Over 220,000 military servicemen and women have filed lawsuits against 3M, over Combat Army Earplugs version 2, or “CAEv2” earplugs. The sheer number of plaintiffs has turned 3M lawsuits into one of the biggest mass tort lawsuits in U.S. history. Plaintiffs allege that the earplugs were defective and caused them to develop tinnitus and/or hearing loss.
The first group of 3M lawsuits are scheduled for this Spring. Five 3M bellwether lawsuits, which will determine whether or not 3M settles the bulk of the lawsuits, is being presided over by a Pensacola, FL-based judge.
In determining in which states the trials should be held, and therefore, which state’s laws should apply, the judge sided with two plaintiffs. The two trials will be held in Washington state and Alaska. Attorneys for 3M wanted the trials to be held in Indiana, home to Aearo Technologies, which is the company that designed the Combat Arms earplugs. 3M acquired Aearo in 2008.
Lawsuits allege that as early as 2000, 3M was aware of a defect in Aearo’s earplugs, which caused the noise-protection devices to be loose-fitting, albeit imperceptibly. The CAEv2 earplugs were sold to the military until 2015.
According to Law360.com, plaintiffs’ counsel said in a statement, “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.”
Why is it important in which states the trials will be held? On this issue, per Law360.com, the judge said the location of where a plaintiff was allegedly injured is “central” to the choice of law question.
One of the five plaintiffs’ trials chosen for the bellwether MDL is a veteran who claims he sustained hearing damage and tinnitus during urban warfare training at Fort Lewis in Washington state.
3M challenged the plaintiff’s claim, arguing that his hearing injuries were sustained during deployments to Iraq. The veteran’s expert witness testified that it “was reasonable that the urban warfare training conditions, such as the extreme 160-decibel volume of the M240 machine gun he operated, could have caused the tinnitus.”
The judge’s order said the defendants will have the opportunity to attempt to discredit the Fort Lewis-trained veteran during the trial. However, “the court accepts his testimony and that of his expert…”
In the trial that the judge ruled will be held in Alaska, the plaintiff’s tinnitus began after being in close proximity to an improvised explosive device (IED) blast in Afghanistan in 2009. Upon returning to Alaska’s Fort Richardson, the veteran wore CAEv2 earplugs, and his tinnitus worsened.
According to Law360.com, 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.
