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Litigation Spotlight: Article #3

Mass Tort of the Month: 3M Combat Arms Earplugs

3M_Military

The 3M Combat Arms Earplugs multidistrict litigation (“MDL”) is poised to see significant developments in 2020. 3M Combat Arms Earplugs, Version 2, or CAEv.2, are small, dual ended earplugs that were designed with the specific purpose of providing servicemembers a single set of earplugs with two options for hearing attenuation depending on how they are worn. One end is “closed” and is designed to function as a traditional earplug to block sounds out completely. The other end is “open” in order to dampen the sounds of explosions on the battlefield, while still allowing the wearer to be able to communicate and hear commands. The earplugs were marketed as the answer to protecting soldiers’ hearing while still being able to perform necessary duties in combat. However, the product failed to perform as advertised and due to an alleged design defect, imperceptibly loosens in the wearer’s ear allowing damaging sounds to enter the ear canal.

The Combat Arms Earplugs were originally developed, marketed and sold by Aearo Technologies until it was acquired by 3M in 2008 for $1.8 billion. Both companies are named as defendants in the multidistrict litigation. Due to the supposed technologically-advanced design and quality of the Combat Arms Earplugs, Aearo (and subsequently 3M) won a series of Indefinite-Quantity Contracts (“IQCs”) to be the exclusive supplier of selective attenuation earplugs to the U.S. military between 2003 and 2012. Aearo and 3M represented that the earplugs would meet specific performance criteria established by the U.S. Government as a prerequisite for bidding on the IQC. However, plaintiffs in the MDL argue that the defendants were aware that the performance criteria representations that they made to the government were false.

According to the plaintiffs, Aearo and 3M knew that the earplugs were defective and did not work as marketed as early as 2000 when the product failed in-house Noise Reduction Rating (“NRR”) testing. This testing occurred three years prior to the time when the product was first provided to the U.S. military. NRR testing shows the amount of sound attenuation experienced by a test group under conditions specified by the federal Noise Control Act. According to the plaintiffs, Aearo manipulated not only test protocol but also the fitting instructions for the earplugs in order to compensate for the design defect, in order to ultimately achieve a satisfactory NRR score.

Due to the imperceptibility of the defect to wearers, the design defect in the product went undetected for more than a decade and the resulting injuries relating to usage of the earplugs has become one of the largest ongoing medical costs incurred by the military each year. According to the claims, the Veterans Administration spends around $1 billion per year treating hearing damage in more than 800,000 servicemembers. 

Procedural Status

On July 25, 2018, 3M agreed to settle qui tam claims in U.S. ex rel. Moldex-Metric Inc. v. 3M Co., for $9.1 million. In the suit the relator claimed that 3M made false statements to the U.S. Government regarding its “dangerously defective” dual-ended Combat Arms earplugs which it sold to the U.S. military for more than ten years without disclosing the defective design. The realtor further argued that the earplugs were not long enough to permit adequate insertion into the ear. The faulty design prevented the earplugs from maintaining a tight fit and thus the earplugs would subtly dislodge, leaving service members unaware that they had little or no hearing protection. Notably, as part of the settlement 3M explicitly makes no admission of liability.

On April 3, 2019, the Judicial Panel on Multidistrict Litigations (“JPML”) consolidated eight suits from California, Minnesota, Oklahoma and Texas federal courts, along with 645 related actions in more than 30 federal courts, into an MDL in the Northern District of Florida under Judge M. Casey Rodgers. Bellwether cases were selected in February 2020 and discovery is underway with core discovery scheduled to be completed by July 2020. The first bellwether trial is scheduled to begin in April 2021.

The case is: In re: 3M Combat Arms Earplug Products Liability Litigation, MDL No. 2885, before the U.S. Judicial Panel on Multidistrict Litigation.

Categories: Litigation Spotlight

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