Without shame, 3M decided it shouldn’t have to defend itself in the tort system any longer. In a legal maneuver that can only be seen as yet another slap in the face to military veterans, 3M attempted to brush off its responsibility by having Aearo Technologies, its subsidiary and the original supplier of the earplugs, assume the liabilities of the earplug unit, and then have that unit file for bankruptcy. At its first bankruptcy hearing yesterday, Aearo reached a deal to push back deadlines in the multidistrict litigation alleging it made defective earplugs.
You see, this week, 3M unilaterally canceled depositions in the 3M MDL, including the depositions of several of our clients. They did so without informing Judge Rogers who oversees the MDL. They did so even in cases, like ours, where Aearo is not even a defendant. Judge Rogers held an emergency “Show Cause” hearing yesterday morning at 7:30 AM Central time to compel counsel for the defendants appear and explain themselves. In 37 years of fighting corporate greed in the courts, I’ve never seen a Judge as angry as Judge Rogers was yesterday. And good for her. She sanctioned the defendants and ordered them to pay any costs that counsel incurred in having to prepare 3M plaintiffs for ill-fated depositions.
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Back at yesterday’s bankruptcy hearing, Aearo agreed to drop its request that U.S. Bankruptcy Judge Jeffrey J. Graham issue an immediate restraining order halting legal action against both it and 3M in exchange for counsel for the MDL plaintiffs agreeing to delay scheduled depositions and expert report deadlines in the case for three weeks.
Aearo called the 3M MDL “broken beyond repair” in a court filing. Understandably, Judge Rodgers was visibly outraged over this characterization. What additional sanctions Judge Rogers will impose is yet to be seen. Certainly, we’ve seen corporations try to shed liability by siphoning off their liabilities to smaller companies and then having those companies file for bankruptcy. That just happened just months ago in the talcum powder MDL where Johnson & Johnson left tens of thousands of women devasted by ovarian cancer with no recourse whatsoever in the tort system. So, here we are again.
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If corporations want to take advantage of American capitalism — as they should — then they should also bear the responsibility that ensues when their devices are defective and cause harm to others. They should stand up in court, and either concede or defend themselves, but shucking off responsibility by running to the bankruptcy courts is cowardice at its height. The bankruptcy courts should see through this fraudulent attempt to avoid responsibility and should return this case to the MDL for trial on the merits.