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Motion Filed to Compel Production of 3M Earplug Samples in Litigation Over Military Hearing Loss

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As discovery continues in the federal litigation over hearing loss from 3M military earplugs, plaintiffs have filed a motion seeking to compel the manufacturer to turn over samples of the now-discontinued, dual-ended Combat Arms Earplugs version 2 (CAEv2) for testing.

There are currently more than 2,600 complaints pending in the federal court system against 3M Company, each raising similar allegations that veterans who received the earplug as standard issue during military service have been left with permanent hearing loss or tinnitus. However, as lawyers continue to review and file claims in the coming months and years, it is widely expected that tens of thousands of lawsuits will ultimately be filed nationwide against the manufacturer.

Given common questions of fact and law raised by plaintiffs throughout the federal court system, all discovery and pretrial proceedings have been centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of a multidistrict litigation, or MDL.

In a motion (PDF) filed on December 5, plaintiffs called on Judge Rodgers to force 3M to turn over examples of the earplugs, along with original product packaging and instructions, so that they can be examined and tested by expert witnesses, and used during the proceedings.

Although plaintiffs estimate that 3M Company has at least 10,000 units in storage, which could serve as exemplars, the manufacturer has made no meaningful effort to turn over samples.

“The production of exemplar products is integral to the claims and defenses at issue in this case, and there is no substitute for them,” the motion states. “The exemplars may reveal information that testimony may not, which is why plaintiffs are entitled to testimonial, document, and tangible discovery.”

Arguing that the efficacy, characteristics, labeling and instructions for use of 3M’s Combat Arms earplugs are of central importance to the cases, the motion asks Judge Rodgers to compel the production of four boxes of fifty earplug sets.

The motion claims 3M has not, and cannot, explain how producing the earplugs that are the centerpiece to the entire litigation, and which were produced by the millions for years, could be a burden.

3M Earplug Problems

Each of the plaintiffs raise similar allegations, indicating that design defects with the 3M earplugs left military service members without adequate hearing protection, resulting in permanent hearing loss and tinnitus for thousands of veterans.

3M Combat Arms earplugs featured a dual-ended, or reversible, design that was intended to completely block all sounds when inserted one way, but provide filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands.

Plaintiffs indicate 3M Company has known for years that the earplugs were defective, and too small to properly seal the ear canal. Rather than recalling the earplugs or providing updated warnings and instructions, the manufacturer continued to sell the defective earplugs to the U.S. military for years, who issued the product to nearly every service member.

In July 2018, 3M reached a $9.1 million settlement over the Combat Arms earplug problems with the Department of Justice, resolving claims that it defrauded the government by knowingly selling the defective earplugs.

As part of the coordinated discovery and pretrial proceedings in the MDL, Judge Rodgers is expected to schedule a series of early trial dates involving representative claims, which will present facts similar to those contained in many other claims. However, if 3M earplug settlements are not reached following the MDL proceedings, each individual claim would eventually be remanded back to U.S. District Courts nationwide for individual trials in the future.

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