The bellwether trials in this multidistrict litigation (MDL) are expected to begin in April 2021. Because of the significant number of service members potentially affected, they could result in heavy financial losses for defendants, 3M Company, Aearo Technologies LLC, Aearo Holdings, LLC, Aearo Intermediate, LLC, and Aearo, LLC.
Protections for the plaintiffs
Among the most striking features of the Order are the protections afforded the injured service members from what might otherwise amount to repeated and overly broad medical inquiries. The Order limits the scope of the examination to specified, named tests, including:
- Auditory Brain Stem Response Testing;
- Acoustic Reflex Decay;
- Acoustic Reflex Threshold;
- Bone Conduction Threshold;
- Otoacoustic Emissions;
- Pure Tone Air Threshold;
- Speech in Noise Threshold;
- Speech Reception Threshold;
- Tinnitus Masking Threshold;
- Tinnitus Matching Test;
- Tone in Noise Threshold;
- Video Otoscopy;
- Wide-band Immittance; and
- Word Recognition Testing.
In addition, no medical histories may be taken during the course of any examination; nor may any of the five affected individuals be required to fill out forms relating to a medical or other history. The defendants may not use a medical examination as a means of obtaining further information concerning the service member’s medical history or prior noise exposures.
The role of the non-lawyer representative permitted to be present during the examination is to police these protective provisions. He or she must advise counsel for both parties by text message or e-mail of any observed breach, so that the parties can confer telephonically to resolve the issue. Unresolved conflicts would presumably be brought to the court’s attention.
Injured plaintiffs often complain of feeling harassed by requests for repeated and overly intrusive medical examinations. These examinations may become adversarial when performed in the course of litigation by a physician hired by the defendant. The goal, after all, is to support the defendant in a lawsuit, not to treat the patient.
The Order clearly attempts to set appropriate limits on the examination and to provide the plaintiffs with the assistance and protection of counsel, as necessary. The goal is to prevent an unsupervised interrogation by the examining doctor as an agent of the defense.
3M Combat Arms defective earplugs
The basic allegation of these five plaintiffs and others now involved in the MDL is that they suffer from hearing loss because 3M Company and its predecessor sold millions of dollars’ worth of Combat Arms defective earplugs to the military. The earplugs did not, as promised, shield the wearers from exposure to from damaging high-decibel sounds, like artillery fire. In general the individual Complaints describe both design flaws and inadequate safety instructions.
Further, the Complaints generally allege that 3M Company and Aearo Technologies, which 3M acquired in 2008, knew about the defect but kept it a secret to protect their contracts and their profits for a dozen years. When safety testing was instituted in 2000, the earplugs failed to meet accepted standards. The manufacturer allegedly responded by stopping the testing.
READ MORE 3M DEFECTIVE EARPLUGS LEGAL NEWS
The MDL now includes claims from more than 140,000 veterans. The purpose of the latest pre-trial order, like many that will undoubtedly follow, is to evaluate the evidence underlying these claims. The outcome of the bellwether trials will be closely monitored by the claimants.
The results will influence negotiations and the ensuing 3M earplug hearing loss settlement offers. 3M is likely eager to avoid thousands of individual trials that would otherwise follow throughout the country.