Centralization Sought for Lawsuits Over Military Earplugs Linked to Hearing Loss Problems

With a growing number of 3M Combat Arms earplug lawsuits being filed on behalf of former military service members left with permanent hearing problems, a panel of federal judges is being asked to consolidate and centralize the litigation before one U.S. District Judge for coordinated pretrial proceedings. 

There are currently at least eight product liability lawsuits pending nationwide against 3M Company and its Aearo Technologies subsidiary, each raising similar allegations that hearing loss following military service was caused by defective earplugs distributed between 2003 and late 2015. However, thousands, or even tens of thousands of additional claims may be filed in the coming months.

Combat Arms Earplugs, Version 2 (CAEv2) were originally introduced by Aearo before it was acquired by 3M Company. The dual ended, or reversible, earplugs are designed to serve as traditional earplugs when inserted one way, but the manufacturer indicated that they provided filtered noise reduction when reversed, blocking loud battlefield noises, while allowing the wearer to hear spoken commands.

According to allegations raised in complaints filed in several different U.S. District Courts nationwide, the manufacturers knew for years that the earplugs were defective, and too short to properly fit in the ear. As a result, military service members were allegedly left without adequate hearing protection, after the earplugs failed to seal the ear canal.

In a motion to transfer (PDF) filed with the U.S. Judicial Panel on Multidistrict Litigation (JPML) on January 25, plaintiff John Ciaccio filed requested that all cases filed throughout the federal court system be transferred to the District of Minnesota for coordinated pretrial proceedings, to avoid duplicative discovery and conflicting rulings from different judges as the number of cases grows.

“Based on Movant’s Counsel’s research, and given that the U.S. military purchased enough Combat Arms earplugs to provide one pair to all military personnel deployed each year in major foreign engagements from 2003 through 2015, Movant reasonably anticipates that thousands of other actions with similar allegations are likely to follow,” according to the motion.

In complex product liability litigation, where a large number of claims are filed throughout the federal court system by individuals who suffered similar injuries as a result of the same product, it is common for the federal court system to centralize the litigation for pretrial proceedings. However, if settlements are not reached during discovery or following a series of early “bellwether” trials, each claim may later be remanded back to the U.S. District Court where it was originally filed to go before a jury.

“The individual complaints in the Related Actions involve overlapping causes of action that give rise to questions of fact about the same product defect and Defendants’ knowledge thereof, that are not merely common, but virtually identical,” the motion states. “Centralizing the Related Actions will thus allow for coordinated discovery efforts aimed at the product defect and Defendants’ knowledge thereof, as well as coordinated motion practice related to any defenses Defendants may raise that will largely be generally applicable to all cases.”

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, and then by causing soldiers to suffer hearing loss whose health issues have to be addressed by the government.