In 2003, Aearo Technologies Inc., acquired by 3M in 2008, began supplying the United States military with Combat Arms earplugs Version 2 or CAEv2. The military forces would wear these devices for noise protection in the field. 3M earplugs, when worn, would protect the militia ears by locking out loud noises and allowing the user to hear soft sounds nearby. Noise is a significant concern among the militia in training and combat as it causes ear damage and tinnitus. The earplugs were a standard issue for soldiers in Iraq and Afghanistan, and the supply ended in 2015 when soldiers started complaining of defects.
In 2016, Moldex-Metric, Inc., a 3M competitor, filed a whistleblower lawsuit against the CAEv2 manufacturer, claiming they were substandard. It was also alleged that the company sold defective earplugs knowingly, thus; leading to significant hearing loss and tinnitus for thousands of soldiers. In 2018, the defendant agreed to pay $9.1 to the Department of Justice to cover the damages. However, military members and veterans began filing lawsuits alleging the 3M earplugs caused them hearing loss or tinnitus. The 3M earlplug mass tort attorneys at Stephens & Stephens can help you get compensation for these damages.
About the 3M earplugs lawsuits
There are currently over 230,000 members of the military and veterans, becoming the largest MDL in U.S. history. In 2019, the 3M earplugs lawsuits were consolidated as an MDL in a Florida district court under Judge M. Casey Rodgers. This helps improve efficiency and reduce cost and duplication. Consequently, it opens doors for a global military hearing protection settlement, whereby victims receive fair compensation without going to court.
The bellwether trial has been ongoing for the past three years. So far, 16 bellwether cases have gone to trial, with the defense winning six and the plaintiffs ten. With an overwhelming number of pending cases, the presiding judge has ordered the parties to consider mediation to facilitate settlement.
The judge has also been keen on weeding out unviable lawsuits to keep the cases moving forward. She ordered some plaintiff veterans to submit a Form DD214 or DoD Military Service Information Report to prove their service. Failure to provide this information within the stated deadline would result in their cases would be dismissed. However, the dismissed cases can be reinstated once the plaintiffs prove their military service status.
3M has raised claims that the U.S. Department of Defense medical data indicated that most (85-90 per cent) plaintiffs didn’t suffer hearing loss. The data was part of an estimation motion filed by the company in the U.S. Bankruptcy Court in Indianapolis.
Addressing the claim, Judge Rodgers criticized 3M’s testing methods terming them as problematic. She also raised a concern that the plaintiffs’ testing methods didn’t consider specific causation or measure the individuals’ hearing loss. The plaintiffs’ side also claimed that only a small percentage of plaintiffs didn’t show any hearing problems. She also noted that the injury data was subject to multiple interpretations, and each side interpreted it to its advantage.
3M subsidiary Aearo files for bankruptcy
In July 2022, Aearo Technologies, 3M’s subsidiary, which manufactured the faulty earplugs, filed a voluntary Chapter 11 bankruptcy. The company hoped to create a $1.2B trust fund to settle the thousands of pending earplug claims. If the bankruptcy claim were allowed, the lawsuits would be resolved in bankruptcy court, where the plaintiffs become creditors, and the company would pay less in settlements.
In August 2022, the court refused to put the cases on hold based on the pending bankruptcy ruling. Also, bankruptcy protection was denied, and the judge ordered mediation talks to begin in September 2022. However, the company decided to appeal the bankruptcy decision. In April 2023, 3M presented its arguments for the Aearo bankruptcy appeal before the 7th circuit.
Also, the plaintiffs in these lawsuits filed a motion requesting the judge rule that 3M was liable for the injuries, not Aearo. Consequently, either way, the bankruptcy would not affect the lawsuits. The judge granted this motion but allowed the company to appeal.
In December 2022, the judge presiding over the 3M earplugs MDL imposed sanctions on the company for their shameless abuse of the litigation process. This decision arose from 3M’s attempt to shift liabilities on Aearo through bankruptcy claims after four years of litigation. From this ruling, 3M could not push the claims on Aearo or in a bankruptcy court. As of January 2023, the company had spent $466 Million on legal fees. The 3M lawsuits have had a huge impact on 3M shares.
After ordering court-sponsored earplug settlement mediation among the parties involved in the 3M lawsuit, Judge Rodgers canceled them in January 2023, regretting they were not fruitful. The judge expressed frustration that 3M was unwilling to consider a global settlement of the claims within the earplug MDL.
On the contrary, according to the mediators in the bankruptcy court report, negotiations are still ongoing. They disagree with the judge’s sentiments that these good-faith talks would not be fruitful. The company wants to resolve the cases with a global settlement in bankruptcy court without having Judge Rodgers claim any credit for the events.
3M’s Earplug Defense
In their defense, 3M argues that the CAEv2 earplugs are effective by design but fail when not worn properly. The company still believes the earplugs are safe and effective, terming them an excellent hearing protection innovation.
3M still maintains that the CAEv2 earplugs innovators were closely coordinated with the U.S. military, thus incorporating the requested and accepted features. The company unsuccessfully used the government-contractor defense to absolve itself from liability even if the devices were defective. The government contractor defense first applied to a U.S. Supreme Court ruling where government immunity was extended to a company contracted to provide government military equipment, which was later found to be defective. The following three elements apply for a U.S. government contractor defense:
- The U.S. government must have approved precise specifications
- The product must have met the approved specifications
- The manufacturer must have warned the government of the potential dangers of using the product.
The MDL judge rejected the government-contractor defense in the 3M lawsuits because the two parties never signed a contract regarding the design or manufacture of the product. For this reason, the court decided that 3M was not a government contractor. 3M raised the same claims in the bellwether trials and continues to voice the issue in its appeal.
Based on the product liability theory, the 3M earplug plaintiffs allege that 3M is liable for their hearing loss and damage. In a product liability case, the manufacturer of a product is held responsible for damages it causes the user when used as intended by the manufacturer. Thus, the plaintiff must prove the product was defective in the following ways:
The plaintiffs allege that the earplugs manufactured by 3M were too short for some wearers. At first, the design was too small to fit the army’s carrying case, and it was challenging to fit a helmet when worn. To remedy the problem, they modified the design, which brought different challenges or design flaws, becoming too small for soldiers with larger ear canals. For this reason, they couldn’t form the required effective noise barrier in the ear.
According to the plaintiffs, the 3M earplugs design was defective, which was not an error during production.
The plaintiffs allege that the CAEv2 manufacturer failed to warn the user about product safety and the consequences of improper use. Also, the manufacturer did not provide comprehensive instructions on the product insertion of the earplugs.
Plaintiffs have won a majority (ten out of sixteen) of the cases in the bellwether trial. Those who won in the trial served longer and were more exposed to the combat noise while wearing the CAEv2 earplugs. For some wearers, the CAEv2 earplug might be too short for the ear canal, failing to seal the inner ear from damaging sounds effectively.
The court also believes 3M must have known about the earplug defects and warned the users. The result of this negligence is evident in the massive sum of punitive damages the court has awarded the winning cases.
The defective CAEv2 earplugs were born from a collaboration between U.S. military representatives and Aearo in the 1990s. These unique designs were strategically made to alleviate the need for soldiers to carry two sets of earplugs. They have a green and yellow end, and one serves the purpose of a traditional earplug for blocking sound. The other end allows only soft closer sounds while blocking certain types of loud battlefield noises.
Did 3M know that the CAEv2 earplugs were defective?
In the whistleblower lawsuit filed under the False Claims Act (FCA), it was alleged that 3M knew about the defect in their product as early as 2000 and continued to supply the product without warning the military. It was also alleged that 3M tried to tamper with the CAEv2 earplug test results to conceal their defectiveness to the government and the public.
Tinnitus and Hearing loss related to the defective CAEv2 earplugs
Many military service members and veterans experience hearing problems and tinnitus from loud combat sounds. Hearing problems are the leading service-related disability among American service members. In 2020, over 2.3 million veterans received compensation for tinnitus and 1.3 million for hearing disability. The number of service members suffering from tinnitus grew more than three times between 2001 and 2015.
Defendants in the 3M earplug lawsuit case experience the following symptoms:
- Permanent or temporary hearing loss
- Permanent inner ear damage
- Loss of balance
- Emotional distress
What is tinnitus?
Tinnitus causes one to experience a ringing or noise in one or both ears. The sound can also be humming, clicking, buzzing, roaring, or hissing. And only the affected person can hear the sound, and it is not caused by external noise. Loud noises like those on a battlefield and gunshots can cause tinnitus. In some cases, the condition can subside over time; in others, it can occur occasionally or throughout someone’s life.
Tinnitus is common in older people affecting about 15% of older adults. However, it can also occur from loud sounds, injuries, or a blood circulatory problem. Soldiers and hunters are also commonly diagnosed with the problem due to exposure to frequent loud gunshot sounds.
The condition can improve with treatment, depending on the underlying cause. Relief treatment may involve; hearing aids, cochlear implants, maskers, medications, and tinnitus retraining therapy.
Noise-induced hearing loss
Loud sounds are harmful to the ear, even for a brief moment. They damage sensitive structures in the inner ear, causing noise-induced hearing loss (NIHL). The problem can be experienced immediately after exposure or develop over time. It can also affect one or both ears. NIHL can occur at any age and is quite common in the U.S., with a 2011/2012 CDC study indicating that 40 Million adult Americans have hearing loss in one or both ears.
Noise-induced hearing loss can also occur from loud explosions and gunshots. These sounds rapture the eardrum or bones in the middle ear. This type of hearing loss can be immediate and permanent. Don’t accept these damages. Get compensation with the help of the 3M earplug lawsuit attorneys at Stephens & Stephens.
Who can file a 3M earplug lawsuit?
Contact us if the 3M earplugs have injured you, and we will review your case. Those eligible for the 3M earplug lawsuit include:
- Persons whose who served in the military between 2003 and 2015
- If, during your service, you wore military-issued earplugs
- If, during your service, you were exposed to loud sounds while wearing the earplugs
- And you have been diagnosed with tinnitus or hearing loss
Our legal firm provides services on a contingency basis, and we don’t charge upfront fees; you only pay us after you receive your settlement.