3M Military Earplugs Court Approves Protocol for “Technology Assisted Review”

Published on July 15, 2019 by Sandy Liebhard

Hundreds of lawsuits filed over allegedly defective military earplugs marketed by the 3M Company continue to move forward in the U.S. District Court, Northern District of Florida.

According to a Pretrial Order dated July 1^st, the Court has approved a “Technology Assisted Review” protocol, which will streamline discovery through the use of Text Classification software.

“Text Classification leverages machine learning and natural language processing techniques to automatically assign a Classification Score to each document in the review population. The predictive models used to generate these scores are trained through supervised learning, meaning they are built based on the coding of human-reviewed documents,” the Order states. “The TAR tool automatically selects documents likely to be relevant or improve the predictive model and presents those documents to reviewers on an ongoing basis, continually updating the predictive model based on the results of that human review.”

CAEv2: What’s the Problem?

Nearly 1,000 3M military earplugs lawsuits are currently pending in the multidistrict litigation underway in Florida, all of which were filed on behalf of  American veterans suffering from service-related hearing impairments that allegedly caused by Combat Arms Earplugs, Version 2, or CAEv2.

CAEv2 were standard issue for all United States active duty personnel serving in combat zones around the world from 2003 through 2015.  The CAEv2 design was developed by Aearo Technologies, Inc., which was granted an exclusive contract to supply combat earplugs to the U.S. Defense Logistics Agency in 2002. The 3M Company acquired Aero Technologies in 2008.

The military earplugs’ dual-ended design ostensibly allowed the wearer to achieve a level of hearing protection appropriate to their situation. The green end blocked all sound, while the yellow side protected the wearer from damaging concussive sounds typically encountered in combat, while allowing battlefield commands and other low-level noises to be heard.

But according to 3M military earplugs lawsuits, CAEv2 were defective and failed to provide the needed level of hearing protection during combat. Specifically, plaintiffs claim that the military earplugs were too short to fit properly in some individuals and could loosen imperceptibly during use. They blame these defects for their service-related hearing loss and tinnitus.

Aearo Technologies was allegedly aware of these defects by 2000. But rather than mitigate the problems or warn users, the company manipulated test results and falsely certified that CAEv2 met all standards of the military contract.

3M Military Earplugs Settlement

These allegations are similar to those put forth in a whistleblower lawsuit brought under the federal False Claims Act by a 3M competitor in 2016.  After the U.S. Department of Justice decided to prosecute the case, the 3M Company agreed to settle the claims for $9.1 million without admitting liability in July 2018.

Despite the settlement, the 3M Company continues to deny that CAEv2 were defective or responsible for any veterans’ hearing loss or tinnitus.