Duane Morris Class Action Review - 2023 - Report - Page 286
claims for state specific sub-classes, albeit without prejudice and with leave for plaintiffs
to attempt to amend the complaints to cure the defects. See Id. at *59 (listing claims
where the court does not have personal jurisdiction over certain state class claims); see
also Id. at 105-20 (summarizing jurisdictional rulings for specific plaintiffs’ claims related
to state specific sub-classes).
The court addressed the defendants’ arguments about the lack of pleading specificity
under the various states’ consumer protection laws. The court found that the plaintiffs
failed to adequately plead standing because there were no allegations that plaintiffs
read or relied on any of the alleged misrepresentations. Id. at 200. The court also
dismissed the plaintiffs’ fraud claims, finding that they failed to adequately plead their
fraud claims and instead merely “lumped together” multiple defendants without alleging
which defendant made which representation. Id. at *208-10.
C.
MDL Proceedings
According to the November 2022 JPML report, there are 172 pending MDLs across the
country, 21 of which have over 1,000 pending actions, and another 24 of which have
between 100 and 1,000 pending actions. The largest of all the MDLs is the 3M Earplug
litigation, which comprises over 250,000 claims. MDL proceedings make up roughly
50% of the federal dockets.
MDL actions often contain individualized product liability claims, which are distinct from
the class claims. For example, in addition to the class claims, litigation over nicotine
products also has a personal injury aspect that comprises individual personal injury
claims, including allegations that exposure to nicotine can alter brain development.
Another MDL proceeding, entitled In Re 3M Combat Arms Earplug Products Liability
Litigation, currently pending in the U.S. District Court for the Northern District of Florida,
has seen bellwether jury verdicts that range from $77 million to defense verdicts. James
Beal, the recipient of the $77 million verdict was the final of the bellwether trials — and
plaintiffs ended up with a 10-6 record, with an average payout of approximately $30
million.
In Re 3M Combat Earplug Litigation, MDL No. 2885, is large MDL encompasses over
250,000 individual injury claims. The docket contains over 3,500 filings, and despite
being initially formed in 2019, cases are still being transferred into to the MDL. The
proceedings currently are stayed due to bankruptcy filed by a defendant that was
acquired by 3M during the manufacturing of the earplugs at issue. The plaintiffs have
moved to lift the stay for certain claims that occurred after the acquisition of the
bankrupt company because these claims are directly related to 3M, and do not involve
the bankrupt entity. See MDL No. 2885, Dkt. 3594, 3:19-MD-2885 (N.D. Fla. Nov. 23,
2022).
The master long form complaint contains sixteen causes of action, including violations
of many states’ consumer protection laws. The crux of plaintiffs’ claims is that
defendants allegedly knew the earplugs were defective, made statements that
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Duane Morris Class Action Review – 2023
