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3M Not Able to Duck Earplug Lawsuit with Government Contract
July 27, 2020 - A Florida federal judge ruled that 3M cannot avoid allegations that it sold defective earplugs by arguing the government contract preempts those claims, saying the company has failed to show the military exercised any real control over the design of the plugs.
According to Friday’s order, while the military certainly wanted and bought the Combat Arms earplugs or CAEv2, they had already been largely designed and the military made no demands or specifications about the design in its contract.
“Indeed it is not too much to say that the Army wanted Aearo’s earplug, and , at one point even went so far as to make clear that it would not commit to purchasing the earplug unless it could be stored inside a military carrying case and worn underneath a Kevlar helmet,” the judge wrote, “But, the design already existed – it came into existence without any input from the Army and Aearo’s subsequent actions changing the length of the CAEv2’s stem were not compelled by the terms of any government contract.”
In the MDL, more than 140,000, military members say the earplugs were defectively designed and made, causing them to develop tinnitus and suffer hearing loss.
3M’s contract with the government does not explicitly dictate the earplugs’ design, the judge wrote, nor is there evidence of a “back and forth” between 3M and the government that resulted in the design specifications.
In a statement, lead counsel for the plaintiffs in the case said they are pleased that 3M’s government contract defense was rejected
“3M’s own internal e-mails and testimony show how the company was aware its earplugs were defective, failed to inform the military, and then joked about how they profited from this deception,” the attorneys said. “We look forward to trial so that veterans can finally hold 3M accountable for the permanent, life-altering hearing damaged they suffered due to the company’s negligence and callous disregard for our troops’ safety.”
The judge did allow 3M access to the Veterans Benefits Administration disability ratings and general description of diagnoses for two of the plaintiffs as that information could be relevant to their claims for loss of future earning capacity.
If you were previously or are currently a U.S. military servicemember who used standard-issue 3M Combat Arms earplugs, and you suffered a hearing related injury, you may qualify to participate in a 3M Combat Arms earplugs lawsuit. Contact TorHoerman Law today to speak with a 3M Combat Arms Earplugs lawyer to determine whether you qualify.
Between 2003 and 2013, 3M Combat Arms Earplugs Version 2 was the exclusive product used by all branches of the United States military, including the Navy, Army, Marines, and Air Force, in numerous military conflicts. The 3M Arms Earplugs Version 2 was designed to protect against hearing loss from gunfire, explosions, bombings, and airfare.
Initially manufactured by Aero Technologies, but acquired by 3M in 2008, the dual-ended combat arms earbuds, which were intended to protect against hearing loss, were found to be defective. Instead of blocking soundwaves, the earbuds were too short for proper insertion in the ear canal, causing them to loosen in the ear and not properly protect our nation’s service members from potentially harmful sounds. Injuries as a result of the defective earbuds range from tinnitus (ringing or buzzing in the ears) to partial or total hearing loss.
If you suffer from tinnitus, hearing loss, partial or total hearing loss, you may qualify for a 3M Combat Arms Earplugs lawsuit.
In order to qualify to participate in a 3M Combat Arms Earplugs Lawsuit, you must meet the following:
In 2003, the government issued an RFP, or government contract proposal, to Aero Technologies in which the company falsely certified the Combat Arms Earplugs Version 2 was up to the designated standards by confirming they had a certain noise reduction rating (NPR) and would protect military members from damaging sounds. Proper testing was careless and negligent, yet the company confirmed to the government the earbuds tested at the required 22 NPR rate when in reality, the earbuds tested at an average rate of about 10.9 NPR, a vast difference. During testing, results showed the earbuds, in fact, were not as effective as intended, not only because of the lower NPR rate but also because of a design defect which caused them to loosen in the ear canal as a result of the earbud itself being too short to be properly inserted into the ear canal. According to a lawsuit filed by the US Department of Justice, 3M has known since as early as 2000 that the 3M Combat Arms Earplugs were defective. After acquiring Aero, 3M hired Aero employees, including developers, who were aware of the product defect through pre-market testing in 2000.
Aero Technologies and its predecessor 3M failed to acknowledge the design defects to the United States government and military members.
The defective earbuds were standard issue to all military personnel during the following military conflicts:
The earbuds were designed as an inverted cone shape to be used in two different ways. One allows the individual to insert one side of the earbuds into the ear canal that would still allow for some hearing, such as when needing to listen to a conversation, but more muted. The other end of the earbuds would provide more extensive noise protection, such as when around gunfire or airfare.
A major defect was not disclosed to the government. After providing the earbuds to servicemembers for years, the defect brought to light the significant hearing damage the earbuds could have caused to service members who used them. Rather than being a hearing protector, a lack of proper insertion into the user’s ears caused irreparable hearing disabilities and loss.
According to the Center for Disease Control and Prevention, veterans who served overseas, specifically during Operations Enduring Freedom and Iraqi Freedom between September 2001 and March 2010, were four times more likely to suffer from significant hearing loss than non-veterans.
According to the comprehensive 2017 Annual Benefits Report published by the Veterans Benefits Administration, auditory disabilities were the number two cause of treatment between 2013 and 2017. In 2017, 3,101,223 men and women were treated for auditory disabilities. Tinnitus and hearing loss are the top two service-connected disabilities treated by the Veteran’s Administration. Tinnitus accounts for 7.7%, or 1,786,980 and hearing loss accounts for 5.0% or 1,157,585 of all disabilities. However, the number of affected individuals may be higher because many do not report their injuries or seek treatment.
Proper protection for soldiers is vital when faced with life or death situations while protecting our country. For companies that do business with the government, all should be providing properly made safety equipment for military members.
Tinnitus is a ringing or buzzing in the years. While not considered a medical condition, it is an underlying cause of medical issues such as an ear injury or Auditory processing disorder (APD). For military members who used the 3M Combat Arms Earbuds Version 2, tinnitus could be a result of permanent hearing damage from not being properly protected when around deafening noises while deployed during the Iraq and Afghanistan Wars.
If you believe you are suffering from tinnitus, hearing loss, or Auditory processing disorder (APD), contact a medical professional to diagnose your injuries.
Yes. Among the other hearing-related injuries associated with the 3M earplug, tinnitus is one of the injuries caused by the 3M earplug defect. If you developed tinnitus during your time in the service, it could be the fault of 3M’s defective product. You likely qualify to participate in the 3M Combat Arms Earplugs lawsuit.
According to the ADA, hearing loss is considered a disability and individuals that suffer from permanent hearing loss can qualify for disability. Whether you qualify for disability due to hearing loss depends on a number of factors including, but not limited to, the type of hearing loss, the severity of hearing loss, and whether the hearing loss is permanent. The ADA offers a comprehensive hearing loss guideline to help determine your rights and whether you qualify as disabled.
TorHoerman Law is proud to help our brave servicemen and women. Our firm is currently filing a 3M Combat Arms Earplugs Lawsuit on behalf of servicemen and women who unfortunately suffered serious ear injuries during military combat as the result of 3M’s negligence and greed.
The VA recently reported that more than 2.6 million veterans are currently receiving disability compensation for tinnitus, partial or total hearing loss.
If you are currently are or were serving in the US military and served at any point in time between 2003 to 2015, and you suffer from tinnitus, partial or total hearing, you may be eligible to participate in a 3M Combat Arms Earplugs lawsuit.
Call 1-888-508-6752 to talk with an attorney at TorHoerman Law today. You fought for us, now let us fight for you.
The first and one of the most important steps is to mitigate your injuries by seeking medical treatment and diagnosis right away. Be sure to begin collecting all military service records and medical records as soon as possible – gathering evidence for your lawsuit is an important step in the process. Once you have begun to gather evidence, it is time to begin seeking legal aid. Hiring a personal injury attorney can greatly increase your chances of a successful 3M Combat Arms Earplugs lawsuit. You should also familiarize yourself with the steps in the civil litigation process, to have a better understanding of your role and your attorney’s duties. Because statutes of limitations bar you from taking legal action after an allotted time, you should not hesitate to seek legal aid.
Once you provide more detail about your case, your attorney will be able to determine what personal injury damages you qualify for – you may choose to file for both compensatory damages and punitive damages.
3M Earplug lawsuit settlements differ from case to case and depend heavily on the specifics surrounding each servicemember’s injuries. Based on the 3M Combat Arms earplugs lawsuit settlements that have been disclosed so far, servicemembers who have suffered partial hearing loss have received settlements ranging from $50,000 to $300,000. At this time, there is not enough public information available to determine the settlement range for more serious permanent hearing loss.
At TorHoerman Law, our team of 3M combat earplugs lawyers is experienced in all types of defective products lawsuits. A 3M combat earplugs lawyer from TorHoerman Law is available to speak to any service member who believes that he or she has a potential 3M combat earplugs lawsuit, free of charge and no obligation necessary.
Contact TorHoerman Law to talk to a 3M combat earplugs lawyer now.
False Advertisements Regarding 3M Combat Earplug Settlements Being Spread on Social Media Platforms.
June 4, 2020 - It has come to our attention that a number of social media posts have been advertising fake claims about 3M Combat Earplug settlements. These posts are either misleading or outright false.
These social media posts claim that the 3M Combat Earplugs multidistrict litigation has reached a $9.1 M settlement. No settlement of any value has been reached in the 3M Combat Earplugs multidistrict litigation and we are not aware of any specific individuals settling their individual claims.
The attorneys in leadership on this case are working diligently to take immediate action against these false advertisements.
For questions or concerns regarding the 3M Combat Earplugs multidistrict litigation MDL 2885, please do not hesitate to contact TorHoerman Law.
May 16, 2020 - 3M has no evidence of telling the military about their earplugs’ defects, according to internal documents being used in a mass tort lawsuit against the company. The documents also indicate that 3M’s own employees didn’t think soldiers needed to know how to properly use the earplugs.
The exact communications between earplug-maker 3M and their main customer, the US military, have been of major debate for several years. But ever since soldiers started losing their hearing, 3M has been under investigation for selling faulty earplugs to the troops. More than 140,000 cases have been filed as of April, 2020.
A closer look at some of the memos revealed that the earplug-maker specifically knew that the earplugs had problems requiring new instructions, despite 3M’s persistent claims of the opposite. 3M says that they designed the earplugs in accordance with the military’s requests which they think should nullify the claims against them.
3M’s combat earplugs were the second generation of the product and intended to be an upgrade from the previous version. The new version was essentially reversible, with one side blocking loud noises and the other allowing for a more mild mute. The side that aimed to block loud noises reportedly failed, resulting in thousands of soldiers suffering tinnitus and hearing loss.
The company has already had to pay for the effects of their product. In 2018, a $9.1 million settlement for a whistleblower lawsuit seemed to close the combat earplugs case. However, the thousands of lawsuits since then have proven that there are many more injuries to resolve.
If you or someone you know has developed a hearing problem after using these earplugs, call TorHoerman Law to see if you’re eligible for compensation.
April 13, 2020 - The legal battle over 3M's Combat Earplugs, which has amounted to 140,000 plaintiffs and hundreds of related actions, recently had a Florida courtroom debating for summary judgment in early April. Military personnel claimed that 3M's defense of having worked closely with the government to design the earplugs doesn't hold up since 3M also sold the earplugs to regular civilians.
3M believes their argument of following government instruction should give them preemption from the lawsuit. They also claim that the government knew about the defect in the earplugs but continued with the product anyway. The plaintiffs dispute this by alleging 3M had more control over the design of the earplugs than they're admitting, suggesting the errors in the design of the product came from willful decisions on the part of 3M. Further, the plaintiffs say that there's no discrepancy between federal and state laws in the case as 3M has claimed.
The exact communication between 3M and the government regarding the earplugs is still being contended. 3M claims that the government had audio professionals looking into the defect early on, while the plaintiffs claim the specifications of the combat earplugs were never approved by the government in the first place.
January 27, 2019 - 3M, the global conglomerate who sells just about everything, is facing more than 1,000 lawsuits over their "Dual-Ended Combat Arms earplugs" which have reportedly caused tinnitus and permanent hearing loss in thousands of US veterans. Lawsuits are now being directed towards the multidistrict litigation (MDL) court in Florida as each side prepares for a bellwether trial. A bellwether trial highlights a number of cases rather than one, and it will likely impact how the rest of the soldier-versus-earplugs cases will result.
3M's earplugs were used by every branch of the military from 2003 until 2015. They could be flipped around depending on how much noise the user wanted to block out; the green end was designed to be noise-canceling, while the yellow end only blocked out loud noises like explosions and gunfire. Veterans are claiming that neither side could adequately protect their hearing, and that 3M knew their product was faulty from the beginning.
This is not the first legal action taken against the corporation for their earplugs. In 2016, 3M was sued by Moldex-Metric Inc., a company that also sells hearing protection items. 3M denied the claims and eventually settled for $9.1 million in 2018.
In response to the sudden influx of lawsuits, 3M says that they aren't responsible for the injuries since they designed the earplugs using the suggestions and feedback given by military representatives. New lawsuits are being filed each day as the court plans for an initial trial.
January 20, 2019 - In January 2019, a former Army Sergeant who was deployed to Iraq between 2003 and 2004 as part of Operation Iraqi Freedom, claims his tinnitus, hearing loss, and loss of balance was caused by the defective earbuds. The lawsuit will likely spark conversation among other military members prompting more lawsuits to be filed.
If you or a loved one heroically served our country and suffered from tinnitus or hearing loss as a result of the 3M Combat Arms Earplugs, you may qualify for a 3M Combat Arms Ear Plugs lawsuit.
August 25, 2018 - In the summer of 2018, 3M agreed to pay $9.1 million to the U.S. government to resolve allegations that it willingly and knowingly sold defective earbuds to the Defense Logistics Agency.
The whistleblower, Moldex-Metric, Inc., alleged that 3M and its predecessor Aearo Technologies knew about the defect since 2000 but withheld the information, even after becoming the sole provider of earplugs to thousands of servicemen and women, from the government.
According to a press release from Acting Assistant Attorney General Chad Readler of the Justice Department's Civil Division, the allegations were brought against 3M through the False Claims Act. Established during the Civil War, the False Claims Act is a federal statute that allows for criminal and civil penalties for "falsely billing the government, over-representing the amount of a delivered product, or under-stating an obligation to the government."
"In addition to damages directly associated with the contractual cost of the earplugs," the complaint stated, "The United States has been damaged by the large and ongoing medical costs associated with treating veterans who likely suffered hearing damage and impairment as a result of the defective earplugs."
As part of the settlement, Moldex-Metrix, Inc., received $1.9 million.
“3M Can't Duck Earplug Suit With Gov't Contract Preemption.” Law360, www.law360.com/classaction/articles/1295529/3m-can-t-duck-earplug-suit-with-gov-t-contract-preemption.
“Annual Benefits Report Veterans Benefits Administration Fiscal Year 2017.” Veterans Benefits Administration, U.S. Department of Veterans Affairs, 2017, www.benefits.va.gov/REPORTS/abr/docs/2017_abr.pdf.
Axt, Bill. “3M Company to Pay $9.1 Million Settlement for Selling Defective Earplugs to Military.” The Hearing Shop, 14 Aug. 2018, thehearingshop.com/3m-company-pay-9-1-million-settlement-selling-defective-earplugs-military/.
Carlson, Mr. David. “False Claims Act.” LII / Legal Information Institute, Legal Information Institute, 21 Apr. 2015, www.law.cornell.edu/wex/false_claims_act.
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DePass, Dee. “3M Continues to Deal with Lawsuits Regarding Defective Earplugs, PFAS Chemicals.” Star Tribune, Star Tribune, 22 Jan. 2020, http://www.startribune.com/3m-continues-to-deal-with-lawsuits-regarding-defective-earplugs-pfas-chemicals/567166652/.
Marshall, Josh. “Combat Veteran Files Lawsuit for Loss of Hearing Due to Defective Military Ear Plugs.” KHOU, KHOU, 22 Jan. 2019, www.khou.com/article/news/local/combat-veteran-files-lawsuit-for-loss-of-hearing-due-to-defective-military-ear-plugs/285-51892502-058e-4944-8cb3-274fd350d8e7.
Rempfer, Kyle. “Company to Pay $9 Million after Allegedly Selling Defective Combat Earplugs to US Military.” Military Times, Military Times, 26 July 2018, www.militarytimes.com/news/your-military/2018/07/26/company-to-pay-9-million-after-allegedly-selling-defective-combat-earplugs-to-us-military/.
“Severe Hearing Impairment Among Military Veterans --- United States, 2010.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 22 July 2011, www.cdc.gov/mmwr/preview/mmwrhtml/mm6028a4.htm.
Tiron, Roxana, and Martina Barash. “3M Officials Say Troops Didn't Need to Know Proper Use of Plugs (1).” Bloomberg Government, 24 Apr. 2020, about.bgov.com/news/3m-officials-say-troops-didnt-need-to-know-proper-use-of-plugs/.
Last Modified: July 28th, 2020 @ 02:33 pm
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