3M Company is seeking to overturn a $50 million verdict in a bellwether trial concerning defective earplugs by appealing to the Eleventh Circuit. The company argues that the trial court made significant errors and that 3M should be protected under government contractor immunity, Law360 reported.
In response to a recent brief from Luke Vilsmeyer, a U.S. Army veteran who was awarded $50 million in the 13th bellwether trial related to 3M's Combat Arms Earplugs Version 2 (CAEv2), 3M stated that he failed to present any new arguments that could justify the court's mistakes in his trial and the series of bellwether trials leading to the incorrect verdict.
Vilsmeyer claimed permanent hearing loss and tinnitus resulting from using the earplugs for over a decade, primarily during training. In March 2022, a jury awarded him $50 million in compensatory damages, one of 10 rulings in favor of veterans in the initial set of 16 bellwether cases from the multidistrict litigation, which awarded 13 plaintiffs $300 million in damages.
3M filed an appeal in November 2022 after its request for a new trial was denied in October. In a January brief, 3M argued that Vilsmeyer's case, as well as all the bellwether cases, had been compromised by significant court errors.
3M contested the trial court's decision to grant summary judgment to the plaintiffs on the issue of the government contractor defense. That ruling was made in multiple bellwether trials. The company argued that it should be immune to claims related to CAEv2 because the military had approved a specific design for the earplugs, and 3M was obligated to deliver that product under its contract.
"Vilsmeyer does not even attempt to identify evidence showing that the width of the CAEv2's stem affected the fit of the earplug in his ears (and thus caused his injuries), which at a minimum requires a new trial," 3M argued.
Vilsmeyer is among more than 255,000 service members and veterans who have filed lawsuits over allegedly faulty CAEv2 earplugs supplied to the military by 3M and its subsidiary Aearo Technologies LLC, making CAEv2 litigation the largest mass tort in U.S. history.
3M recently attempted to place Aearo Technologies into bankruptcy as part of an effort to resolve the multidistrict litigation, but this attempt was unsuccessful.
"The combined effect of these errors was not just reversible error, but a trial outcome that is useless as a bellwether," 3M asserted.
In April, Vilsmeyer urged the 11th Circuit Court not to overturn the jury verdict and countered 3M's appeal, stating that the company was grasping at straws with 11 separate arguments, including "two new but equally unconvincing arguments that it could have raised in prior appeals but chose not to."
"3M contends Vilsmeyer failed to prove the CAEv2 caused his auditory injuries, but this argument confuses the issues and ignores expert testimony establishing causation," he said per Law360. "3M's superseding-cause defense fares no better because the military's alleged failure to fit and train Vilsmeyer with the CAEv2 was foreseeable as a matter of law."