Following on the heels of the first 3M Combat Arms Earplug trial, which resulted in a $7.1 million jury award for three plaintiffs, the second trial, held May 29, didn’t fare the same way. 3M and its subsidiary, Aearo Technologies, the original maker of the Combat Arms Version 2 earplugs, were found not liable by a federal jury in Florida, for a veteran’s hearing loss and tinnitus.
Unlike the first test trial (test trials are also known as bellwether cases), which involved three plaintiffs, the second trial involved just one, Dustin McCombs, who is among more than 236,000 plaintiffs (US military veterans and active duty personnel as well as government contractors) who allege that the hearing-protection devices did not provide them with the protection necessary to prevent hearing loss and tinnitus.
McCombs is an Afghanistan war veteran who experienced an IED explosion overseas in 2009, and claimed that his tinnitus worsened after being stationed at Fort Richardson in Alaska. But the jury disagreed that 3M was responsible for his injuries.
According to Law360.com, three plaintiff’s lawyers issued a joint written statement following the decision: “While we are disappointed by the jury’s conclusion in this trial … we continue to believe that the evidence overwhelmingly demonstrates that 3M knew their CAEv2 earplugs were defective, yet allowed our servicemembers who relied on them for hearing protection to suffer from preventable hearing loss and tinnitus.”
In the first bellwether trial, $2.1 million was awarded to each of three plaintiffs: Stephen Hacker, a 20-year Army vet who started experiencing tinnitus in 2006 (Hacker was awarded an additional $160,000 for pain and suffering); Luke Estes, a former tank platoon leader at Fort Benning in Georgia who started losing hearing and developed ringing in both ears in 2014 (plus $350,500 for medical costs, lost earnings, and pain and suffering); and Lewis Keefer, an Army medic who used the earplugs at Fort Benning and in the line of duty in Iraq who gradually starting to lose his hearing (plus $320,000 for medical costs, lost earnings, and pain and suffering).
According to Law360.com, the third bellwether trial is set for June 7. The plaintiff will be Lloyd Baker, who claims his tinnitus was induced as a result of operating a 160-decibel machine gun during training at Fort Lewis in Washington state from 2005-2006.
