Federal Panel to Consider 3M Combat Arms Earplugs Lawsuit Centralization in March

Published on February 14, 2019 by Tim Clow

The U.S. Judicial Panel on Multidistrict Litigation (JPML) will consider a motion to centralize all federally-filed product liability claims involving allegedly defective 3M Combat Arms Earplugs during its March 28th Hearing Session in Washington, D.C.

According to a February 13th Order, Oral Arguments will begin at 9:30 a.m. in Ceremonial Courtroom No. 20, located on the 6th floor of the Barrett Prettyman United States Courthouse.

Presenting attorneys are to appear at 8:00 a.m.

3M Combat Arms Earplugs, Version 2

3M Combat Arms Earplugs, Version 2, (CAEv2) were standard issue for all United States military personnel serving in Afghanistan, Iraq, and other combat zones from 2002 through 2015.

Known as duel-ended, attenuated earplugs, CAEv2’s yellow end protecting the eardrum from explosions and other damaging concussive sounds, while allowing the user to hear commands and normal conversations. The olive end blocked all sounds in the manner of a traditional earplug.

CAEv2 were initially marketed by Aearo Technologies, Inc., which won an exclusive contract to provide earplugs to the U.S. Defense Logistics Agency in 2003. The Minnesota-based 3M Company acquired Aearo Technologies and its military earplugs contract in 2008.

$9.1 Million Combat Arms Earplugs Settlement

Last July, the 3M Company agreed to pay $9.1 million to resolve allegations that it knowingly supplied defective Combat Arms Earplugs to the United States military for more than decade.

The case was initially filed in 2016 by a 3M competitor under the whistleblower provisions of the False Claims Act. Those provisions allow private individuals and entities to sue federal contractors that have allegedly committed fraud against the United States Government.  The allegations were made public in 2018, when the U.S. Department of Justice (DOJ) intervened in the case.

Among other things, the whistleblower lawsuit alleged CAEv2 were too short to fit properly and could loosen in certain individuals. However, the loosening was imperceptible to users, placing them at risk for hearing loss and other hearing-related impairments.  The complaint further asserted that Aero Technologies was aware of this defect by 2000, but manipulated test results and falsely certified that CAEv2 met military standards when it applied for the federal contract in 2003.

The 3M Company did not admit to any wrongdoing.

50+ Combat Arms Earplugs Lawsuits Pending Nationwide

After the DOJ announced the settlement, many military veterans apparently decided to file individual lawsuits for permanent hearing loss, tinnitus, and other hearing impairments allegedly caused by  3M Combat Arms Earplugs, Version 2.

One of these plaintiffs asked the JPML to centralize the growing federal docket on January 25th. At the time, just 8 case were pending in three federal jurisdictions. The litigation has sine grown to include more than 50 filings, while plaintiffs’ attorney nationwide are reportedly preparing to file thousands of similar claims.

If the JPML does agree to centralize 3M military earplugs claims, all currently pending cases, as well as any filed in the future, will be transferred to a single U.S. District Court. The Panel will appoint one federal judge in that jurisdiction to oversee and coordinate discovery, motion practice, and other pretrial matters. However, each Combat Arms Earplugs lawsuit included in the centralized litigation will retain its individual identity and be judged on its own merits.

At some point, the presiding judge will select several representative lawsuits for bellwether trials. Verdicts in bellwether trials provide insight into how other juries might decide similar claims and often provide a pathway toward a global settlement that resolves the entire litigation.

Any 3M Combat Arms Earplugs lawsuit not resolved in the course of the multidistrict litigation will be returned to its original court of filing for an individual trial.

 

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