In April 2021, 3M was hit with a $7.1 million verdict in the first bellwether trial for the Combat Arms Earplug multidistrict litigation (MDL). 3M was accused of hiding design flaws, fudging test results, and failing to instruct the military on the proper use of the earplugs used by the Army between 2007 and 2013. A Florida federal jury agreed with three military members’ claims that their hearing was irreparably harmed because 3M’s earplugs did not work.
The three plaintiffs’ cases are the first to go to trial in the 3M earplug MDL, which contains claims from as many as 240,000 service members. This is the largest mass tort ever brought in federal court.
U.S. soldiers used 3M’s earplugs for years in combat and in training missions in Iraq, Afghanistan, and in the United States. 3M acquired the earplugs when it bought Aearo Technologies in 2008, and it stopped selling the product in 2015. The dual-ended combat arms earplugs were designed with one side blocking all noise and the other letting in voice commands while blocking other harmful loud sounds.
The three former service members claimed that 3M and a predecessor, Aearo LLC, supplied combat earplugs known as CAEv2s that failed to protect service members against tinnitus and hearing loss caused by battlefield and training noises.
The jury awarded $2.1 million in punitive damages to each of the plaintiffs: Stephen Hacker, Luke Estes, and Lewis Keefer. Stephen Hacker is a twenty-year-old Army veteran who started experiencing bilateral tinnitus in 2006 after using the earplugs. The jury awarded Mr. Hacker $160,000 for pain and suffering. Luke Estes is a former tank platoon leader at Fort Benning in Georgia who began to lose his hearing and developed ringing in his ears in 2014 after using the earplugs. The jury awarded Mr. Estes $350,500 for medical costs, lost earnings, and pain and suffering. Lewis Keefer is an Army medic who used the earplugs in training at Fort Benning and in the line of duty in Iraq before starting to lose his hearing. The jury awarded Mr. Keefer $320,000 for medical costs, lost earnings, and pain and suffering.
The plaintiffs’ attorneys, Bryan Aylstock and Christopher Seeger stated that the three claimants showed courage in “standing up against 3M on behalf of all the veterans who now face preventable hearing loss and tinnitus as a result of the CAE v2 earplugs. The evidence is clear: 3M knew their earplugs were defective, yet they allowed our service members to suffer these life-altering injuries.”
After the verdict, 3M stated that the verdict was “just the first step” in the litigation and that the company sees “multiple grounds for appeal. We do not believe the plaintiffs met their burden of proving that the CAEv2 product was defectively or negligently designed or caused each plaintiff’s purported injuries.”
3M also argued that the U.S. military bears responsibility for the way the earplugs were designed and delivered. U.S. District Judge M. Casey Rodgers acknowledged that the U.S. military did help shape the earplug, but she ruled that 3M cannot tell the jury at trial “that the government dictated, directed, approved, or otherwise exercised discretion with respect to military specifications for any aspect of the design of the CAEv2, or for the content of instructions or warnings.”
What Does This Mean for the 3M Earplug MDL?
Bellwether trials are intended to test the strength of both sides’ claims and gauge damages so the parties could potentially shape a deal to resolve the other MDL cases. These were the first three cases tried of the 240,000 claims in the 3M earplug MDL. There are two more bellwether trials that are scheduled to follow soon.
Dustin McCombs’ earplug claim is scheduled for trial on May 17, 2021. Mr. McCombs’ tinnitus began after an IED blast in Afghanistan in April 2009 and progressed at Alaska’s Fort Richardson.
Lloyd Baker’s earplug claim is scheduled for trial on June 7, 2021. Mr. Baker said he suffered tinnitus from urban-warfare training at Fort Lewis in Washington in 2005 and 2006 where he operated a 160-decibel M240 machine gun.
Torts and mass tort litigation expert Alexandra Lahav of the University of Connecticut said the verdict likely does not have a larger meaning on its own on the future of the 3M earplug MDL: “I would say this is just the beginning; don’t draw any firm concussion until we’ve had a few more trials.”
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