July 5, 2023Published Article

Paul Benson quoted in Law 360 article, " Product Liability Cases To Watch: 2023 Midyear Report"


Here's Law360's list of cases to watch in the second half of 2023.

Regarding: 3M Appeals, Earplug Litigation

3M is appealing a $50 million verdict awarded by a Florida federal jury to a veteran who alleged his hearing was harmed by defective combat earplugs made by its Indianapolis-based subsidiary, Aearo Technologies LLC, as it is also appealing to the same circuit a ruling barring it from using Aearo's Chapter 11 filing to reargue rulings made in multidistrict litigation.

In the former appeal, 3M is arguing to the Eleventh Circuit that the $50 million verdict in Luke Vilsmeyer's favor should be tossed because the conglomerate is immune as a government contractor, an argument that 3M has made in other appeals, but which U.S. District Judge Casey Rodgers barred 3M from using at trial.

And in the latter appeal, the company is arguing that the injunction is too broad and that the veterans and servicemembers can file a motion to dismiss if they aren't happy with the bankruptcy filing.

The MDL stands out for its size, speed and the sheer number of bellwether trials — 16 — held before 3M's attempt to use the bankruptcy process to spin off liability for more than 230,000 claims of hearing loss and medical issues related to its Combat Arms Earplugs v2, or CAEv2, as well as thousands of claims over allegedly faulty respirators.

The split between verdicts in favor of 3M and plaintiffs also makes the litigation unusual, with at least 10 in favor of servicemembers, and is possibly a factor in why no settlement has been reached yet.

"In a typical MDL, you bring a few cases, you get some results, and it provides a framework for what the rest of the litigation is going to look like, and you figure out a way to resolve it," Paul Benson of Michael Best & Friedrich LLP said. "It doesn't seem like that's happening in the 3M earplug litigation, and that's surprising to me."

Judge Rodgers has now ordered mediation talks in the litigation, which occurred at the end of May with CEO Michael Roman in attendance, and the bankruptcy case was dismissed by an Indiana judge in early June on the grounds that neither Aearo nor 3M was in sufficient financial distress to justify the filing, and that the case served "no valid reorganizational purpose."

There are also trials starting soon in cases involving non-veterans' claims over the earplugs in Minnesota state court, with the first slated for July 10.

"It'll be interesting to see [if the plaintiffs' civilian status] impacts the value of those claims," Hunton's Cunningham said.

The appeals are in 3M Co. et al. v. Vilsmeyer, case number 22-13895, in the U.S. Court of Appeals for the Eleventh Circuit and Valle v. 3M Company, case number 22-12796, in the U.S. Court of Appeals for the Eleventh Circuit. The MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, in the U.S. District Court for the Northern District of Florida.

To read the entire Law360 article, click here.

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