3M Combat Arms Earplugs Lawsuits Centralized in Florida Federal Court

Published on April 4, 2019 by Sandy Liebhard

All federally filed 3M Combat Arms Earplugs lawsuits have been centralized before a single judge, after the U.S. Judicial Panel on Multidistrict Litigation (JPML) agreed that the growing docket would benefit from coordinated discovery and other pretrial proceedings.

In an Order dated April 3^rd, the Panel transferred all currently pending cases to U.S. District Court Judge M. Casey Rodgers in the Northern District of Florida. Any similar lawsuits filed in the future will also be eligible for transfer to the new multidistrict litigation.

3M Combat Arms Earplugs, Version 2

3M Combat Arms Earplugs, Version 2, were dual-ended, attenuated earplugs ostensibly designed to protect the eardrums from dangerous concussive sounds typical of the battlefield. Between 2002 and 2015, they were standard issue for all United States military personnel serving in Iraq, Afghanistan and other combat theaters around the world. CAEv2 were also distributed to servicemen and women stateside during live-fire training exercises.

3M Combat Arms Earplugs were developed by Aearo Technologies, Inc., which won an exclusive contract to supply military earplugs to the U.S. Defense Logistics Agency in 2002. The dual-ended design included a yellow end that blocked damaging impact sound, but allowed the user to hear battle commands and other low-level noises. The green end performed like a traditional earplug, and blocked all sound.

The 3M Company inherited the military contract when it acquired Aearo – including the employees who developed and tested the earplugs – in 2008.

3M Combat Arms Earplugs Settlement

The 3M Company’s marketing materials hailed the CAEv2 design as a “revolutionary breakthrough in hearing protection for the military.” In 2018, however, the company agreed to pay $9.1 million to settle a federal whistleblower lawsuit alleging 3M Combat Arms Earplugs actually left thousands of United States service members unprotected on the battlefield.

The lawsuit was initially filed by a 3M Company competitor under the whistleblower provisions of the federal False Claims Act, which allows private parties to sue contractors for fraud against the United States government. The complaint alleged that the CAEv2 design was too short to fit properly in certain individuals, and further charged that the earplugs could loosen without notice while in use. Rather than correct these defects or disclose the issues to the U.S. Defense Logistics Agency, Aearo and the 3M Company falsely certified that Combat Arms Earplugs, Version 2, met all of the standards of their military contract.

Prosecutors with the U.S. Department of Justice obviously found the allegations compelling and opted to join the case, resulting in the 2018 settlement. The agreement, however, did not require 3M to admit liability, and the company continues to deny that the CAEv2 design was in any way defective.

The settlement also lacked provisions to compensate service members who may have been harmed by the allegedly defective earplugs. Once it was made public, however, United States military veterans began filing individual 3M Combat Arms Earplugs lawsuits that seek restitution for permanent deafness, tinnitus, and other service-related hearing disorders.

635 3M Combat Arms Lawsuits Pending in Federal Courts

One of these plaintiffs motioned the JPML to centralized the growing federal docket in January. While just eight 3M Combat Arms Earplugs lawsuits were pending in U.S. District Courts at that time, the motion asserted that thousands of similar cases would likely be filed in the future.

That prediction could well be accurate, as the JPML’s April 3^rd Order indicates that the federal docket now includes at least 635 cases pending in 33 different federal jurisdictions. Among other things, the Panel noted that all of the cases similarly allege 3M’s military earplugs were defective and caused plaintiffs to develop hearing loss and/or tinnitus.

“Issues concerning the design, testing, sale, and marketing of the Combat Arms earplugs are common to all actions,” the April 3rd Order states. “Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel, and the judiciary.”

The Panel further asserted that the Northern District of Florida has the resources to manage the growing docket, and pointed out that Judge Casey has extensive experience handling large product liability litigations.

While all of the 3M Combat Arms Earplugs lawsuits included in the new multidistrict litigation will undergo coordinated pretrial proceedings, each will maintain its own identity and be judged on its individual merits. Any case not resolved in the course of the litigation will be returned to the original court of filing for an individual trial.

At some point, the Judge Casey will select several representative 3M Combat Arms Earplugs lawsuits for a series of early bellwether trials. Bellwether trial verdicts provide insight into how other juries might decide similar claims, and sometimes even provide a pathway towards a global settlement that resolves an entire litigation.