Federal Court Overseeing 3M Military Hearing Loss Claims Issues “Science Day” Agenda

Published on August 21, 2019 by Sandy Liebhard

The federal court overseeing hundreds of military hearing loss claims involving the 3M Company’s Combat Arms Earplugs, Version 2, has issued an agenda for the litigation’s upcoming “Science Day.”

More than 2,050 3M Combat Arms Earplugs lawsuits are currently undergoing coordinated pretrial proceedings in the U.S. District Court, Northern District of Florida. The multidistrict litigation will convene Science Day on August 26^th, at which time the parties will have an opportunity to educate the court on the scientific and legal issues central to their case.

How Science Day Will Proceed

According to the Science Day Agenda issued on August 9^th, each side will have approximately 15 minutes to summarize its theory of the case (or theory of defense) in terms of the alleged product defect. Plaintiffs’ attorneys will give their opening summary first, followed by defendants. They may use demonstratives, such as PowerPoint presentations, during this portion of the proceeding.

Following the initial case summaries, each side may present up to three speakers to address the scientific aspects of the litigation, including:

• Sound properties and measurement.
• How sound is perceived by the human ear.
• The science of hearing loss.
• Hearing examination protocols, including methods for causal attribution of hearing loss.
• Hearing protection devices generally and their evolution.
• Considerations regarding selection of hearing protection devices.
• Standards and procedures for testing hearing protection devices.
• Any unique testing protocols that were required for 3M Combat Arms Earplugs.

The Court has allotted each side 2.5 hours to present their speakers. Defendants will present first, followed by plaintiffs. The format may be lecture style, and may also include the use of PowerPoints and other demonstrative aids. While the parties’ attorneys will be able to conduct direct or guided questioning of their own speakers, they will not be permitted to question the other side’s experts.

“The admission of, or specific reference to, merits evidence—such as evidence about product-specific testing and/or results, whether 3M or its predecessor deviated from any testing protocol, labeling frameworks and/or the adequacy of the label for the Combat Arms Earplug, company documents, and/or government FOIA materials—will not be permitted at Science Day, including during the parties’ opening summaries and during the speakers’ presentations,” the agenda states.

About 3M Combat Arms Earplugs

Combat Arms Earplugs, Version 2, were standard issue for all United States active duty military personnel serving in combat zones between 2002 and 2015. They featured a dual-ended design, with the green end blocking out all sound in the manner of a traditional earplug. However, the yellow end was intended to protect the eardrums from concussive noises, while allowing the wearer to hear battle commands and other low-level sounds.

The CAEv2 design was initially developed by Aearo Technologies, Inc., which won an exclusive contract to provide protective hearing devices to the U.S. Defense Logistics Agency in 2002. The 3M Company took over the military contract due to its 2008 acquisition of Aearo Technologies.

Military Hearing Loss Allegations

Veterans pursuing military hearing loss lawsuits against the 3M Company allege that Combat Arms Earplugs, Version 2, were defectively design and failed to offer the level of protection required during battlefield situations. Specifically, they claim the earplugs were too short to fit properly in certain individuals and could loosen without the wearer even noticing. As a result, thousands of military personnel were needlessly exposed to an increased risk of permanent hearing loss and tinnitus while serving in combat zones around the world.

Their lawsuits further charge that Aero Technologies and 3M were aware of these alleged defects by 2000, but falsely certified that Combat Arms Earplugs, Version 2, met all standards of the military contract.

In July 2018, the 3M Company agreed to pay $9.1 million to settle federal allegations that it knowing sold defective Combat Arms Earplugs, Version 2, to the U.S. military for more than a decade. However, that settlement did not include any stipulation for compensating veterans who might have been harmed by these earplugs. In fact, 3M continues to deny the devices were either defective or responsible for causing service-related hearing loss and tinnitus.