In American team sports, a 7th battle in a playoff series is always the deciding affair, the last game where the winner breaks the 3 games to 3 tie and takes all.

In mass tort law? As it turns out, it’s not as conclusive. In some instances, it’s nowhere near conclusive.  

Such is the case with the ongoing monolith known as In re: 3M Combat Arms Products Liability Litigation, the largest single multidistrict litigation in history, with more than 270,000 claims consolidated to date.

The verdicts in the sixth and seventh bellwether trials in the matter were handed down within days of each other in mid-November. The results continue to oscillate unpredictably between the attorneys for the plaintiffs and industrial conglomerate 3M. The plaintiffs now have four favorable verdicts, while 3M has three.

The Splits Continue

In the sixth of this MDL court-selected, “test-drive” cases on November 12th, a jury sitting in Pensacola decided that 3M since discontinued Dual-Ended Combat Earplugs (known as CAEv2 for short) were not responsible for hearing damage suffered by U.S. Army veteran Joseph Palanski. It was a second consecutive positive result for 3M, something the company noted in a public statement maintaining its position the product itself was not at fault for any injuries suffered by the veterans who used the earplugs.

This continued a go-to 3M strategy of shifting blame onto the military MTI has discussed in previous articles.

3M’s victory lap was short-lived, however. Three days later, on November 15th, the jury in the seventh bellwether trial not only found in favor of plaintiff Sgt. Guillermo Camarillorazo, but it also returned by far the largest award of damages in any of these cases so far.

The award broke down into $800,000 in compensatory damages and $12.25 million in punitive damages. This was significant as the previous three plaintiff trial victories produced a total of roughly $17 million in damage awards. While Sgt. Camarillorazo’s case was one chosen by the plaintiffs rather than 3M or the court, the jury’s assignment of an eight-figure favorability is hard to ignore. 

Of note, these latest two bellwether trials were not overseen by U.S. District Court Judge M. Casey Rodgers, the presiding judge in the MDL itself in the Northern District of Florida. Rather, two other federal district court judges, including one appointed to the bench in Alabama rather than Florida, presided.

The hearing loss and tinnitus injuries at issue in these cases relate to an alleged defect to these “selective attenuation” earplugs, in which improper design caused the flange on one of the plugs to flap back and loosen the fit, leaving some wearers exposed to nearby explosions or other extreme noise. Rodgers has previously rejected 3M’s bid to employ the “government contractor defense” in these bellwether trials. 

What Now? A Lot more, actually.

Even with the award for Sgt. Camarillazo on the books, any settlement in this enormous MDL may not be reached anytime soon. Nothing is conclusive yet.

That’s something the MDL court presumably anticipated when it scheduled a total of 11 additional bellwether trials earlier in the fall, which included these two. And co-lead counsel for the plaintiffs, Bryan Aylstock, has acknowledged publicly that even 16 bellwether trials likely won’t be conclusive enough for billions and billions of dollars to shake loose into a settlement fund.

In fact, back in August, Judge Rodgers, acknowledging the intense backlog of cases that had built up within a span of fewer than two years, promised the first of in a series of “wave” orders for the parties to “work up” around 500 cases, which would then be remanded to other trial courts once ready. “The Court intends to enter a new Wave Order every 3 months with an 8-month discovery schedule for each wave,” Rodgers wrote on August 24th.

That seems like a lot of work will be rumbling downhill toward mass tort professionals fairly soon. Perhaps it’s a tactic to accelerate any negotiations as they stare down a potentially daunting assignment. Yet 3M’s confident public statement reveals a steadfastness and intent to keep fighting.

As a result, mass tort attorneys, paralegals, and paraprofessionals should proceed with a long-term, budget-conscious strategy in mind, one that manages the expectations of claimants appropriately.

About the Author 

Christopher O’Connor, Esq., is a licensed attorney (N.Y.) and a longtime journalist. His areas of focus include mass tort practice, employment law, enterprise technology, mental and spiritual health, and e-discovery. O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting, and cooking for his wife. 

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