Bellwether Trials in 3M Combat Arms Earplug Litigation

By: Donald L Swanson

“Bellwether trials” are jury trials that serve as test cases.[FN. 1] 

Bellwether trials happen when many parties sue the same defendant over the same types of injuries from a defective product or wrongful action. 

The bellwether trial idea is to have jury trials in a limited number of cases, then evaluate the verdicts achieved as a basis for settling all similar claims.

Bankruptcy can become involved when the bellwether verdicts demonstrate that defendant’s total liability is likely to be greater than what the defendant can pay within a reasonable time—or at all.

A Prime Example

A prime example of the use of bellwether trials is the case of In re 3M Combat Arms Earplug Products Liability Litigation, Case No. 3:19md2885 in the U.S. District Court for Northern District of Florida (the “Earplug Cases”). 

Allegations in the Earplug Cases are that earplugs used by military personnel were defective and caused hearing loss for those personnel.  9,290 plaintiffs have filed suit (as of October 27, 2022), claiming damages for such hearing loss, according to a court Order of that date.

Bellwether Trial Results

To date, sixteen bellwether trials have happened in the Earplug Cases, resulting in:

• ten plaintiff’s verdicts—jury verdicts of multiple millions of dollars; and
• six defense verdicts—jury verdicts of no recovery for plaintiff at all.[Fn. 2]

–Plaintiff Bellwether Verdicts

The plaintiff bellwether verdicts in the Earplug Cases are as follows:

1. In May 2021, $7.1M for three plaintiffs, consisting of a combined $.8M compensatory and $6.3M punitives;
2. In June 2021, $1.1M for one plaintiff;
3. In September 2021, $8.2M for one plaintiff;
4. In November 2021, $13M for one plaintiff, consisting of $1M compensatory and $12M punitives;
5. In November 2021, $22.5M for one plaintiff, consisting of $7.5M compensatory and $15M punitives;
6. In January 2022, $110M for two plaintiffs, consisting of $15M in compensatory and $40M in punitives for each plaintiff;
7. March 2022, $8M for one plaintiff;
8. March 2022, $50M for one plaintiff, consisting of compensatory alone;
9. April 2022, $2.2M for one plaintiff; and
10. May 2022, $77.5M for one plaintiff, consisting of $5M compensatory and $72.5M punitives.

–Defense Bellwether Verdicts

By contrast, defense bellwether verdicts (i.e., no recovery whatsoever for the plaintiff) in the Earplug Cases were achieved in six trials as follows:

1. In May 2021;
2. In October 2021;
3. In November 2021;
4. In December 2021;
5. In December 2021; and
6. In April 2022.

“Beyond Legitimate Reproach”

In an Order entered October 27, 2022, the District Judge provides a defense of the bellwether trial process utilized in the Earplug Cases.

“The bellwether process for this MDL is beyond legitimate reproach,” the Judge declares, and adds the following explanations. 

–Development

Here’s how the bellwether trials process developed in the Earplug Cases:

• From the beginning, both sides agreed that bellwether proceedings would be important and necessary;
• The parties and the Court together designed a selection process that resulted in a truly representative pool of bellwether cases;
• A neutral third-party ascertained the most representative characteristics of the plaintiffs;
• From the pool of representative bellwether candidates, each side selected an equal number of cases (and alternates), alongside a number of random selections, to proceed with plaintiff-specific discovery and trial;
• Sixteen bellwether trials occurred, with:
  • nineteen representative plaintiffs;
  • ten different presiding judges from districts throughout the Eleventh Circuit; and
  • jury venires drawn from three dissimilar divisions in the Northern District of Florida.

–Truths

Several truths are inviolate no matter how loudly one yells or how forcefully one pounds the table:

• the bellwether selection process was developed fairly and by consensus;
• the bellwether plaintiffs were representative of the overall composition of this litigation;
• the bellwether trial process enabled the cases to be heard by a diverse combination of judges and jury pools; and
• the bellwether verdicts provide a fair representation of how juries view the evidence and value the claims.

–Bottom line

The bottom line about the bellwether trials process in the Earplug Cases is this:

• No other MDL litigants in this country have obtained more objectively representative and reliable data points about individual claims, and the broader whole, in this timeframe, than the parties in this litigation;
• Whether the parties use this information honestly and responsibly going forward is, of course, up to them; but
• The fundamental fairness of the bellwether process by which the information was obtained is unassailable.

Conclusion

It will be interesting to see how the bellwether process in the Earplug Cases plays out.

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Footnote 1:  The word “bellwether” is defined by Oxford as “the leading sheep of a flock, with a bell on its neck” and “an indicator or predictor of something.”

Footnote 2: Much of the information herein on bellwether trial results are from, (i) Latest Updates in Defective 3M Earplug Litigaiton, by Anjelica Cappellino, J.D., and (ii) 3M Earplug Settlement Update, by Ronald V. Miller, Jr.

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