Veterans Seek To Lift Stay on Hearing Loss Lawsuits Over 3M Earplugs Distributed After 2008

Plaintiffs say 3M’s claims of immunity from liability do not apply to injuries which occurred after the company bought its Aearo subsidiary in 2008.

After a stay was imposed on all earplug hearing loss lawsuits being pursued against 3M Company and it’s now bankrupt subsidiary Aearo Technologies, while an appeals court weighs in on whether 3M can be independently held responsible for design flaws with the earplugs, a group of plaintiffs have filed a motion asking the Court to allow their cases to move forward, since they each received the earplugs after 3M acquired Aearo Technologies and “upstreamed” it’s hearing protection business in 2008.

More than 230,000 U.S. military veterans are currently pursuing a product liability lawsuits over hearing loss or tinnitus caused by 3M Combat Arms Earplugs, which were standard issue to all service members between 2004 and 2015. However, plaintiffs allege that the earplugs were sold to the U.S. government with a known design defect, which left veterans without adequate ear protectors during service.

The Combat Arms Earplugs version 2 (CAEv2) were initially developed by Aearo Technologies, which was acquired 3M Company in 2008. 3M Company “upstreamed” the entire Aearo hearing protection business into itself, and continuing to sell the defective earplugs to the U.S. government without warning about known problems that caused them to commonly fall out of the ear canal.

Given common questions of fact and law raised in the litigation, all lawsuits over hearing loss caused by the military earplugs have been centralized for the past three and a half years before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of an MDL or multidistrict litigation.

Throughout the proceedings, 3M Company has defended the cases brought against both itself and it’s Aearo subsidiary, but has been hit with a series of massive verdicts in early “bellwether” trials scheduled to help the parties gauge how juries were likely to respond to certain evidence and testimony that would be repeated throughout the litigation.

Prior to remanding hundreds of individual cases to U.S. District Courts nationwide for separate trials, earlier this year Judge Rodgers ordered the parties to engage in 3M earplug settlement negotiations with a court-appointed mediator. However, rather than attempting to resolve the claims, 3M Company announced that it was attempting a to shift all liability for the earplugs back to its wholly owned Aearo subsidiary, and placing that entity into bankruptcy protection.

3M’s Earplug Lawsuit Liability Arguments Do Not Apply After 2008

After a federal bankruptcy judge determined that the Aearo Technologies subsidiary does not prevent earplug hearing loss lawsuits from moving forward against 3M Company, the manufacturer has taken the controversial stance of arguing that it can not be held independently liable for the earplugs developed by Aearo, even though it never raised that defense earlier in the litigation.

In early October, hundreds of plaintiffs included in a first wave of claims being prepared for remand to U.S. District Courts nationwide in the coming months filed a motion for summary judgment against 3M, seeking to prevent the company from now arguing that it is not independently liable for the earplug-related injuries.

Shortly after, Judge Rodgers issued an order pausing all deadlines in the four 3M earplug  lawsuit waves of cases being prepared for remand and trial until the liability issues have been resolved. The tone of the response suggested she would be unlikely to allow 3M to use this liability shield at this point in the litigation. However, a stay was issued to allow an appeals court to adjudicate the issue before more individual cases are set for trial.

Motion to Lift Stay on Earplug Lawsuits Involving Post-2018 Military Service

In a motion (PDF) filed on November 23, plaintiffs in 13 cases asked Judge Rodgers to lift the stay preventing their Wave 1 cases from moving forward, indicating that each of them received earplugs distributed by 3M after 2008, when it acquired Aearo Technologies.

While plaintiffs indicate that their cases are not necessarily the only ones involving earplugs distributed after 2008, they argue that any appeal about whether 3M Company can be independently liable for earplugs developed and sold by Aearo will not impact their claims.

“Each of the foregoing Plaintiffs seek to pursue claims exclusively against Defendant 3M Company based upon Defendant 3M Company’s own independent actions and omissions with respect to the CAEv2, which actions and omissions caused Plaintiffs’ auditory injuries,” the motion states. “The foregoing Plaintiffs are not pursuing claims against Defendant 3M Company based upon successor liability. Because successor liability is not at issue in any of the above-referenced cases, Plaintiffs respectfully move the Court to lift the stay in these respective cases so these cases can proceed through the MDL process and, at an appropriate juncture, be remanded for trial.”

On November 28, Judge Rodgers issued an order (PDF) calling for 3M to file its response to the plaintiffs’ motion by December 5. 2022.

December 2022 3M Earplug Lawsuit Update

In September, the Court reported that a series of 3M earplug settlement negotiations held in late September were “worthwhile and productive”, ordering the parties to continue meeting with Special Master Randi Ellis this month, to try to settle the litigation.

Last month, Judge Rodgers ordered the parties to convene starting in November 2022 on a monthly basis for settlement conferences.

Even though the litigation will be mostly on pause and 3M Company will not face the impending pressure of additional jury verdicts, Judge Rodgers ordered the parties to make a good faith effort in negotiations, indicating the confidentiality of those discussions must be maintained.