by Leah Rush Easterby

Contributing Editor

3M Products Liability Litigation MDL 2885

Combat Arms Aren’t Your Typical Earplugs

3M’s Combat Arms are dual-ended earplugs designed for one side to block all noise and the other to be transparent enough to hear voice commands while blocking harmful ballistic noises. U.S. soldiers used the earplugs in Iraq, Afghanistan, and the U.S. in combat and training operations.

The recent spate of MDL suits was spawned by a 2018 False Claims Act lawsuit brought by the Justice Department against 3M in 2018. The False Claims Act arose from a whistleblower claiming 3M knew of the design flaw that allowed the earplugs to slip imperceptibly in the ear canal, exposing users to loud noises.

3M Earplugs Multidistrict Litigation Updates

More than 230,000 military personnel have sued 3M alleging its Combat Arms earplugs (CAEv2) were defective and sold without proper warnings. The number of plaintiffs in the litigation far exceeds the volume of claimants in other ongoing MDLs. The cases are consolidated in a Florida federal multidistrict litigation.

On April 30, 2021, a federal jury awarded three Army veterans $7.1 million in damages for 3M’s failure to warn about design flaws in their Combat Arms earplugs that cause hearing loss. The bellwether trial was the first to go before a jury among thousands of complaints. The verdict set a powerful benchmark for the remaining cases’ values. The defense has accused the military of negligently handling earplug usage and indicated that 3M would appeal.

A second trial in the litigation is scheduled for May 17. Unlike the previous trial, there is a single plaintiff who alleges he developed tinnitus as a result of the defective earplugs.

A third trial is set for June 7, in which the plaintiff claims he sustained tinnitus operating an M240 machine gun in urban warfare training.

Plaintiffs presented evidence that Aearo Technologies, which designed the earplugs before the company was bought by 3M in 2008, knew for years there were fitting problems with the earplugs. They allege Aearo Technologies and 3M failed to warn the military about their own testing results.

Damages in the Millions

The verdict awarded each test plaintiff $2.1 million in punitive damages, medical expenses, lost wages, and pain and suffering. Though the trial lasted five weeks, the jury returned a verdict after just one day of deliberation.

In a 2018 False Claims Act lawsuit, 3M settled with military branches for $9.1 million. The allegation in that case was that 3M knew about the design issue with the ear protection as early as 2000. As is standard in such agreements, 3M admitted no wrongdoing.

Hearing problems, including tinnitus, are by far the most prevalent disability among U.S. veterans. According to the U.S. Department of Veterans Affairs, at the end of 2014, more than 933,000 veterans were receiving disability for hearing loss. In addition, almost 1.3 million had received compensation for hearing loss. Many other veterans suffer from an auditory processing disorder, rendering it difficult to understand speech due to blast exposures.

Testing Showed Design Defect Before Military Contract

The Combat Arms Earplugs were initially designed and tested by Aero Technologies, who entered into a government contract to sell the earplugs to the U.S. Armed Forces. The whistleblower provided evidence that the company falsely certified the earplugs by confirming a noise reduction rating of 22 when the earplugs actually tested about 10.9.

The lower noise reduction rating was not the most serious design flaw. Results of the pre-market testing also revealed the design flaw that caused the earplugs to loosen in the ear canal, breaking the seal and allowing dangerous noise levels to damage the ears.

According to the lawsuit brought by the U.S. Department of Justice, 3M knew of the design flaws. When 3M acquired Aero Technologies, they hired Aero employees and developers aware of the defects revealed in the pre-market testing.

What Does the Recent Bellwether Verdict Mean for Future Claims? 

Given that the jury awarded 2.1 million dollars in punitive damages to each of the three plaintiffs, it sends a strong message that the jury wants to see 3M pay for its wrongdoing. As the largest federal mass tort MDL in history, it places 3M under substantial pressure to start negotiating a global settlement.

So far, it appears that no settlement has been reached for the trial slated to begin on May 17, 2021. The large award in the initial trial almost guarantees that there will be more lawsuits added to the already historic mass tort claim. The size of the award serves as a powerful motivator for military personnel who were harmed by the earplugs to come forward and join the MDLs.

The recent verdict of $7.1 million is unlikely to significantly impact a giant corporation like 3M on the bottom line. The most recent financial estimates place the annual revenue of 3M at over $32 billion. However, if you extrapolate the number of active claims multiplied by the recent verdict, it should serve as a strong incentive for 3M to initiate a settlement offer. Publicly, 3M maintains its stance that it has grounds for appeal for the first bellwether verdict and moves forward with the other two slated trials.

Veterans, or active duty personnel, who served between 2002-2015 and suffered damage to their hearing while using Combat Arms Earplugs, may be entitled to compensation. With such a large pool of potential plaintiffs, the outcomes of the bellwether trials are crucial to determine the future course of the MDLs.  The initial settlement of the whistleblower case and the recent $7.1 million award does not seem to bode well for the giant corporation.