Military servicemembers require hearing protection in all variety of situations, from training to combat. For more than a decade, one of the most popular hearing protection products was 3M's Dual Ended Combat Arms earplugs. Then came allegations that the devices were defective, and that the company knew about the problems but failed to disclose safety risks to the military.
3M now finds itself facing hundreds of thousands of claims by active and veteran servicemembers, linking the faulty Combat Arms earplugs to hearing loss, tinnitus, and related health problems.
In this article, we'll look at the landscape surrounding litigation over 3M combat earplugs, and key considerations if you're thinking about bringing your own claim.
Military servicemembers often receive earplugs or other hearing-loss prevention equipment—for use during combat, while serving in a potentially-hostile location, and during training exercises. From around 2003 to 2015, one of the most common standard issue hearing-loss prevention options was 3M's Dual-Ended Combat Arms earplugs.
This product was fairly unique among earplugs in that it was two-sided: one side was meant to block/reduce sounds of any kind, but turn the device over, insert the other side, and high-decibel sounds like explosions were meant to be blocked, while low-decibel sounds like talking could still be heard. That was the idea anyway, but the devices had a tendency to sit at too shallow a point in the ear, and would often come loose, so that their ability to protect servicemembers' hearing was, at best, inconsistent.
A whistleblower's allegations of 3M's wrongdoing in connection with the popular earplugs led to a July 2018 False Claims Act lawsuit settlement, in which 3M agreed to pay $9.1M to the U.S. Department of Justice. The whistleblower's claims were serious: 3M was alleged to have known that its Combat Arms earplugs didn't work the way they were supposed to, but rather than address a clear safety defect, the company was said to have manipulated product testing to come away with the results it wanted, while withholding knowledge of the defect from the Defense Department. 3M acknowledged no wrongdoing, but in announcing the settlement, DOJ made clear that its allegations against the company largely echoed the whistleblower's claims.
Not surprisingly, 3M soon found itself staring at a wave of lawsuits by active and veteran servicemembers, alleging that their use of the apparently-defective Combat Arms earplugs caused a variety of health problems, including:
No, neither 3M/Aearo itself nor any product safety agency issued a recall of Dual-Ended Combat Arms earplugs. As mentioned above, in 2015 the company simply stopped making the product, and the military stopped contracting for any new orders of the earplugs.
This absence of any formal announcement of potential safety-related problems with the earplugs (and lack of any concomitant warning of hearing-related risks posed by their use) probably didn't do servicemembers any favors. Had a safety recall been issued, it's likely that there would have been a more rigorous push to remove the earplugs as standard issue equipment, and a high-profile campaign advising servicemembers to stop using them.
The number of servicemembers who have filed a lawsuit over hearing problems linked to 3M Combat Arms earplugs is well into six figures. If you're thinking about filing your own claim, there are a few crucial issues to consider.
First, have you actually suffered harm as a result of your use of 3M's product? Even if your military service included extensive use of 3M Dual-Ended Combat Arms earplugs, you can't file a successful lawsuit against 3M/Aearo (or anyone else) if you haven't suffered hearing problems or some other measurable harm that can be attributed to this issued equipment—even if it's clear that the earplugs didn't always work the way they were supposed to.
Cases like these require measurable harm, and that usually means diagnosis of hearing loss, tinnitus, or some other health problem that can be traced back to your use of 3M's earplugs during military service. Diagnosis is the first step in understanding (and proving) the nature and extent of your losses ("damages" in legalese), including medical bills, impact on your ability to earn a living, and more subjective effects like "pain and suffering."
Most lawsuits over the safety of 3M Combat Arms Earplugs are based on a legal fault theory known as "product liability," through which manufacturers can be held responsible for injuries and health problems caused by that product. Product liability can also hold manufacturers responsible for their failure to warn others in the supply chain of risks associated with the product's use—as 3M is alleged to have done by withholding information related to known safety concerns over its combat earplugs. (Learn more about proving a product liability case.)
Besides diagnosis of a hearing problem or other health issue, if you're considering a lawsuit against 3M/Aearo, another initial point to consider is the statute of limitations. This is a law that sets a time limit on your right to file a lawsuit and get compensation for your losses. In many states, the statute-of-limitations deadline that will apply to a 3M Combat Arms earplugs lawsuit is the same as the one that applies to most personal injury lawsuits. But some states have a separate statute of limitations that applies to lawsuits over defective or unsafe products. In any event, you'll usually have two to three years to get your lawsuit filed (the time limit is longer in some states, shorter in a few), but it can be a challenge to figure out when the "clock" starts ticking in these kinds of cases.
Hearing problems don't always show up right away, even when their cause can be traced to use of a product or some other specific source. (In contrast, when you're hurt in a car accident, your injuries typically make themselves known immediately.) And when products like earplugs don't work the way they're supposed to, there's often a lapse of time between use of the product and the onset of health problems (that's especially so when use takes place over a number of years).
In the context of 3M earplug lawsuits, this potential lapse of time before the development of hearing loss and other symptoms is a big reason why the statute of limitations "clock" might not necessarily start running on the date of the servicemember's last use of the earplugs.
Under what's often termed a "discovery rule," the clock might start only when the servicemember discovers (or should reasonably have discovered) that they were harmed by their use of 3M earplugs. That date might coincide with a diagnosis of a hearing problem, or the servicemember's first symptoms of a hearing problem. But keep in mind that if a significant number of years have passed between your last use of 3M earplugs (or since your discharge from the military) and the onset of your hearing problems, another time limit called the "statute of repose" might prevent you from bringing a case against 3M/Aearo.
Your best first step is to talk to an attorney for details on lawsuit-filing deadlines and how they might apply to your specific situation.
It's not a class action, but the largest single consolidation of 3M earplug injury claims is in federal "multidistrict litigation" (MDL). By October 2021 the MDL —officially titled 3M Products Liability Litigation, MDL No. 2885, and being handled by Judge M. Casey Rogers of the United States District Court for the Northern District of Florida—included more than 270,000 individual claims, making it the largest MDL ever.
(Note; there's typically too much disparity among individual cases in terms of variables like severity of plaintiffs' harm to make an injury-related class action appropriate for 3M earplug claims.)
A key decision in the MDL came in July 2020, when Judge Rogers turned back 3M's attempt to use the "government contractor" defense, which might have shielded the company from liability if it could be shown that the Combat Arms earplugs were designed and manufactured for the federal government. In his ruling, Judge Rogers stressed the fact that the earplugs were designed before any contract with the federal government, and without any input from the military.
In an MDL, one or a few cases are chosen to serve as "bellwethers" that might give all parties an indication of what to expect, setting the stage for a global settlement of some kind. The number of claimants in the 3M MDL (over 270,000 as of November 2021) has led to the scheduling of an unusually large number of bellwether trials. Here's a rundown of verdicts:
April 2021: Plaintiffs Win, Plus Punitive Damages
The first "bellwether" trial in the combat earplugs MDL brought bad news to 3M when the jury awarded $2.1 million in punitive damages to each of three veterans who claimed that their issued 3M earplugs failed to work properly. A punitive damages award like this—which the Florida jury ordered on top of a compensatory damages award covering the plaintiffs' medical bills, pain and suffering, and other harm—is meant to punish particularly egregious or outrageous conduct on the part of the defendant.
June 2021: Good News/Bad News for 3M
In the second bellwether trial in the 3M MDL, a jury decided that the company was not responsible for the plaintiff military veteran's hearing problems. This marked the first time 3M came away from a combat earplugs safety trial with a verdict in its favor.
Any relief on the company's part was likely short-lived, since just a few weeks later, the jury in the third bellwether trial found in favor of a veteran who claimed his tinnitus was caused by 3M's earplugs. The company's liability wasn't deemed absolute, however. According to the jury, 3M's share of fault for the veteran's hearing issues was 68%, while the veteran was 32% to blame for his own "damages," which amounted to $1.7 million. So, under Florida's comparative negligence rule, the veteran is set to receive 68% of the $1.7 total damages, or a little less than $1.2 million.
October 2021: More Good News/Bad News for 3M
The fourth bellwether trial ended with a verdict in favor of Army veteran Brandon Adkins, who sought to link his hearing loss and tinnitus to use of 3M's earplugs. In ordering 3M to pay Adkins $8.2 million in damages, the Florida jury found that not only were 3M's Combat Arms earplugs defectively designed, but the company also failed to properly warn servicemembers about health risks associated with use of the earplugs. This verdict likely came as a shock to 3M, since according to Reuters, the company hand-picked Adkins's case to serve as the next bellwether trial.
A few weeks later, a jury in the fifth bellwether trial delivered a verdict in favor of 3M, clearing the company of any legal responsibility for a former servicemember's hearing loss and tinnitus.
November 2021: Still More Good News/Bad News
In mid-November 2021, a jury in the sixth MDL bellwether trial handed down a verdict in 3M's favor, finding that Combat Arms Earplugs weren't to blame for the plaintiff veteran's hearing loss. But a few days later, in the largest 3M plaintiff's verdict to date, a U.S. Army veteran was awarded just over $13 million after the conclusion of the seventh MDL bellwether trial. Notably, the jury in this most recent case earmarked over $12 million as punitive damages.
So after seven bellwether trials, the tally is four plaintiffs' verdicts, to three for 3M. With at least eight more bellwether trials on the court calendar, and no clear picture of how future juries are likely to come down on the liability issue, it might be some time before we see any global settlement come out of the MDL.
Learn more about how multidistrict litigation works in product liability cases.
Putting a dollar value on any kind of injury case is difficult, and lawsuits over 3M combat earplugs are no exception. A particular servicemember's damages—and therefore the amount of compensation they're likely to receive—depends on their very specific circumstances, including:
(Get more tips on damages in a product liability case.)
If you're an active or veteran servicemember who's thinking about filing a lawsuit over hearing loss or related issues that could be linked to your use of 3M combat earplugs, going up against 3M/Aearo (and potentially navigating the procedural landscape of the MDL) isn't the kind of thing you want to do on your own. Having the right attorney is a practical necessity, and can make a big difference in the outcome of your case.
Online resources like Nolo can help you connect with lawyers (via information submission features and chat). And asking for a lawyer referral from someone you know and trust can be a good start. Even if that lawyer doesn't handle product liability cases, they may be able to refer you to a qualified lawyer in their network. Get more tips on finding the right injury lawyer.
It's important to make sure you're prepared for your first meeting with a candidate attorney (even if it's virtual). Consider touching on the following topics: