3M Earplugs Lawsuit News: Independent Expert to Aid Bellwether Selection

Published on May 12, 2020 by Sandy Liebhard

The federal court overseeing thousands of military hearing loss claims involving the 3M Company’s Combat Arms Earplugs, Version 2, continues to plan for litigation’s first bellwether trials.

Expert Would Define “Representative” Case

There at least 8,000 3M earplugs lawsuits pending in the multidistrict litigation now underway in the U.S. District Court, Northern District of Florida. Another 67,050 cases have been registered on an administrative docket and 74,000 others are in the process of being filed. All of the plaintiffs involved in this proceeding are U.S. military veterans who were issued Combat Arms Earplugs, Version 2, while on active duty from 2002 through 2015.

The litigation’s first bellwether trials will serve as test cases and could provide insight into how future juries might decide similar claims. As such, the 3M Earplugs lawsuits selected for these trials must be representative of the entire docket. According to a Pretrial Order dated April 24^th, the presiding judge is considering the appointment of an independent expert to help define exactly what would constitute a “representative” case.

“In order for the MDL to continue moving forward against this backdrop, it will be essential to assemble an inventory of individual service members’ records that is broadly informative with respect to the litigation-relevant characteristics of the plaintiff population as a whole,” the Order states. “The cases selected for targeted records requests to date—the 25 bellwether cases, followed by 1,509 cases approximating one percent of the total plaintiff population—will provide insights into the characteristics of the most representative plaintiffs. But there are many more variants of litigation relevant characteristics that must be considered to develop a more complete and accurate picture of the full universe of cases in the MDL.”

About 3M Earplugs Lawsuits

Combat Arms Earplugs, Version 2, were developed by Aearo Technologies, Inc., which won an exclusive contract to provide the devices to the U.S. Defense Logistics Agency in 2000. The earplugs featured a dual-ended design that supposedly allowed the wearer to select a level of hearing protection appropriate to their current situation, with the green end blocking all sound in the manner of a traditional earplug. The yellow end protected the eardrum from gunfire, explosions and other concussive noises while allowing the wearer to hear battlefield commands and other low-level sounds.

The 3M Company acquired Aearo Technology in 2008, at which time the Minnesota-based manufacturer became responsible administrating the military contract.

Plaintiffs pursuing 3M earplugs lawsuits claim that 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 allegations echoed made by plaintiffs with cases pending 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.