Over 220,000 U.S. military personnel have filed claims against 3M, alleging the company and a predecessor, Aearo LLC, supplied the U.S. military with earplugs that failed to protect against service-related tinnitus and hearing loss. The number of Combat Arms Earplugs, or CAEv2, claims filed has resulted in one of the largest mass tort litigation in U.S. history. 

The first bellwether trial is slated for late next Month, and involves three individual claims filed by  former U.S. military servicemen. Last week, a U.S. District Judge ruled that in one of the cases selected for trial, 3M can argue that the military shares at least some of the blame for the plaintiff’s injuries. 

However, according to Law360.com, the Judge said that there is “No verifiable or quantifiable basis for an opinion either way on the successfulness of the Army’s hearing program, and the experts’ opinions for both the service members and 3M are based on their own ‘generalized views, anecdotal accounts and speculation,’ and are therefore not reliable.

“Allowing these experts to opine about circumstances throughout the entire Army based on limited personal accounts and information relayed to them by an unspecified number of third parties would be to sanction their use as a vehicle for introducing hearsay testimony,” Judge Rodgers said, per Law360.com.

In other words, the Army will testify that hearing health and hearing prevention loss is a priority and a part of the culture, while 3M experts will testify that the Army’s actual implementation of hearing-loss prevention fell far short of meeting regulatory requirements. 

According to the Judge, none of the experts that will testify will have their opinions tied to any single plaintiff. However, the testimony will assist the jury in comprehending how the U.S. Army’s hearing health programs are administered. 

Plaintiffs in the 3M multidistrict litigation claim they had received an audiogram to assess aural functioning. Neither attorneys nor experts for 3M will argue that the hearing loss was caused by a failure of the audiogram technology or a failure to conduct the procedure in the first place; the Judge ruled that that failure of the earplugs to fit correctly does not necessitate expert testimony because it is not a medical question.