Thousands of veterans and current military service members may be entitled to receive financial compensation for hearing loss and tinnitus caused by defective earplugs. The Combat Arms Earplugs were manufactured and sold by 3M to all 4 branches of the U.S. military.
How many people? 3Ms dual-ended Combat Arms earplugs may have caused thousands, if not millions, of our soldiers to suffer hearing loss and tinnitus, and the pain and suffering that comes with these conditions.
[January 2021 update: 3M earplug trials are set to being in 2021. It is hard to explain how big a deal this is. It is so much effort to get to trial in an MDL class action. If the plaintiffs begin winning cases, as our lawyers think we will, you could see a 3M global class action settlement faster than you think.
The stakes are high. The MDL judge reported a mind-blowing 203,722 claimants registered in MDL Centrality in connection with the 3M litigation. This is the biggest MDL class action in American history. This litigation might lead to one of the largest settlements ever. These cases were moving quickly. Plaintiffs' lawyers were excited about how they are developing. Yes, the coronavirus slowed down the litigation like everything else. But the cases are proceeding to the depositions of expert witnesses and, as we discuss below, new documents and materials from the litigation underscore that these cases are going well for victims.]
Typical victims are veterans between the ages of 30 and 49 who served in the Army and allege a combination of tinnitus and hearing loss. Our law firm is getting calls, web inquires, and emails from victims with hearing issues seven days a week In the 3M CAEv2 earplug lawsuits, it's our turn as lawyers to fight for the same brave men and women that have fought to protect us all.
3M is the St. Paul-based manufacturer and seller of an earplug called Combat Arms. They were originally developed by Aearo Technologies, a company 3M bought in 2008. This makes 3M liable for conduct both before and after 2008.
Thousands of soldiers suffered complete or partial hearing loss and tinnitus because of faulty combat earplugs. Combat Arms Earplugs left the user entirely unprotected from damaging high-level sounds. Our lawyers are handling these cases.
Combat Arms uses a sound channel with constrictions and openings to produce a non-linear sound attenuation effect. The idea of 3M's earplugs was that people exposed to loud noises could set the earplug to a second, closed mode of operation by inserting a plug into the channel. In this mode, the earplugs function like a normal fully blocked earplug.
When worn by a military member in the open or unblocked position, the earplugs are intended to significantly reduce, loud impulse sounds of battlefield explosions that can harm the inner ear yet still allow the wearer to hear quieter noises such as instructions or an approaching enemy.
From 2003 to 2015, these 3M earplugs were standard issue equipment intended to protect service members from hearing loss. 3M had an exclusive contract with the U.S. military via the U.S. Department of Defense. The company admitted, however, that the earplugs were defective and actually did nothing to protect soldiers from significant hearing loss, subjecting them to the risk of deafness.
This means that anyone who served in the military from 2003 to 2015 and suffered permanent hearing damage has a potential product liability lawsuit against the earplug manufacturer.
U.S. service members are often exposed to very loud noises from things like aircraft, artillery, guns, and explosives. Without some sort of ear protection, repeated exposure to these types of high-level noises will cause auditory ailments from internal damage to the eardrums. Internal damage to the eardrums causes tinnitus - a wildly aggravating buzzing, hissing, or ringing in the ears - and partial or total loss of hearing.
The nonlinear dual-ended Combat Arms Earplug Version 2 ("CAEv2") was supposed to protect users by filtering peak level noises. They were developed by Aearo Technologies who eventually sold their company to 3M. The 3m earplugs were dual-sided. One side went into the ear to dampen peak level sound waves from things like ordinance fire and explosives. The other side of the earplug was designed to sit just outside the ear canal to act as a filter blocking continuous high-level noises from things like aircraft and vehicles.
The design of these earplugs was a comedy of errors. One big problem was that they were too small for the Army’s carrying case. They also made the fit of a soldier’s helmet somewhat of a challenge.
So what did they do? They modified the design by shortening the earplugs. So now they fit. But they did not go deep enough into the ear. Do your Apple EarPods ever fall out when you run? This was 1000 times worse. So the design flaw was that the stem of the earplug was too short for soldiers with large, or even normal, ear canals. So these soldiers could not insert the device deeply enough to get the airtight seal required for hearing protection.
The result was earplugs that did not fully block the sound... or they fell out completely. Almost immediately after the plugs were inserted into the ear, they would loosen leaving the user entirely unprotected from damaging high-level sounds that were bound to cause many significant hearing problems.
What made this problem worse is that users frequently did not even realize that the earplugs were loose. Many service members wore the defective Combat Arms earplugs for years not realizing that they did not have the proper insertion to protect the users' ears from inner ear damage.3M Knew the Earplugs Were Defective
3M was apparently aware that the dual-ended Combat Arms earplugs were a defective product but failed to disclose this to the military. Why? There were probably many reasons. But, usually, follow the money, right? On April 20, 2020, in the middle of this COVID-19 mess, the judge in the MDL class action ordered that 3M records uncovered by victims' lawyers could be made available to the public. Those records showed that these earplugs cost 85 cents to make but were sold to the military for $7.63. That is a stunning profit and it explains a lot.
But the chickens came home to roost in 2018. A federal whistleblower lawsuit was brought involving Combat Arms Earplugs. This False Claims Act case established that the company was fully aware of the subtle design flaw in the earplugs and deliberately withheld this information. The company ultimately agreed to settle the legal action with the United States Justice Department. Although the settlement is not an admission of liability, the following facts regarding this whistleblower lawsuit were fairly well supported:
- The design of the Combat Arms Earplugs was defective
- The company was aware of the product defect and understood that it could cause users to suffer hearing loss
- 3M never told the military or warned users about the design defect
On top of that, the 3M company did not recall this defective product after the federal government settlement. Instead, they simply chose to discontinue selling the earplugs. Does this tell you anything?
Thousands of military service members may have permanent hearing damage as a result of 3M's failure to disclose the design defect with the Combat Arms Earplugs. For 12 years countless military personnel exposed themselves to extreme noise levels thinking that their Combat Arms Earplugs were protecting them. Most of those individuals were not being protected at all by the defective earplugs and ended up suffering permanent loss of hearing. These individuals can now sue 3M and demand financial compensation.
Many veterans that call us are wondering if the 3M cases are legit or whether this is all some scam. We get it. There are no guarantees of success. But it is also true that there is no cost to bring a claim and no risk. It is all upside for you. And for the vast majority of plaintiffs, filing a claim requires very little effort.3M Earplugs Questions Our Lawyers Are Commonly Asked
Based on prior verdicts and settlements in cases involving hearing loss, we expect the trial value of 3M earplug cases to be somewhere between $25,000 and $300,000. The settlement value will likely be less. Is this naked speculation? It is. No one knows for sure and the average value is impossible to estimate.
The value of a specific case will depend on the severity of the plaintiff’s hearing loss. Total hearing loss cases will be valued higher than tinnitus.
Our law firm is reviewing claims that meet the following criteria:
- You served in the military between 2003 to 2015
- You wore military issued earplugs during service
- You were exposed to loud sound during military service
- You have been diagnosed with hearing loss/tinnitus
If you meet these criteria, all you need to do is contact our office to get your 3M earplug claim filed.
Most law firms, including ours, handle these cases on a contingency fee basis. So there is no upfront payment and no fees or expenses unless you recover money for your injuries.
Based on prior mass tort product liability cases, we anticipate that it will be a year or two before a global settlement is reached with 3M in the earplug litigation. This is frustrating. But the wheels of a mass tort claim move slowly. So 3M earplug plaintiffs should not expect to receive any settlement compensation until late 2021 or early 2022.
No. To date, no plaintiff has settled a 3M earplug lawsuit. Thousands of individual plaintiffs have filed claims against 3M in the defective earplugs lawsuit. As of January 2021, none of these claims have been settled.
After a period of pre-trial discovery, a few initial cases will go to trial and the results will be used to hopefully negotiate a global settlement of all 3M earplug cases.
Filing a lawsuit against 3M for hearing loss related to defective earplugs is unlikely to have any impact on your eligibility to receive disability benefits. But this is something our lawyers will discuss with you.
Right now, the current status of the 3M class action litigation is that these cases are in the discovery phase. The first earplug lawsuit is slated for trial in April 2021.
Let's go back to the settlement value of these cases because all of the victims have a keen interest in this topic. There have not been any trials in these cases. So we can look at other hearing loss damages awarded in other types of cases to get a general sense of the potential settlement value of the earplug cases.
Below are recent jury verdicts and reported settlements amounts in other cases in which the primary injury was tinnitus or hearing loss. Based on this small sampling of cases the average value of a claim for partial hearing impairment seems to range from $50,000 to $300,000 depending on the severity.
Will this be the settlement value for the 3M lawsuits? The trial value could be in this range or even higher. The global settlement value - the resolution of almost all of the claims at one time - would likely be less because you rarely get trial value in a mass tort settlement.
The other factor we have to talk about is the sheer volume of these lawsuits. This 3M lawsuit is the largest mass tort in American history. 3M has maybe $35 billion in assets. Let's assume there are 200,000 legitimate cases and the average settlement is $100,000. That is $20 billion. So that is an issue that plaintiffs' lawyers have to deal with in these cases.
Lawsuits against 3M are still being filed
We believe that the average value of hearing loss claims in the Combat Arms earplug cases may be notably higher than this which could lead to larger individual payouts if these cases go to trial. Most of the sample cases below involve car accidents where settlement values are typically lower because of max limits on the applicable insurance policies. On the other hand, 3M is one of the largest manufacturing companies in the world, so there won't be any insurance limits. Moreover, the prospective victims in these cases have earned great respect from all of us. Military veterans are highly sympathetic victims and they should be.
Of course, at this point, we are all guessing about the potential settlement value of these claims. But we are bullish on them because the liability case - the ability to blame the defendant for the harm - looks to be very strong.
Here are some sample cases with similar hearing injuries as the MDL litigation. Certainly, the type of hearing loss will be the key to the individual payout in each case.
Do these stories tell you the settlement value of the CAEv2 Combat Arms Earplug lawsuits? Of course not. They are just one source of our speculation and about the possible amount of individual settlements in these earplug cases. We are really just guessing. This class action litigation still has a ways to go before we get to a jury trial. Still, our lawyers think it is a useful exercise.
- Madison v GEICO (Washington 2017) $63,555: The middle-aged male plaintiff gets rear-ended by a large SUV on I-5 in Seattle and claims permanent tinnitus as a result of the accident leaving him unable to fully perform his job. He settles his claim against the at-fault driver for policy limits of $25,000 and goes after his insurer, GEICO, for UIM benefits. GEICO refuses to settle and a jury ends up awarding $63,555 in total damages for the hearing injury.
- Danelin v Gretchen (Washington 2013) $83,000: An unemployed 43-year-old woman is living in a rental house when an improperly installed ceiling fan falls off and hits her in the side of the head. She suffers a temporary loss of hearing and some permanent tinnitus. She sues the landlord for premises liability and the case settles for $83,000.
- Deland v Eldridge (Tennessee 2010) $120,000: A 49-year-old mail carrier is on her delivery route when her mail truck gets rear-ended, causing her to strike the side of her head against the door. Despite minimal vehicle damage, she claims in her suit that the accident caused her to suffer small asymmetrical hearing impairment and tinnitus. She took legal action claiming that the tinnitus interferes with her ability to sleep and her normal daily activities, but the defendant disputes the extent and severity of her hearing loss. Jury awards total damages of $120,312: $30,000 for past pain and suffering; $25,000 for permanent impairment; $25,000 for future loss of ability to enjoy life; and $30,312 for past and future medical expenses.
- Vanhuess v Strickler (Utah 2009) $45,000: A 12-year-old girl allegedly suffers permanent damage to her hearing when a .357 magnum pistol accidentally discharges near her ear while she was a passenger inside a van. Liability is admitted but the defendant strongly disputes the extent of the alleged hearing damage. The victim files a lawsuit and the case goes to trial on that issue. The jury in Salt Lake City finds that girl did suffer hearing damage but not to the extent that she claimed and awarded only $45,000.
- Castle v Rude (California 2007) $231,000: A 29-year-old male recording engineer allegedly suffers tinnitus from the sound of his airbag deployment after being broadsided by the defendant at an intersection. Liability was admitted but the defense contended that the tinnitus was caused by previous exposure to loud noises, such as music, shooting guns, and driving snowmobiles. The jury agrees with the victim and awards total damages of $231,000 which only includes $11,000 for medical expenses.
On January 25, 2019 an earplug victim filed a motion asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all defective earplug cases to a single federal court for coordinated pretrial proceedings.
The court granted this motion in March and the earplug cases are now consolidated in the Northern District of Florida under Judge M. Casey Rodgers. This is called an MDL, which is like a class action lawsuit for pre-trial discovery purposes. This is the first step in the hopes of a favorable global earplug lawsuit settlement with 3M that would give victims compensation without ever having to go to court.
What does it mean to you that the JPML consolidated all the federal earplug claims in Florida? It means that no matter where you are, your lawsuit will most likely be housed in Florida while these lawsuits proceed through the litigation process. All you need to do is provide a small bit of information. The hope is that 3M will come to their senses as they did in the whistleblower case and offer settlements that will encourage the victims to settle their cases out-of-court long before a trial. But the per-person payouts have to be high enough to entice victims to settle.
Last year, on August 26, 2019, there was a "Science Day" before Judge Rodgers. What is "Science Day" in an MDL? This was an opportunity for the lawyers to educate the judge on the scientific foundation for the claims and where the parties disagree. The judge also had an opportunity to ask questions about the science that will eventually be the subject of court rulings.
- sound properties and measurement,
- how sound is perceived by the human ear,
- the science of hearing loss,
- hearing examination protocols (including methods for causal attribution of hearing loss),
- hearing protection devices in general and their evolution over time,
- considerations regarding the selection of hearing protection devices, and
- standards and procedures for testing hearing protection devices.
This gave the lawyers a better feel from the judge's questions as to how he views the scientific evidence in the case. In this case, the court is looking for information on where these claims are going. The judge has ordered a second Science Day to dig deeper into tinnitus to deal with 3M's defense that the victim's tinnitus is caused by the use of illegal drugs.
There was another big development in the MDL was Judge Rogers's appointment of U.S. District Court Judge David Herndon as a special master in the case. Judge Herndon is an extremely experienced MDL judge who presided over Pradaxa and Yaz MDL class actions. Both ended in reasonable global settlements. This is a good development for everyone. Because it may help get these cases ripe for settlement more quickly.
January 2021 Update: How is the litigation in Tampa going so far? Newly released documents have the answer. Pretty well. Why? Because 3M's witnesses are not doing so well. Here is one example. A company witness in the MDL class action was questioned as to his opinion on the appropriateness of the company concealing information about potential defects in the military earplugs from the government.
Obviously, no one is going to say that it is okay to conceal information about defects from the military. Right? Nope. This former vice president at Aearo Technologies told the plaintiffs' attorney that, "I suppose it is, if the product is working in most cases."
In another deposition, a plaintiffs' lawyer asked a sales manager if veterans were "entitled to know" that the way 3M tested the dual-ended combat arms earplugs was different from the way the device would be used in battle. His answer: "I don't believe so." This is the kind of stuff that puts 3M's face in the mud and helps get these cases settled more quickly.
January 2021 Update #2: 3M is trying to pierce the attorney-client privilege by getting information from Top Class Actions, a company that develops leads for cases for some personal injury lawyers. 3M lawyers have asked a federal judge to force the company to provide information because Top Class Actions is not a law firm. This does expose the underbelly of how some earplug attorneys are getting so many cases. 3M's position on this is technically correct. There is no attorney-client relationship if you are not speaking with an attorney or their agent. (This is why veterans are better-served to call a law firm than calling a company seeking cases for lawyers.) But, ultimately, it is a tempest in a teapot. If you look at the veterans that have come to our law firm, there is not much information that they tell us that can be used against them later. These former soldiers are just reporting the truth. They used these defective earplugs and now they have hearing problems or tinnitus.
January 2021 Update #3: Below we flush out what we anticipated was 3M's begin legal defense in the case. Judge Rodgers denied 3M's motion for summary judgment that would have effectively ended the litigation. Instead, she ruled that 3M "government contractor defense" that protects some defendants from liability when building products to the government's own specifications does not apply in this case. 3M cannot even make this argument to the jury, the court ruled, because no reasonable jury could conclude that the military made Aearo/3M do anything. So unless there is a global settlement, COVID-19 or not, these lawsuits will start going to trial next year (in April 2021, we now know).
January 2021 Update #4: 3M's defense strategy, as we discuss in a moment, has always centered on hiding behind the U.S. Army in some form or another. So, ironically, 3M has been battling with the U.S. government throughout this litigation. These battles led to a motion to compel with 3M complaining that the U.S. government was not properly answering in pretrial discovery requests. On January 4, 2021, the magistrate judge recommended that the court deny 3M's motion. This recommendation is likely to be ratified by Judge Rogers.
January 2021 Update #5: As discovery heats up in anticipation of trial in April 2021, the defense lawyers filed late expert reports with new theories defending the design of the earplugs. Why were the reports late? Big shocker: 3M blamed the government's delayed responses to discovery. But on January 15, 2021, the court denied defense lawyers the opportunity to use an important section of the defense expert's report, at least for this first trial group, because they could not show their "belated disclosure of this section [was] substantially justified or harmless."3M's Defense
3M big defense, that they seemed certain would succeed, to end these cases before they began was asserting that all claims are preempted the “Feres” doctrine. Our lawyers looked at the applicable law and believed plaintiffs would defeat this argument. We were right.
The plan was to invoke the government contractor defense as a shield from state tort liability using the Feres doctrine. This doctrine arose out of the U.S. Supreme Court decision in Feres v. United States. Specifically, the doctrine provides a guideline for when our servicemen and women may file a claim for personal injuries. The doctrine bars service members and civilian government employees from bringing claims against the U.S. government for injuries that arose out of or were sustained while engaged in activity “incident to service.”
That does not sound good, right? But the Supreme Court decision in Boyle v. United Technologies Corp in 1988 updates Feres and made our attorneys confident we would prevail. This case promulgates a two-part test that determines a state law can be displaced:
- The claim is one of unique federal interest; and
- There is significant conflict between “federal policy or interests and state law” or if applying the state law would “frustrate specific objectives of federal legislation”
The decision then lays out a three-part test that provides a claim is pre-empted:
- The U.S. approved reasonably precise specifications;
- The equipment conformed to those precise specifications; and
- The supplier warned the U.S. of the danger associated with the equipment that only the supplier knew of. Applying these tests, we do not think there will be any issue with preemption because although 3M knew of the defect and danger associated with using them, they never informed the U.S. military of those dangers.
3M's fatal problem is the third prong of the Boyle preemption test. Is the U.S. military really going to say that they did know of the danger but still issued the earplugs for hearing protection despite that knowledge? There is nothing to suggest that the military had any knowledge of the defect.
When the preemption arguments fail, and our lawyers believe they will, the defense is going to be to blame the military.Getting a 3M Earplug Lawyer to Fight for You
If you used 3M's Combat Arms Earplugs in the military and have a severe hearing impairment, you may be entitled to financial compensation for your injury. Miller & Zois is currently looking for potential 3M defective earplug victims. Our attorneys are getting calls about these lawsuits every single day. Because of the statute of limitations, it is important you reach out to a lawyer as soon as possible.
Contact us and we can investigate your case and tell you whether or not you may have a valid claim against 3M. There is not a lot required from you at this point besides filling out a 3M earplug lawsuit claim form. There is no risk or cost. We are contingency fee lawyers. Call us at 800-553-8082 or get a free online consultation.
- Who is eligible for compensation in Combat Arms earplug litigation?