3M’s attempt to quash one of the nation’s largest mass torts in U.S. history was set back in late April when a Florida federal judge denied the company’s bid to obtain discovery and depositions from the federal government in the Combat Arms military earplug multidistrict litigation (MDL).
In an order written by U.S. Magistrate Judge Gary R. Jones, 3M’s attempt to force the U.S. military to hand over information related to the MDL was too late, according to Law360.com.
3M’s discovery requests to the US Department of Defense (DOD) and U.S. Department of Veteran Affairs were issued less than a month before the April 1 deadline. Judge Jones also stated that based on a legal precedent established by a ruling made by the U.S. Supreme Court, 3M’s request for discovery did not meet the standards for when government employees are required to testify at the behest of a third party such as 3M.
Judge Jones suggested that Hearing Conservation Program Managers (HCPMs), which 3M attempted to depose, do not necessarily have “particular knowledge beyond a general awareness of hearing conservation matters during the time that certain plaintiffs were stationed at the same military base.”
The Judge added, "Additionally, defendants do not suggest that these HCPMs will testify to anything more than what other HCPMs have already testified to as a part of general discovery in these cases. This is not surprising because many of the plaintiffs in this MDL served at military bases more than 10 to 15 years ago."
HCPMs have testified about the usage of 3M’s Combat Arms Earplug version 2 (CAEv2) at various military bases. However, according to Judge Jones, none of the HCPMs have specific knowledge about how any of the plaintiffs used the allegedly faulty hearing devices. Having more HCPMs testify in future bellwether trials would likely yield no additional information, Judge Jones concluded.
Nearly 300,000 individuals, most of them U.S. military veterans, have filed hearing damage claims against 3M. Out of 15 completed bellwether trials, 3M has been found liable or partly liable for plaintiffs’ hearing damage, either in the form of hearing loss or tinnitus, in nine trials. Juries have awarded plaintiffs approximately $200 million in damages.