The industrial conglomerate 3M started life as Minnesota Mining and Manufacturing in 1902. Since that time, the company has grown into one of the largest corporations in the world, currently ranked at #103 on the Fortune 500. Makers of Scotch tape and other widely used products, the company also has a long history of fighting and settling litigation alleging mass tort malfeasance. The list extends well beyond just dual-ended combat earplugs, the subject of an explosive, well-publicized ongoing multidistrict litigation effort.
This article is the second in a series of five that will examine 3M’s recent history as a defendant, its legacy of settlements, and the strategies and tactics they use to fight mass tort claims against the company.
It’s a question that mass tort professionals hear from clients frequently: “How much is my case worth?” Or perhaps, it’s phrased, “What kind of a settlement can I expect?”
How to answer? In the context of multidistrict litigation, two variables are in play:
- Global settlement negotiations
- Potential individual awards to your clients
If your law firm is involved in the enormous (and still growing) MDL involving 3M and its allegedly defective Combat Earplugs Version 2 (CAEv2), you may find yourself fielding inquiries on potential individual settlements a lot. The case, consolidated in the Northern District of Florida under the auspices of District Judge M. Casey Rogers, has attracted an astonishing number of claimants to date, roughly 237,000 as of mid-May.
3M Bellwether Insights To Date
So far, the MDL’s first bellwether trials have arguably offered little real insight on how global settlement will be reached. While bellwethers are held to preview the presentation of evidence, the efficacy of permitted defenses, and jury verdicts and damages awards, their most valuable function can be to inform and anticipate a potential lump-sum payment by the defendant.
Here, though, the first two of five bellwether trials ordered to date by Rogers produced a split (the third bellwether trial began on June 7th). Lead counsel for the plaintiffs won the first trial on April 30th, earning a total award of $7.1 million for three plaintiffs. Each plaintiff received $2.1 in punitive damages alone.
This was perhaps a sign the sides may be headed toward a multi-billion-dollar payout by 3M–and then an opposite result was reached in the second trial. That jury acquitted 3M, which has argued against the notion their earplugs were actually defective and proximately caused combat veterans and other enlisted members of the military to suffer severe hearing loss and debilitating tinnitus. While Rogers has ruled against 3M’s motion to employ the “government contractor defense,” 3M may still allude to its relationship with the military, to which the company served as an exclusive supplier of the dual-ended earplugs between 2003 and 2015.
How To Analyze Potential Settlement Value From 3M
The ongoing third bellwether trial may or may provide additional clarity on how everything will play out, and the next two bellwether trials are not scheduled to take place until the fall. That leaves your firm with additional work to manage client expectations.
You will need to consider several factors to guide you in assessing possible outcomes for your clients’ claims.
These factors include:
- Decision-tree analysis. This is a time-tested model to analyze potential business and has been applied frequently to litigation. To build a decision tree, you must map out all of the things that can happen as your client’s case proceeds and assign probabilities.
What is the likeliness of summary judgment or other adverse rulings? What is the likelihood of 3M being held liable if your case was to be tried before a jury? What range of settlement amounts do you see as possibilities—low-end, mid-points, high-end—and what probability do you see for each settlement scenario? Your decision tree is potentially an excellent guide to manage your client’s expectations appropriately.
- The size of the case. The earplugs case is already by far the largest MDL effort in history, surpassing the 30-year-old asbestos MDL, still percolating in the Eastern District of Pennsylvania.
How can so many plaintiffs be adequately compensated for their injuries resulting from the alleged design defect and fraudulent concealment by 3M and predecessor manufacturer Aerao?
Could 3M actually fund any initial settlement account sufficiently, and then keep funding it? Will your firm need to accelerate its claims for settlement in the spirit of “first come, first serve” to maximize the amount of settlement? Supporting this: What, if any, closure provisions might the settlement include? Facing a case of this magnitude, it’s conceivable 3M could push for a high opt-in percentage threshold to maintain the settlement (80 percent? 90 percent?).
- The size and settlement tendencies of the defendant. 3M is a gigantic conglomerate. It reported first-quarter 2021 sales of $8.9 billion, net income of $1.6 billion, and adjusted cash flow of $1.7 billion. It also reported assets of nearly $47.2 billion. This is not a struggling entity by any means.
3M also has a recent history of settling lawsuits and claims against it in large amounts. This includes paying the State of Minnesota $850 million to settle a lawsuit accusing 3M of polluting drinking water in the state with a class of “forever chemicals”. These are known as PFAS, an ingredient of the company’s famed Scotchgard product.
This list of settled lawsuits includes a $32.5 settlement reached in a class-action suit alleging 3M manufactured defective dental crowns. This evidences a desire by the company to walk away from hot-button claims against it.
- The merits of the claim population as a whole. Or lack thereof. In a 2019 article published in the Kentucky Law Journal, Kirkland Ellis’s partner reviewed a significant history of judges presiding over large MDLs disqualifying subsets of individual claims, through summary judgment, dispositive motions, and other devices, for lack of merit. This is especially true for large, well-publicized cases that trigger a wave of case aggregations that may not receive proper scrutiny before being transferred into the MDL.
The article specifically analyzes decisions and inherent flaws that significantly reduced the size of MDLs involving products such as heparin, silica, welding fume, and Propulsid. Could this same dynamic apply to 3M earplugs MDL as the case progresses and reviews of individual cases commence? If so, does that raise the average settlement amount? This definitely commands your attention.
- The merits of your own clients’ cases. How severe is the documented damage to your clients? How much exposure to loud noise related to combat, training exercises at military bases, and other instances can be proven?
How much commonality is there between your clients and other plaintiffs with claims in the MDL—same training facility? Same weapons? Close proximity within a known combat area in Afghanistan?
Evaluating the answers to these questions can help you estimate the number of points that may be assigned to your client. Remember, the more points assigned, the higher the settlement amount.
- Costs, fees, and the time to reach a resolution. The massive claim numbers, and 3M’s historical penchant for aggressive defenses and PR blitzes before finally settling, could mean a global settlement might take considerable time to materialize. Even if the five bellwether trials intensify any talks between lead counsel for the plaintiffs and the defendants.
Once that global settlement is reached, it could well take years for the settlement review and disbursement process to run its course. During this time, fees and costs continue to accrue. On the flip side, interest tied to awards may also accrue.
, A $140,000 settlement may result in $66,000 actually being collected by a claimant. You’ll want to do your best to ballpark the effects of turnaround periods (3 months vs. 6 months vs. 2 years vs. 5 years…).
- The judge’s duty to approve a fair and reasonable settlement. Case law supports this one. Writing for the majority in Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir 2002), Circuit Judge Richard Posner reiterated that judges presiding over mass torts (in this case class-action suit) should serve as “fiduciaries,” and as a result must “…exercise the highest degree of vigilance in scrutinizing proposed settlements…” In Reynolds, the driver of the appeal was an allegation that attorneys with relatively weak groupings in the class were acting on their “pecuniary self-interest,” and that the judge gave to much credence to this influence. Following from this, if Rogers uses her “highest degree of vigilance,” then a bloated settlement is unlikely.
- The use of special masters. Because of concerns over fairness, or attorneys unduly influencing the determination of settlement awards and especially “common benefit” fees, the appointment of special masters to oversee settlement review procedures by the MDL judges has increased. Often, judges appoint special masters for other discrete MDL management purposes.
In the 3M earplugs, Rogers appointed a retired judge in the fall of 2019 as a special master to facilitate the adjudication of affirmative defenses and to manage discovery from federal agencies. This suggests the use of a settlement special master in this instance is highly likely.
This should be seen as a positive for your clients, as special masters often rule on the proposed apportionment of fees shared among attorneys, as well as establish efficient processes to conduct an intensive review of individual claims. A more equitable assignment of fees, combined with fair-minded awards and disqualifications based on merit, could set up your client for greater compensation. The role of the special master, then, should be conveyed.
A Final Thought
3M is a frequent-flyer defendant in toxic tort and multidistrict litigation, but In re: 3M Combat Arms Earplug Products Liability Litigation is unchartered waters even for them. Five bellwether trials may not be enough to truly shed light on what settlement result to expect ultimately, especially with one acquittal now attained by 3M.
So how will you answer that inevitable question about the monies from your clients? It will take some complex analysis, and maybe some uncomfortable educated guesswork, on your part as a mass tort professional. Yet with guidance and insight from the factors we have offered, you can begin to develop a sense of what may be to come.
Written by Christopher O’Connor
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 law practice management. He also possesses CIPP/US certification as a privacy professional.
O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting and cooking for his wife.