Military Hearing Loss Records Sought in Litigation Over 3M Earplugs

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The U.S. District Judge presiding over all federal military earplug lawsuits has approved an order designed to facilitate the production of hearing loss records and other confidential information in the custody of the Department of Defense and other governmental entities.

3M Company currently faces nearly 1,000 product liability lawsuits brought by military veterans who have been left with hearing loss or tinnitus due to design defects associated with the company’s Combat Arms earplugs, which were standard issue to all service members between about 2003 and 2015.

Each of the complaints raise similar allegations, indicating that the 3M earplugs were knowingly sold to the U.S. military with design defects, which caused them to not properly seal the ear canal and exposed military service members to a risk of hearing damage.

Due to common questions of fact and law presented in the claims, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided to consolidate cases in April 2019, centralizing lawsuits pending in various different federal courts before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.

In a Privacy Act Order (PDF) issued on July 16, Judge Rodgers ordered the Department of Defense, Defense Logistics Agency and the United States Army, Navy, Marine Corps, Air Force and Coast Guard to produce all records maintained on certain individuals who have filed lawsuits, for use as part of the litigation only.

The disclosure of military hearing loss records and other information critical to the claims are governed by the Privacy Act, which allows federal government agencies to release records pursuant to a court order, after a judge evaluates the need for the disclosure against any potential harm that may result from disclosure.

“Applying this principle to this case, the Court finds that the records sought by Plaintiffs are relevant to the claims and defenses in this litigation, and that any Privacy Act concerns are outweighed by the need for disclosure,” according to the Order. “More specifically, the information contained in the records is highly relevant to the issues of causation and damages as it will assist the parties in evaluating whether and when each servicemember began experiencing hearing problems, the extent of any hearing problems, and whether the hearing problems are connected to noise exposure during military service. The privacy concerns are especially minimal here as it is the individual servicemembers themselves who are requesting that these records be disclosed.”

Tens of thousands of additional claims are currently being evaluated by military hearing loss lawyers, and the size and scope of the litigation being pursued over the 3M earplugs is expected to increase dramatically over the coming months and years.

3M Combat Arms Earplug Problems

The reversible 3M Combat Arms 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, but 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 likely 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.

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