Advisor Legal Advertiser Disclosure 3M Earplug Lawsuit Update September 2022 By Mari Gaines Mike Cetera Editorial Note: We earn a commission from partner links on Forbes Advisor. Commissions do not affect our editors’ opinions or evaluations. Getty Table of Contents v ‘Thousands of military service members and veterans have sued 3M, alleging the company’s earplugs were ing exercises. To defective and led to hearing damage from loud sounds on the battlefield or during trait date, the vast majority of 3M earplug lawsuit claims have not been resolved. Of the 16 “bellwether” (test) cases that have gone to trial over the last three years, the verdicts have been split between the plaintiffs and the defendant—10 for plaintiffs and six for defense. While the plaintiffs have prevailed in most cases, the defense has been successful enough to leave both sides fairly confident of their positions and no closer to settlement negotiations.avoid overwhelming the federal judicial system with the thousands of 3M earplug lawsuits currently pending. The History of the 3M Earplug Lawsuit Between 2003 and 2015, Aearo Technologies Inc. and parent 3M Company manufactured and supplied the United States military with Combat Arms earplugs to protect the service members’ ears from the loud sounds associated with military training and combat. They were standard issue in Iraq and Afghanistan for soldiers deployed during those years. Production of the earplugs ceased in 2015 without recall. In 2016, Moldex-Metric, Inc,, a California-based competitor, filed a whistleblower lawsuit against 3M claiming that 3M had been selling defective earplugs, knowing that they did not meet the standards for protection required by the government. The la (ringing or other noise in the ear) experienced by thousands of soldiers. In 2018, 3M agreed to pay $9.1 it med the defective earplugs were likely responsible for significant hearing loss and tinnitus million to the Department of Justice to resolve the allegations without admitting liability. After the settlement with the federal government, individual service members began filing lawsuits against 3M alleging they wore the defective earplugs that caused them to develop hearing loss and/or tinnitus. There are currently more than 230,000 military service members or veterans suing 3M. There have been so many lawsuits filed with similar complaints that the suits were centralized under a Florida district court as an MDL in 2019 so they could be processed more efficiently and to reduce cost and duplication. The 3M earplug MDL is the largest in US history. The Problem with 3M Combat Arms Earplugs The allegedly defective 3M earplugs were the result of a collaboration between U.S. military representatives and Acaro in the late 1990s before 3M acquired the company. The result was the second version of the Combat Arms Earplug (CAEv2).. CAEv2 was designed to eliminate the need for soldiers to carry two different sets of earplugs. They are dual-ended earplugs that if worn one way are supposed to block sound like traditional earplugs and if worn in reverse are to block only certain types of loud battlefield noise while allowing the wearer to hear softer, closer sounds. The alleged problem with the CAEv2 earplugs is that they can be too short in a particular wearer's ear canal and can fail to form the proper seal to effectively protect the inner ear from the damaging noise. Hearing Loss and us Hearing problems are a very common di ervice membe ability experienced by military According to the U.S. Department of Veterans Affairs (VA), hearing problems are the No. 1 service-related disability among American veterans. As of 2020, over 1.3 million veterans were receiving disability compensation forA 2019 study of 85,000 active duty service members found that tinnitus rates have increased significantly. The study estimated in 2001 about 1.8 of every 1,000 active service members experienced tinnitus. By 2015 that number had grown to 6.8 out of every 1,000. Is the 3M Earplug Lawsuit a Class Action? When people think of a large number of people hurt by a single product made by a single company they think ofa class action lawsuit. A class action lawsuit is one lawsuit filed on behalf of a group of plaintiffs who have all suffered the same injury. They are typically handled by a single law firm and any amount recovered is split equally among all plaintiffs without regard to individual circumstances The 3M earplug lawsuit began as individual lawsuits. Although allegedly caused by a single product produced by a single company, the plaintiffs didn’t all claim the same injuries. When the federal court being filed it ordered the MDL process to consolidate the cases under one federal court judge who will preside over the pretrial phase of the system became aware of the number of 3M earplug c2 litigation. An advantage of an MDL settlement over a class action settlement is that each MDL plaintiff will receive a portion of the settlement proceeds that is based on individual circumstances. 3M’s Earplug Defense 3M has argued the CAEv2 earplugs are not defective by design and only fail to work when they are not worn properly. On its website, 3M states the CAEv2 earplugs are a “significant innovation in hearing protection,” and the company defends the safety and effectiveness of its product. 3M says it worked in “close coordination” with the U.S. military to develop the design for the CAEv2 earplugs and incorporated features that were “requested and accepted” by people acting on behalf of the military. Itis because of the military input into the design of the earplugs that 3M has tried (unsuccessfully) to use the government-contractor defense to absolve the company from liability even if the earplugs are found to be defective. The government-contractor defense grew out of a U.S. Supreme Court case where governmental immunity was extended to a manufacturer who produced military equipment per a government contract and the equipment later proved defective. The court held that manufacturing equipment for the military involves a uniquely federal concern and that concern is significant enough to displace state tort laws. Three elements are necessary to prove the government-contractor defense: ‘The U.S. government approved reasonably precise specifications. ‘The product met the approved specifications. ‘The manufacturer warned the government of any potential danger from the use of the product.the carplugs, meaning 3M is not a government-contractor in this case. 3M has raised the issue again in the cases it has appealed. Plai ffs? Allegat ns Argue Product Liability Plaintiffs have initially prevailed in 10 of the 16 test cases. They are alleging 3M’s liability for their hearing damage based on a legal theory of product liability. Product liability holds the manufacturer of a product responsible for the unexpected damage it causes others when it is used as directed by the manufacturer. In product liability claims, plaintiffs must prove the product was defective. A product can be defective in several ways, including: Defective design. Plaintiffs allege the CAEv2 earplug was too short to form an effective noise barrier inside the ears of some wearers. Defective manufacturing. Plaintiffs charge the CAKv2 design as defective, not an error during the production of the earplug. Defective labeling or failure to provide sufficient warning. Plaintiffs have alleged the CAEv2 did not come with sufficient instructions as to proper insertion and failed to warn of the potential consequences of improper insertion. ‘The plaintiffs that have bee! records and significant exposure to combat noise while wea successful in the 3M earplug lawsuit test ss tend to have longer service ing the CAEv2 earplugs. Many have been successful in arguing that 3M knew or should have known about the defect and failed to warn the service members about it The fact that punitive damage awards have been very large in several of the winning cases suggests that juries believe 3M at the very least demonstrated indifference to the risk posed to service members who relied on the defective earplugs for hearing protection. Is There Still Time to File a Lawsuit Against 3M? There may still be time to file a lawsuit against 3M for injury caused by the CAEv2 earplugs. The time period for bringing claims against 3M is governed by state law and varies by state. It is best to consult a local attorney about the applicable statute of limitations for a particular state. In the 3M earplug lawsuit, the statutory limitation period may be extended or may not apply at all if either of the following legal doctrines applie Discovery rule. In federal cases, the discovery rule will postpone the start of the statute of, limitations until a person discovers they have been injured. Plaintiffs may be able to argue that they were not aware until relatively recently that the 3M earplugs were defective and might be the reason for their hearing problems. Equitable estoppel. This doctrine keeps a defendant from using the statute of limitations to bar a plaintiff's claim when the defendant has wrongfully contributed to the inability to file a timely lawsuit. Plaintiffs might argue that 3M took steps to conceal the known defects in the CAEv2 earplugs in an attempt to keep people from filing lawsuits.How to Find a Lawyer to File a 3M Earplug Lawsuit Because the 3M earplug lawsuit is so big and involves so many active and former service members, certain law firms throughout the U.S. are focusing on representing those injured. Persons who believe they have een injured due to the CAEv2 earplugs can search for attorneys in a given state that are handling 3M earplug claims. Keep in mind that it usually costs nothing to participate in an MDL lawsuit. The attorneys are paid out of your settlement. You pay nothing up front. ‘Taking advantage of a free legal consultation is a good way to find out whether the prerequisites for making a claim are satisfied and to determine whether working with a particular law firm is a good fit. Frequently Asked Questions (FAQs) Which earplugs are involved in the 3M earplug lawsuit? Who is allowed to file claims against 3M in the earplug lawsuit? When is the deadline to file a claim against 3M? + + oF + What Is the average payout for the 3M earplug lawsuit? [Was this article helpful? 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Your financial situation is unique and the products and services we review may not be right for your circumstances. We do not offer financial advice, advisory or brokerage services, nor dowe recommend or advise individuals or to buy or sell particular stocks or securities. Performance information may have changed since the time of publication. Past performance is not indicative of future results. Forbes Advisor adheres to strict editorial integrity standards. To the best of our knowledge, all content is accurate as of the date posted, though offers contained herein may no longer be available. The opinions expressed are the author's alone ond have not been provided, approved, or otherwise endorsed by our partners. Mar Mari Gaines Gaines Contributor Mari's career has gone from practicing law, to selling insurance to attorneys, to digital marketing and content creation. Mari writes legal content for law firms and law-related businesses throughout the United States and Canada. 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