Earplug judge can’t stop 3M bankruptcy plan, company says

The 3M logo is seen at the 3M Tilloy factory in Tilloy-Lez-Cambrai, France, August 18, 2019. REUTERS/Pascal Rossignol

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  • 3M defends legality of plan to resolve earplug liability in subsidiary’s bankruptcy
  • The district judge will hold a hearing on Thursday

(Reuters) – 3M Co has urged a federal judge not to interfere with its plan to transfer claims that its military earplugs caused hearing damage to bankruptcy court, where the company believes it can resolve more favorably than in federal mass tort litigation in Florida.

The filings in federal court in Pensacola on Wednesday came in response to motions filed by veterans last week seeking to prevent 3M from avoiding lawsuits by putting its subsidiary Aearo Technologies – the original maker of the earplugs, which it bought in 2008 – bankrupt.

A spokesman for the plaintiffs’ attorneys had no immediate comment.

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U.S. District Judge Casey Rodgers, who since 2019 has presided over a multidistrict consolidated litigation that has reached nearly 300,000 claims, has scheduled a hearing on the matter on Thursday.

Plaintiffs said they suffered injuries, including tinnitus and hearing loss, after using Aearo’s CAEv2 earplugs in combat or training because they did not form an adequate seal.

Of the 16 lawsuits in the multidistrict litigation involving 19 service members to date, plaintiffs have won 10, with approximately $265 million in combined awards for 13 plaintiffs.

Aearo filed for bankruptcy on July 26 and said it had committed $1 billion to resolve the earplug litigation.

In a petition filed last Thursday, veteran Guy Cupit argued that 3M, which did not itself declare bankruptcy, can no longer argue that it is not responsible for its subsidiary’s products because it did not raise this defense after three years of litigation.

In his answer in Cupit, 3M argued that it was not required to raise this defense in any particular case, as it had retained its right to raise defenses in its response to the so-called main complaint used throughout the litigation multidistrict.

Another veteran, Richard Valle, last Wednesday asked Rodgers to issue an injunction restraining 3M from taking legal action to stop any plaintiffs from pursuing earplug claims against him in district court. He said she had the power to do so under the All Writs Act, an 18th-century federal law that gives federal courts the power to make any order “necessary or proper using their respective jurisdictions.” .

3M versus that the All Writs Act did not allow Rodgers to overcome the clear legal authority of the bankruptcy court.

The MDL is In re 3M Combat Arms Earplug Products Liability Litigation, US District Court, Northern District of Florida, No. 19-md-2885.

For plaintiffs: Adam Wolfson of Quinn Emanuel Urquhart & Sullivan; Ashley Keller of Keller Postman; Bryan Aylstock, Daniel Thornburgh and Jennifer Hoekstra of Aylstock, Witkin, Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; Chris Seeger of Seeger Weiss; and Joseph Messa of Messa & Associates

For 3M: Kimberly Branscome of Dechert; and Jessica Lauria of White & Case

Read more:

Veterans seek to block 3M bankruptcy bet

3M to divest healthcare business, earplugs unit files for bankruptcy protection

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