear plug litigation, we’re taking a different tact. We’re signing up individual service members who have hearing loss of tinnitus following use of these defective ear plugs, and we’re individually filing their lawsuits. So there are an awful lot of them, probably too many to ever go to trial. But they are treated individually, their cases rise and fall on their own merit. And what we like is we get to talk to the individual service members and understand their case and have that interaction with them that typically you don’t get in a class action where it’s not an individualized process and you never meet your lawyer or even talk to that law firm.

The lawsuit is only against 3M, not the government or the military. In fact, in 2018, 3M already settled with the government and agreed to pay 9.1 million dollars. But none of that money went to service members who suffered hearing loss. “That was for the fraud that 3M committed in selling defective ear plugs to the U.S. military. In fact, these ear plugs had a huge mark-up. It was about a ten-times profit margin, and they were selling these products for a huge profit to the U.S military for 15 years without telling them the truth about how the ear plugs really worked and the defects that the company executives knew about.” 

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So far, the only involvement of the military in this case is providing records to the plaintiffs. The judge has dismissed 3M’s attempt to use the Government Contractor Defense to immunize the company from liability. The company has also tried to shift at least some of the liability in the case to the government. The judge has yet to rule on that motion. There has also yet to be any negotiations on settling the cases. 

“Well, we’re always open to listening to 3M if they are willing to come to the table, like they ultimately did with the U.S government, and pay fair compensation to our service members. Both those set for trial (and) the others that we represent. But at this point we are focused on the trial and we believe we will be trying these cases and we’re prepared to try many more to hold 3M accountgable.”

In an email to WUWF News, 3M issued this statement:

“We are confident in our case and look forward to defending against plaintiffs’ claims at the upcoming trial. As we will demonstrate, the Combat Arms Earplugs Version 2 product was not defectively designed and did not cause injuries. The Combat Arms Eearplugs Version 2 product is effective and safe to use, and its design reflected the direction and feedback of individuals acting on the military’s behalf."