IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
IN RE: 3M COMBAT ARMS 	Case No. 3:19md2885
EARPLUG PRODUCTS
LIABILITY LITIGATION
This Document Relates to: 	Judge M. Casey Rodgers
All Cases 	Magistrate Judge Hope T. Cannon
SPECIAL MASTER REPORT AND RECOMMENDATION
COMMON BENEFIT FEES
I. 	Background
This MDL began on April 3, 2019 with the consolidation and transfer of all
the then-pending cases involving the 3M Combat Arms Earplugs version 2 to Judge
M. Casey Rodgers in the Northern District of Florida. Extensive litigation ensued
from that point with plaintiffs vigorously prosecuting their individual actions, as a
collective under the auspices of this MDL, and defendant just as vigorously
defending the allegations pursued against it. Over the next four years and four
months, with cases transferred by the JPML on an ongoing basis, as well as cases
being filed directly in the Northern District of Florida on the MDL’s active docket
and administrative docket, MDL 2885 quickly attained the distinction of being the
largest MDL in the history of the federal judiciary and responsible for in excess of
forty percent of the federal judiciary’s entire civil caseload. 	On August 29, 2023,
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the Court announced on the website of the United States District Court for the
Northern District of Florida that the parties had reached an agreement to settle all
the cases pending in the MDL, as well as those cases filed on consolidated dockets
in the State of Minnesota courts. The total settlement was Six Billion, Ten Million
Dollars ($6,010,000,000.00).
The undersigned has been thoroughly involved in most aspects of this MDL
and 	engaged 	in 	countless 	activities 	to 	facilitate 	the 	efficient 	and 	effective
management of the MDL supporting Judge Rodgers’ masterful efforts to provide a
fair and just handling of a record-setting volume of individualized cases consolidated
into a huge litigation. The undersigned was appointed by the President and
confirmed by the United States Senate as a United States District Judge in 1998.
Within the first year on the federal bench, the undersigned was appointed to preside
over a multi-district litigation. Since that first appointment to preside over an MDL
case, with more to follow, the undersigned attended thirteen Transferee Judges’
Conferences sponsored by the Judicial Panel of Multi-District Litigation (JPML),
five of which he either served as a speaker or moderator or both. Such conferences
are the educational effort of the JPML to provide judges who have been assigned
such litigation with the knowledge and wherewithal to effectively and efficiently
preside over the litigation assigned to them. Both before and after retirement from
the federal bench, this retired U.S. District Judge has also spoken extensively at legal
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education conferences, seminars, and workshops, participating with other lawyers
and judges in discussions of the processes, procedures, and practices for managing
complex and mass tort litigation, including the concept of and process for awarding
common benefit fees. The undersigned has the experience and knowledge to report
to the Court and to recommend awards to participating law firms. Special Master
Sansom has served as the accountant and custodian of the time records throughout
this litigation and attending most of the hearings in Court that dealt with significant
issues, including bellwether trials. His knowledge of the time recorded 	and
submitted by counsel and the work performed and by whom is only surpassed by the
presiding judge. This retired judge, as well as Special Master Sansom have engaged
in the vetting, managing, and analyzing of common benefit time submissions,
following the best practices for such endeavors, for the purpose of making this report
and recommendation to Judge Rodgers for her ultimate decision regarding common
benefit fees.
II. 	Process
From the outset of this litigation the concept of potential common benefit was
considered and a framework set up to analyze and qualify submissions of plaintiffs’
lawyers working to advance the litigation for those plaintiffs. In an Order of
Appointment, ECF 392, May 28, 2019, the Court appointed Ellen Reisman as
Common Benefit Special Master and Randall Sansom as CPA. On January 9, 2020,
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Judge Rodgers in Common Benefit Order No. 2, ECF 900, amended Common
Benefit Order No 1 by removing Reisman from the Special Master role, in order to
work on other aspects of the litigation, and replacing her with Randall Sansom, who
retained his role as the appointed CPA for the Common Benefit Fund. Sansom was
directed to work with Common Benefit Committee to resolve any disputes as to time
entries submitted by counsel to ensure the validity and Common Benefit Order
compliance of all submissions of common benefit time and to maintain accounts for
assessments paid in by plaintiffs’ counsel for the expenses associated with litigating,
including the payment of certain of those litigation expenses. Legitimate time was
approved and recorded while submitted time which failed to comply with the
Common Benefit Orders of the Court was rejected. Sansom was also directed to
meet monthly with Judge Rodgers to present time submissions which he rejected but
which counsel persisted, or the Common Benefit Committee disagreed with Mr.
Sansom. This process allowed Judge Rodgers to decide such controversies on a
quick basis and to provide a process for Special Master Sansom and MDL counsel
to fully understand the correct application of the Court’s Common Benefit Orders.1
Common Benefit Order No. 2 specified that Special Master Sansom would not file
a Report and Recommendation as to attorney fees and costs. Responsibility for
1 The Common Benefit Orders (CBO) entered in this MDL were CBO No. 1, ECF 488; CBO No. 2, ECF
900; CBO No. 3, ECF 1659; CBO No. 4, ECF 3875; CBO No. 5, ECF 3968; and, CBO No. 6, ECF 4129.
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issuing a Reports and Recommendations to the Court for held costs were assigned
to the undersigned in CBO 3, ECF 3968, and for the award of common benefit fees
in CBO 6, ECF 4129.
Even though not yet the subject of a common benefit order, the Court advised
the undersigned in January of 2020 that her intent was to task me with the reports
and recommendations for held costs and common benefit fees. Consequently, from
that point he reviewed the monthly reports of Sansom and his business partner Sarah
Hogan to provide a thorough understanding of the data and a sense of the time being
spent for the common benefit of the litigation. Countless discussions, from the point
of that beginning process through the present, were held between the undersigned
and either or both Special Master Sansom and Ms. Hogan regarding the substance
of seeming endless numbers of time submissions.
Importantly, the work performed by Sansom and Herndon throughout the
litigation kept each abreast of the enormous activity in the MDL, enabling each to
have the context and real time use of the hours ultimately submitted for common
benefit consideration. It further provided each with a thorough knowledge of the
work being performed. Special Master Sansom had access to all time submissions,
and he attended a significant number of Court hearings and sessions. Special Master
Herndon was given broad assignments, which expanded from time to time, that
caused him to attend a myriad of meetings, in-person and virtually, such as court
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hearings, mediation sessions, and discussions with Judge Rodgers pertinent to his
assignments. The undersigned led countless meetings between the parties and the
Department of Justice and Department of Defense pursuant to the Touhy process.
Herndon was, of course, able during any such meetings to know which counsel
actively participated. The undersigned was able to observe which counsel performed
a lead role and which assumed a supporting role and whether there were persons
who seemed to be mere observers. That process allowed Herndon to assess the value
of each counsel to this litigation. The undersigned attended the first bellwether trial
in person and observed most of the other bellwether trials via a closed (non-public)
court zoom feed. Throughout the bellwether process the undersigned continued in
his role of holding meet and confer meetings with both sides to resolve disputes
outside of court to streamline the trial process.
The Court entered CBO 6, ECF 4129, in December of 2024. In detail, the
Order recited the requirements to be determined eligible for common benefit fees,
including the requirement to submit an application with information needed for
consideration of an award of common benefit fees. A deadline was directed for
January 27, 2025. Any firm, that did not submit an application was not eligible to be
considered for such fees. Once CBO 6 was entered, setting up the process for the
common benefit recommendations to the Court in the future, Sansom, Hogan and
Herndon met several times to discuss and decide upon the course to take to
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thoroughly analyze each application for the possibility an award of common benefit
funds. Those discussions involved such matters as the various categories of work
should be considered as common benefit. We conducted preliminary interviews of
10 persons, each in an early and prominent leadership role to put together a roadmap
of where to look for information, and whom else to interview, all of which Sansom
and Herndon could draw upon in constructing a recommendation for Judge Rodgers
on common benefit matters.
Once 	the 	applications 	were 	received, 	Sansom 	and 	Herndon 	undertook
individualized thorough reviews of each application. Each applicant firm that
requested an opportunity to defend its application was granted that opportunity. Most
were able to do so in person, and a much lesser number chose to or were allowed to
present by a virtual meeting.
The analysis of the benefit provided by each applicant firm to the common
good of the litigation, or lack thereof, included the consideration of many mission
critical activities involved in this vast piece of mass tort litigation. The broader
categories included law and briefing, expert witnesses, depositions, bellwether trials,
commitment to the litigation, settlement, and settlement administration. Part and
parcel to those broad categories were more narrow discrete sub-categories of work
such as leadership generally, financial commitment, dedication to the MDL even as
firms suffered from the lack of attention to the firm’s other business or efforts to
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attain more business, trial strategy and theme development of the overall objective
of the litigation from the plaintiff’s perspective, the science of general causation of
hearing loss and tinnitus, critical research of defenses such as government contractor
which was a potential litigation dispositive matter. Moreover, the narrow categories
included briefing of a myriad of motions and complaints, discovery, depositions,
expert witness identification and preparation, a large number of bellwether trials in
various venues, appellate matters, settlement negotiation, a huge educational effort
to help plaintiffs understand the settlement agreements to make a decision as to
whether to support or reject such agreements, and an ongoing effort to manage a
massive settlement program. All with a defendant that more than vigorously
defended the litigation, even to the extent to take a run at the Bankruptcy Court in
search of a novel strategy to end the tort system litigation. This MDL was very
complex relative to the legal issues and logistics and, in fact, was the largest MDL
in the history of American jurisprudence with the number of encompassed plaintiffs’
cases exceeding 300,000. Every aspect of the work performed to the benefit of the
litigation was examined, analyzed and considered.
Much, if not all, of the work within this litigation specified above was
important in considering the “Johnson factors,” 	Johnson v. Georgia Highway
Express, Inc., 488 F.2d 7114 (5 th Cir. 1974), which were fully considered, analyzed
and applied as appropriate. Intense and thorough conversations and analysis,
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including how to analyze, the work reported in the time submissions and through
personal observation were pursued. Particularly pertinent and given careful and
thorough consideration were the Johnson factors of time and labor, novelty and
difficulty of the litigation (in particular the presence of the potential litigation ending
defense of government contractor immunity), skill of counsel, preclusion of other
legal work by firms due to the aggressive time lines of this litigation and the
extraordinary attention to excessive numbers of issues presented, customary fees
including contingent fees, and the results obtained. With an eye to the Johnson
Factors, each broad category of tasks undertaken during the litigation was quantified
as to the whole and as to the other categories. The benefit to the common good of
the litigation or to the detriment of the litigation was carefully analyzed as to each
applicant.
The number of hours submitted by all common benefit applicants varied
largely. A number of attorneys spent a great many hours of work to prosecute this
litigation. A small number spent very few hours, by comparison. Judge Rodgers, at
page 3 of Common Benefit Order No. 1, ECF 488, directed that “the Court will be
assessing the value of the work performed and how it contributed to the common
benefit, rather than performing a strict calculation of hours multiplied by some
hourly rate.” It was clear from information gathered in preparation for this analysis
that even though hours could be compliant with the Court’s order on their face that
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did not equate to value to the litigation. For example, submitting time for attending
a deposition or a meeting, many of which occurred on a virtual platform due to
COVID or simply for convenience, did not ensure the submission was for a
necessary participant. Likewise, attendance at court hearings did not ensure a factor
of necessity either. Other examples were uncovered but these are representative.
Given the characteristics of this litigation, Sansom and Herndon, in keeping with the
presiding judge’s directive, concluded that common benefit awards should be based
on merit as it contributed to the common benefit of the entire litigation. The reliance
on a lodestar calculation or a lodestar check against the concept of precise and actual
benefit common to the litigation was exhaustively discussed by Herndon and
Sansom, each of whom concluded would not provide an accurate analysis of
common benefit. Consequently, a lodestar calculation and lodestar check were
rejected as a path to make recommendations to Judge Rodgers. Clearly, the hours
submitted were relied upon by the special masters to provide good insight into the
amount of work performed and the reasons for the time spent provided good insight
into value to the litigation in a merits-based analysis.
Considering the global settlement that was successfully negotiated in this
litigation and the 100% participation by plaintiffs who qualified for the settlement
program, the analysis of common benefit focuses on the work that ultimately
contributed to that success. An overview of the broad categories of litigation work
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demonstrates that the bellwether process was an outsized factor in this litigation’s
success. Nineteen randomly selected plaintiffs participated as bellwether plaintiffs
over the course of sixteen trials. The first trial in the process was a consolidation of
three different plaintiffs and was tried by MDL Presiding Judge Rodgers in the
Pensacola Division of the Northern District of Florida. In all, Judge Rodgers
presided over six trials in Pensacola. Ten other judges presiding over trials in
Pensacola, Tallahassee, and Gainesville. There were thirteen plaintiffs’ verdicts and
six defense verdicts. Millions of dollars were awarded by juries in each of the
successful plaintiff trials. As one usually observes in bellwether trials, the parties
learned a significant number of factors or data, regardless of whether plaintiff won
or lost, that went a long way to informing both sides of the litigation in the analysis
of the liability issues and damage models. They learned how the witnesses stood up
to direct and cross examination and the responses from the juries to each. They
learned what exhibits landed favorably or unfavorably with the jurors. They were
able, by the end, to know how the in-trial motion practice would likely be going
forward. They were able to learn how the attorneys’ opening statements and closing
arguments were or were not effective, as well as how plaintiffs’ and defendant’s
theories were or were not effective. Trials with several judges in different venues
offered a glimpse into how the cases might do going forward when remanded to
original jurisdictions. It is apparent that the number of trials, judges and venues
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added more than a typical reservoir of data when compared with the far fewer
numbers of bellwether trials that have become common place in the MDL legal
world.
Law and briefing in this MDL also played an outsized role in the success of
the litigation before, during, and after the bellwether process. The defense placed a
great deal of reliance and credence on its primary defense, that of government
contractor immunity, as it asserted that it was only a contractor doing what the
Department of Defense wanted it to do. An extraordinary amount of time and talent
was utilized to obtain a judicial denial of this litigation-dispositive issue. Complaint
drafting and motion practice are typically the bread and butter of any MDL law and
briefing team. A great deal of work was also undertaken by that team in this MDL to
offer advice to discovery and deposition teams as to the nature of vital or much
needed facts or concessions to seek to develop. Law and briefing assisted trial
counsel in crafting witness interrogation necessary to meet the legal requirements of
the cause of action. Appellate matters were a part of this litigation, naturally, but
played a less vital role in light of the eventual settlement.
It goes without saying, the teams of lawyers and support staff that developed
the bench of experts who would consult and lend their expertise to plaintiffs’ counsel,
facilitating a complete book of knowledge that became the theories to be relied upon
in the prosecution of the plaintiffs’ cases in bellwethers and beyond, were extremely
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valuable to the success of the litigation. The dozens of lawyers that prepared for and
took depositions to develop facts or trial testimony were also critical to the litigation
in similar fashion to those that worked with experts, sometimes identical counsel in
both roles. Similarly important were those that devoted extensive effort to attain the
successful settlement of the litigation. The mediation/negotiation process ultimately
required years of effort from a relatively small number of plaintiffs’ counsel
throughout, but which saw a variety of court appointed mediators and several
defense counsel shuttled in and out of the process. The settlement was ultimately
embodied in three separate master agreements that were complicated. Moreover,
marshaling what and who were necessary to establish an infrastructure to administer
a settlement program that needed to establish thorough and varied practices and
allocation protocols to dispense compensation to more than two hundred and seventy
thousand plaintiffs claiming entitlement to that compensation was an incredibly
important endeavor and a vital process in the long-term success of the settlement.
Commitment to the litigation was a factor the Special Masters reviewed. Some
firms made very significant financial commitments to the MDL. Some firms, large
and small, committed so many lawyer and staff hours to the MDL that it consumed
much of the time and resources of the firms resulting in the reality of turning away
other, often lucrative, business. Some firms had few injury cases in the litigation but
devoted huge and important time to the success of the MDL despite the need to wait
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for the common benefit process to play out over years of periodic payments of the
settlement proceeds by the defendant before seeing appropriate compensation.
Though not specifically common benefit to the MDL, some firms committed time
and resources to defeat the ill-conceived defense tactic of putting up one-sixth of the
money the tort system ultimately generated in settlement value to divert and funnel
all cases through a bankruptcy administration targeting a subsidiary company which
the defendant was on record conceding that the subsidiary was not exposed
financially by the litigation. Fees ordered by the Bankruptcy Court for work there
were noted.
The undersigned and Randy Sansom were provided with the contingent fees
paid to counsel, in firms that had clients in the litigation. A small number of firms
did not have clients in the litigation but certainly did provide value and beneficial
service to the successful resolution of the litigation. In making a recommendation to
the Court, the Special Masters reviewed and considered, as appropriate, those
contingent fees including such fees on bellwether cases with successful results.
Not unusual in multi-district litigation, as well as other litigation where
common benefit is to be analyzed and fees paid such as class action litigation, the
concept of common detriment has evolved in the jurisprudence of federal courts.
Detrimental acts to the litigation certainly occurred in this MDL. Fairly frequently
court 	hearings, 	depositions, 	meetings 	meant 	to 	assist 	the 	parties 	in 	finding
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efficiencies and avoiding conflict, were attended by attorneys for firms that were not
necessary 	for 	those 	events, 	but 	who 	were 	merely 	observers 	and 	not 	actual
participants but who nonetheless submitted common benefit time for their presence.
On the other hand, counsel assigned or volunteered to perform certain tasks on
occasion failed to perform the tasks. There were lawyers who underperformed in the
mediation process which required a combined effort and objectives for success.
Some counsel failed in the establishment of a successful plan and persons to
administer the complex settlement program. All these detrimental acts were factored
into the recommended awards under the common benefit umbrella.
The undersigned also submitted a Report and Recommendation to the Court
regarding the motion of plaintiffs’ counsel to confirm the nine percent holdback for
the common benefit fund. ECF 4108. 	It was my recommendation there that the
Court continue the nine percent holdback and after a comprehensive analysis of the
compensation needed for the Court to reasonably allocate common benefit fees and
following this R&R the Court exercise her discretion whether to utilize the entire
nine percent or reduce the percentage to create the pool of funds to be used for
common benefit fees. The Court adopted the recommendations in that R&R.
Naturally, at this point in time, the Court has not had sufficient information to decide
whether to use the entire nine percent to create that pool of funds or to utilize a lesser
percentage and create a smaller pool of funds. The recommendation to the Court in
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this report will be based on the percent of the whole, without dollar amount. That
percentage is to be applied to the entire amount of money in the common benefit
pool of funds in order to be informed of the eventual allocation of common benefit
fees.
III. 	Recommendation
The recommendations of the Special Masters for the allocation to eligible
firms are stated in the Exhibit accompanying this R&R.
Counsel are reminded CBO No. 6, ECF 4129, provided that any objections to
this Report and Recommendation must be filed within fourteen (14) days of entry
on the MDL’s main docket.
Dated this 11th day of June, 2026.
Respectfully submitted.
s/ DavidRHerndon
Hon. David R. Herndon (ret)
Special Master
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed
within fourteen days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the Court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon all
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other parties. A party who fails to object to the Special Master’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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