Millions of American servicemembers and supporting civilians were deployed overseas to contingency environments in support of the Global War on Terror. The nature of these environments means that those deployed were subject to a variety of loud noises, including those in combat. However, it has emerged recently that the earplugs that these servicemembers were given to protect their ears from this noise were defective. As a result, there continue to be thousands of lawsuits filed as veterans seek to recover compensation for both hearing loss and tinnitus. Recently, these lawsuits have been given multi-district status although there are no key dates yet that have been set in the litigation.
The exact nature of the issue with these earplugs is that the plug did not completely cover the ear canal, thereby still letting in noise that damaged the user’s hearing. The earplugs were intended to be dual ended and reversible. However, they were not designed to be big enough to provide for complete coverage. As a result, they tended to become dislodged in the ear canal and failed to provide the necessary protection. Given the constant noise that servicemembers face when they are in a deployed environment, whether it is from military vehicles or gunfire, they were vulnerable to hearing damage.
The defect was supposedly in the design of the earplugs, since a proper design would have meant that the earplugs could provide complete coverage to the ear canal. It has been alleged that the company knew all along that its earplugs were defective, yet it continued to sell its product to the United States government. This acted as a fraud upon the United States’ taxpayer. One of the ways to address this corporate failing when taxpayer money is involved is to file a qui tam whistleblower suit on behalf of the federal government. This resulted in a $9.1 million settlement between 3M and the government. However, this money is deposited in the United States Treasury to compensate taxpayers as opposed to going to those harmed by the earplugs. Of relevance to possible civil suits is that fact that 3M did not admit any liability in the settlement, meaning that it is not evidence of misconduct in civil court.
The federal lawsuit and settlement does not preclude private parties from filing their own civil lawsuits in the case. Whistleblower lawsuits and civil suits are entirely different matters. In fact, in the wake of the settlement with the federal government, hundreds of lawsuits have been filed against 3M by private plaintiffs. By June 2019, this number was approaching 1,000 lawsuits filed, and there are indications that this is only the beginning of the lawsuits that 3M will face. There were millions of people who used these earplugs and a substantial minority came back from the operation theatre with some sort of hearing loss. Plaintiffs’ attorneys have been actively publicizing these lawsuits in an attempt to get more people to come forward and this issue is starting to become elevated in the public consciousness.
As far as the cases go, the lawsuits are a product liability claim alleging that 3M (who purchased the original manufacturer of the product) designed and manufactured a defective product and failed to warn the users of the defect before selling the product. The lawsuits allege that 3M did not properly test the earplugs before placing them on the market, failing to uphold their obligations. Nonetheless, the company allegedly knew of the defect, but did not take any steps to remedy it before selling the product to the United States government. While 3M settled the lawsuit brought by the government, it is expected to contest these lawsuits using a defense known as the “government contractor defense.” Specifically, 3M is expected to claim that it manufactured its products according to specifications that were given to it by the government and should not be found liable.
In April 2019, there was a hearing held in the case regarding multi-district status of the case. Here, multi-district status was granted in the Northern District of Florida. Many times, when there is a large number of cases in federal court that are closely related, but not suitable for a class action, they will still be consolidated to an extent. For purposes of discovery, the cases will proceed together, but they will then be tried separately on their own after several selected bellwether cases go to trial. Here, the cases are still very early in their life, and are still going through the pre-trial motions phase. Since multi-district status was just recently granted, there has been no discovery yet and no setting of any trial dates. The number of cases is expected to grow as more potential plaintiffs begin to discover that they have suffered hearing damage and publicity surrounding the case increases.
If you have used 3M’s combat earplugs and have suffered any kind of hearing loss or damage, contact Rosenfeld Injury Lawyers LLC to find out how you can file a 3M combat earplugs lawsuit of your own to be compensated for the injury that you have suffered.