3M Earplugs Lawsuit Plaintiffs Ask MDL Judge to Reject Government Contractor Defense

Published on April 13, 2020 by Sandy Liebhard

Thousands of plaintiffs pursuing lawsuits over the 3M Company’s Combat Arms Earplugs, Version 2, (CAEV2) have asked a federal judge to reject a defense motion for summary judgement.

According to court documents pending in the U.S. District Court, District of Florida, the 3M Company motioned for summary judgment on the basis of the so-called “government contractor defense.” This legal theory holds that a federal contractor can’t be held liable for a defective product, so long as the product in question was manufactured to the government’s specifications.

Military Earplugs Plaintiffs Cite 2018 Federal Settlement

But in a response dated April 1^st, plaintiffs argue that 3M can’t hold the U.S. military responsible for its own mistakes.

“The military never approved specifications for the CAEv2, much less reasonably precise ones. Nor does the CAEv2 conform to any purported specifications,” the plaintiffs’ response states. “Defendants never warned the military of the CAEv2’s defects and dangers. Indeed, Defendants concealed such information from the military and all users for the CAEv2’s entire lifetime on the market.”

Plaintiffs’ also point to the July 2018 settlement agreement with the U.S. Department of Justices, in which the 3M Company agreed to pay $9.1 million to resolve allegations that it knowingly sold defective earplugs (CAEv2) to the U.S. military for over a decade.

“Specifically, the United States alleged that 3M, and its predecessor, Aearo Technologies, Inc., knew the CAEv2 was too short for proper insertion into users’ ears and that the earplugs could loosen imperceptibly and therefore did not perform well for certain individuals,” the Justice Department said in a release announcing the settlement. “The United States further alleged that 3M did not disclose this design defect to the military.”

About Combat Arms Earplugs, Version 2

There are more than 6,800 military earplugs lawsuits pending in the multidistrict litigation underway in the Northern District of Florida. All of the cases were filed on behalf of U.S. military veterans who developed permanent hearing loss and/or tinnitus after using Combat Arms Earplugs, Version 2, while on active duty from 2002 through 2015.

During that period, CAEv2 were standard issue for all U.S. military personnel deployed o overseas combat zones or participating in live-fire training exercises. The earplugs were actually developed by Aearo Technologies, Inc., which won an exclusive contract to provide the devices to the U.S. Defense Logistics Agency in 2000. 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.