It has been a busy season for the 3M litigation. Judge Casey Rodgers, the judge presiding over the 3M Multidistrict Litigation (“MDL”), has made several important decisions in the past several weeks that we hope will have a positive impact on the litigation. One of those decisions – Judge Rodger’s Sanctions Order against 3M – will be the subject of today’s blog.
What Decisions Did The Judge Make in the 3M MDL?
On December 23, 2022, Judge Rodger’s issued a Sanctions Order against 3M for what she described as a “brazen abuse of the litigation process.” If you would like to read the full Order, you can do so by clicking here. Sanctions orders like this are not something we see in the legal field every day. A judge only issues sanctions when a judge finds that someone has acted in “bad faith.” In other words, sanctions are only issued when someone does something wrong, and they knew it was wrong.
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What Did Judge Rodgers Find That 3M Did Wrong?
Well, the conduct dates back several years to early 2019. For three-and-a-half years, 3M engaged in a “scorched earth battle,” fighting every theory of liability under the sun and arguing that the Combat Arms Earplugs are not faulty. And yet, not until recently – nearly four years into the litigation – did 3M make the outlandish claim that it isn’t the actual responsible party at all and that another company, Aearo, is.
As we have talked about in previous update letters, Aearo is a subsidiary company of 3M. That is, 3M can be thought of as a parent, and Aearo, its child. Under the law, however, “parents” like 3M are not necessarily responsible for the actions of their “children.” So, what 3M is doing here is saying they are not responsible for the issues with the Combat Arms Earplugs, Aearo is. This allegation has many legal complications given Aearo’s bankruptcy filing, but we will not get into that today.
3M’s sudden change, of course, comes at the tail end of many unfavorable jury verdicts against 3M with more trials on the horizon. And, Judge Rodgers isn’t buying the argument. In fact, it is because of 3M’s sudden change in position that Judge Rodgers has issued this Sanctions Order which imposes FULL liability on 3M and bars 3M from trying to shift liability to Aearo.
3M has since appealed this issue for the higher court to review.
Time will tell whether this parent can use its child as a scapegoat. We certainly hope not.
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