Jury awards Iraq veteran $1.7 million in crucial 3M bellwether trial

Seeger Weiss LLP is proud to announce a jury verdict of $1.7 million on behalf of Iraq veteran Lloyd Baker in the third of three initial bellwether trials in the 3M Combat Arms Earplug Products Liability Litigation—the largest consolidated federal mass tort in U.S. history. Seeger Weiss partner David Buchanan and Sean Tracey of Tracey […]

June 21, 2021

Seeger Weiss LLP is proud to announce a jury verdict of $1.7 million on behalf of Iraq veteran Lloyd Baker in the third of three initial bellwether trials in the 3M Combat Arms Earplug Products Liability Litigation—the largest consolidated federal mass tort in U.S. history.

Seeger Weiss partner David Buchanan and Sean Tracey of Tracey Fox King & Walters served as co-lead trial counsel for Baker. Buchanan, who also co-chairs the litigation’s Plaintiffs’ Steering Committee, said, “3M knew and withheld material information concerning the safety of the Combat Arms earplug—a product that, unfortunately, was used by hundreds of thousands of servicemembers, including Lloyd Baker. We’re pleased that the jury recognized 3M’s misconduct and the gravity of the injuries Lloyd was left with following his use of the Combat Arms earplug.”

Tracey, who serves on the litigation’s Plaintiffs’ Executive Committee and who was Baker’s primary counsel, said, “From the outset, 3M marketed and promoted the Combat Arms earplug for the very uses and exposures Lloyd used them for while serving his country in combat. 3M’s marketing for the Combat Arms earplug claimed ‘You Protect Us. We Protect You.’ Serving his country for 16 months in Iraq, Lloyd delivered on his end. Unfortunately, 3M didn’t, and as a result Lloyd now suffers from permanent and progressive hearing loss and persistent tinnitus.”

The verdict was delivered late Friday night by a federal jury in Pensacola, Florida. This latest victory confirms the strength of the plaintiff case and significantly raises the stakes for 3M as the litigation proceeds. Plaintiffs have won four of the five cases presented and two out of the three bellwether trials in the massive multidistrict litigation (or MDL), which consolidates over 250,000 claims by former servicemembers who allege that 3M’s defective earplug caused hearing loss and tinnitus, a ringing or buzzing in the ears that often accompanies hearing loss and that can retraumatize veterans who have seen combat. In the first bellwether trial, which concluded on April 30, a jury award $7.1 million to three plaintiffs.

In Baker’s case, jurors found that 3M failed to provide adequate warnings for the earplug and that they were liable for the veteran’s tinnitus. A former infantryman, Baker testified to experiencing muffled hearing and ringing as early as 2005, during military training and before being deployed to Iraq. In training as well as in combat, Baker was exposed to thousands of rounds of weapon impulse noises. Following his service, Baker, now a resident of Wyoming, was diagnosed with hearing loss in both ears and tinnitus. The final verdict will be reduced by 38% to reflect 3M’s exclusive liability (62%) for Baker’s injuries.

The victory represents an effort stretching back two years and involving extraordinary dedication and coordination between a trial team comprised of attorneys from Seeger Weiss; Tracey Fox King & Walters; Clark, Love & Hutson, GP; and Ciresi Conlin LLP. “I’m extremely proud of our entire team,” said Seeger Weiss cofounding partner and the litigation’s co-lead counsel Christopher A. Seeger. “As we all know, it takes a team to pull off a win like this.”

Partners Buchanan and Seeger, as well as associates Max Kelly and Caleb A. Seeley, made up the Seeger Weiss contingent of the trial team. From Tracey Fox King & Walters, Sean Tracey was joined by Shawn Fox and Lawrence Tracey. Completing the team were Shelley Hutson, Emily Marlowe, and Lauren Schultz from Clark, Love & Hutson as well as Michael A. Sacchet and Megan L. Odom from Ciresi Conlin.

Manufactured by 3M and predecessor Aearo Technologies, the Combat Arms Earplugs version 2, or CAEv2, were used by the Army between 1999 and 2015. Characterized by 3M scientists as the most “variable” earplug the company had ever made with regard to its ability to protect, the plugs presented serious risks for servicemembers seeking protection from continuous and impulse noises, like weapons fire in training and in combat. After recognizing in related litigation that its original testing for the CAEv2 was improper and that the product could no longer be marketed with the protection that 3M had claimed, 3M quietly discontinued the earplugs in 2015. In 2018, following a joint investigation by the U.S. Army’s Criminal Investigation Command and the U.S. Department of Justice, 3M agreed to pay $9.1 million to settle claims for civil fraud. In 2019, individual lawsuits brought by injured servicemembers against the company—now numbering more than 250,000—were consolidated in the Northern District of Florida under U.S. District Judge Casey Rodgers. The case number is 3:19-md-02885.

“3M’s own internal emails and testimony show how the company was aware its earplugs were defective, failed to inform the military, and then joked about how they profited from this deception,” said Seeger in a 2020 statement with fellow co-lead counsel Shelley Hutson of Clark, Love & Hutson and Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz PLLC.

More than 1 million veterans suffer from hearing loss, the most common service-related disability according to 2015 government data. Alongside tinnitus, hearing loss can affect balance, sleep, and mental health. Seeger Weiss represents thousands of former servicemembers who were injured in this way by 3M’s faulty product.

One of the nation’s preeminent plaintiffs’ law firms, Seeger Weiss is best known for multidistrict mass torts and class actions in both state and federal court—and especially for taking those cases to trial. With the resources and dedication to take on the world’s largest corporations, the firm has an impressive track record of victories against companies like Merck, Monsanto, and the National Football League—and a reputation for sticking with a case from beginning to end. From offices in New York, New Jersey, Pennsylvania, and Massachusetts, the firm has represented over 10,000 individuals, companies, and governments across the United States who have been injured or defrauded on a massive scale. Since its founding in 1999, it has led many of the most complex and high-profile cases in the country: the National Prescription Opiate Litigation, which the Washington Post called “the largest federal court case in U.S. history”; the ongoing “Dieselgate” scandal; the sprawling multistate litigation on behalf of survivors of child sexual abuse; and the history-making Football League Players’ Concussion Injury Litigation.

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