Bryan F. Aylstock

In July 2000, two scientists at Aearo Technologies, Elliott Berger and Ronald Kieper, wrote up what their laboratory tests had shown about a new earplug the company had begun selling to the U.S. Army. The plug had two ends, one green and one yellow. Inserted green end first, it was “too short for proper insertion,” and the flanges on the yellow end “tended to return to their original shape and this sometimes loosened the plug.” Berger and Kieper reached acceptable test results by folding those opposing flanges back before insertion, a way of wearing the plug that it had not been designed for. In May, Berger had already told Brian Myers, Aearo’s senior marketing director, that “the existing product has problems unless the user instructions are revised.” The write-up became known as the Flange Report, and it was never shared with the Army.

The plug, sold as the Combat Arms Earplug, Version 2, was built to be worn one end or the other depending on the task. One end blocked steady noise; the other carried a nonlinear filter developed by the French-German Research Institute of Saint-Louis and was meant to let a shouted order through while blunting the crack of a rifle. The military issued it to servicemembers from 2000 to 2015, through the wars in Iraq and Afghanistan and through 3M’s purchase of Aearo in 2008. The Flange Report stayed inside the company until 2014, when 3M produced it in a lawsuit brought by a competitor, Moldex-Metric, Inc. Matt Hosen, then a second-year associate at Quinn Emanuel, found it buried in a large document production in Moldex’s antitrust case, and Quinn Emanuel partner Hal Barza used it to question 3M laboratory employees at deposition. The antitrust case resolved, and in 2016 Moldex filed a whistleblower suit under the False Claims Act.

On July 26, 2018, the Justice Department announced that 3M would pay $9.1 million to resolve allegations that it and Aearo knew the earplug was “too short for proper insertion into users’ ears” and “could loosen imperceptibly,” shifting out of the ear canal without the wearer noticing, just enough to let damaging sound back in, and that they sold it to the Defense Logistics Agency without disclosing the defect. Moldex received $1,911,000. 3M admitted no liability. It had resolved the government’s claim that it sold a defective product before a single personal-injury suit had been filed, and the soldiers who wore the plug received nothing from it. Bryan F. Aylstock, a Pensacola plaintiffs’ lawyer, has traced what came next to that announcement: plaintiffs’ firms across the country began filing suits on behalf of servicemembers with hearing loss and tinnitus. The claims that the defect had actually damaged someone’s hearing were still to come, and they came by the hundreds of thousands.

From Eight Lawsuits to 330,000

On April 3, 2019, the Judicial Panel on Multidistrict Litigation consolidated eight lawsuits then pending in four federal districts into MDL No. 2885, In re: 3M Combat Arms Earplug Products Liability Litigation, before U.S. District Judge M. Casey Rodgers in the Northern District of Florida. Aylstock’s firm had asked the panel to send the cases to Pensacola, and his partner Jennifer Hoekstra argued the request. Rodgers reviewed applications from more than 190 lawyers seeking seats on the plaintiffs’ committees. Seven weeks after the transfer, she named the lawyers who would run the plaintiffs’ side of the case—a group she said was meant “to collaboratively lead” it—putting Aylstock in the lead seat, with Shelley V. Hutson and Christopher A. Seeger as co-lead counsel beneath him. Filings under that docket number eventually passed 330,000: the largest mass tort in the history of the federal courts.

Aylstock called Pensacola, a city near a naval air station with a high percentage of veterans, “the perfect place” for the litigation. His firm came to represent more than 40,000 active-duty and retired servicemembers in the MDL. For a caseload that size, he said, “there is no substitute for direct and frequent communication with the people you represent.” “We also have many veterans on our team, which has been invaluable as we prosecute the 3M case,” he said in 2020.

Three Generations in Uniform

Aylstock comes from a military family. His great-grandfather served in the Army, his grandfather and an uncle in the Navy, and his father and another uncle in the Air Force. He graduated magna cum laude from the University of North Florida with a degree in history in 1992, finished first in his section at the University of Florida’s Levin College of Law in 1995, and passed the Florida Bar with the highest score in the state’s First Appellate District. He was an honors intern in the Federal Tort Claims division of the Justice Department and clerked for Judge Roger Vinson in the Northern District of Florida, the court where the earplug cases would later be consolidated. He worked at the Pensacola plaintiffs’ firm Levin Papantonio before founding Aylstock, Witkin, Kreis & Overholtz in 2001, where he remains a partner.

Aylstock reached the lead seat by way of a decade spent running other multidistrict litigations. By 2014 he was serving as one of three Coordinating Co-Lead Counsel across five federal multidistrict litigations consolidating claims over pelvic-mesh implants before Judge Joseph R. Goodwin in the Southern District of West Virginia, including the litigation against Ethicon, Inc.—claims that mesh implanted to treat pelvic organ prolapse and incontinence had eroded through vaginal tissue and caused chronic pain, infection, and repeat surgery. He had sat on the plaintiffs’ steering committee as Multi-District Coordinator in the Zoloft antidepressant litigation, and as co-lead counsel and co-chair of the discovery and administrative committees in the Avandia diabetes-drug litigation. He remains Coordinating Co-Lead Counsel across the pelvic-mesh multidistrict litigations still pending before Judge Goodwin.

In August 2020 he also filed the first of two suits in federal court in Washington against the Islamic Republic of Iran on behalf of about 300 wounded veterans and families of servicemembers killed in Iraq and Afghanistan, alleging that Iran supplied dangerous variants of improvised explosive devices used in attacks there. His firm’s current caseload also includes multidistrict and mass-tort litigation over the sickle-cell drug Oxbryta, wildfire damage claims in California, data breaches at General Motors, Samsung, and T-Mobile, and continuing NFL pension claims. The firm now has twenty-one attorneys and roughly 150 staff.

Who Positioned the Flanges

3M’s broadest defense was that it had built the plug the way the Army wanted it. Under the government-contractor defense, a manufacturer that builds military equipment to reasonably precise specifications approved by the government is shielded from state-law liability for the design. 3M argued that the Army, through Doug Ohlin, the audiologist who managed its hearing conservation program, had effectively set the design. Ohlin had told Aearo at a December 1997 meeting at Aberdeen that the Army would be interested in a two-ended plug, and in 1999 he told Aearo the plug was too long to fit the Army’s carrying case. A 3M executive testified at deposition that “Doug was the one that pretty much dictated how we were to provide hearing protection to the military.” 3M also maintained that Aearo had told the military about the fitting problem. “The U.S. military was aware of those issues,” the company said.

Rodgers ruled on July 24, 2020. Aearo, she found, had designed and redesigned the earplug without sharing its detailed drawings with the Army. When the length problem came up in 1999, Myers wrote that Aearo could “probably shorten the plug by the [one-quarter inch] required to fit [the Army’s] current container,” and that the company’s designer would look at it when he got back from vacation. Rodgers wrote that “it is undisputed that Aearo had sole discretion over the method chosen.” “The Army did not participate in any way in Aearo’s decision on how to position the CAEv2’s flanges,” she wrote, and absent a contract, “no reasonable jury could conclude that Dr. Ohlin or the Army made Aearo do anything.” She granted the servicemembers’ motion for summary judgment and held the defense unavailable, as a matter of law, for every claim. On the failure-to-warn claims she applied an earlier appellate decision, Dorse v. Eagle-Picher: “This Court is bound by Dorse, period.”

Aylstock’s team had pressed for that ruling. “We always thought 3M was grasping at straws. I viewed this government contract defense as a smoke screen,” he said that fall. The cases would go to juries on what Aearo had known about its own plug and what it had told the Army.

Four Pools of Five

Rodgers built a bellwether program to learn what the claims were worth before any court tried to value all of them at once. In February 2020 she ordered that the initial trial cases be chosen at random, four pools of five cases each. Sigifredo Garcia was picked into the first pool, Group A, that June, with Lonnie Burgus held as the court’s alternate for Group B. The bellwether cases, Aylstock said, “will be tried in quick succession to estimate values.” The trials that followed carried the litigation to a jury one case at a time: the first opened on March 29, 2021, McCombs’s case on May 17, Baker’s on June 7, Taylor’s that September, Blum’s that October, and the consolidated cases of Hensley, Sloan, and Wayman in January 2022.

Aylstock and his partner Neil Overholtz led the plaintiffs’ trial team in that first trial in Pensacola. Their three clients had all served in the Army. Luke Estes, a former tank platoon leader, began losing his hearing and hearing a ringing in both ears in 2014. Lewis Keefer, an Army medic, had worn the plugs at a stateside duty station and in Iraq and was gradually losing his hearing. The third, Hacker, had served twenty years and developed tinnitus in both ears in 2006. Barred from telling the jury that the federal government had directed or approved the specifications, 3M argued that responsibility for the plug lay with the military. Over nearly five weeks the jurors heard witnesses that included 3M’s own employees. On April 30, 2021, they found that the earplug was defectively designed and that 3M had failed to warn the Department of Defense, and they awarded each veteran $2.1 million in punitive damages, about $7.1 million in all. “Their verdict sends a clear message to 3M that a contractor who sells personal protection devices to our military must be truthful, honest and forthright,” Aylstock said.

That fall Aylstock and Hoekstra tried the case of Brandon Adkins, an Army veteran who had worn the earplug through two tours in Afghanistan and developed tinnitus on active duty. Michael Sacchet, Adam Wolfson, and Matt Hosen tried it with them; Hosen was the lawyer who, as a second-year associate, had found the Flange Report. On October 1, 2021, the jury found the earplug defectively designed and awarded Adkins $8.2 million. “Mr. Adkins served our Country during the War on Terror and paid the price,” Aylstock said. “Little did he know that the earplug he was given to protect him was defective.”

The January 2022 trial ended in a verdict for William Wayman and Ronald Sloan. Wayman had been an Army Ranger and a Black Hawk medevac pilot over twenty years of service; Sloan, a master sergeant and tank commander, had served twenty-one. Both had deployed to Iraq and Afghanistan, and both had tinnitus in both ears and noise-induced hearing damage. Aylstock, Hutson, and Seeger were among their lawyers, with Seeger Weiss partner David Buchanan as co-lead trial counsel. After three weeks of trial, on January 27, the jury awarded each man $15 million in compensatory damages and $40 million in punitive damages: $110 million, the largest verdict of the eleven trials held to that point.

Over four years the program grew to sixteen trials. Juries found the earplugs defective and awarded damages in ten of them—$7.1 million for three veterans in the program’s first trial, $110 million for two veterans in January 2022, $77.5 million in its final bellwether trial that May—verdicts across the program totaling more than $300 million. At trial after trial, 3M’s lawyers argued that the earplugs, in the words of its trial counsel Eric Rucker, “when properly fitted and when used according to its instructions, work to protect people’s hearing.” Aylstock and Seeger countered that 3M had “purposefully skewed this data by relying on hearing standards that do not measure frequencies most affected by noise.”

Behind the docket numbers were people like Nathan Frei, a former Army infantry officer from Seattle who wore the issued earplugs on active duty from 2011 to 2015 and was later diagnosed by the Department of Veterans Affairs with tinnitus. “It’s constant,” Frei said of the ringing that has followed him since. “It’s a loud ringing in my ears—very similar to just like a buzz noise.” “Severe ringing in the ears can bring back memories of injuries suffered,” Aylstock said in 2020. “Of course these memories are stronger for some victims than others but overall, tinnitus makes PTSD worse.” Frei’s case was one of tens of thousands still moving toward trial in early 2023, when the litigation’s course turned on a fight in a bankruptcy court in Indianapolis.

Fatally Premature

In July 2022, Aearo Technologies—the company that had designed the earplugs before 3M acquired it in 2008—took on liability for the earplug claims and filed for Chapter 11 bankruptcy protection. Aearo proposed putting $1 billion from 3M into a trust to pay claims, with another $240 million from 3M for the bankruptcy’s expenses, and sought to use the filing to shield its parent company from the personal-injury suits entirely. 3M said bankruptcy offered a faster way to pay veterans. On a motion by servicemember Richard Valle, Rodgers ruled in August that 3M could not use Aearo’s bankruptcy to undo her court’s rulings. “The unabashed justification for dismantling this MDL is 3M/Aearo’s dissatisfaction with the MDL system, this court’s legal rulings, and the multiple jury verdicts against it in this litigation,” she said. U.S. Bankruptcy Judge Jeffrey Graham, in Indianapolis, ruled that Aearo’s bankruptcy did not stop the lawsuits against 3M itself, since 3M had not filed for bankruptcy. 3M appealed that ruling.

3M then changed its position. For more than three years it had litigated as though the six defendants were one; now it said Aearo alone was responsible for the plug, and by 3M’s own account all of the plug’s development and 80 percent of its sales had come before the 2008 acquisition. In October 2022 the plaintiffs moved for a ruling that 3M was liable for Aearo’s conduct before the purchase. On October 27, Rodgers paused the wave cases being prepared for trial and ordered the parties to “fully engage in ongoing settlement negotiations,” with monthly conferences at the federal courthouse beginning in November; 3M’s lawyers and representatives had to attend in person with “full settlement authority, subject to Board approval.” On December 22 she barred 3M from shifting any liability to Aearo in a future trial. She called the change a “bad faith reversal” made “solely to serve its strategic objectives in [Aearo’s] bankruptcy,” described the bankruptcy as a “scheme to oust the Congressionally-established system for resolving mass tort disputes in Article III courts,” and wrote that “No Wave trials, no remands, no nothing can go forward until 3M’s ruse is run up the flagpole.”

Early in 2023, the committee representing the servicemembers in the bankruptcy court moved to dismiss Aearo’s case outright, pointing to a ruling issued days earlier in which the U.S. Court of Appeals for the Third Circuit had dismissed a similar bankruptcy filed by a Johnson & Johnson subsidiary after finding that neither the subsidiary nor its parent was in financial distress. “Like J&J, 3M is a multi-billion dollar corporate enterprise that is not remotely in financial distress,” Aylstock and Seeger said, and it should not be able to “use the bankruptcy against the servicemembers it injured.” 3M argued that dismissing the case would disrupt settlement talks already underway.

Graham heard three days of argument in April. On June 9, 2023, he dismissed Aearo’s Chapter 11 case, finding no evidence that the company faced impending insolvency. Backed by 3M, Aearo enjoyed a “greater degree of financial security than warrants bankruptcy protection,” he ruled. He called the earplug litigation “staggering,” at 30 percent of all cases then pending in the federal district courts, but found the bankruptcy a “fatally premature” response, and said the Third Circuit’s J&J ruling cast a “prominent shadow” over the case. The trust dissolved with it. Aylstock and Seeger called the bankruptcy filing “a gross misuse of the bankruptcy courts.” “The soldiers we represent deserve an opportunity to hold 3M accountable before a jury of their peers,” they said. 3M would answer the remaining claims the way any other defendant does—case by case in front of a jury, or by negotiating a settlement without a bankruptcy court’s shelter.

A Deal 3M Could Still Walk Away From

Less than three months later, on August 29, 2023, 3M agreed to pay up to $6.01 billion to resolve the claims of nearly 250,000 plaintiffs, in payments running from 2023 through 2029 and including $1 billion payable in 3M stock. The agreement reached the cases in Pensacola, thousands of similar claims in Minnesota state court, and claims not yet filed. It let 3M withdraw if fewer than 98 percent of eligible claimants signed on. Aylstock, still Lead Counsel, served on the plaintiffs’ settlement-negotiation committee. The same day, Rodgers appointed ARCHER Systems as settlement administrator, solely responsible for paying each eligible claimant directly; named Matt Garretson to design the method for allocating awards; and named J. Christopher Klotz to decide petitions to an Extraordinary Injury Fund for additional awards. Claimants had to register with the administrator and submit their military discharge records by court deadlines.

Rodgers set a fairness hearing for December 11, 2023, in Pensacola, to be held jointly with Minnesota state Judge Laurie J. Miller, on one question: whether paying part of the settlement in 3M stock was fair to the claimants. On December 26, 3M paid $250 million into the settlement fund for claimants seeking expedited payments, expecting 25,000 to 30,000 of them to dismiss their suits. In January 2024 it moved up another $253 million for the wave plaintiffs who had been preparing for trial. Aylstock said the plaintiffs’ team was “pleased with 3M’s decision to move up this payment and appreciate its commitment to the resolution of these claims.” “So far, support for the settlement has been overwhelming,” he said. On January 29, 3M announced that more than 250,000 eligible claimants had elected to participate and that it would pay the $1 billion in cash instead of stock. Participation cleared 99 percent. Awards are paid on a first-in, first-out basis, and 3M’s payments into the fund run through 2029.