Hundreds of veterans allege that they’ve suffered hearing loss, tinnitus (ringing in the ears), and balance problems after using defective earplugs that failed to adequately protect their ears in combat. Now, these veterans are seeking compensation from the government contractor that manufactured and sold the earplugs to the U.S. military.
At issue are 3M company’s dual-ended Combat Arms earplugs, which were made, sold, and distributed to the veterans – then on active duty – between 2003 and 2015. The earplugs were originally created and manufactured by Aearo Technologies until 2008 when 3M acquired Aearo.
According to the plaintiffs, the instructions accompanying the Combat Arms earplugs told users how to insert them to create a “snug fit,” which was intended to prevent harmful exposure to loud noises. However, the plaintiffs claim that the earplugs have an asymmetrical design that prevents them from creating a proper “snug fit” no matter which end is inserted into the ear canal.
The plaintiffs claim that Aearo knew the earplugs were defective when they began manufacturing them in 2002. They allege that Aearo falsified test results in order to convince the military to purchase the earplugs. The plaintiffs also claim that when 3M acquired Aearo, 3M knew about the defects but continued to cover up that knowledge.
The lawsuits allege that 3M entered a contract with the US government in 2006 to provide approximately 750,000 earplugs per year, at a guaranteed minimum price of $9 million per year. Although 3M continued to sell the earplugs to the military until 2015, the defective earplugs have never been recalled. As a result, soldiers in the field may still be using them despite the alleged defects.
3M previously agreed to pay $9.1 million to resolve a claim that it knowingly sold defective earplugs to the Defense Logistics Agency without disclosing their knowledge. However, no findings regarding 3M’s liability were made during the settlement of that claim.
The initial lawsuits were primarily filed in Texas, with other cases being filed in California, Oklahoma, and Minnesota. In April 2019, the cases were consolidated into a multidistrict litigation (MDL) action and moved to the Northern District of Florida.
Multidistrict litigation transfers separate civil claims to the same court for pretrial proceedings, if the cases have one or more common questions of fact. The goal of this centralization is to ensure that similar cases receive similar consideration and produce consistent rulings at the pretrial phase, as well as to preserve resources in similar cases by allowing parties to address substantially similar claims and issues in one court.
Discovery in the multidistrict litigation began in June of 2019, allowing the parties to begin gathering information on issues that apply to the common claims in the various cases. A September 2019 deadline was set for document production.
The Role Experts May Play in This Litigation
The multidistrict litigation focuses on a common question: Were 3M’s Combat Arms earplugs defectively manufactured, designed, or distributed with inadequate warnings. If so, did this cause the hearing loss and other symptoms of ear damage experienced by the plaintiffs?
To answer these questions, expert testimony on the design and manufacture of earplugs will likely be essential. Experts may be asked to discuss why certain materials are chosen for earplugs, how the shape of the earplug affects its performance, and whether the Combat Arms earplugs, in particular, could have worked as intended.
They may also be asked to explore any testing or test results performed on the Combat Arms earplugs. Here, experts may be asked to opine as to the appropriateness of the testing methods, the reliability of the results, or the proper procedures to follow when certain results are obtained.
In addition, experts in medical fields such as audiology or otorhinolaryngology (the study of ear, nose, and throat disorders) may be asked to testify about the symptoms various plaintiffs have experienced and the potential causes of such symptoms. For instance, these experts may be asked to discuss whether exposure to loud noises could cause the problems plaintiffs now face.
Finally, experts on the presence and effects of loud noises in combat and other military service venues may be necessary. These experts can help establish the type and intensity of loud sounds typically experienced in combat, as well as which tools are typically used to protect servicemembers’ ear health.
While the idea that loud sounds may cause hearing damage is commonly accepted, the details of this particular case will demand the attention of expert witnesses who can clearly explain the connection between the Combat Arms earplugs and the symptoms described by over 1,000 combat veterans who have joined these lawsuits.