A federal jury awarded $110 million in damages to two U.S. Army veterans last month in response to lawsuits alleging that manufacturing company 3M knowingly marketed defective earplugs that caused hearing loss. The company plans to appeal the decision.
Military members are more susceptible to hearing loss than the general public. One study found that combat tours increase the risk of hearing damage by 63%. Wearing ear protection is a way to shield ears during loud explosions and gunfire, and Combat Arms Earplugs Version 2 (CAEv2) military earplugs were the standard for years. According to some estimates, millions of service members used the protective gear.
The earplugs were introduced in 2003 by Aearo Technologies, LLC, which manufactures noise absorption materials. In 2008, 3M purchased the company. Hundreds of thousands of service members and civilians have sued 3M over CAEv2 military earplugs, and it has resulted in the largest multidistrict litigation (MDL) in U.S. history. An MDL is a process where thousands of similar cases are consolidated and sent to the same federal court.
The recent verdict came down in one of 11 test trials related to the earplugs. Given the sheer number of people suing 3M, taking each case to trial wouldn’t be feasible. A test trial, also known as a bellwether trial, is a sample case that gives both plaintiffs and defendants an idea of how a judge may decide future cases and sets expectations for the settlement process.
3M has won five of the test trials, while plaintiffs have been victorious in the other six. The $110 million award is the largest so far. Ronald Sloan and William Wayman, who served in Iraq and Afghanistan, allege that 3M caused permanent hearing damage by knowingly selling defective earplugs. Both men say they have hearing loss and ringing in the ears, commonly known as tinnitus. Each plaintiff received $15 million in compensatory damages and $40 million in punitive damages. In a statement announcing its plans to appeal, 3M said the mixed verdicts show that plaintiffs face “significant challenges.” The company also said jurors might be confused by individual cases being consolidated into an MDL.
History of 3M Earplug Issues
The potential problems with CAEv2 earplugs became apparent in 2016 when a 3M competitor filed a whistleblower lawsuit against the company under the False Claims Act. The False Claim Act allows private parties to sue on behalf of the government when a company is dishonest to receive federal funds, and the whistleblower gets a cut of the award. The competitor alleged that 3M knew that its earplugs were too short for some people, rendering them ineffective, and didn’t offer proper instructions.
In 2018, the Department of Justice announced a settlement with 3M for $9.1 million. The department found evidence that 3M and Aearo Technologies knew that the earplugs were potentially too small to provide complete protection. Although the company paid the settlement, 3M wasn’t required to admit a design flaw or say that the product was defective. After the DOJ settlement was made public, veterans came forward in droves and said they suffered hearing loss due to faulty earplugs.
The $110 million verdict is a victory for the plaintiffs who will receive the award, and it also is encouraging news for those whose lawsuits won’t go to trial. The outcome of a test trial sets expectations for how the legal system will handle future cases. When a defective product causes injury, the manufacturer can be found liable. The government’s findings that the company knowingly marketed a defective product may make it easier for plaintiffs to show that 3M acted negligently.