The federal court overseeing thousands of lawsuits involving the 3M Company’s Combat Arms Earplugs, Version 2, is preparing to conduct some depositions remotely, as the ongoing coronavirus pandemic continues limit its ability to convene in-person proceedings.
More than 150,000 U.S. military veterans across the county claim the 3M Company’s military earplugs were defective and responsible for their service-related hearing loss and/or tinnitus. The majority of their lawsuits have been consolidated in a federal multidistrict litigation underway in the U.S. District Court, Northern District of Florida.
Like other legal proceedings in the United States, this litigation has been hindered by the unprecedented outbreak of COVID-19, the novel coronavirus. Among other things, a ban on all non-mission-essential domestic travel imposed by the U.S. Department of Defense is preventing the Court from conducting face-to-face depositions with military personnel involved in the proceeding. To allow the litigation to continue moving forward to the extent possible, the Court is planning to conduct those depositions remotely and has ordered the parties are to submit proposed protocols for doing so by May 6th.
“If the remote deposition technology proves effective and reliable during these depositions, then the remaining government depositions in this litigation will proceed remotely for as long as the DOD travel restrictions remain in place,” the Court stated in an Order issued on April 29th.
It’s not yet known whether corporate depositions will be in-person or remote at a later date. That determination will depend on the current status of the pandemic, as well as the effectiveness and reliability of the remote technology used for deposing government witnesses.
Combat Arms Earplugs, Version 2, were standard issue for all United States active personnel deployed to overseas combat zones or participating in live-fire training exercises from 2002 through 2015. 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 the Minnesota-based manufacturer became responsible for the military earplugs 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 needed protection from gunfire, explosions or other concussive sounds commonly encountered in combat, yet also required the ability to hear battlefield commands and other low-level noises.
According to allegations put forth in 3M military earplugs lawsuits, Combat Arms Earplugs, Version 2 were too short to fit properly in certain individuals, failed to form a protective seal, and could loosen without the wearer even noticing. As a result, they needlessly exposed thousands of service men and women to an increased risk of permanent hearing loss and tinnitus.
Plaintiffs further assert that Aero Technologies and the 3M Company were aware of these defects by 2000, but rather than warn users or take steps to mitigate the issues, the defendants manipulated test results and falsely certified that Combat Arms Earplugs, Version 2, met all standard of the military contract.
In July 2018, the U.S. Department of Justice reached a $9.1 million settlement with the 3M Company to resolve allegations that it knowingly sold defective Combat Arms Earplugs, Version 2, to the United States military for over a decade. While the government’s claims echoed those put forth by plaintiffs involved in the federal litigation, the agreement did not require 3M to compensate any former active duty personnel who may have suffered hearing loss or tinnitus due to the failure of the earplugs to perform as intended.