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3M Earplug Lawyers | July 2020 Lawsuit Update

Our injury lawyers are handling duel-ended 3M 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 and tell you your legal options. You really want to get your defective product claim started today.  And it is easy to do.

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 an April 2020 update to the CAEv2 3M Combat Arms earplug litigation that already has thousands of suits around the country.  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 these claims further. They alleged that internal testing that revealed these promises were not true. Yet they buried this information that put the users’ ears at risk.  As a result, too many of our active-duty soldiers suffered significant hearing loss and tinnitus.  How many?  As of April 2020, there are over 140,000 claims.

3M’s Combat Arms Earplugs May Have Been Defective

Minnesota industrial giant 3M, one of the world’s largest manufacturing companies, recently admitted that it had been selling defective earplugs to the Defense Logistics Agency for our 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.

3M Company 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. [Technically, Aearo Technologies designed and manufactured the earplugs.  3M bought the Aearo in 2008.]

Over that time period, hundreds of thousands of military personnel used the dual-ended Combat Arms earplugs almost every day. Military personnel used them on the assumption that the foam earplugs were protecting their ears from the damaging effects of high-level noise exposure.  But the sound reduction rating of these earplugs was not what our soldiers had every right to expect that they were.

We have long known about how these injuries were affecting our military personnel.  The U.S. Department of Veterans Affairs told us hearing problems are “the most prevalent service-connected disability among American veterans.”  What we did not fully understand until now is why.

On April 20, 2020, a judge allowed records produced in discovery in the MDL class action litigation to be made public.  These internal company documents show that 3M was making an absolute killing.   Earplugs sold to the military made up 5% of the company revenue in the United States and 20% of its operating income.  How were these earplugs so lucrative?   Well, when it costs you 85 cents to make but you sell them for $7.63, you need not be an economics major to figure it out.

Whistleblower Lawsuit

Whistleblowers are obviously big in the news in with this Ukraine stuff of late.  A whistleblower lawsuit got this litigation jump-started.  A recent federal whistleblower suit forced the company 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 it never disclosed the concerns about the defect 3m earplug to the military or the public.

Many veterans or current service members who relied on the defective earplugs for hearing protection are now suffering from tinnitus – a chronic and maddening ringing, hissing, or buzzing in the ears which impairs hearing. Their tinnitus directly results from the undisclosed design defect in the earplugs. Sometimes, 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 plaintiffs’ attorneys 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 product defect.  But proper insertion is the key to this device.  So it is an issue that plaintiffs’ lawyers are fully exploring in the MDL class action.

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 claims 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 an agreement to pay $9.1 million to the U.S. Department of Justice to settle claims that the company 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. But this litigation is already on fire.  There are now thousands of military earplug suits and many more are on tap by military veterans with tinnitus, hearing loss, or deafness. This will be a very large iceberg of litigation for this company.

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.  (The most hit branch of the military is the Army.)  During that time period, 100,000 to 300,000 (and possibly more) soldiers may have used the defective earplugs daily to protect them from extreme noise exposure.

Based on these estimates, the number of prospective plaintiffs with a severe hearing impairment who may have valid earplug claims could be in the 25,000-30,000 range. Could the number of victims be higher?  It could be higher.  I think there will be over 100,000 plaintiffs. [April 2020: I wrote this six months ago. It was proven true.]

Earplug MDL Class Action

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

The earplug lawsuits are really taking off because there are so many victims.  So many military members have already hired a lawyer and will file suit in the near future.  Earplug trials will likely start in early 2021 before Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida if the cases have not settled before the trials begin.

How are these cases going so far?  Pretty well.  There are questions in this litigation that do not have answers.  At a deposition, a plaintiffs’ lawyer asked Martin Salon, a former vice president at Aearo Technologies, as he thought it was appropriate for 3M to conceal information about potential defects in the earplug from the government. His response was “I suppose it is, if the product is working in most cases.”  This same witness also said it was acceptable “to sell a product and conceal information where it will have a negative effect on our soldiers.”  Can you imagine?

MDL Motion to Dismiss

In April 2020, Judge Rodgers has a motion to dismiss these lawsuits sitting in front of him. In its motion for summary judgment, 3M contends that all these cases should be dismissed without a jury trial because the when military received the CAEv2 prototypes 22 years ago, it asked the manufacturer to shorten earplugs by a quarter inch.  They claim this is because they needed it to fit into standard-issue carrying cases and because they feared it might make it hard for the wearer to fasten the chin strap on their helmet. I don’t think the court will grant this motion.  As I talk about more below, this is all a part of the plan to blame the military or hide behind her skirt.  I don’t think it will work.

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 action, 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 impair 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.  For most law firms to consider your case, including ours, you need test results that show a hearing injury.

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 eardrum can be more than enough to cause irreparable damage to the ear resulting in permanent hearing loss or tinnitus.

Could Defective 3M 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.  3M has said in federal court in Florida that it will assert the “federal government contractor defense” and the “combatant activities defense.”

Any lawyer representing victims has a right to be concerned about this potential defense from 3M. But a careful review of the relevant law suggests that this issue will probably be decided in favor of the plaintiffs.3m earplug defense

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 suing 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 several government contractors and officials who are pushing to further extend the doctrine to preempt state liability laws and provide immunity. This could be problematic for active duty service members who have incurred permanent injuries because 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 defective earplugs, the company 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 3M will 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.

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.

Since then, 3M has said in federal court filings that the military’s involvement in designing the defective earplugs “went beyond merely establishing standards. Its involvement also included such operational features.”

So the defense is that the product was not defectively designed.  But if you won’t believe this nonsense, 3M argues alternative that they were really putting out the exact product the Department of Defense 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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Let’s get back into the MDL. 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 allegedly defective earplugs. Given the similarity in all the complaints, the U.S. Judicial Panel on Multidistrict Litigation recently centralized and consolidated 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 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 the manufacturer 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 (update: here it is) 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 Company will eventually agree to some sort of global settlement before any “bellwether” trials are sent for trial.  Will the coronavirus slow down the MDL?  Like everything else, it will. But these claims will move forward.

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 hearing impairment, our legal team wants to hear from you.  We talk to former soldiers like you with medical bills, a hearing aid, and a great deal of pain and suffering.  We can evaluate your claim and give you legal advice whether you are entitled to compensation.  We can also answer your questions about how your claim will impact your disability benefits.  Call our legal team at 800-553-8082 or get a free online consultation right now to find out if you have an earplug hearing loss claim.  We are contingency fee lawyers. There is no cost or expense to you until we win money for you.

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