3M Earplugs Lawsuit

3M Earplugs Lawsuit Case Background

It was revealed in a lawsuit brought by a competing company against 3M that the military ear plugs primarily utilized in our armed forces was defectively designed. This fact was known by 3M and their predecessor company Aero, from the very inception of the product.

3M pretty much acknowledged this through a settlement with the U.S. Government.   Although the majority of the records in that case are still under seal, we know enough now to have a good understanding of the main flaws.

First, in order to get the product to meet even MINIMUM testing standards, they manipulated the product by rolling back one of the “flanges” of the ear plug to create a better seat in the ear canal.

This doubled the efficacy of the test, and they were barely able to meet the standard thresholds in doing so. A lot of other shady stuff happened as well.

Against that backdrop, lawyers who handle cases involving large groups of people smelled this case out and realized that the real victims, the veterans, weren’t part of that settlement, and probably weren’t told anything by Uncle Sam either.

As a consequence our firm, along with some of the other bigger firms in the country, have reached out to veterans to bring claims against the manufacturers for any hearing problems sustained as a result of the use and reliance on this defective product.

We believe somewhere upwards to 2 million men and women in active service were issued these ear plugs over the relevant time from of 2003 to 2015.   As we have begun filing cases, the Federal Court system has decided that all of the cases should be consolidated with one judge for all the pre-trial discovery.

This is called an MDL order, and in this case the panel held a hearing in March in DC we attended and has made the decision to send all the cases to the Federal Court in Pensacola to address these massive discovery issues.  We attended the first hearing with this Court on April 17.

The judge for the case will be Judge Margaret Rodgers.  She will be assisted with local magistrates and other court officers.  Her first job will be to organize the case and select some lawyers for specific tasks associated with further development of the case.

Our firm has been selected in this process many times in the past, most recently by assignment of the Federal Court to try the lead bellwether case in the GM defective switch litigation in New York, and in service to several committees on the BP oil spill disaster in the Gulf of Mexico that was handled in an MDL assigned to New Orleans.

With that experience and background, we have offered to help on this aspect of the case, which benefits all the claimants down the road.  If and when this part of the process is resolved, we will ask the court to allow your case to proceed on individual merits with our firm as lead counsel. Hopefully we will be able to reach an amicable solution before that time.

Legal Issues

These types of cases centrally involve two key issues, the damages sustained by each claimant as a result of the use of the defective product, and the liability of the product manufacturer.  In this case, most claimants appear to have either some general hearing impairment, or tinnitus, which is a ringing in the ears.

I have played in a professional rock band for many years and have some of both issues as a consequence of not wearing adequate protection, so I have some further appreciation of what you may be dealing with.  For the damages, we will primarily rely on the hearing tests conducted throughout your military career.

We will be working with the court on exemplar forms that cover these areas along with others as part of the review process.   At some point we may need to arrange for further independent testing.

Some claimants have already gone through some of that in requests for VA benefits. This too is something we will have to thoroughly review.  That said, it will be our burden to show that you wore the product and have hearing deficits of some form as a direct consequence of those product failures.

Also, there is the issue of when the product was worn, as 3M acquired this product line around 2007-08 and the predecessor liabilities may not have carried over. We will have to explore the types of purchase agreements the companies entered into to better understand that issue.

The other major prong of civil litigation cases is proving the liability of the company/manufacturer.   We have had a lot of dealings with 3M in prior litigation. We were able to prove that many years ago 3M sold defective dust masks that were advertised to keep asbestos out of the lungs.

These representations were false, and as a consequence many thousands of our clients suffered lung damage, for which we were able to hold 3M accountable.  We believe we will be able to do so again here.

That said, there are some additional defenses that apply to this case.  When the government is the entity that orders a product for service use, the manufacturer is entitled to some degree of protection, called the Government Contractor’s defense.

In order to be immune from liability, they have to show that the product was made to government specifications and that the government was aware of any material defects or problems with the product.  3M will maintain such is the case here.

Only time and discovery of historical documents and witness testimony will flush those issues out.

Duration of Litigation (and further developments)

Cases like this involving many thousands of claimants often take several years to resolve.  Due to the widespread use of these hearing protection devices, we expect to see potentially over 100,000 claims join the litigation at some point.

In such large “mass tort” cases, claimants are often left on standby for much of this time as the Court and lawyers deal with the “big picture” issues in the case before there is an analysis of individual claims and claims resolution.

We anticipate review of many thousands of documents between the parties and the government, taking of many depositions, hiring various experts in the fields involved here, etc.

Some good news is that this Court just resolved the first MDL proceeding she had been assigned in a much better than average time table so hopefully this one will proceed at a similar pace. That said, there may be little activity on your individual case for many months now that all claims have been consolidated.

Please understand that our firm has little control over that pace, but we will do whatever we can to keep moving forward as fast as the court will entertain it.

We also like to keep clients in these types of cases rather informed about what is going on by establishing a website that we can post relevant information on the case.

Many times underlying discovery in the case is obtained “under seal”, so we may not be able to comment in detail about some activities, but our goal is to keep everyone posted as best we can about how things are proceeding.

The other good news about these large MDL proceedings is that the costs of developing complex cases like this is prohibitive, and are usually absorbed by the claimants at the end of the day.  By having many thousands of cases together, the transactional costs are spread out much better, greatly reducing individual case costs.

This is just our opening communication and we will pass along other memos and updates of relevant developments as they occur.  To expedite this process, we would also prefer to communicate with you via email so our office will be asking for that type of additional background information moving forward.

Likewise, we are still accepting further claims of this nature so if you know someone else who is similarly situated please feel free to have them contact us.

Again, thank you for entrusting this serious legal matter to our firm. We have full team of lawyers and staff assigned to the task and we will aggressively pursue resolution in your behalf.