Most people picture helmets and tactical vests when they think about personal protective equipment (PPE) that service members must wear in combat and training. But earplugs are also essential PPE. For over a decade, members of the military used 3M Dual-Ended Combat Arms Earplugs. The earplugs were supposed to protect service members from hearing damage caused by loud noises like gunfire, while allowing users to hear softer sounds like radios or fellow service members talking.
But in 2016, a whistleblower lawsuit exposed a potential design flaw in the fit of the earplugs that prevented the plugs from effectively blocking out sound. The earplugs were never recalled, but 3M stopped making them in 2015. In 2018, 3M settled the whistleblower lawsuit for $9.1 million. Scores of lawsuits filed by service members soon followed.
In this article, we'll cover:
Service members are exposed to loud noises during training and during combat, which is why having the right protective gear is so important. From around 2003 to 2015, service members in every branch of the military used combat earplugs manufactured by 3M.
Then, in 2016, a False Claims Act lawsuit revealed that 3M earplugs were too short for some users' ears and that 3M knew about the design defect and didn't tell the military about it.
It's hard to say how many members of the military have relied on the potentially defective earplugs during their service. Certainly, the millions of members who served in recent conflicts in Iraq and Afghanistan are at risk of developing hearing loss and other injuries related to the use of faulty earplugs. According to the Department of Veterans Affairs (VA), hearing problems—including tinnitus (ringing or other types of noise in the ears)—are "by far the most prevalent service-connected disability among American Veterans."
As of May 2022, hundreds of thousands of veterans and active service members have filed product liability lawsuits against 3M claiming that their use of the earplugs has caused a variety of health problems, including:
The 3M earplug lawsuits are not a class action. But over 270,000 individual lawsuits have been consolidated in federal "multidistrict litigation" (MDL)—called 3M Products Liability Litigation, MDL No. 2885.
An MDL is a group of lawsuits based on similar facts. The lawsuits are joined for pretrial matters, like discovery, to save time and resources, promote consistent outcomes, and encourage settlement. Then the judge and parties choose a few cases to go to trial first (called "bellwethers"). The bellwether trials are meant to be a preview of what all parties can expect in their own trials and often set the stage for a global settlement. If the parties don't reach a settlement, individual cases are sent back to the court where they were originally filed for trial.
Because of the size of the 3M MDL—the largest in history with over 270,000 claims so far—the court has scheduled an unusually large number of bellwether trials. As of May 2022, the 3M bellwether juries are split. In 16 bellwether trials, the plaintiffs have won 10 times and 3M has won six times. Juries have awarded nearly $300 million to plaintiffs in all.
Not all members of the military who used 3M earplugs during their service can file 3M earplug lawsuits. You have to be able to show all of the following:
A specific medical diagnosis of some kind of earplug-related injury is the first step in understanding (and proving) the extent of your losses ("damages").
You'll also have to file your lawsuit within a certain window of time—opening when your injury first appeared or was diagnosed and closing with the deadline to file a lawsuit in your state (called the "statute of limitations"). Most states allow plaintiffs one to six years to file personal injury lawsuits, though some have special rules for product liability lawsuits. Don't delay in talking to a lawyer about your case. If you miss the filing deadline, your lawsuit will likely be dismissed and you won't get compensation for your injury.
When the average person gets hurt, they can usually file a lawsuit against the person or organization responsible for the injuries. But members of the U.S. military don't always have this right.
Service members typically can't sue the federal government for injuries. This rule comes from sovereign immunity, which traces its roots back to the idea that "the king can do no wrong." In other words, the government was typically immune from civil or criminal wrongdoing.
Over time, courts and legislatures have chipped away at the idea of sovereign immunity. For example, the Federal Tort Claims Act (FTCA) allows individuals to sue the federal government in federal court for intentional or negligent acts committed by someone acting on the government's behalf.
But members of the armed forces aren't allowed to sue the federal government for injuries that arise during their service under a law called the Feres Doctrine.
Members of the armed forces might not be able to sue the government, but they can sue the private companies who made the allegedly defective earplugs. Aearo Technologies made the earplugs until 2008, when 3M acquired Aearo Technologies. Most potential plaintiffs will sue 3M, Aearo Technologies, or both.
If you're thinking about filing a 3M lawsuit, you're probably wondering how much money you might get if you win your case. How do you put a dollar amount on a lifelong injury like hearing loss caused by a defective product? What specific losses can you be compensated for in cases like this?
As with any injury-related case, figuring out the value of a 3M earplug claim starts with an understanding of "damages," which is a legal term that refers to compensation for losses suffered by an injured person (the "plaintiff").
Damages are paid by the defendant in the lawsuit. (In these combat earplug cases, the defendant is usually 3M, the manufacturer of the earplugs, but others in the supply chain might also share some responsibility.) Whether your combat earplug case settles out of court or you receive a judgment in your favor after a trial, the money you receive is considered damages.
Let's look at some common categories of damages, and how each might affect the value of your 3M combat earplugs lawsuit.
As a plaintiff, if you win or settle your case, your damages include compensation for:
If the full impact of your medical complications isn't clear, it's probably not in your best interest to accept an injury settlement offer. Your attorney will almost certainly want to wait until both of you have a clear picture of this component of your damages. Once you accept an injury settlement, you can't go back and reopen your claim, even if you learn that your health problems caused by the defective earplugs are worse than you first thought.
If your hearing problems or other health issues have forced you to take time off from your job, or have otherwise affected your ability to earn a living, you can ask for compensation for that financial harm in your damages claim. Specifically, you are entitled to payment for any income you've already lost—and for income you would have earned in the future but now won't because of your injuries. An award based on future income is called "loss of earning capacity" or "diminished earning capacity."
While economic losses like medical bills and lost income are fairly easy to calculate, "pain and suffering" isn't so easy to quantify. But this category of damages plays a big part in determining how much you can expect to receive in an injury case, and can be a crucial component of a 3M earplugs lawsuit. Pain and suffering is often broken down into two types:
In the context of a lawsuit over potentially-defective combat earplugs, different kinds of pain and suffering might include:
While pain and suffering is largely subjective, lawyers, insurers, and courts sometimes calculate it and other non-economic damages in direct relation to the plaintiff's economic damages. Sometimes they use a so-called "multiplier" (generally between 1.5 and 4) that is based on the seriousness of the physical injuries, the clarity of the defendant's liability, and other factors. For example, let's say the servicemember plaintiff's medical bills and lost income add up to $25,000, and a pain-and-suffering multiplier of 2 is used because some of the hearing problems aren't obviously attributable to 3M earplugs. In that case, the plaintiff's pain-and-suffering damages are $50,000 (the $25,000 economic damages multiplied by 2).
Learn more about pain and suffering in a personal injury case.
Medical costs, lost income, and pain and suffering are called "compensatory damages" because they are meant to compensate plaintiffs for their losses. Punitive damages, on the other hand, are meant to punish defendants for reprehensible behavior that goes beyond carelessness. An award of punitive damages typically requires a plaintiff to show that the defendant acted intentionally or recklessly (without concern for the safety of others).
Some plaintiffs in the 3M earplug bellwether trials have been awarded punitive damages. In December 2021, in the eighth 3M earplug bellwether trial, a former U.S. Army soldier was awarded $7.5 million in compensatory damages and $15 million in punitive damages. In January 2022, a jury awarded two service members $110 million, including $40 million each in punitive damages. In May 2022, a Florida jury awarded a U.S. Army veteran $77.5, including $72.5 million in punitive damages, the highest ever for a single individual plaintiff.
When you file a combat earplugs lawsuit, you're asking the defendant to compensate you for your damages, but you're also taking on the legal obligation to keep those damages to a reasonable minimum. The law in most states expects plaintiffs to minimize or "mitigate" the financial impact of the harm caused by the defendant's alleged wrongdoing. For example, if 3M (or another defendant) can successfully argue that you failed to get necessary medical treatment when you first began to experience hearing loss, and that delay worsened your condition, your settlement or damages award might be significantly reduced.
If you're a service member with hearing loss, tinnitus, or some other problem that could be linked to your use of 3M earplugs, it's fair to wonder whether a preexisting condition might affect your lawsuit against 3M.
When you file any kind of personal injury lawsuit, it's a well-established rule that any compensation you receive will not cover health conditions that existed before you were harmed by the defendant's wrongdoing. However, if the at-fault party's wrongful conduct made your preexisting condition worse, the at-fault party can be held financially liable for those effects. This rule may sound simple, but given the complexity of the human body and the difficulty inherent in proving causation in certain cases, the existence of a preexisting injury or condition can make it more difficult to determine the defendant's liability and calculate the nature and extent of the plaintiff's injuries.
In a 3M earplug case, be prepared for the defendants to argue that:
A preexisting condition won't doom your case, but it can complicate things considerably, which is one of many reasons why you need an experienced lawyer on your side (see below).
Most lawsuits settle well before trial because the parties involved (and their respective lawyers) want to avoid surprises and minimize risk. 3M cases are no exception. An injured service member usually doesn't want to risk going all the way to trial and coming away with nothing. Big corporations, like 3M, usually don't want to put their financial viability and reputations in the hands of civil juries. More than a few defective product cases have led to multi-million dollar verdicts for plaintiffs and bankruptcies for defendants.
Settling a 3M combat earplugs lawsuit also typically saves the parties time, money, and stress.
Most 3M earplug cases follow a fairly predictable timeline, but these claims can also reach an out-of-court settlement at any time. The parties might reach a settlement on their own—sometimes before a lawsuit is even filed, or after information is exchanged through the "discovery" process and each side sees the strengths and weaknesses of their case. Court-ordered attempts at resolution (like mediation and mandatory settlement conferences) can also help coax the parties toward resolution. Learn more about the timeline of a typical 3M Dual-Ended Combat Arms earplugs case.
As of May 2022, no 3M earplug settlements are publicly available. It's too early to say how the MDL bellwether trials will affect settlement negotiations because the jury verdicts have been mixed with wins and losses on both sides. But after a federal jury awarded a combined $110 million to two service members in the 11th earplug bellwether trial and $77.5 million to an individual plaintiff in the 16th trial, market analysts have cautioned that 3M's earplug liability could reach the billions, which might put pressure on 3M to settle the nearly 300,000 lawsuits in the MDL soon.
It's not possible to say how much an individual 3M plaintiff might get in a settlement agreement or after trial. Some bellwether plaintiffs have lost at trial and gotten nothing. Others have won at trial and received awards ranging from $1.7 million to $110 million. No 3M settlement values have been reported.
The value of your claim will typically depend on:
It's important to keep in mind that if your earplugs lawsuit settles, 3M will pay you an agreed-upon amount, but won't admit to having done anything wrong in the settlement agreement. And the terms of your settlement agreement probably won't allow you to tell people how much money you received.
3M earplug lawsuits are complicated. A lawyer can explain the entire legal process to you (including how MDL works) and answer your questions.
A lawyer will tell you the strengths and weaknesses of your case. If you decide to work together, the lawyer will gather the right medical information and file the right legal paperwork to get you the best possible outcome in your case.
Most lawyers handle 3M earplug lawsuits under a "contingency fee" agreement. This means if you win your case, the lawyer receives a percentage of your compensation. If you lose, you'll owe no lawyer's fees. (You still might have to pay for costs—like court filing fees and expert witness fees—depending on your fee agreement.)
Learn more about finding the right attorney for your 3M earplug case. You can also connect with a lawyer directly from this page for free.