Nearly 230,000 claims have been filed by U.S. veterans or active military against 3M over faulty earplugs that plaintiffs allege caused them to develop tinnitus and hearing loss. The first three claims were filed by Army veterans, and are consolidated as a bellwether trial, which begins today with jury selection.
The trial will be closely watched in legal circles, as 3M earplug litigation has become one of the largest mass torts in U.S. history. Not only will 3M have to defend against the accusation that it supplied the military with faulty earplugs, the Minnesota-based multinational conglomerate is also accused of knowing that the hearing-protection devices had a design flaw.
3M did not initially design the earplugs. However, in 2008, 3M acquired Aearo Technologies, which originally designed and produced the Combat Arms Earplugs version 2 (CAEv2). The earplugs were supplied to the U.S. military from 1999 until 2015, when 3M discontinued the product. From 2003 to 2012, CAEv2 was the only hearing-protection device supplied to the U.S. military. As early as 2000, Aearo became aware of the design flaw.
The number of claims filed by U.S. military servicemen and women exploded in July 2020, after a judge ruled that 3M could not be exempt from the litigation because it was a government defense contractor.
But claims against 3M initially started in 2018, after 3M settled a whistleblower suit filed by a competitor, Moldex-Metric, whose BattlePlugs brand of earplugs is authorized for use by soldiers and Department Of The Army Civilians. Moldex-Metric filed the suit on behalf of the U.S. government. In 2012, 3M filed a patent infringement suit against Moldex-Metric. One year later, the motion was dismissed.
Per StarTribune.com, had the government known about tests conducted by Aearo in 2000, it may not have purchased Combat Arms earplugs.
3M paid over $9 million to settle with the government, however, no compensation was provided to any soldiers who had developed tinnitus or hearing loss as a result of the faulty earplugs. Furthermore, 3M denied all claims and did not admit liability in the settlement.
Should 3M lose the first few bellwether trials—the second is scheduled for May and a third in June—the company will likely face damages in the hundreds of millions, if not more.
The claims filed against 3M are lumped together as multidistrict litigation, or MDL, which is a group of suits in the federal court system for complex product liability matters with many separate claims, explains StarTribune.com. MDL litigation typically begins with bellwether trials, which most often shape the outcome of future claims, and determine if a settlement is likely. According to StarTribune.com, there were 229,397 separate actions within the 3M earplug case, according to the U.S. Judicial Panel on Multidistrict Litigation. Bloomberg Law says this makes it the largest MDL ever.
Only asbestos litigation has had more claims. But the reason why asbestos isn’t the largest MDL ever is that many of the claims were filed at the state level. (MDLs are consolidated in the federal court system.)
StarTribune.com says that in 3M’s 2020 annual report, the company said it was defending roughly only 12,000 claims. The reason for the disparity between the total number of claims in the MDL and what 3M is defending? Many of the claims have yet to be served on 3M or completely vetted by the court. 3M further explained in a statement, per StarTribune.com, “The vast majority of claimants that are being reported have not actually filed lawsuits and are solely part of an administrative docket.”
The original designer of the controversial earplugs, Aearo, received a request by the government in 1999 to shorten the earplugs to fit in a standard-issue military carrying case. After the adjustment was made, that’s when combat veterans noticed problems with their hearing.
Internal Aerao documents revealed that testing in 2000 conducted at the company’s Indianapolis facility demonstrated that the shorter earplug design could cause an improper fit. Consequently, in order for the earplugs to be effective, they needed to be inserted in a particular way.
3M’s defense will likely be that it told the military about the improper fit, thus it was the military’s responsibility to inform soldiers about the problem.
As mentioned above, 3M tried to have all claims thrown out by using the government contractor defense strategy, which StarTribune.com explains, “shields contractors from tort liability for defects in products designed and developed for the federal government.”
The judge who rejected 3M’s defense contractor argument ruled that the Army never issued a request for a design proposal for the earplug. Furthermore, the judge ruled, the Army and Aearo were not in contract at the time the military suggested the shortening of the earplugs.
During today’s bellwether trial, 3M is likely to call on three retired Army medical staffers to testify as well as two audiologists and a doctor who’s an ear specialist, per StarTribune.com.
3M’s witnesses will likely testify about deficiencies in the Army’s hearing testing programs. However, the judge presiding over the trial ruled that their conclusions will be non-binding.
Per Reuters.com, more than 1 million veterans receive compensation for hearing loss, which is the leading service-related disability. Tinnitus is the second-leading disability. Army veterans between the ages of 30 and 49 constitute the bulk of the claims.
The earplugs cost 3M just 85 cents per unit to make and were sold to the government for $7.63.