Type: 3M Combat Earplugs

A Florida federal judge overseeing MDL brought by service members and veterans who allege that defective 3M earplugs damaged their hearing sided with two plaintiffs on which states’ laws should apply in their upcoming bellwether trials.

“We are pleased with the court’s decision, and look forward to trial so that service members can hold 3M accountable for the permanent, life-altering hearing damage caused by these defective earplugs,” plaintiffs’ counsel said in a statement.

The five service members and vets were selected for an initial bellwether case pool in the multidistrict litigation, in which they and 220,000 others say 3M Co. and a predecessor, Aearo LLC, supplied CAEv2 earplugs that were defective and didn’t protect against service-related tinnitus and hearing loss.

They claim the earplugs were defective and didn’t come with full and honest warnings. Additionally they say they received the earplugs during their military service, had their hearing measured through military-issue audiograms and were injured during their military training.

Judge Rodgers came to the conclusion that Alaska law should apply because its contacts with the litigation are more substantial than those of Minnesota and Indiana, where some design decisions were made Also, applying Alaska law would most clearly advance that state’s interests by providing a “effective means of redress’ for residents who were tortuously injured in Alaska.”

The MDL includes suits from state courts in California, Minnesota, Oklahoma, and Texas, plus more than 600 related actions in more than 30 federal courts.

The first bellwether trial against 3M Co. over defective military earplugs has been scheduled to take place in April. More than 200,000 lawsuits have been filed against the manufacturing company, making this the largest mass tort in history.

Members of all four branches of the military who used the Combat Arms Earplugs anytime between 2003 to 2015 may have suffered hearing issues as a result of the defective plugs.

U.S. District Judge M. Casey Rodgers set the initial trial date for April 5, rejecting 3M’s argument that grouping the cases together may confuse a jury.

The court has selected four bellwether trial groups consisting of six cases in each group. The five service members and vets were selected for an initial bellwether case pool in multidistrict litigation in which they and 220,000 others say 3M Co. and Aearo LLC supplied “CAEv2” earplugs that were defective and did not protect against service-related tinnitus and hearing loss.

“3M has continued to blame our nation’s military for its defective earplugs, despite the company’s own internal emails and testimony showing they were aware of the defect, failed to inform the military, and then joked about how they profited from this deception,” an attorney for the plaintiffs said. “Through this litigation, we seek to hold 3M accountable for the harm they caused and to seek justice for our service members. We look forward to trials in April 2021.”

This is not a class action lawsuit, so damages will vary greatly and will be based on the specifics of each plaintiff.

3M spokesman Tim Post said in a recent interview that the number of cases is a result of broad marketing appeals from lawyers more than the merits of the case against 3M.

The company statement on its website claims “(3M) worked in close coordination with the U.S. military on the CAEv2 product, and its design reflected the direction and feedback of individuals acting on the military’s behalf. We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations.”

A Florida federal judge denied for a second time a bid from military veterans to send their suits over allegedly defective 3M earplugs back to Minnesota state court, saying neither this group’s “novel” arguments nor her recent rejection of one of the company’s defenses makes the federal forum inappropriate.

Ruling on motions from 70 plaintiffs, U.S. District Judge M. Casey Rodgers stood by her ruling earlier this year in which she denied 341 motions to remand on behalf of more than 5,700 veterans who also originally filed in Minnesota state court.

“Broadly speaking, plaintiffs’ allegations mirror the allegations of the initial Minnesota plaintiffs in all material respects,” Judge Rodgers said. “Inexplicably, however, plaintiffs’ briefing fails to address, or even acknowledge, the court’s rulings with respect to federal officer removal in the first remand order.”

Judge Rodgers also said that a summary judgement ruling she issued in July in which she sided with the veterans and rejected 3M’s argument that Aearo was exempt from civil claims in the suit on the basis of its government contract did not strip away the federal court’s jurisdiction over the case.

“In short, because the summary judgement standard substantially differs from the plausibility standard for removal, the court’s summary judgement order does not impact the court’s analysis in the first remand order or its finding that defendants advanced a colorable federal defense,” she said.

The MDL was formed in the Florida federal court in April 2019. In the litigation, 140,000 military members say the earplugs were defectively designed and made, causing them to develop tinnitus and suffer hearing loss. They allege the defendants were responsible for the defects and failed to adequately warn the government about the issue.

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.

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.

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.