Taking on 3M

Bryan Aylstock has been running at full speed since spring 2021, winning millions of dollars in damages for U.S. Army veterans who say they suffered hearing damage due to combat earplugs manufactured by 3M. It’s the largest mass tort in the history of the federal court system.

“I’m proud to work on behalf of these vets,” says Aylstock. “It’s been a fight the whole way, and it’s been one of the most meaningful efforts in my legal career.”

The earplugs were used by the Army between 1999 and 2015. While the majority of the plaintiffs served in the Iraq or Afghanistan wars, most of the hearing damage allegedly occurred during training at U.S. bases. 

More than 250,000 plaintiffs are involved in the multidistrict litigation, and Aylstock’s Pensacola firm, Aylstock, Witkin, Kreis & Overholtz, represents 40,000 of them. In 2019, the Judicial Panel on Multidistrict Litigation centralized the case with U.S. Judge M. Casey Rodgers in the Northern District of Florida. 

Between April 2021 and May of this year, 16 bellwether trials were held, with 19 plaintiffs. Ten trials, with a total of 13 plaintiffs, were plaintiff’s wins. Aylstock’s firm was involved in all of them; he was lead attorney in two wins: the first, and the Jan. 27 trial resulting in a $110 million verdict. His law partner Brad Bradford was lead attorney in a $50 million verdict and $77.5 million in the last bellwether. Total damages awarded through May were about $299.5 million.

“In each bellwether trial we learn something,” he says. “We have learned some of the defenses 3M asserted simply don’t work. And we’ve learned that multiple unanimous juries have been appalled by 3M’s conduct.”

In the first bellwether case in April 2021, involving three plaintiffs, everything was new—every ruling, every piece of evidence, every strategy. The fight was rigorous because the rulings and evidence allowed into the trial would affect future cases. “The first case is always going to be the hardest-fought on nearly every legal or evidentiary issue, and this one was no exception,” says Aylstock. 

The battle involved a flurry of pretrial motions to produce evidence. According to Aylstock, it took a prolonged effort to obtain documents he says showed 3M’s manufacturing facility in Mexico had chronic quality assurance problems. 

Aylstock says his efforts also resulted in finding internal 3M emails showing the product had problems. A report by one of 3M’s head scientists, he says, warned that the earplugs were too short for proper insertion and loosened while in use. “That document sat in the 3M files for 15 years,” says Aylstock. “The product did not function as advertised. It didn’t protect the soldiers.”

Aylstock also says he obtained an internal 3M document that stated the earplugs did not adequately protect eardrums on the shooting range. The theme of his closing argument was his contention that the corporation put profits over soldiers. “The damage was entirely preventable,” he says. 

In that first trial, the federal jury awarded Luke Estes, Lewis Keefer and Stephen Hacker a total of $7.1 million, which included $2.1 million each in punitive damages. Hacker and Keefer served in the Afghanistan war. 

In the Jan. 27, 2022 bellwether, Aylstock won his biggest verdict so far. A federal jury awarded $110 million to two Army veterans, Ronald Sloan and William Wayman. Each was awarded $15 million in compensatory damages and $40 million in punitive damages. 

As the bellwether cases have progressed, the parameters of the cases have become more defined. “We’ve refined our story and are able to tell a very compelling story based on 3M’s internal documents and admissions,” says Aylstock. 

In late February, 3M—which was successful in five of the first 11 trials—appealed the first case to the 11th U.S. Circuit Court of Appeals, blaming the earplug design on the military.

Now Aylstock is sprinting. The judge ordered the first wave of 500 cases to be worked up. Aylstock was involved in all five trials scheduled for this spring: two in March, the rest in April and May in Pensacola, Tallahassee, and Gainesville. The judge has indicated the cases will proceed as scheduled unless there are settlements. 

“It’s a challenge,” says Aylstock. “But we have trial teams willing to travel. We have the materials already ruled on by the court. It will take some coordination, but we can do it and we’re ready.”