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3M Products Liability Litigation MDL No. 2885
I was recently asked by a military combat veteran to solve a problem related to ‘3M Products Liability Litigation MDL No. 2885’. Specifically, "The Damages", "As for the monetary damages to be sought, there is the challenge of how attorneys will arrive at the correct figure, given that the plaintiffs are so much younger than those in traditional hearing loss cases. It remains to be seen what the plaintiffs will ask for." (Verus, 2019).
I took the challenge and told the veteran to give me an hour. He came back in 59 minutes. The veteran seemed shocked at my response, “Through the end of 2020, you should seek $44,192,422.05 for damages with high probability of success. For every following year without settlement, the punitive damage amount goes up exponentially.” He said, “Wow! That is really specific! How in the world did you come up with that?”
Bottom Line Up Front
Recommendation (case/injury specific) that may serve as a template for all concerned:
· $4,208,802.10 due to the combat veteran (Compensatory)
· $2,104,401.05 due to the spouse of the combat veteran (Compensatory)
· $37,879,218.90 due as punishment and deterrence through the end of 2020, where the ratio goes up each year without settlement (Punitive, US Supreme Court)
After asking five (5) questions, citing federal law and regulation, I was able to calculate Compensatory (compensation for physical injuries) and Punitive (punishment and deterrence for intentional actions likely to cause injury) damages precisely (to the cent). The scientific-based findings are equitable and just. Any reasonable judge and jury could agree.
Recommend read the following links and educate yourself:
Gilmore. (2019). Class Action FAQs: How to Object to a Class Action Settlement. https://www.classaction.org/blog/class-action-faqs-how-to-object-to-a-class-action-settlement
ClassAction. (2019). Statement of Objection Sample Letter. https://www.classaction.org/media/objection-letter-sample.pdf
According to the US Federal Court system, 3M is facing serious charges (US Courts, 2020):
Count I – Design Defect – Negligence
Count II – Design Defect – Strict Liability
Count III – Failure to Warn – Negligence
Count IV – Failure to Warn – Strict Liability
Count V – Breach of Express Warranty
Count VI – Breach of Implied Warranty
Count VII – Negligent Misrepresentation
Count VIII – Fraudulent Misrepresentation
Count IX – Fraudulent Concealment
Count X – Fraud and Deceit
Count XI – Gross Negligence
Count XII – Negligence Per Se
Count XIII – Consumer Fraud and/or Unfair Trade Practices
Count XIV – Loss of Consortium
Count XV – Unjust Enrichment
Count XVI – Punitive Damages
PREPARE TO OBJECT (the Global Settlement offer)
Otherwise, you will likely
recover ONLY 5-10% of compensation due to you directly, 0% for your spouse, and
3M will not have to admit fault/liability.
A statement of objection is your
legal right. It's easy, you don't need a lawyer, and you submit your written
objection directly to the Clerk of the Court (not the biased lawyers
negotiating the Global Settlement).
Gilmore. (2019). Class Action FAQs: How to Object to a Class Action Settlement. https://www.classaction.org/blog/class-action-faqs-how-to-object-to-a-class-action-settlement
ClassAction. (2019). Statement of Objection Sample Letter. https://www.classaction.org/media/objection-letter-sample.pdf
According to the US Federal Court system, 3M is facing serious charges (US Courts, 2020):
Count I – Design Defect – Negligence
Count II – Design Defect – Strict Liability
Count III – Failure to Warn – Negligence
Count IV – Failure to Warn – Strict Liability
Count V – Breach of Express Warranty
Count VI – Breach of Implied Warranty
Count VII – Negligent Misrepresentation
Count VIII – Fraudulent Misrepresentation
Count IX – Fraudulent Concealment
Count X – Fraud and Deceit
Count XI – Gross Negligence
Count XII – Negligence Per Se
Count XIII – Consumer Fraud and/or Unfair Trade Practices
Count XIV – Loss of Consortium
Count XV – Unjust Enrichment
Count XVI – Punitive Damages
Method and Procedure
Measurement most relevant to the community (Federal Court System, Honorable M. Casey Rodgers, US Government, Military Combat Veterans, Government Civilians, 3M) includes:
Qualitative (questionnaire):
· 5 qualifying questions
Quantitative (statistics):
· 38 U.S. Code § 1155.Authority for schedule for rating disabilities
· 38 CFR Part 4 - Schedule for rating disabilities
· 5 U.S. Code § 5304.Locality-based comparability payments
· 5 CFR Subpart F - Locality-Based Comparability Payments
· SSA - Cost-Of-Living Adjustments
· SSA - Retirement & Survivors Benefits: Life Expectancy Calculator
Applied Process (6 easy steps):
1. Answer the questions
2. Determine current loss value (2020)
3. Determine past loss value (since first medical diagnosis)
4. Determine future loss value (up to life expectancy)
5. Determine spousal loss value ('1/2 value' of pain & suffering is experienced by spouse)
6. Determine punishment and deterrence value (‘single digit’ ratio)
Use Case
STEP 1 – Answer the questions
1. Do you have medical diagnosis for Tinnitus and/or Hearing Loss from the VA related to combat service 2003-2015 (including 0% rating)?
a. Yes. 2006. Tinnitus (both ears, constant) Service Connected 10% rating, Hearing Loss (both ears, High Frequency based on Audiogram) Service Connected 0% rating.
i. Primary in-service injuries due to undisclosed defect in product
ii. Lifestyle, occupational, and social impairment statement
2. Do you have medical diagnosis for any other secondary condition (service-connected or not) currently caused or made worse by your Tinnitus and/or Hearing Loss?
a. Yes. 2006-current. PTSD, TBI, Migraines/Headaches, Functional Dyspepsia, Hypertension, Chronic Fatigue Syndrome
i. Medical nexus letters connect primary to secondary conditions
ii. Lifestyle, occupational, and social impairment statement
**38 CFR Part 4 primary and secondary conditions with medical nexus meet ‘100% Schedular’ requirements
**38 CFR § 4.25 - Combined ratings table. The tort is not compensating for efficiency ratings based on disability conditions. The tort is compensating for damages, injury, or other incurred loss as a result of the negligence or unlawful conduct of another party. This renders § 4.25 moot.
3. Were you married at any time from 2003 to now?
a. Yes. Married the entire time, 2003-today
i. 100% (Schedular) $3,279.22 (Effective 12/1/19) for 2020
1. VA. (2019). 70% - 100% Without Children, Veteran with Spouse Only. https://www.benefits.va.gov/compensation/resources_comp01.asp#BM0
a. Same hyperlink ‘Historical Rate Tables’, 2006-2019 (-1 year for affected year
b. Example, 2018 table is for 2019 (effective 12/1 of the previous year for 1/1)
i. 2018 | 2017 | 2016 | 2014/2015 | 2013 | 2012 | 2011 | 2010-2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999
4. What is your legal gender and birthdate?
a. Male, January 15th, 1975
i. Age 44 and 10 months
ii. Additional Life Expectancy (in years) 36.8
iii. Estimated Total Years 81.7 (1975 + 82 (81.7) = 2057 terminal year)
1. SSA. (2019). Retirement & Survivors Benefits: Life Expectancy Calculator. https://www.ssa.gov/oact/population/longevity.html
5. Where do you currently live (nearest metropolitan area)
a. Pensacola, Florida
i. Locality Payment of 15.67% (Effective January 2019)
ii. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2019/RUS.pdf
iii. “2019 Locality Pay Adjustment for the Rest of U.S. is 15.67%”
a. REST OF UNITED STATES (Consisting of those portions of the United States and its territories and possessions as listed in 5 CFR 591.205 not located within another locality pay area.)
STEP 2 – Determine current loss value (2020)
Using Step 1, Question 3 and Question 5 responses, we add Locality Pay Adjustment 15.67% to 100% Schedular $3,279.22, multiplied by 12 months and determine the current loss value is $45,516.89 for the year 2020.
STEP 3 – Determine past loss value (since first medical diagnosis)
Using Step 1, Question 1 (2006), verifying Question 2 secondary with medical nexus began the same year (2006), and Question 3 (100% Schedular with spouse) responses with Question 3 Historical table values and Question 5 Historical table values, we determine the past loss value is $558,621.94 for years 2006-2019.
STEP 4 – Determine future loss value (up to life expectancy)
Using Step 1, Question 3 (100% Schedular 2020) $3,279.22 multiplied by the average Cost-of-Living-Adjustment (3.6844% from 1975-2020, life of Veteran) dynamically for each additional year past 2020, adding Question 5 static Locality Pay from 2020 15.67%, up to Question 4 (2057) terminal year, we determine future loss value is $3,604,663.27 for years 2021-2057.
STEP 5 – Determine spousal loss value ('1/2 value' of pain & suffering is experienced by spouse)
Spouses incur pain and suffering and loss of consortium. A reasonable spousal compensatory damage value is ½ the primary combat veteran compensatory damage value. Based on the total primary loss value (past, present, future combined $4,208,802.09), we determine the spousal loss value at $2,104,401.05 for years 2006-2057.
· Possible consideration referencing 20 CFR § 404.333. “Wife's and husband's benefit amounts. Your wife's or husband's monthly benefit is equal to one-half the insured person's primary insurance amount." https://www.ssa.gov/OP_Home/cfr20/404/404-0333.htm
STEP 6 – Determine punishment and deterrence value (‘single digit’ ratio)
No federal court ‘hard line’ limit in punitive damages exists, where the US Supreme Court suggests using a ‘single digit’ ratio. “However, the Supreme Court did suggest that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." State Farm v Campbell, 548 U.S. 408 (2003).” (Justia, 2019). Although 3M’s actions demonstrate that “a particularly egregious act has resulted in only a small amount of economic damages”, the first year of single digit ratio (9:1) is recommended to expedite litigation and entice 3M to settle.
Based on the total primary loss value (past, present, future combined $4,208,802.09), we determine the Punitive damage value at $37,879,218.81 through the end of 2020.
Should 3M continue to shirk responsibility, it is recommended that the actions serve as basis for escalation in punitive damage ratio at the rate of 100:1 for every consecutive year following the first year (2020). This should provide ample motivation for ‘3M Governance’ to make the right decision.
Example punitive damage ratio (maximum 500:1 based on prior settlements):
· 1/1/2020-12/31/2020 9:1, $37,879,218.81
· 1/1/2021-12/31/2021 100:1, $420,880,209
· 1/1/2022-12/31/2022 200:1, $841,760,418
· 1/1/2023-12/31/2023 300:1, $1,262,640,627
· 1/1/2024-12/31/2024 400:1, $1,683,520,836
· 1/1/2025-12/31/2025 500:1, $2,104,401,045
3M Combat Arms Earplug Products Liability Litigation Background/Analysis
July 26, 2018 – “The Department of Justice announced today that 3M Company (3M), headquartered in St. Paul, Minnesota, has agreed to pay $9.1 million to resolve allegations that it knowingly sold the dual-ended Combat Arms Earplugs, Version 2 (CAEv2) to the United States military without disclosing defects that hampered the effectiveness of the hearing protection device.” “Readler of the Department’s Civil Division. “Government contractors who seek to profit at the expense of our military will face appropriate consequences.” (US Department of Justice, 2018).
Analysis:
· 3M was not compelled to admit liability for product defect
· 3M did not take responsibility for defrauding the government/taxpayer
· 3M chose to settle allegations under the False Claims Act as a cost-saving measure on a case they would have likely lost, been determined guilty, and forced to admit liability
“On April 3, 2019, the Judicial Panel on Multidistrict Litigation centralized and transferred the 3M Combat Arms Earplug Products Liability Litigation, MDL No. 2885, to this Court for pretrial proceedings before Judge M. Casey Rodgers. The related actions generally allege that the defendants’ dual-ended Combat Arms earplugs were defective and caused the plaintiffs to develop hearing loss and/or tinnitus. The Panel determined that these actions involve common question of fact “concerning the design, testing, sale, and marketing” of the Combat Arms earplugs. The Panel also found that centralization would “eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary.”” (US District Court, 2019).
Analysis:
· 3M continues to deny liability due to undisclosed product defect
o “3M has great respect for the brave men and women who protect us around the world, and their safety is our priority." "We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations.” (ABC, 2019).
· 3M defense is government contractor immunity (Boyle v. United Technologies Corp., 1988) (Verus, 2019).
o “This would require 3M to demonstrate that its earplugs met all three parts of this intensely factual test, proving generally that:
§ 1 – The U.S. government approved reasonably precise specifications
§ 2 – The equipment provided conformed to said specifications
§ 3 – The manufacturer gave adequate warning about any issues”
· 3M is unlikely to preemptively settle for Compensatory damages with a Punitive damage waiver ($4.2 million + $2.1 million only)
o This will likely trigger a greater punitive ratio beyond the US Supreme Court recommendation of a ‘single digit’ ratio 9:1 (State Farm v Campbell, 548 U.S. 408 (2003)), ranging up to 500:1 based on previous decisions.
§ “The Court added that to justify a higher ratio, a plaintiff would have to show that "a particularly egregious act has resulted in only a small amount of economic damages."” (Justia, 2019).
3M Governance - Board of Directors “Wall of Shame”
This is ‘3M Governance’ (3M, 2019), the twelve (12) people responsible for prioritizing profit above the life and family of military service members, and government civilians, seriously affected by 3M products.
Conclusion
Monetary damages to be sought have a relative rating and precise system of measurement resulting in 'correct figure' valuation. Every military combat veteran, government civilian, and spouse negatively impacted by 3M’s malign actions deserves full compensation for damages without the burden of prolonged litigation. Each day that 3M is not held responsible by the Federal Court System only adds to daily torment and suffering.
Senior executive leadership (a
CEO and Board) who refuse to hold the organization accountable in “proceeding intentionally
with an unlawful action after knowing that the act was likely to cause injury” is
wrong (Cornell Law School, 2019).
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References
3M. (2019). 3M Governance -
Board of Directors. https://investors.3m.com/governance/board-of-directors/default.aspx
ABC. (2019). 3 Investigates:
Veterans suing 3M for defective earplugs. https://weartv.com/news/local/3-investigates-veterans-suing-3m-for-defective-earplugs-11-12-2019
Cornell Law School. (2019).
38 U.S. Code § 1155.Authority for schedule for rating disabilities. https://www.law.cornell.edu/uscode/text/38/1155
Cornell Law School. (2019).
38 CFR Part 4 - SCHEDULE FOR RATING DISABILITIES. https://www.law.cornell.edu/cfr/text/38/part-4
Cornell Law School. (2019).
5 U.S. Code § 5304.Locality-based comparability payments. https://www.law.cornell.edu/uscode/text/5/5304
Cornell Law School. (2019).
5 CFR Subpart F - Locality-Based Comparability Payments. https://www.law.cornell.edu/cfr/text/5/part-531/subpart-F
Justia. (2019). Punitive
Damages. https://www.justia.com/trials-litigation/docs/punitive-damages/
SSA. (2019). Cost-Of-Living
Adjustments. https://www.ssa.gov/oact/cola/colaseries.html
SSA. (2019). Retirement
& Survivors Benefits: Life Expectancy Calculator. https://www.ssa.gov/oact/population/longevity.html
US Courts. (2020). Master Short Form and Jury Demand. http://www.flnd.uscourts.gov/sites/default/files/mdl2885/Master%20Short%20Form%20Complaint.pdf
US Department of Justice. (2019). 3M Company Agrees to Pay $9.1 Million to Resolve Allegations That it Supplied the United States With Defective Dual-Ended Combat Arms Earplugs. https://www.justice.gov/opa/pr/3m-company-agrees-pay-91-million-resolve-allegations-it-supplied-united-states-defective-dual
US Department of Justice. (2019). 3M Company Agrees to Pay $9.1 Million to Resolve Allegations That it Supplied the United States With Defective Dual-Ended Combat Arms Earplugs. https://www.justice.gov/opa/pr/3m-company-agrees-pay-91-million-resolve-allegations-it-supplied-united-states-defective-dual
US District Court. (2019).
3M Products Liability Litigation, MDL No. 2885 Master Docket No. 3:19md2885. http://www.flnd.uscourts.gov/mdl2885
Verus. (2019).
Considerations in the 3M Military Earplug Lawsuits. https://verusllc.com/considerations-in-the-3m-military-earplug-lawsuits/