An Alabama law firm will likely have to pay more than $800,000—plus an
other $100,000 in sanctions—for failing to verify hearing loss in hundreds of Ugandans who claimed part of the massive settlement over faulty 3M earplugs.
“It’s been a learning experience for us,” said Birmingham attorney Stephen Heninger of the Heninger Garrison Davis law firm, one of many mass-tort firms that were part of the multi-
district federal litigation over the 3M Combat Arms earplugs. “It’s extremely dou
btful we will represent foreign claimants again because they’re not as trustworthy as people in the United States and Canada.”
3M reached a $6 billion settlement in 2023, agreeing to provide significant
payments to thousands of military members, government contractors
and others who used the earplugs and suffered hearing loss. Insurers have been asked to cover about $1.5 billion of that, according
to law firms involved. Multiple insurers are in litigation over 3M’s coverage claims. Chubb Bermuda and ACE Bermuda Insurance were in arbitration with 3M as of this month.
The Heninger Garrison law firm signed up almost 1,000 Ugandans who were recommended by a Ugandan lawyer, accordin
g to a court-appointed special master who recommended the sanction
s. But the law firm did not verify audiograms from the African claimants – and most of those audiograms turned out to have been forged or faked.
See more beautiful photo albums Here >>>
“The undersigned does not find that any member of the Heninger Garrison Davis firm intentionally committed fraud on the court
through this settlement program,” the special master, David Herndon, a retired federal judge, wrote in his report in December.
It is clear, however, that two members of the firm “were not simply negligent in the handling of these claims, but instead were consciously and recklessly indifferent to the variety of circ
umstances of the Ugandan settlement program, allowing fraud to occur and equally indifferent to their duties as officers of the court…,” Herndon wrote.
Litigation and tort-reform experts said the lack of scrutiny shows the risk involved in massive class actions, in which
plaintiff law firms can gain millions of dollars in attorney fees but individual claimants end up with smaller amounts.
“Class-action lawsuits always present a vetting problem. Indeed, the impossibility of knowing all the clients in a class-action
lawsuit is the reason historically that class-action lawsuits were disfavored,” said Robert Jarvis, a law professor at Nova Southeastern University.
In 1966, federal courts, then state courts began accepting more class-actions after adopting rules requiring a rob
ust intake system designed to weed out fraud, Jarvis noted. The Heninger firm did not seem to have such a system in place, allowing fraudulent claims to slip through, according to the special master’s report.