If you’ve been following the news, you might think that the largest litigation in the U.S. is Roundup Weed Killer cancer lawsuits. But 3M Combat Arms Earplugs has quietly overcome the total number of Roundup litigants, becoming the biggest multi-district litigation (MDL) with 188,000 people filing legal claims against 3M.
During April, the first full month of the COVID-19 pandemic, ConsumerSafety.org, a website run by a Syracuse, NY-based law firm, reports that only 640 people had filed claims against 3M. Remarkably, since then, despite the challenges faced by COVID-19, the number of lawsuits filed against 3M has skyrocketed.
The first trial, or bellwether trial, which serves to determine the direction of future cases, and whether a settlement is viable, is slated for April 5, 2021. The MDL is set in the Northern District of Florida.
The reason why the number of legal claims against 3M has risen sharply is that in July, a judge ruled against 3M’s call to dismiss all claims. The company argued that because of its role as a defense contractor, it should not be held liable for fulfilling a government contract. However, the judge said that because the military did not actively design the earplugs, and were therefore not designed to proper military standards, 3M’s government contractor defense strategy doesn’t hold water.
According to ConsumerSafety.org, the root of the 3M litigation stems from a 2016 whistleblower lawsuit, filed by Moldex-Metric, whose BattlePlugs brand of earplugs are now being purchased by the military. However, 3M filed a patent infringement lawsuit against Moldex-Metric in 2012, even though it knew that the latter’s earplugs were more effective.
In 2008, 3M acquired Aearo Technologies, which invented the Combat Arms Earplugs. From 2003-2015 the Combat Arms Earplugs were sold to the military, despite the fact that as early as 2000, Aearo allegedly was aware of a design flaw in the military earplugs which caused the double-ended hearing-protection device to become too loose.
From 2003-2012, Combat Arms Earplugs were the only option for military personnel. Nearly 60% of all people who have served in the military report hearing loss by the time their service period is over. And according to one law firm serving as co-liaison counsel for 3M earplug MDL, nearly one million veterans were receiving disability compensation for hearing loss and 1.3 million were receiving compensation for tinnitus (as of 2014), making these two hearing disorders the most common service-related disabilities.
In 2016, Moldex-Metric sued 3M; the case was settled for over $9 million. Despite the settlement, media attention was finally focused on 3M’s defective earplugs, opening the floodgates for former military service personnel to file claims against Aearo/3M.