Military Earplug Class Action Track Sought in Recently Established MDL for Hearing Loss Problems

As a growing number of U.S. military veterans continue to file individual lawsuits over hearing loss from 3M Combat Arms earplugs, a motion has been filed to establish a separate track for pretrial proceedings involving class action claims in the recently established federal multidistrict litigation (MDL).

There are currently at least 600 individual product liability lawsuits filed throughout the federal court system, each raising similar allegations that veterans were left with hearing damage or tinnitus following use of 3M Combat Arms earplugs, which were standard issue by the military between 2003 and 2015.

In addition, at least seven military earplug class action lawsuits have also been filed, seeking certification to pursue damages on behalf of all military service members who received the allegedly defective product.

Given similar questions of fact and law raised in all of the complaints filed against 3M Company, the U.S. Judicial Panel on Multidistrict Litigation decided last month to centralize and consolidate the claims before before U.S. District Judge Casey Rodgers in the Northern District of Florida.

The process is designed to prevent duplicative discovery into common issues, avoid conflicting pretrial schedules and serve the convenience of the parties, witnesses and the court system. However, in a motion (PDF) filed on May 3, Judge Rodgers has been urged to establish a separate class action track and procedure for selecting interim class action counsel.

“In recent retrial orders, the Court has set forth a process by which plaintiffs’ counsel are to apply for leadership positions in the MDL and has established a proposed leadership structure for those counsel,” the motion states. “However, these (orders) have only cursorily distinguished between class action lawsuits and individual personal injury lawsuits – and, in their current form, the Orders do not properly serve the needs of the pending putative class actions.”

The motion notes that the Judicial Panel on Multidistrict Litigation (JPML) considered a separate track for the class action lawsuits but left the final decision to the Court’s discretion. The request argues that there are significant differences between the individual hearing loss claims and the class action lawsuits, and urges Judge Rodgers to make the decision that was left open by the JPML.

In contrast to the personal injury lawsuits, which seek damages as a result of hearing loss or tinnitus associated with the 3M earplugs, class action claims have been filed on behalf of current and former servicemembers who have not been diagnosed with any injury. However, as a result of dangerous levels of excessive noise they were exposed to due to the defective earplugs, class action claims seek a medical monitoring program to help detect problems for these individuals who are now at an increased risk of developing hearing loss, tinnitus or other auditory damage, according to the motion.

In an order (PDF) issued on May 8, Judge Rodgers indicated the issue will be discussed at a case management conference set for June 17, and indicated that the parties should be prepared to discuss it at the hearing.

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 that 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 that the manufacturer continued to place veterans at risk for years.

As part of the coordinated pretrial proceedings, it is expected that Judge Rodgers will establish 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 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.