Parties to 3M Military Earplugs Lawsuits File Motions for Summary Judgment

Published on April 7, 2020 by Sandy Liebhard

A federal judge will soon decide whether thousands of lawsuits involving the 3M Company’s Combat Arms Earplugs, Version 2, should continue to move forward or be resolved quickly without the need for jury trials.

3M Relying on “Government Contractor Defense”

Last week, attorneys representing both side in the multidistrict litigation now underway in the U.S. District Court, Northern District of Florida, filed Motions for Summary Judgement, each asking the presiding judge to find the opposing side’s legal arguments invalid.

The Plaintiffs motion argued that the 3M Company relied on misleading test data to overstate the earplugs’ effectiveness. It also asserted that for more than a decade, 3M sold Combat Arms Earplugs, Version 2, to the U.S. military while wrongly misrepresenting the devices as defect-free.

Meanwhile, the motion filed on behalf of the 3M Company relies on the so-called “government contractor defense,” which allows defendants to avoid liability for a defective product, so long as it’s manufactured to the government’s specifications.

The judge overseeing the litigation must now decide whether to grant one of the parties’ motions or deny both. If they are both denied, 3M military earplugs lawsuits will continue to undergo coordinated discovery and other pretrial proceedings, with several representative cases eventually selected for the proceeding’s first bellwether trials. Those trials are scheduled to begin in April 2021.

3M Military Earplugs Allegations

There are more than 6,800 military earplugs lawsuits currently pending in the Northern District of Florida. All of the cases were filed on behalf of U.S. military veterans issued Combat Arms Earplugs, Version 2, while on active duty from 2002 through 2015. Plaintiffs allege that the earplugs were defective and failed to protect them on the battlefield, resulting in permanent hearing loss and/or tinnitus.

The military earplugs at the center of this litigation were actually developed by Aearo Technologies, Inc., which in 2002 won an exclusive contract to provide the devices to the U.S. Defense Logistics Agency. The 3M Company acquired Aearo in 2008, at which time Minnesota-based manufacturer became responsible for the military contract.

Combat Arms Earplugs, Version 2, were dual-ended and designed to be reversible. When the green end was inserted, they blocked all sound in the manner of a traditional earplug.  The yellow end could be inserted when the wearer required protection from gunfire, explosions or other concussive sounds commonly encountered in combat, but left them able to hear battlefield commands and other low-level noises.

In July 2018, the U.S. Department of Justice reached a $9.1 million settlement with the 3M Company to resolve similar allegations that it knowingly sold defective Combat Arms Earplugs, Version 2, to the United States military for over a decade. Despite the settlement, 3M did not admit any liability nor was it required to pay any compensation to military veterans who may have been harmed by the earplugs’ alleged defects.