3M Accused Of Swaying Juror’s Opinions In Forthcoming Defective Combat Earplugs Bellwether Trial

Legal NewsVeterans

In what has shaped to be one of the largest mass tort cases in U.S. history, over 220,000 U.S. military veterans and service members have sued 3M, accusing the company of designing faulty Combat Arms Earplugs (CAEv2) and withholding evidence of the defect from the military. 

The first bellwether trial, involving three military veterans, is scheduled for March 29. According to Law360.com, plaintiffs are requesting a hearing from the Florida federal judge overseeing the multidistrict litigation (MDL) because 3M apparently paid to have the link to www.3mearplugsfacts.com show up at the top of web searches for “Combat Arms Ear Plugs” and “earplugs websites.” 

By paying for this influence, the plaintiffs maintain, jurors could be swayed by the information 3M has paid to have listed at the top of search results. The controversial earplugs were discontinued in 2015. Thus, the plaintiffs allege, there’s no doubt the website is “entirely litigation driven.” 

Given that the first earplug trial will start in just a week, the U.S. District Judge issued an order to 3M to respond to the service members’ motion, poste haste (this past Saturday was the deadline; no immediate word yet on whether 3M has replied). 

Plaintiffs in the MDL claim that the faulty double-sided earplugs caused them to develop hearing loss and/or tinnitus. These two conditions are the first- and second-highest disability payouts from the Veterans Administration, respectively. The CAEv2 earplugs were supposed to protect soldiers from loud noises on the battlefield and training grounds. The double-ended hearing-protection devices, which were supplied to the U.S. military from 2002-2015, were also designed to let soldiers hear instructions from commanding officers or fellow soldiers. However, a design flaw caused the CAEv2 to fit too loose, albeit imperceptibly. 

Because the website collects cookies, which tracks visitors and gathers their browsing history, the service members claim that this may violate the judge’s directives about jury research, Law360.com reports. Service members also accuse 3M of trying to influence the jury by boosting its reputation from the web search results. This would violate court orders.

3M’s Earplugs Facts website includes an ‘About 3M’ page. This page claims 3M products ‘benefit hundreds of millions of people around the world.” In addition, 3M’s website copy mentions its ‘philanthropic efforts to benefit the U.S. military’ and ‘the many military veterans, service members and military spouses’ employed by 3M.

In July 2020, a judge ruled that 3M could not use the government contractor defense strategy to have the earplug lawsuits dismissed.

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