Plaintiffs in the 3M military earplug class action don’t believe that 3M, the Minnesota-based company, has made a sincere effort to reach a global settlement over allegations that it supplied defective Combat Arms Earplugs version 2 (CAEv2) to the U.S. military from 2003-2015, allegedly damaging the hearing of tens of thousands of U.S. military veterans.
And why should plaintiffs think differently?
First, 3M, a company with a market capitalization exceeding $56 billion, tried to offload its CAEv2 legal liabilities on the original manufacturer of the allegedly defective earplugs, Aearo Technologies. 3M acquired Aearo in 2008 and then sold the earplugs to the U.S. military under the 3M brand, not as a subunit. Mere days after offloading the legal obligations onto its Aearo subunit, Aearo itself filed for Chapter 11 bankruptcy protection, which normally comes with the benefits of having all lawsuits paused (stayed) while a bankruptcy judge considers the restructuring plan. Litigation against Aearo is stayed, but 3M has not been granted that pause on litigation.
To be fair, 3M did propose a $1 billion trust to resolve the litigation. However, most plaintiffs believe that the figure is woefully insufficient. Consider that in 16 CAEv2 trials held to date, 10 juries in those trials sided with 13 plaintiffs (2 cases involved more than 1 plaintiff) and awarded those plaintiffs a collective $300 million in damages. (In one trial, because of Colorado law, the damage award was reduced; the total damage awards now stand at $240 million in the 10 trials.) In other words, 3M lost 10 of 16 cases, and if the company faced every plaintiff in court, they would likely have to pay tens or even hundreds of billions in damages.
3M has also attempted to discredit the hearing damage claims of over 200,000 veterans. In March 2023, the company argued that 90% of CAEv2 plaintiffs have normal hearing, per U.S. Department of Defense standards. Critics of 3M contend that the company cherry-picked the data and intentionally misinterpreted the DOD stats.
In addition, 3M has resurrected its original defense that, as a government contractor, it is shielded from liability. 3M has unsuccessfully tried to use that same argument in defending itself against so-called “forever” PFAS chemicals it manufactured. The judge overseeing all federal CAEv2 lawsuits, the biggest multidistrict class-action in U.S. history, with over 240,000 pending lawsuits, previously ruled that the U.S. Army had no role in participating in CAEv2 design decisions, thus placing any defect claims solely on 3M. Currently, the 11th Circuit Court of Appeals is reviewing 3M’s military contractor defense strategy.
In January 2023, Judge M. Casey Rodgers, who is presiding over the MDL in the Northern District of Florida, declared an impasse to mediation talks. However, on May 1, Judge Rodgers ordered 3M and the plaintiffs to resume settlement talks, hiring two retired judges as mediators and assigning a Special Master to oversee the mediation talks.
The CAEv2 MDL exploded after 2016, when a rival earplug maker filed a whistleblower lawsuit against 3M on the government’s behalf. 3M settled that lawsuit with the U.S. Department of Justice for $9.1 million.
