Earplugs Judge Says 3M Can’t Use Drug Defense

U.S. District Judge M. Casey Rodgers, who is presiding over hundreds of thousands of lawsuits against 3M over allegedly faulty earplugs has ruled that the corporation cannot use testimony from three purported “experts” in its defense. Rodgers said their testimony is scientifically unsupported and that their medical opinions are irrelevant regarding prescription or illegal drugs causing hearing loss.

3M hoped to use their testimony to muddy the claims of U.S. service members whose hearing was damaged or who suffer tinnitus after using the faulty earplugs. Judge Rodgers’ decision means 3M cannot claim that veterans and other armed forces members suffered hearing loss, not from bad earplugs, but from their own drug use.

Approximately 220,000 claims have been filed against 3M in multidistrict litigation over the Combat Arms military-issue earplugs manufactured and sold by 3M subsidiary Aearo Technologies.

In particular, Judge Rodgers addressed a medical opinion submitted by Dr. James Crawford, a board-certified otolaryngologist and neurotologist. Crawford had stated that certain “salicylates” prescribed or sold over the counter, as well as certain solvents and illicit drugs, can be “ototoxic,” or toxic to the ear.

In his order, Rodgers said, “Plaintiffs argue those opinions are unreliable, unhelpful and misleading. The court agrees, in part. … None of the materials submitted in connection with the instant briefing establishes more than an association, which this court has repeatedly found insufficient, without more, to reliably support an expert opinion on causation.”

According to the order, Dr. Crawford cannot testify regarding substances that were not previously determined to be ototoxic unless a case-specific diagnosis has been made, according to the order.

The judge also took issue with testimony by Dr. Karthik Rajasekaran, a board-certified otolaryngologist. Dr. Rajasekaran suggested that tobacco use and heavy alcohol consumption can cause hearing impairment or tinnitus, statements that are not backed by science.

“As the court has previously found and incorporates by reference here, despite ample opportunity to do so, defendant has presented no scientifically reliable evidence in this litigation — including in connection with the instant briefing — establishing a causal relationship between tobacco use, alcohol consumption and auditory dysfunction,” the order says. “Consequently, Dr. Rajasekaran’s tobacco and alcohol use opinions are excluded on reliability, helpfulness and 403 grounds.”

The third excluded testimony is that of Dr. Richard Neitzel, an industrial hygienist and exposure scientist. He, too, claimed that certain prescription medications were ototoxic.

“Dr. Neitzel is unqualified to offer general expert opinions,” Judge Rodgers said. “While Dr. Neitzel has extensive training and professional experience in the field of occupational noise exposure, drug ototoxicity has arisen only tangentially in that work and only in the context of raising employers’ general awareness that workers’ use of certain categories of medications may pose a ‘potential complicating factor’ in preventing hearing loss in the industrial setting. Dr. Neitzel does not and cannot differentially diagnose drug-induced hearing loss and has never studied or published on the issue.”

Minnesota-based and Delaware-incorporated 3M bought Aearo in 2008. In 2010, its earplug business became part of 3M’s multibillion-dollar holdings.

Aearo filed for Chapter 11 bankruptcy in July in an attempt to follow Johnson & Johnson’s lead and circumvent the civil justice process. However, Judge Rodgers maintained that 3M’s earplug lawsuits should be excluded from Aearo’s bankruptcy.

3M has appealed that decision.

Want to know more? Here’s information on 3M Earplugs Lawsuits.

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