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3M Combat Arms Earplugs Lawsuit

What is the lawsuit against 3M all about?

3M and Aearo Technologies developed, marketed, manufactured and sold the Combat Arms earplugs – (Version 2 CAEv.2) to the U.S. military from the early 2000s until they were recalled in 2015. These same earplugs were also offered to the civilian sector and were marketed as 3M Peltor Combat Arms earplugs.

From approximately 2003-2015, these Combat Arms earplugs were standard issue ear protection for military men and women who were deployed in combat zones, such as Iraq and Afghanistan. This ear protection was also issued to some soldiers during basic training, advanced technical training, and at some duty stations stateside.

How were the Combat Arms earplugs supposed to work?

The dual-ended Combat Arms earplugs were developed for the specific purpose of providing servicemen and women a single set of earplugs that afforded two options for hearing protection, depending on how they were worn.

The earplugs could be worn in an open or “unblocked” position (yellow end in) to block, or at least significantly reduce, loud impulse sounds commonly associated with military service, while still allowing the serviceman to hear quieter noises, such as commands spoken by fellow servicemen and approaching enemy combatants. Alternatively, the earplugs could be worn in a closed or 3M Combat Arms Earplugs“blocked” position (green end in) to block, or at least significantly reduce, all sounds, i.e., operate as ordinary earplugs.

How are the Combat Arms earplugs defective?

Due to a faulty design, the Combat Arms Earplugs would loosen after being inserted and allow damaging combat noise to enter the ear canal of the unsuspecting soldier. During the development of the Combat Arms Earplugs, the manufacturer, 3M/Aearo, fraudulently conducted the testing that the U.S. government relied upon in deciding to purchase and use these earplugs. They literally falsified and rigged the test to get the desired outcomes that were required to qualify these earplugs to be purchased by the government. Defendants had actual knowledge the earplugs were defective prior to selling them because they falsified test results and misrepresented their performance specifications to qualify for a multi-million dollar per-year contract with the U.S.

A “whistleblower” lawsuit was brought on behalf of the U.S. government in 2016 in U.S. District Court in Columbia, South Carolina (No. 3:16-1533-MBS, United States of America ex. rel. Moldex-Metric v. 3M). Shortly following filing of this action, the U.S. Department of Justice took over the litigation and on July 23, 2018, entered into a settlement agreement with 3M where 3M agreed to pay $9.1 million to settle the claims.

In a press release issued on July 26, 2018, the Department of Justice stated:

“The Department of Justice is committed to protecting the men and women serving in the United States military from defective products and fraudulent conduct. Government contractors who seek to profit at the expense of our military will face appropriate action...This settlement demonstrates the commitment of the Defense Criminal Investigative Service and our law enforcement partners to hold companies accountable for supplying substandard products, in particular products that could directly impact our service members’ health and welfare…”

Who can file a lawsuit against 3M?

If you served in any branch of the U.S. military or National Guard, either active duty or reserves from 2003-2015, and you used the Combat Arms dual-ended earplug (CAE.v2), were exposed to combat noise, and you have been diagnosed by the VA or the military with hearing loss or tinnitus (ringing in the ears), then you may have a claim against 3M. By joining our mass action lawsuit, our legal team can help you obtain maximum compensation for the damage 3M caused you.

Does participating in this lawsuit affect my VA benefits?

VA disability benefits received for service-connected injuries will NOT be affected by any personal injury settlement or award from 3M because under 38 U.S.C. § 1151, those benefits would only be affected if the settlement was from the U.S. government for those injuries. This litigation is for claims against 3M – a private company.  Neither the government nor the military are parties to this litigation.

How does this process work?

This is NOT a class action. Everyone has their own individual lawsuit, which will rise or fall based on the individual facts of their case. This type of litigation is known as a “mass action” or “mass tort.” That means a particular defendant’s defective product or bad conduct hurt many people. These types of cases are filed individually or in groups and are handled by the court system as individual lawsuits, but sometimes can be consolidated for pre-trial litigation.

In April, the 3M Combat Arms earplugs cases were consolidated under Multidistrict Court Case No. 3:19md3885 in the Northern District Court of Florida (“MDL 2885”). Judge Casey Rodgers was selected to preside over MDL 2885, pursuant to a court transfer order. Most likely, if a lawsuit is filed on your behalf, it will end up being transferred to this court.

The consolidation of cases:

  • Streamlines discovery, pre-trial proceedings, and consistent decisions
  • Ensures orderly and efficient judicial handling of each lawsuit
  • Does not change your rights, nor the fact that you will have your own case evaluated on its own merits.

All federal MDLs are governed by a court-appointed leadership structure.  Sean Tracey, of Tracey & Fox Law Firm, has been appointed to a leadership position by Judge Rodgers. This will be important for your case, because Mr. Tracey will be involved in formulating litigation strategy and participate in important decisions affecting the litigation.

What is 3M’s defense against these lawsuits?

3M has raised an affirmative defense to these cases, that if proven, could end this litigation in its entirety. The “government contractor defense” gives immunity to government contractors for alleged defects or negligence with respect to military equipment or supplies “when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).

In other words, 3M will claim they were just following the requirements and directions of the federal government in the way they designed and labeled the Combat Arms earplugs, and therefore, it’s not their fault if they don’t work. Based on the limited amount of information we have now, we don’t believe 3M will prevail on this defense. However, we will keep you updated as this issue develops.

How long will this process take?

At this time, Judge Rodgers plans to address 3M’s affirmative defenses before setting particular cases for trial. The court recently issued a case management order that sets certain deadlines, and by the end of October 2019 the court expects parties to have proposed deadlines for the briefing and argument of the dispositive motions, including the government contractor defense motion.

Assuming plaintiffs prevail and defeat 3M’s motions, then the court will be entertaining some sort of methodology to set cases or groups of cases for discovery and trial. We anticipate cases being set for trial at the end of 2020 or the beginning of 2021. Of course, we will keep you updated as and when more information become available about trial dates.

What can I do to help the process?

At this point in the general litigation, the Court is still in the pre-trial stage; however, as part of the discovery process we will have to provide more information to the Court for your individual claim. We are currently in the process of ordering your medical records, but we need your assistance in obtaining additional information. Please preserve any relevant information you have regarding your use of 3M Combat Arms Earplugs and your diagnosis and/or treatment for hearing loss and/or tinnitus.

How to gather your records

Please see the below list of ways you can assist and expedite the process of gathering records and information. We have also enclosed instructions detailing how to obtain certain records.  If you have already provided JLG with this information, then no additional action on your part is required at this time.

Please provide your disability ratings information and your claims file (if applicable). You can download your disability ratings information and other pertinent military medical history at MyHealth.va.gov and/or Ebenefits.va.gov.  These instructions will show you how to download VA health records.

Please provide any photographs that show you using the 3M Combat Arms earplugs or with the earplugs attached to your uniform. If you still have a pair of the 3M Combat Arms earplugs then you MUST preserve those. Please store the earplugs in a secure place and do not discard them.

If you have not previously done so, please physically sign and return the following forms so we can obtain the necessary medical and personnel records for your claim:

You may scan and email any documents and photographs you have to records@johnsonlawgroup.com, fax them to 713-583-9460, or return them by mail in the prepaid business reply envelope provided.

Please do not hesitate to reach out to us at 713-626-9336 or earplug_updates@johnsonlawgroup.com if you have any questions or if we can be of any assistance.

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