From 2002 to 2015, thousands of U.S. soldiers received special selective attenuation earplugs, designed to protect their hearing from loud noises (like gunfire and explosions) while allowing in quieter sounds. A company called Aearo Technologies originally made these selective attenuation earplugs, before 3M® acquired Aearo Technologies in 2008 and took over production.
These special earplugs (the official name for the product line is "Dual-Ended Combat Arms™ Earplugs") were plagued by claims that they didn't work properly, and that they played a role in servicemembers' development of hearing loss and tinnitus in certain instances. Allegations like these led to multiple product liability lawsuits, and at least one whistleblower-type action. Let's look at the legal landscape surrounding these 3M® combat earplugs.
3M® Dual-Ended Combat Arms™ Earplugs are unique because they are essentially two earplugs in one. With the olive drab side inserted into the ears, users should have total hearing protection, as with regular earplugs. When users put the yellow side in their ears, it allows them to hear softer sounds (such as a fellow servicemember speaking) while in theory still dramatically reducing the effects of sound energy from loud noises like gunfire. But due to an apparent design flaw, the earplugs didn’t properly fit into the ear canal, meaning they could not effectively block out sound.
3M® never recalled the defective earplugs, choosing instead to stop production. So even after 3M® became aware of the problem, servicemembers continued to use the product, believing their hearing was being protected. Many of these servicemembers have reported (and been diagnosed with) hearing problems, including hearing loss and tinnitus, and have filed injury lawsuits over the defective earplugs. (Learn why diagnosis is crucial in a 3M® earplug lawsuit.)
The first notable civil lawsuit over 3M® earplugs wasn't related to product liability or personal injury; it was brought under the False Claims Act, which allows a whistleblower to report an instance of a person or business defrauding the federal government.
In the case of 3M® combat earplugs, the whistleblower was manufacturer Moldex-Metric Inc., which alleged:
In July 2018, the case settled, with 3M® agreeing to pay $9.1 million to the federal government, without admitting any liability.
Since 2019, thousands of lawsuits have been filed, with servicemembers claiming that 3M® Dual-Ended Combat Arms™ Earplugs failed to work as intended, resulting in hearing problems and related damages.
In an attempt to more efficiently handle pretrial matters, the courts have grouped many of these cases into multi-district litigation (MDL). Judge M. Casey Rogers of the United States District Court for the Northern District of Florida will oversee the 3M® Dual-Ended Combat Arms™ Earplug MDL.
MDL improves judicial efficiency by consolidating many cases into one federal district, letting one judge make decisions that apply to all parties. MDL also provides for "bellwether" trials, which are sometimes described as test-run cases giving everyone an idea of the kind of jury verdicts to expect.
By the summer of 2019, there were more than 1,200 cases in the Florida MDL. Attorneys expect this number to rise considerably as more and more plaintiffs file their own lawsuits against 3M®.
Throughout 2019, there was a series of case management conferences. The purpose of these meetings was to discuss pretrial matters, such as pleadings and discovery. The goal was to coordinate all these actions as efficiently as possible to save everyone time and money.
As of January 2020, the parties have begun discovery—the phase when parties seek information about the strengths and weaknesses of their cases and learn more about the other side's position—and are working on setting up the bellwether trials. The court has also scheduled several more case management conferences.
The Florida MDL being in the "discovery" phase, a global settlement is unlikely anytime soon. In the meantime, many more plaintiffs will likely file individual lawsuits against 3M®. If you're a servicemember who has experienced hearing-related health problems after using 3M®'s combat earplugs, learn more about finding an attorney to help with your case.