Over 240,000 U.S. military personnel have filed lawsuits against 3M Corp over its Combat Arms version 2 Earplugs (CAvE2), having alleged that a design flaw—an imperceptible loose fit—failed to protect soldiers from loud noises, resulting in the development of tinnitus and/or hearing loss.
In what has become one of the largest mass torts in U.S. history (second perhaps only to mesothelioma and other asbestos-related cases) 3M earplug litigation kicked off in late March and the first three cases chosen for a bellwether trial resulted in a jury award of $7.1 million for three plaintiffs.
According to Law360.com, Last Friday (April 30), a federal jury awarded $2.1 million 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).
Per Law360.com, the lawyers said in a statement Friday the three plaintiffs couragely stood up to 3M on behalf of all the veterans who now face preventable hearing loss and tinnitus as a result of the CAEv2 earplugs. “The evidence is clear: 3M knew their earplugs were defective, yet they allowed our servicemembers to suffer these life-altering injuries,” the statement said.
In response to the verdict, 3M said it was just the first phase in the litigation and hinted that there would be “multiple grounds for appeal,” the company said, per Law360.com. “We do not believe the plaintiffs met their burden of proving that the CAEv2 product was defectively or negligently designed or caused each plaintiff’s purported injuries,” a 3M spokeswoman said.
The jury award has set an optimistic tone for military members who have experienced irreparable hearing loss and the stress caused by persistent tinnitus. Bellwether trials set the tone for future litigation. If the next few bellwether trials result in jury awards for the plaintiffs, it could force 3M’s hand to prepare for settlement. However, no conclusions should be drawn from this first multi-district litigation (MDL), in which similar cases are lumped together.
3M tried several times to request a mistrial but U.S. District Judge M. Casey Rodgers denied those motions each time.
The next bellwether trial is scheduled in just two weeks (May 17), involving the claim filed by Dustin McCombs, who suffers from tinnitus that was caused by an IED blast in Afghanistan in 2009. McComb alleges his tinnitus later worsened while he was stationed at Alaska’s Fort Richardson.
Another 3M earplug trial is slated for June 7. The plaintiff is Lloyd Baker, who allegedly developed tinnitus beginning in 2005, from operating a 160-decibel M240 machine gun during urban-warfare training at Washington state’s Fort Lewis.
3M’s defense strategy has included the argument that since it is a government defense contractor for the military, the St. Paul-based company should be shielded from liability. 3M became the government supplier of the Combat Arms earplugs after acquiring the original manufacturer (Aearo) of the hearing-protection devices in 2008. Another legal strategy 3M has employed has been blaming the military for the design flaw in the earplugs.
U.S. District Judge M. Casey Rodgers said that military interactions did help play a role in the design of the earplugs. However, per Law360.com, Judge Rodgers has also ruled that 3M cannot tell the jury at trial “that the government dictated, directed, approved, or otherwise exercised discretion with respect to military specifications for any aspect of the design of the CAEv2, or for the content of instructions or warnings.”
