3M on Trial for Failing to Protect Hearing of Soldiers

The first trial began yesterday for multinational corporation 3M—for its defective military-issued earplugs. There are over 229,397 lawsuits from veterans and soldiers who claim that 3M knowingly gave defective earplugs to soldiers to use in combat. Two subsequent trials will take place in May and June.

“Combat Arms CAEv2” earplugs, sold by 3M-subsidiary Aearo Technologies, were designed for use by the US Military, and sold to the US government between 1999 and 2015. The Star Tribune reports that damages related to the faulty earplugs “could tally in the hundreds of millions of dollars, if not more, based on the outcome of other large mass tort cases in recent years.” The plaintiffs from the first trial are veterans, mostly between the ages of 30 and 49.

One plaintiff, U.S. combat veteran Dave Henderson, started to experience ringing in his ears and had trouble hearing people after using the Combat Arms earplugs in the field. Henderson told Reuters that “we had no choice but to use the 3M earplugs” because the soldiers “trusted that our equipment would work.” Henderson told Reuters that he has to sleep with a fan to help with the ringing in his ears, and sometimes cannot hear when his children are crying.

The plaintiffs claim that 3M knowingly hid product defects—namely that the CAEv2 earplug didn’t always fit properly—from the U.S. Department of Defense.  Aearo’s own laboratory tests, conducted in 2000, showed that the earplugs weren’t effective unless they were fitted “in a particular way.” According to Star Tribune, 3M claimed that it informed the military about “fitting issues”, but “in a 2018 report, the Army concluded that had the government known about tests […] it may not have purchased Combat Arms earplugs.” 3M also paid a $9.1 million penalty in a whistleblower settlement but did not admit liability. 3M also paid a $9.1 million penalty in a whistleblower settlement but did not admit liability.

Judge M. Casey Rodgers of U.S. District Court for northern Florida, who will hear all three consolidated claims, will not allow 3M to use the “government contractor defense”, which would potentially “offer protection from state law product liability actions arising out of a contractor’s compliance with a federal government contract,” according to the American Bar Association.

The key point in this trial is whether or not 3M knew that the Combat Arms earplugs were defective. Hearing loss is a major issue for veterans, and a costly service-connected injury for the VA. The U.S. Department of Veteran’s Affairs reported that  “more than 933,000 Veterans were receiving disability compensation for hearing loss, and nearly 1.3 million received compensation for tinnitus” at the end of the fiscal year of 2014.