Judge pushes 3M military earplugs lawsuits toward trial

The country’s largest multidistrict litigation (MDL No. 2885) shows signs of life after a federal judge in Florida ordered 1,358 cases to be scheduled for trials. The cases represent a drop in the bucket of 250,000 cases filed against 3M for its defective Combat Arms Version 2 dual-sided earplugs. 

The U.S. District Court Northern District of Florida Judge Casey Rogers notified lawyers for veteran plaintiffs to proceed with the first wave of cases. Between 10,000 to 20,000 cases will follow in subsequent waves. The legal actions had suffered a serious backlog, and by moving a round of 3M cases to the active docket, Rogers hopes to spur discovery and continuing bellwether trials, according to an article in Stars and Stripes. 

Specifically, plaintiffs claim that 3M sold these earplugs to the military with the knowledge that the devices’ design flaws could lead to hearing loss and tinnitus. 

How the 3M lawsuits started

In 2016, a whistleblower lawsuit alleged that Aearo Technologies, the earplugs’ original manufacturer, failed to notify the government of the defective design. The Defense Logistics Agency purchased the earplugs, and the Department of Defense issued the devices as standard issue personal protection to members of the military serving in Iraq and Afghanistan. 

In the course of the lawsuit, 3M admitted knowing about the earplugs’ design flaws. The company settled with the government, ultimately paying $9.1 million. Admission of liability was neither required nor given as a term of the settlement.

Lawsuits from veterans

The government lawsuit against 3M prompted today’s legal action filed in Pensacola’s U.S. District Court. According to the lawsuit, hundreds of thousands of military servicemen and servicewomen, as well as civilian contractors, endured permanent hearing loss because they used the government issue 3M earplugs thinking that the devices would protect their ears. 

With 230,000 plaintiffs, the MDL mass tort chose a few cases for bellwether trials. The results of these full trials help determine how juries will decide plaintiffs’ claims and how much juries will award, if anything. 

To date, juries have heard from five veterans whose cases have gone to trial. Rogers was the presiding judge in each case. The outcomes of these actions were mixed:

• April 2021: Three Army veterans were awarded $7.1 million for 3M’s failure to warn about their earplugs’ defects, which caused the plaintiffs’ hearing loss.
• May 2021: A jury decided 3M’s earplugs did not cause a veteran’s hearing loss.
• June 2021: One Army veteran was awarded $1.05 million after 3M was found partially liable for failing to provide warnings about their product.

About the 3M Combat Arms Version 2 dual-sided earplugs

The 3M Combat Arms v2 earplugs featured an unusual design with two ends. Each end served a different purpose. By inserting the green end, the device was meant to block all sound. By inserting the yellow end, the plug was intended to block most sound but enable users to hear spoken sounds, such as military commands. 

However, the stem of the earplugs was too short, making it hard for users to correctly insert the device into their ear canals. A large flange prevented a snug fit, resulting in the earplugs loosening — without the users’ knowledge — and permitting damaging levels of sounds to strike the users’ eardrums. 

Besides making a product with this design flaw, 3M is accused of failing to instruct users on how to correctly insert the earplugs so they would not loosen and consequently cause the hearing impairments that so many soldiers now suffer.