Veterans Pursuing Military Earplug Hearing Loss Claims Urge Judge To Reject 3M’s “Government Contractor Defense”

The U.S. District Judge presiding over military earplug hearing loss claims brought by more than 140,000 veterans nationwide is being urged to reject a defense raised by 3M Company, which is attempting to argue that it should be immune from liability for providing service members with defective earplugs under a “government contractor defense”.

Thousands of military veterans are pursuing product liability lawsuits in the federal court system against 3M Company and it’s Aearo Technologies subsidiary, each raising similar allegations that they suffered hearing loss, tinnitus and other injuries due to the design of 3M Combat Arms earplugs version 2 (CAEv2), which were standard issue by the U.S. military between 2013 and 2015.

Given similar questions of fact and law raised in the cases, the federal court system has centralized the military earplug lawsuits before U.S. District Judge Casey Rodgers in the Northern District of Florida, to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and serve the convenience of parties, witnesses and the judicial system.

In a motion for summary judgment (PDF) filed on April 1, 3M Company indicated that the cases should be dismissed since they were a government contractor, and were supposedly just following military specifications.

However, in a response (PDF) filed on behalf of more than 140,000 veterans who are involved in the earplug litigation, plaintiffs argue that the manufacturer can not blame the military for their own mistakes and misdeeds.

Plaintiffs point out that 3M Company was forced to reach a $9.1 million settlement with the Department of Justice in July 2018, resolving claims by the government that 3M knowingly sold defective and unreasonably earplugs to the military.

“The military never approved specifications for the CAEv2, much less reasonably precise ones. Nor does the CAEv2 conform to any purported specifications,” the veterans note. “Defendants never warned the military of the CAEv2’s defects and dangers. Indeed, Defendants concealed such information from the military and all users for the CAEv2’s entire lifetime on the market.”

Federal prosecutors’ also interpreted the government’s relationship with 3M very differently. When the government itself, whom 3M is relying on for this defense, announced a settlement agreement with the companyin July 2018, it accused 3M of defrauding the military; not meeting its design requirements.

According to the Justice Department, 3M sold the earplugs to the military without disclosing defects which hampered their effectiveness.

“Prior to delivering the CAEv2 to the United States, the United States alleges that 3M, and its predecessor Aearo, knew that the CAEv2 was too short for proper insertion in users’ ears and, therefore, did not perform as well in certain individuals,” the Justice Department said in the settlement agreement (PDF). “Additionally, the United States alleges that 3M did not disclose this information to the United States and delivered the CAEv2 to the United States knowing that the product contained defects that impaired the CAEv2’s serviceability.”

3M Combat Arms Earplug Problems

The reversible 3M earplugs were 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. However, according to allegations raised in complaints filed nationwide, the manufacturer knew the earplugs were defective and left military service members without adequate ear protection.

Plaintiffs claim the 3M earplug problems were known to the manufacturer, as they were too small to properly seal the ear canal. Instead of warning the military about the design defects or providing updated instructions about insertion procedures, the lawsuits claim  the manufacturer continued to place veterans at risk for years.

As part of the coordinated pretrial proceedings, Judge Rodgers has established a “bellwether” process, where a small group of representative claims will be prepared for early trial dates to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation. However, if the parties fail to reach earplug hearing loss settlements or another resolution for the litigation, each claim may be remanded back to the U.S. District Court where it would have originally been filed for individual trial dates in the future.