On April 30, in the first bellwether trial to be held in the 3M earplugs multi-district litigation, a Pensacola jury awarded $7.1 million to three former service members who claimed the company’s earplugs were defective causing irreparable hearing loss and damage. The plaintiffs were three US service members who used the standard issue earplugs during their years of active military service. They claimed that the earplugs supplied to the military by 3M and its predecessor, Aearo LLC, were defective and failed to protect their ears from damage resulting in tinnitus (ringing and buzzing in the ears) and hearing loss after being exposed to loud noises during training and in active battle.

The products at issue in the claims were the Combat Earplugs, Version 2, commonly called the CAEv2 that were supplied to the military from 2003-2015. The earplugs were distributed to service members in Iraq and Afghanistan.

In a 2016 whistleblower lawsuit brought against 3M, documents were allegedly revealed that implicated the company as having knowledge of design flaws in the CAEv2. That suit resulted in 3M settling with the government and paying $9.1 million even while it denied responsibility. That lawsuit led to the current MDL litigation which is the largest of its kind in U.S. history.

Punitive damages, or damages intended to punish the manufacturer for bad conduct rather than compensate the plaintiffs, made up the majority of the awards. The jury awarded each of the plaintiffs $2.1 million in punitive damages and a total of $830,500 in compensatory damages for their medical expenses, lost earnings and pain and suffering.

3M countered the plaintiffs’ claims at trial by contending that the military was responsible for any injuries suffered by the plaintiffs since it had input into the design of the earplugs. The presiding judge, U.S. District Judge M. Casey Rodgers acknowledged that the military was in fact involved in the earplugs’ design but also stated that 3M would not be able to advise the jury “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.”

After the verdict, 3M stated that the company did not believe the plaintiffs met their burden of proving that the CAEv2 product was defectively designed or caused the plaintiff’s injuries.

The “bellwether” trial in Florida was meant to test the strength of the evidence and gauge damages so that the parties could potentially reach a settlement deal to resolve the other cases. Certainly, the battle is not over. 3M has indicated that it will be pursuing an appeal. However, the trial verdict is a promising first step towards resolving the many pending claims on behalf of veterans who served our military with honor.

More than 1 million veterans receive compensation for hearing loss, which is the leading service-related disability, according to 2015 government data. The MDL currently has nearly 240,000 claims and there are two more trials scheduled in the coming months. The next bellwether trial over the defective earplugs is scheduled to begin on May 17, 2021. Around 240,000 service members have alleged hearing damage from the earplugs and 3,349 have filed lawsuits, according to 3M’s most recent quarterly report.

In 1950 Lacy Katzen LLP was founded by two World War II veterans, Herb Lacy and Leon Katzen. Built upon a foundation of hard work, service and love of country, Lacy Katzen LLP stands behind the men and women of America’s military. It saddens us that our military personnel may have been harmed by a manufacturer who allegedly knew of the problems with its defective product.

If you or a loved one have suffered from hearing loss or tinnitus that you believe is as a result of the 3M earplugs contact Lacy Katzen LLP for a free consultation.