What Was The Defect In The 3M Earplugs?
According to the lawsuits filed against American multinational conglomerate corporation 3M and designer Aearo Technologies, a serious defect prevented dual-ended Combat Arms Earplug Version 2 (CAEv2) earplugs from providing proper hearing protection. These earplugs were standard issue to military personnel from 2003 to 2015, and thousands of these servicemen and women now report hearing loss, tinnitus, and other related injuries.
In MDL 2885: 3M Combat Arms Earplug Products Liability Litigation, there are almost 300,000 lawsuits claiming injuries and financial damages due to earplugs that provided little to no hearing protection. The lawsuits claim that neither end of the dual-end earplugs worked effectively when used as instructed or in a way most reasonable people would use them.
Using the defective 3M earplugs can lead to hearing problems among veterans
Many men and women who served in the U.S. military between 2003 and 2015–when the CAEv2 were used–are now reporting concerns about hearing loss and tinnitus, as well as other symptoms. Military training, deployment, and combat often expose military personnel to loud noises, both intermittent and ongoing. They require effective hearing protection that prevents injuries but also allows them to hear spoken instructions and other communication.
The dual-ended Combat Arms earplugs manufactured and sold by the 3M company promised to offer one or the other, depending on which end the user selected. This color-coating created their distinctive look: yellow on one end and green on the other.
However, this claim may have been too good to be true. The lawsuits filed against manufacturer 3M and designer Aearo Technologies, now owned by 3M, allege the companies were negligent and intentionally misleading in several ways. This includes:
- Designing, making, and selling a defective product
- Continuing to market earplugs despite knowing they did not effectively seal in the ear canal for most users, allowing possible hearing damage
- Failing to warn those who purchased or used the earplugs about the risk
- Did not include instructions on how to reduce the risk of hearing damage while using the earplugs
It is noteworthy that 3M settled a lawsuit filed by the Department of Justice over the serious design flaw in these earplugs. The company paid out $9.1 million but did not admit liability, that there was a design defect, or that any service members suffered injuries. This settlement was based on money spent by the Department of Defense and did not benefit any individual who sustained hearing loss.
Those involved in MDL 2885 and others filing lawsuits in other jurisdictions, such as state courts in Minnesota, claim they suffered injuries that include:
- Hearing impairment and loss
- Loss of balance and related symptoms
- Other related effects
According to Military Times, the servicemembers affected may have participated in the following deployments:
- Operation Enduring Freedom
- Operation Iraqi Freedom
- Somalia Operation Ocean Shield
Other deployments also occurred during this span, and many soldiers likely used this type of hearing protection during training and stateside missions, as well. In fact, at least one of the bellwether cases heard in 2021 featured a veteran who suffered hearing loss during training.
Some civilians who used these earplugs have also filed lawsuits alleging related hearing damage.
Defects with the yellow side of the 3M earplugs
According to the 2018 lawsuit against 3M filed by the Department of Justice, the yellow side of the Combat Arms earplugs was meant to allow soldiers to hear softer sounds but offer protection against explosions, gunshots, and other loud but intermittent noises. The defendants claimed this end of the earplug had a 0-decibel rating, as required by the Department of Defense in its contract.
This rating would protect their hearing while still understanding critical instructions from officers, field commands, and other communication. However, 3M’s own testing showed that the earplugs had a decibel rating of -2. This means they actually amplified sounds, possibly increasing damage to the eardrum and causing hearing loss.
Defects with the green side of the 3M earplugs
The Department of Justice lawsuit also outlined a design flaw with the green end of the earplugs. This end did not meet the stated decibel-reduction rating, either. Instead, even if it worked properly, it would have provided only limited hearing protection.
The green end was meant to offer protection when there were ongoing and frequent loud sounds, such as machine-gun fire, helicopter traffic, or intense combat.
However, because of a design defect with the entire earplug, neither end functioned as 3M claimed. Soldiers trusted the safety devices provided to them. They used them extensively for more than a decade, leaving many of them with hearing loss, ringing in their ears, and suffering a reduced quality of life as a result.
Design flaw with the Combat Arms V2 Earplugs
The concept of a dual-ended earplug was a good one. Many military and industrial applications require two levels of hearing protection:
- One side to protect from sudden, shrill sounds and loud, ongoing noises
- One side to provide protection for intermittent sounds but also allow the wearer to hear others speaking nearby
However, the design of the Combat Arms Earplugs Version 2 did not allow for either end of the plug to work effectively. The defective earplugs were too short to fit properly and “seat” inside the ear canal in most people. This meant they could not go far enough in the ear to create a seal in the ear and block out sound.
Without instructions telling them how to avoid this issue, most who used them had no hearing protection or may have even experienced amplified sound. All too often, the earplugs simply fell out of the ear, and the user grew frustrated with wearing them.
3M defective combat earplugs lawsuit
The multidistrict litigation against 3M currently has more pending actions than any other MDL mass tort in the United States. According to the U.S. Judicial Panel on Multidistrict litigation, there were 272,381 active cases consolidated into this MDL as of October 15, 2021.
The purpose of an MDL is to centralize cases with similar facts and against the same defendant for pretrial proceedings, discovery, and several initial trials known as “bellwether cases.” This helps prevent a backlog of nearly identical cases in small courts and moves the process along faster than it might if each case went through the initial stages on its own.
The panel consolidated the 3M cases in the U.S. District Court, Northern District of Florida, before Judge M. Casey Rodgers. As of November 2021, the discovery and pretrial motions are concluded in this MDL, and the bellwether cases are well underway. To date, there have been five trials and seven claimants’ suits heard. The verdicts include:
The first three plaintiffs
Judge Rodgers and the jury heard the first three bellwether cases in MDL 2885 simultaneously. Bellwether trials are an essential part of the multidistrict litigation process. They show everyone involved how juries will react to the evidence available and the basic facts of the case.
The trial for the first three plaintiffs took five weeks, with the verdict coming in April 2021. Each of the three plaintiffs received a $7.1 million judgment, including $2.1 million in punitive damages.
Punitive damages do not compensate the victim for their losses. Instead, they penalize the liable party for their intentional, malicious, or particularly egregious behavior. In this case, the jury was clear: 3M was in the wrong and should pay the price.
3M wins its first case
The second trial ended a month later, on May 28, 2021. The jury in this trial sided with 3M. They determined that the plaintiff, Dustin McCombs, had not presented enough evidence to show that the defective earplugs were the cause of his symptoms.
Another decisive victory for the plaintiffs
In June 2021, another plaintiff received a significant award after the jury decided veteran Lloyd Baker suffered hearing damage during training at Fort Lewis. Baker relied on the Combat Arms earplugs while training on a 160-decibel gun. He received a $1.1 million verdict, including a substantial punitive damages award.
Sixth plaintiff recovers $8.2 million
When Washington State resident and veteran Brandon Atkins took his case to trial in September 2021, he had strong evidence to show that he used the 3M earplugs during two tours in Afghanistan and in numerous situations where loud noise might be a concern. He now lives with hearing impairment and tinnitus.
The jury in his case granted him an award of $8.2 million, which includes punitive damages.
3M succeeds in a case the claimant’s counsel tried to withdraw
In the case of Michelle Blum, her counsel had attempted to withdraw her lawsuit over the summer. 3M refused, believing it was one they would win. They were correct. The jury returned a defense verdict in October 2021.
Blum claimed she suffered hearing damage caused by the defective earplugs while serving in the Army, U.S. Army Reserves, and National Guard. She served for 20 years, between 1989 and 2009.
As of November 2021, there are eleven more bellwether trials on the court’s docket. If the juries continue to award substantial punitive damages in claims backed by strong evidence, 3M will likely take action to try to settle as many of these cases as possible.
How 3M defective design settlements could work
The financial costs and losses associated with hearing loss are generally not as expensive as many other types of injuries. While the intangible effects may be worth more because they can significantly reduce quality of life, the juries seem to believe that a large punitive award is crucial to holding 3M liable and getting justice for victims.
If verdicts in future cases go similarly, there is a good chance 3M will begin making offers to settle as many of the almost 300,000 lawsuits as possible outside of court. This will most likely occur as a “global” or “block” settlement offer.
This means they will divide the lawsuits into tiers based on the severity of the plaintiffs’ hearing loss and other symptoms. Then, the company will make an offer for each tier. Plaintiffs can accept the offer, negotiate for a better settlement, or reject the offer and continue to trial.
You still have time to file a 3M Combat Arms defective earplugs lawsuit
If you live with hearing loss and used these easy-to-identify dual-ended earplugs during your military service or civilian activities, you may be able to sue and join the mass tort already underway or take other legal action to hold the designer and manufacturer accountable.
You may be able to recover compensation for your economic losses and non-economic damages. This includes:
- Medical bills for diagnosis and treatment
- The cost of any related procedures
- Expenses related to implants, hearing devices, and other prescribed equipment
- Lost wages for the time you missed at work
- Reduced earning capacity if you cannot work certain jobs because of your impairment
- Current and future pain and suffering
- Diminished quality of life
- Mental anguish and emotional distress
To date, punitive damages have made a significant difference in the value of every case won by plaintiffs at trial. Each case is different, however. How much you may be able to recover depends on the strength of your case, the severity of your injuries, the work of your attorney, and other factors.
As of November 1, 2021, there have been no settlements in the 3M earplug litigation. Settlements will likely begin only after plaintiffs continue to recover substantial payouts at trial.
A Combat Arms earplugs litigation lawyer can help
You can discuss your legal rights and options with our firm. They can review your history and use of defective earplugs, your hearing damage and other symptoms, and other essential factors in your case.
Fill out our contact form today to get help with your case and hold the manufacturer responsible.