3M’s analysis of the data asserts that almost 90 percent of plaintiffs have no hearing impairment, despite DOD data that shows 85 percent of plaintiffs suffer hearing loss, and despite 16 bellwether trials that resulted in juries awarding plaintiffs in ten of those trials $300 million in damages.
Plaintiffs’ Medical Records
The DOD in late December 2022 produced medical records for more than 175,000 MDL plaintiffs. The records include audiometric hearing test data – a test that measures your hearing ability across a range of frequencies in each ear independently. This testing produces a chart called an audiogram. But Judge Rogers noted that the results are “problematic” because the test failed to include the two hearing frequencies that are most commonly affected by noise, but includes two frequencies that are rarely impacted. As well, Rogers pointed out that plaintiffs’ lawyers are also overreaching because the plaintiffs’ testing approach also does not assess an individual’s current hearing loss status.
3M’s consulting firm interpreted the DOD data to show that almost 90 percent of the plaintiffs have no hearing impairment under the American Medical Association’s (AMA) methodology, and over 85 percent have normal hearing under the World Health Organization’s (WHO) standard.
3M asserts that, based on this interpretation of the data, the vast majority of MDL plaintiffs do not have hearing loss injuries under these medically accepted standards. Law 360 reported that 3M also argued that, hearing damage may not be caused by the 3M earplugs for the small percentage of plaintiffs that actually do have hearing loss. And 3M also brought up the question of age: nearly 30 percent of the plaintiff population is currently over 50, and more than 60 percent of the plaintiff population is over 40. There is an indisputable correlation between rates of hearing loss and tinnitus and age.
U.S. District Judge Casey M. Rodgers on February 23 held a “Data Day” to summarize the data about plaintiffs’ hearing loss claims, and “to educate those outside of leadership roles in the MDL about the nature and scope of the … claims in this litigation,” which included a neutral third party to publicly present an analysis of government testing data and statistics on hearing loss linked to the Combat Arms Earplugs Version 2 (CAEv2) military earplugs.
About a month before Data Day was held, Judge Rodgers declared that the 3M combat earplug settlement talks were at a deadlock, due to 3M telling the Court it had no intention of reaching a global resolution of all MDL claims. Rather, the manufacturer continues to argue that litigation can only be resolved through the bankruptcy system, after its Aearo Technologies subsidiary filed for Chapter 11 protections in July 2022.
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Meanwhile, Judge Rogers sees the two varying interpretations as an obstacle for reaching a settlement, yet legal experts opined that Rogers ordered Data Day as a way to resume settlement discussions. So, it’s back to the drawing board. And new claims are still being added to the MDL.