A plaintiff recently requested that the growing products liability litigation involving allegedly defective 3M Combat Arms Earplugs be centralized before a single federal judge for coordinated pretrial proceedings.
According to a January 25th motion filed with the U.S. Judicial Panel on Multidistrict Litigation, there are currently eight military earplugs lawsuits pending against 3M in three separate federal jurisdictions.
All of the complaints were filed on behalf of United States military veterans who suffered permanent hearing loss, tinnitus, eardrum damage, and other hearing-related impairments allegedly caused by 3M Combat Arms Earplugs, Version 2 (CAEv2).
Among other things, the Motion points out that CAEv2 were distributed to all American soldiers serving in combat zones from 2003 to 2015. As such, it’s reasonable to anticipate that thousands of additional plaintiffs will file similar hearing loss lawsuits in the near future.
“Transfer and consolidation will eliminate duplication in discovery and discovery rulings, avoid conflicting rulings on the merits, avoid conflicting schedules, reduce litigation costs, and save time and effort of the parties, the attorneys, the witnesses, and the courts,” the document states.
Finally, the motion suggests that the U.S. District Court, District of Minnesota, is the most appropriate district for the centralized litigation. Because the 3M Company is headquartered in the state, relevant documents and witnesses are located there. The District also has the experience and resources to handle a large, complex proceeding.
3M Combat Arms Earplugs, Version 2 were developed by Aearo Technologies, Inc.
The dual-ended earplugs featured a yellow end that completely blocked sound, in the manner of a traditional earplug. The olive end allowed the user to hear normal speech and other low-level sound, but was designed to block concussive noises like gun fire and explosions.
In 2003, Aearo Technologies obtained an exclusive contract to supply CAEv2 to the U.S. Defense Logistics Agency. The 3M Company inherited the contract when it acquired Aearo Technologies in 2008.
3M discontinued Combat Arms Earplugs, Version 2, in 2016. But by, that time, the United State military had issued millions of these earplugs to personnel serving in:
Plaintiffs who have filed hearing loss lawsuits against the 3M Company claim Combat Arms Earplugs, Version 2, were defectively designed and too short to fit properly. They also allege that 3M failed to provide adequate instructions for insertion, specifically that users should fold the earplugs’ flanges back to ensure a proper fit.
As a result, the military earplugs could loosen while in use. Because the loosening usually went unnoticed, soldiers using CAEv2 were at risk for permanent hearing loss, tinnitus, eardrum ruptures, and other hearing disorders.
Finally, the complaints further claim that 3M and Aero Technologies were aware of this defect by 2000, but manipulated tests results to make it appear that Combat Arms Earplugs, Version 2, met government standards.
Plaintiffs began to file hearing loss lawsuits last year, after the 3M Company agreed to pay $9.1 million to settle a federal whistleblower lawsuit involving CAEv2.
That case was filed by a 3M competitor under the Federal False Claims Act, which allows a whistleblower to sue a contractor for alleged fraud against the federal government. If the case is successful, the whistleblower is entitled to a portion of the government’s financial recovery.
“In addition to damages directly associated with the contractual cost of the earplugs,” the complaint stated, “The United States has been damaged by the large and ongoing medical costs associated with treating veterans who likely suffered hearing damage and impairment as a result of the defective earplugs.”
The allegations put forth in the whistleblower complaint echoed many of the allegations now being levied against the 3M Company by military veterans in recent Combat Arms Earplugs lawsuit filings.
Although it agreed to settle the whistleblower case, 3M did not admit to any wrongdoing. At this time, it continues to deny that its military earplugs are defective or harmed any American soldiers.
If the U.S. Judicial Panel on Multidistrict Litigation agrees to centralized 3M military earplugs lawsuit, the cases will undergo coordinated pretrial proceedings, including discovery and motions practice. This process improves judicial efficiency by eliminating duplicative discovery and inconsistent rulings from different courts.
As some point, the judge overseeing the litigation will choose several representative hearing loss lawsuits for a series of bellwether trials. Verdicts in these cases could provide insight into how other juries might decide similar claims.
Settlements are never guaranteed in any legal proceeding, including multidistrict litigations. However, sometimes bellwether trial verdicts do provide a path towards a global settlement that resolves all or nearly all pending cases.
Unlike a class action lawsuit, however, any 3M military earplugs lawsuit included in a multidistrict litigation would maintain its own identity and be judged on its own merits. If a case can’t be resolved during this process, it would return to its original court of filing for trial.