Despite the logistical challenges posed by the COVID-19 pandemic, the 3M earplug multidistrict litigation in Florida continues to grow exponentially. While just 640 lawsuits were consolidated in the MDL a year ago, over 200,000 are now pending against 3M.
The flood of complaints against 3M shows no signs of letting up: experts estimate that more than 800,000 military veterans have sustained hearing damage due to the defective earplugs, and the litigation now has the most actions – 203,722 – of any MDL in history, exceeding even the asbestos products liability MDL, which currently contains over 192,000 cases and has been pending for nearly 30 years.
3M began selling its earplugs to the military in the late 1990s. However, the company’s legal problems related to them started in 2016 when a False Claims Act dispute alleged that 3M subsidiary Aearo Technologies had supplied flawed earplugs to the U.S. military. According to the claim, Aearo and 3M falsely certified to the government that the earplugs met the requested medical standards even though they knew that they did not.
In 2018, 3M settled the case out of court for $9.1 million without admitting liability. However, the claim likely publicized the CAEV2’s flaws and alerted former users to the reason for their unexplained hearing loss. Before long, scores of service members were bringing product liability lawsuits against 3M and Aearo related to the substandard earplugs.
In July, 3M tried to get the current claims dismissed by arguing that the company could not be held liable for complying with a federal contract. However, Judge M. Casey Rodgers rejected that argument, pointing out that the military did not actively participate in the design of the CAEV2 earplugs, which were not designed according to military standards. The 3M earplug litigation is currently in the discovery phase, and more cases are being filed daily. The first bellwether trial is set to begin April 5.
The lawsuits consolidated in the MDL allege that the company’s CAEV2 earplugs were faulty and 3M knew it, but still provided them to service members during combat missions in Iraq and Afghanistan and for training exercises in the U.S. from 2003 to 2015. The plaintiffs claim that the defective earplugs damaged their hearing, subjecting them to tinnitus and the risk of deafness.
The earplugs were supposed to protect the soldiers’ hearing in two ways: the wearer could either insert the “green” end of the earplug into the ear to block out nearly all sound or insert the “yellow” end into the ear and still be able to hear low-level commands in the field. However, court filings allege that both 3M and Aearo knew that the earplugs were not long enough to be effective and did not work properly.
Despite this knowledge, 3M continued to market the substandard earplugs to the U.S. military, saying that they were designed “in accordance with the military’s rigorous specifications,” calling them “a revolutionary breakthrough” that “helped service members maintain situational awareness in combat.” Sale of the faulty earplugs accounted for approximately 5% of 3M’s hearing protection revenue and 20% of its operating income, mainly because the earplugs cost roughly 85 cents each to manufacture but were sold to the military for $7.63, according to an April Stars and Stripes report.
3M insists that it has “great respect for the brave man and women who protect us around the world, and their safety is our priority.” However, the plaintiffs’ lead counsel remains unconvinced: “3M peddled these earplugs to the public and the United States military despite knowing they were dangerous and defective, perpetrating an ongoing fraud on our country and its citizens.”