Litigators of the Week: The Kirkland Team that Won the Second Bellwether Trial Over 3M’s Combat Earplugs
The Am Law Litigation Daily named Kirkland partners Hariklia Karis, Sierra Elizabeth and Mark Nomellini as "Litigators of the Week" for their win for client 3M in a bellwether trial over the company's dual-ended combat earplugs. Hariklia, Sierra and Mark discussed the win with The Litigation Daily.
In the early stages of a multidistrict litigation with more than 230,000 plaintiffs, every data point counts.
In April, in the first bellwether trial targeting 3M with claims that the company’s dual-ended combat earplugs were defective, leading to life-altering injuries for U.S. service members, the company was hit with a $7.1 million verdict.
Last week, after a Kirkland & Ellis trial team led by Hariklia “Carrie” Karis, Sierra Elizabeth, and Mark Nomellini defended 3M at trial during the second bellwether, a federal jury in Pensacola, Florida, returned a complete defense verdict. The Litigation Daily caught up with the Kirkland team, this week’s Litigators of the Week, to discuss their approach to the trial and how this win fits in the grand scheme of the MDL, where a third bellwether is set to push off next week.
Lit Daily: Who was your client and what was at stake?
Carrie Karis: We represent 3M in the Combat Arms Earplug litigation, which is the largest multi-district litigation (MDL) ever filed with over 230,000 claims asserted. For context, the next largest MDL has just over 30,000 claims. Given the massive attorney advertising and buzz around this MDL, with plaintiff lawyers still advertising to sign up new clients, any victory or loss is closely watched by the plaintiff’s bar as decisions are being made about pressing forward with pending claims and also filing potential new claims in the immediate future. After the first trial, which was a consolidated trial of three cases that resulted in plaintiff verdicts, this case–or the McCombs case as we call it–was the next set trial.
There were many skeptics on the outside about whether the company could secure a victory in a historically military town in a case filed on behalf of veterans alleging injury during their military service. To the external world, the odds were heavily against us, but our client and team believed in the merits of our case and defense. A victory for 3M confirmed that 3M has meritorious defenses and can prevail in a jury system.
Sierra Elizabeth: When we were first hired to try these cases in 2019, most people I talked to knew of 3M, but generally only after I mentioned Post-it® Notes. After visiting the headquarters in Saint Paul for the first time and taking a tour of the campus, I truly understood just how much of an influence 3M’s scientific research and product offerings have on all of our daily lives and was proud to represent and brag about this amazing company. 3M’s wide-reach became even more evident during the pandemic, when it was hard to turn on the news without hearing something about its N95 masks.
For the first few months, I literally couldn’t walk into a hotel, hospital, or drug store without seeing the 3M logo everywhere! After working with the scientists who developed the Combat Arms Earplug Version 2 (CAEv2)–the product at issue in this case–reviewing the testing results conducted by numerous, independent labs prior to litigation; and hearing from people who credit this product for saving their hearing; I felt a strong need to defend not only the product, but the people who designed it. I’m also a fierce competitor and was even more excited to try a case in the largest MDL in federal court history, and get a little payback, after many people counted us out after trial 1.
Who all was on your team and how did you split the work?
Mark Nomellini: Carrie led the McCombs trial team and did the opening and closing and many of the key witnesses. Anybody who has tried a case with or against Carrie will tell you she is not only extremely effective but also as tough as nails. Mike Brock, who leads the Kirkland team in the MDL, gave overall strategic direction, worked on jury selection, and conducted the direct examination of a key hearing expert. Working with Carrie and Mike is very motivating, because they are not only extraordinary lawyers but also relentlessly positive leaders who keep their cool when the going is tough.
Sierra handled critical direct and cross examinations, including the direct examination of the former company employee who was involved with the CAEv2 from beginning to end. Sierra led our team’s coordination with numerous client witnesses, and earned their respect and trust.
Karis: The team for the MDL and the contributions made by each member were immense and hard to articulate. We worked collaboratively with lawyers from various Kirkland offices–Chicago, Los Angeles, D.C., Alabama and Houston, to name a few. The trial presentation was made primarily by myself, Sierra and Mark. Sierra was instrumental in presenting the main company conduct witness and also performing additional examination. And Mark’s contribution was to conduct critical cross examinations. The contributions of Mike Brock cannot be overlooked or overstated. He served as an advisor every step of the way, including in jury selection and conducting a key examination of one of our liability experts. His guidance was invaluable. Of course, the work behind the scenes of those working around the clock day in and day out made the in court presentations possible.
That team consisted of Diana Benton, Cole Carter, Cassandra Catalano, Steven Czak, Tabitha De Paulo, Saghar Esfandiarifard, Blake Gibney, Simon Gottlieb, Chad Morriss, Ashley Neglia, Hunter Norton, Patrick Sandman and Nick Wasdin all from Kirkland, and Charles Beall and Haley VanFleteren from Moore, Hill & Westmoreland in Pensacola.
How much did you consult with the lawyers who handled the first bellwether trial?
Karis: We both observed in person the first bellwether trial and worked very closely with the team who handled that trial. We had an opportunity to evaluate many of the same witnesses, form impressions of their strengths and weaknesses and improve on those. And, above all, we had the benefit of their insight and contributions, especially Mike Brock, as we prepared and presented our case.
Elizabeth: I know that each of us specifically recruited some of the lawyers from the first bellwether trial team to help us. Many lawyers from the first trial were intimately involved in handling specific case themes and witnesses. We wanted to make sure that they were coordinating with us to make the transition seamless. We also had the benefit of consulting with our leader, Mike Brock, who offered invaluable insight. While each trial and fact pattern will inevitably be different, we know that it is critical to integrate all of the lessons learned from each trial and will continue to do so going forward.
Describe the courtroom setup for me. I gather that there’s a lot of interest in these cases from the plaintiffs’ bar and that there are a number of lawyers watching the proceedings with interest.
Karis: The scene can best be described in the context of the number of claims asserted–dozens of lawyers watching closely, either in the courtroom or in an overflow room day in and day out. All eyes and ears wide open as the admissions made and testimony given will have implications in future trials of their respective clients. When the court called us to come to the courthouse, presumably to receive the verdict, not only did Mr. McCombs’ counsel and those who represented him at the trial attend, but so too did a courtroom full of plaintiff’s lawyers anxious to hear the verdict.
Pensacola, where you tried this case, has a significant military presence with a big U.S. Navy base. The plaintiff in this case was a veteran. How do you as defense lawyers strike the right balance to put up a strong defense for 3M without coming across as disrespectful toward the plaintiff?
Karis: It is always a delicate situation when a defense lawyer challenges the claim of an individual filed against a big company. That challenge is on steroids when a veteran is the plaintiff and is claiming injury while defending our nation. As I repeatedly told the jury in the opening, closing and during Mr. McCombs’ cross examination, our client, 3M, our entire team have the greatest respect for all veterans who have served our country and protected our liberties. This case was not about questioning the plaintiff’s loyalty to our country or his service. Our jury understood that and evaluated the merits of the case without allowing sympathies to control as the law requires.
Nomellini: I agree with Carrie. Like 3M, we have great respect for the soldiers who protect us. We wanted to prove that our client’s earplugs were effective and protected these soldiers’ safety. Carrie’s cross examination of the plaintiff was respectful but made the key points needed to convince the jury.
Sierra, I gather that you hopped on a plane to head west to join the team representing LivePerson in a significant IP trial here near me in Oakland. What was the experience from jumping from trial-to-trial like? And how do you prepare for making such a rapid-fire transition?
Elizabeth: This is definitely the first time that I’ve ever tried a case during the day, prepped my witnesses at night, and then spent the late night checking e-mails from my other trial team and keeping up with everything all at the same time. I also had to pack and ship half of my bags from Pensacola to Oakland the day before we closed! Suffice it to say that the transition was not as simple as finishing one case and starting another. Since stopping home for a day for my anniversary and arriving at trial site two on Memorial Day, things have started to normalize and I’ve been able to focus completely on this team and this trial. Luckily, my partners are doing all of the heavy lifting and the associates are fabulous, so I’m just here trying to add some value where I can.
Carrie and Mark, you have big MDL experience, but nobody has experience with an MDL with this many plaintiffs. What from your prior experience in MDLs has carried over and what’s unique to this particular case?
Nomellini: Carrie and I have worked together for almost 25 years, including on a number of MDLs. Some of them were intense, but this MDL is unique in certain respects. The vast majority of the plaintiffs in this MDL are current or former soldiers, many of whom served in combat in Afghanistan or Iraq. And the schedule of this MDL, with bellwether trials scheduled within weeks of each other, has been a terrific motivator.
When you’re trying a bellwether case like this, you obviously have to focus on the facts at hand in your case. But how much do you have to worry about making sure your case fits into the grander scheme and themes of defending other cases within the MDL?
Elizabeth: The big picture is important to keep in mind when trying any case, and especially so in the MDL context. Like any team sport, it doesn’t matter if I score 50 points a game, if my team continues to lose. These cases present challenges and strategy calls beyond each individual case, and we are working hard and in close coordination with our client to keep all of the moving pieces in mind.
Nomellini: Additional bellwether trials will be scheduled soon. We want to learn as much as possible from each trial so we can continue to improve going forward.
What will you remember most about this trial?
Elizabeth: I feel very fortunate to have tried this case with all of my Kirkland colleagues, but I will always remember how much it meant to me to lead this team with another woman. Carrie is simply a beast. She’s one of the most intelligent lawyers I’ve worked with but also understands what’s most important when talking to a jury, which is rare. Plus, I’ve never seen someone sleep so little and still manage to have a great attitude and care so deeply about what’s best for the client. When Carrie and I walked into the courtroom every day, I think many people underestimated us. I hope this win confirms for future clients that there is not only value in having diverse representation on their trial teams but having women in lead roles.
Nomellini: What I’ll remember about this trial is the relentlessness of our team. Our opponents were seasoned attorneys, and we took a lot of hits during trial. But our team is full of fighters, and Carrie is as tough as they come. The adversity motivated us. We wanted to defend the earplugs and the 3M employees who worked on them.
Karis: In my 25 years at Kirkland, I’ve been very fortunate to work with great teams for fabulous clients on fascinating cases. I’ve never, however, seen a team like this one of many young lawyers work tirelessly around the clock on a five-week trial–as many worked on the first case–give their all and then immediately turn around, saddle up and move to the next trial. Not one day’s rest!
Our team needed to all row in the same direction without room for a single misstep and give 110%. Each member of this amazing team did exactly that to achieve the right result for our client, 3M. Of course, none of this would have been possible without the amazing support and leadership contributions of Sierra and Mark. And, last but certainly not least, my admiration and respect for Mike Brock and his leadership in the entire 3M Combat Arms litigation and his invaluable input in the McCombs trial cannot be overstated. I’ve had the pleasure of working with Mike over the last decade since our days in the BP/Deepwater Horizon litigation. I’ve watched and learned from him, and he was a key contributor to this victory. I am forever appreciative of the opportunity he and 3M gave me to be a part of a great team that achieved the right result.