Combat Earplug Lawyers | November 9th 2019 Lawsuit Update

Our injury lawyers are handling combat arms earplug cases around the country.  If you have a claim anywhere in the country, we will evaluate your case at no cost to you.

Our law firm has represented many wonderful people over the years.  As a class, these are the best plaintiffs you could ever find.  These are the people who put their lives on the line to protect us.  Our lawyers think we owe them great thanks. We also think 3M owes them a great deal of money for the injuries they have suffered.

This page provides a November 2019 update to the 3M Combat Arms earplug litigation that already has thousands of lawsuits.  These MDL class action suits allege that our soldiers were falsely promised the Combat Arms earplugs would protect their ears from dangerous impulse noises. That is bad enough.  But the lawsuits go further. They alleged that internal testing that revealed these promises were simply not true. Yet they buried this information.  As a result, too many of our soldiers suffered significant hearing loss and tinnitus.

3M’s Combat Arms Earplugs May Have Been Defective

earplugs hearing lossMinnesota industrial giant 3M, one of the world’s largest manufacturing companies, recently admitted that it had been selling defective earplugs to the military and others for over 10 years. 3M’s Combat Arms Earplugs were one of the most popular and widely used protective earplugs on the market.

In addition to the general public sales, 3M had a long-term, exclusive contract to supply the earplugs to all branches of the U.S. Armed Forces. From 2002 to 2015, the Combat Arms Earplugs were standard issue safety equipment to military servicemen and women.

Over that time period, literally thousands, maybe hundreds of thousands of military personnel used the Combat Arms Earplugs daily. They used them on the assumption that the foam earplugs were protecting their ears from the damaging effects of high-level noise exposure.  But it seems clear that the noise reduction rating of these earplugs was not what our soldiers had every right to expect that they were.

Whistleblower Lawsuit

Whistleblowers are obviously big in the news in with this Ukraine stuff of late.  A whistleblower lawsuit is what got this litigation jump-started.  A recent federal whistleblower lawsuit forced 3M to admit that its earplugs rarely protected users from noise exposure because of a design defect which the company knew about all along. Once inserted, the Combat Arms Earplugs were supposed to seal off the outer ear canal and block out high-level noises.

Unfortunately, the earplugs were not shaped correctly for this and often became loose or “unsealed” shortly after being inserted. This design flaw rendered them mostly ineffective at protecting the ear from loud noise damage. Most users never realized the problem and exposed themselves to extreme noise levels thinking their Combat Arms Earplugs were protecting them. 3M was apparently well aware of the issue from the beginning but never disclosed it to the military or the public.

Many veterans or current service members who relied on the defective earplugs for protection are now suffering from tinnitus – a chronic ringing in the ears which impairs hearing. Their tinnitus is a direct result of the undisclosed design defect in the Combat Arms Earplugs. In some cases, the tinnitus is so severe that the individual’s hearing is almost fully impaired.

Lack of Instructions

Another related problem with these earplugs is poor instruction on how to use them.  The lawsuits claim that the defendants need to tell soldiers using 3M’s Combat Arms earplugs to fold back the flanges on the open/unblocked end of the plug before inserting the closed/blocked end of the plug into their ears.  This seems to be secondary to the larger issue but it is an issue that plaintiffs’ lawyers are fully exploring in the MDL lawsuit.

Earplug Lawsuits Against 3M

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Whenever a manufacturer publicly admits that a product was defective and may have caused harm, a large wave of individual product liability lawsuits always follows. There is typically a period of several years following a manufacturer’s admission during which potential plaintiffs who were harmed by the product gradually come forward and starting filing suits across the country.

This is exactly where we are right now with the Combat Arms Earplugs lawsuits. 3M’s forced acknowledgment that its earplugs were defective just recently occurred in July 2018. The admission came in the form of 3M’s agreement to pay $9.1 million to the U.S. Department of Justice to settle claims that 3M violated the False Claims Act by knowingly selling its defective earplugs to the U.S. Military.

As of right now, we are still in the very early phases of the Combat Arms Earplugs litigation. To date, only a few hundred initial earplug lawsuits have been filed against 3M by military veterans with tinnitus or hearing loss. These first few hundred are just the initial tip of what is going to be a very large iceberg of litigation for 3M. The field of potential plaintiffs in the Combat Arms Earplugs litigation is potentially very large. Keep in mind that the Combat Arms Earplugs were standard issue equipment for all branches of the U.S. Military for over a decade. During that time period, 100,000 to 300,000 (and possibly more) soldiers may have used the defective earplugs on a daily basis to protect them from extreme noise exposure.

Based on these estimates, the number of prospective plaintiffs who may have valid earplug lawsuits against 3M could be in the 25,000-30,000 range. This means that the several hundred earplug lawsuits filed against 3M so far only represent about 1% of potential claims. This means that the remaining 99% of potential plaintiffs in the Combat Arms Earplugs litigation have yet to come forward and file their claims.

These lawsuits have been consolidated in a “sort of” class action called an MDL.  This is a mechanism by which the lawsuits are consolidated.  In this case, the claims are consolidated in federal court in Florida.  So if you file a lawsuit in federal court in New York, California or Texas, the case is transferred to Florida for pre-trial discovery.  This mechanism is a benefit to lawyers for efficiency and it often also helps facilitate a global settlement for all of the earplug cases.

All Military Veterans With Tinnitus or Hearing Loss May Be Entitled to Compensation

Anyone who served in the U.S. armed forces between 2002-2015 and suffers from tinnitus or hearing damage may be entitled to financial compensation from 3M. To have a valid earplug lawsuit against 3M you will need to meet the following additional requirements:

  1. You were issued Combat Arms Earplugs (Version 2)
  2. You were exposed to high noise levels (gun/ordinance fire, aircraft noise, etc.) at some point during your service and suffered an ear injury
  3. You used the Combat Arms Earplugs for ear protection

If you meet these requirements, you should have a valid claim for compensation against 3M. The amount of financial compensation you may be entitled to will depend on the length and severity of your hearing damage. Damage to the inner ear resulting from 3M’s defective earplugs has been linked to:

  • Tinnitus: a persistent ringing in the ears that impairs hearing function
  • Loss of Hearing: generalized impairment of hearing not related to tinnitus
  • Auditory Processing Disorder: a condition in which a person cannot normally process and interpret audible sounds

Potential plaintiffs in the earplug litigation include service members who were regularly exposed to loud noise as part of their duties. This would include gunners, artillery, pilots, aircraft support personnel, infantry, mechanics or engineers, and any other jobs involving high continuous high-level sound exposure.

In some cases, a single exposure to extreme noise can be enough to cause permanent tinnitus. A single explosion or .50 caliber gunfire near the ear can be more than enough to cause irreparable damage to the ear resulting in permanent hearing loss or tinnitus.

Could 3M Defective Earplug Cases be Preempted?

There has been some recent discussion that the lawsuits against 3M regarding the Combat Arms earplugs might be barred under the Feres preemption doctrine. However, a careful review of the relevant law suggests that this issue will turn in favor of the plaintiffs.

The Feres doctrine came from the U.S. Supreme Court decision in Feres v. United States, 340 U.S. 135 (1950) that lays out the framework for when a claim for injuries sustained may be filed by a service member. Initially, the preemption doctrine was only applied when a service member’s injury was sustained by another service member. Over time, however, preemption under Feres was expanded to apply to civilian government employees.

In its simplest terms, the Feres doctrine bars service members from bringing a lawsuit against the U.S. government for injuries that either arose out of or were incurred while engaged in a course of activity “incident to service.” Currently, there are a number of government contractors and officials who are pushing to further extend the doctrine in order to preempt state liability laws and provide immunity. This could be particularly problematic for service members who have incurred permanent injuries as a result of 3M’s defective earplugs because the activities they were injured by could not be construed in any other way than “incident to service.” As a result, their claims could be pre-empted.

We do not think they will be, however, thanks to Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Supreme Court articulated a three-part test for applying preemption in product liability contexts. Under this test state laws on product liability will be preempted if (1) the U.S. approved reasonably precise specifications; and (2) if the equipment conformed to those precise specifications; and (3) if the supplier warned the U.S. of the danger associated with the equipment that was not known to the U.S. but only to the supplier.

When we apply these tests to the facts we know about the 3M defective earplugs, 3M clearly knew of the dangers associated with the Combat Arms earplugs. In fact, 3M may have been aware of the flaws in the earplugs even before they started supplying them to the U.S. military. There is currently no evidence or any reports suggesting that 3M actually disclosed this design flaw to the military. If in fact, they were aware of it before the military supply contract it seems highly unlikely that 3M would have disclosed the problem after the fact.

It was not until a whistleblower filed claims against 3M that the U.S was apparently aware of the defective condition of the earplugs. In short, if 3M had disclosed the design defects to the military they probably never would have paid $9 million to settle the false claims action.

For these reasons, we do not think that 3M will be able to satisfy the third prong of the Boyle test and as a result, the claims coming against them will not likely be pre-empted. Both service members and civilians should still be able to recover and there is no reason to worry.

3M Defense #2: Hide Behind Military’s Skirt

Here is what 3M has said about the earplug lawsuit:

3M has great respect for the brave men and women who protect us around the world, and their safety is our priority. We have a long history of partnering with the U.S. military, and we continue to make products to help protect our troops and support their missions. The company worked in close coordination with the U.S. military on the Combat Arms Earplugs Version 2 product, and its design reflected the direction and feedback of individuals acting on the military’s behalf. We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations.

So the defense is that the product was not defectively designed.  But if you won’t believe this nonsense, we were really putting out the product the military wanted.  This, my friends, is what failure to take responsibility looks like

Federal Multi-district Litigation (MDL) for 3M Cases

Infographic explaining how loud noises lead to hearing loss

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Currently, there are approximately 600 Combat Arms lawsuits pending against 3M in the federal court system.  All the cases raise similar claims of hearing damage or tinnitus in service members after using 3M’s allegedly defective earplugs. Given the similarity in all the complaints filed against 3M in questions of both fact and law, the U.S. Judicial Panel on Multidistrict Litigation recently decided to centralize and consolidate the Combat Arms cases into a new MDL.

The Combat Arms MDL is in the Northern District of Florida before Judge Casey Rodgers.  This judge has a great deal of prior MDL experience, including the Abilify gambling litigation that eventually reached a comprehensive global settlement.  Discovery is going on and plaintiffs’ lawyers continue to gain more information.  On October 14, 2019, the plaintiffs’ lawyers will have the opportunity to inspect a 3M facility in Indianapolis.  More important, victims’ attorney will have the opportunity on the next day, October 15th, to depose witnesses from the company whose answers will bind the company as to the positions it will take in this litigation.

Both lawyers for 3M and counsel for the various plaintiffs were in agreement that an MDL should be established to handle the growing number of earplug lawsuits. However, there was apparently fierce debate over where the MDL should be located. 3M argued that the MDL should be located in the company’s home state of Minnesota. Most plaintiffs were opposed to this. Ultimately the JPML selected Florida’s northern district as the most appropriate location.

As of right now, the earplugs MDL is in its infancy. Over the next few weeks, Judge Rodgers will likely issue scheduling orders and decide on other items that will give us a better picture of what the timetable on this MDL will be. There is still a lot of speculation that 3M will eventually agree to some sort of global settlement before any “bellwether” trials are sent for trial.

 

File an Earplug Case Against 3M

Miller & Zois is currently screening potential plaintiffs for the Combat Arms Earplugs lawsuits against 3M.  There will be a hearing on March 28, 2019, to determine whether these earplug claims should be made into a national MDL which is basically a class action for discovery purposes.  This would be the first step towards a potential settlement of these claims.

If you are a military veteran suffering from tinnitus or some form of impaired hearing, we want to hear from you. We can evaluate your claim and tell you whether you may be are entitled to compensation from 3M. Call our intake team at 800-553-8082 or get a free online consultation right now to find out if you have an earplug hearing loss claim.

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