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3M Attorneys are Sanctioned in MDL Ear Plug Litigation

— June 25, 2021

Judge feels 3M lawyers violated slide presentation order and issues sanctions.

A senior trial attorney from Dechert, Kimberly Branscome, received a $10,000 sanction for violating U.S. District Judge Casey Rodgers’s order during her closing arguments in the third bellwether trial in the multidistrict litigation (MDL) over allegedly defective 3M Co’s combat earplugs.  The plaintiffs in the 3M MDL – military veterans and service members – alleged they suffered hearing damage as a result of using its Combat Arms Earplugs, Version 2 (CAEv2) due to their defectiveness.  In 2018, 3M paid $9.1 million to settle claims by the U.S. government that it concealed defects (without admitting liability).

Rodgers determined that Branscome had “willfully violated” an order that she could not display a slide during the hearing containing a debatable statistic unless she told jurors she was using the slide only “to challenge the credibility of a plaintiff’s expert witness, not to suggest the truth of the crucial statistic.”  Dechert partner Jay Bhimani was also hit with a $2,000 sanction.

3M Attorneys are Sanctioned in MDL Ear Plug Litigation
Photo by Sora Shimazaki from Pexels

The judge had indicated prior to the incident, she would allow the slide, “If Ms. Branscome makes that clear in her closing that this is not being offered for the truth that the (noise reduction rate) was 23, then I’m fine with it.  If not, it’s not coming in.”  The slide in question included a study conducted on behalf of a 3M competitor in unrelated patent litigation, which Rodger’s determined in May to be hearsay.

Rodgers called Branscome to the bench when the slide was introduced, ordering her to tell jurors she wasn’t using the slide to show the truth of the reported noise reduction rate.  Branscome told the jury the competitor’s report was hearsay, but her attempt didn’t satisfy the judge.  The partners contended that they hadn’t intentionally disobeyed the order.

Rodgers said, “It seemed like 3M was using the slide to show jurors hearsay evidence to bolster its claims about the earplugs’ effectiveness.  That was out of bounds.”  She added, “Today, these proceedings and the integrity of the court were degraded.  They were disrespected by the willful violation of my orders by 3M’s counsel.”

Branscome said she had followed the order as she understood it. “I went straight to the jury, and I said it’s not being offered for the truth.  I wasn’t trying to hide the ball.  I genuinely thought I was conveying exactly what you had asked me to convey,” she responded to the judge.

Rodgers replied, “In my mind, you did everything you could do to avoid doing the very simple thing, very clear directive that I gave you to do.  In 19 years on the bench, I have never summarily sanctioned any lawyer for a willful disregard of one of court’s orders.  I can assure you that I take no pleasure in doing so now.”

Almost immediately after the sanctions were issued, the jury delivered a verdict in favor of the plaintiff, veteran Lloyd Baker, finding that 3M “failed to provide adequate warnings about the earplugs.”  The jury held 3M to be “62% liable for $1.7 million in damages.”


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