Did you serve in the US military between 2003 and 215? If you did, have you subsequently developed hearing problems? If your answer to both of the foregoing questions is “yes”, and if you used government-supplied earplugs during your term of service, you might be eligible for significant compensation.
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For over 10 years 3M Company, a US multilevel conglomerate, sold Combat Arms Earplugs Version 2 (CAEv2) to the US military. These earplugs were widely used in both Afghanistan and Iraq between 2001 and 2015. In 2016, however, a whistleblower complaint revealed that the earplugs were defective and dangerous and that 3M knew of the defect but failed to disclose it.
3M now finds itself facing hundreds of thousands of lawsuits for hearing loss, tinnitus, and related health problems. The federal judiciary has consolidated most of these lawsuits into Multidistrict Litigation (MDL) in the largest MDL action in US legal history. At present (July 2021), about 230,000 lawsuits are pending in the US District Court for the Northern District of Florida.
First Salvo: 3M vs. United States
The US Justice Department began investigating 3M for possible violations of the False Claims Act. In 2018, 3M paid a $9.1 million penalty to resolve allegations that 3M knew of the defects in their earplug but failed to inform the government or halt its supply. The earplugs have since been taken off the market. For legal reasons, 3M did not admit liability for the defect.
Individual Lawsuits Against 3M
The real victims of the defective 3M earplugs were the US service members who suffered hearing problems. Although a few hundred cases have been brought in state courts in Minnesota, where 3M is based, over 99 percent of the cases have been consolidated into the Florida MDL.
Just because you joined an MDL action, however, doesn’t mean that you don’t file your own lawsuit. In fact, you must file your own lawsuit but certain issues, such as whether 3M earplugs were defective, are determined by the MDL. Once the MDL decides on an issue, you must accept it in your individual lawsuit. You will still have to resolve individual issues, such as the amount of your compensation, in your individual lawsuit.
Why You Can’t Sue the Military
The military is part of the US federal government. Normally you can sue the US government, for culpable conduct that causes you injury, under the Federal Tort Claims Act (FTCA). The so-called Feres Doctrine, however, is an exception that prevents service members from suing the US military under the FTCA for service-related injuries. Recent case law may have carved out an exception for service-related medical malpractice.
The Government Contractor Defense
If you can’t sue the US military for injuries arising from earplugs that it supplied to you, the next logical choice would be to sue 3M, the company that manufactured the earplugs. 3M could conceivably escape liability, however, by proving that it was a “government contractor” who created the earplugs in accordance with government specifications. 3M has already tried this defense, however, and lost it in July 2020. That decision opened the door for the hundreds of thousands of lawsuits that 3M now faces.
Multidistrict Litigation (MDL)
The MDL action against 3M over its defective earplugs is entitled 3M Products Liability Litigation, MDL No. 2885. Judge M. Casey Rogers presides over the case.
In an MDL, the court will select a few individual cases to serve as “bellwethers.” The hope here is that the results of these trials will generate expectations about how other trials might go. This expectation, in turn, could create a consensus among plaintiffs and defendant that could stimulate a global settlement with all defendants, thereby obviating the need for a trial.
Judge Rogers designated five cases as bellwether cases, three of which have been resolved so far:
- Estes, Hacker and Keefer v. 3M et al. (May 2021) resulted in a $7.1 million jury verdict for the plaintiffs. The award consisted primarily of punitive damages, an ominous sign for the defendant.
- McCombs v. 3M et al. (May 2021) resulted in a verdict in favor of 3M.
- Baker v. 3M et al. (June 2021) resulted in a $1.7 million jury verdict in favor of the defendant. The court found the defendant 32 percent at fault, however, meaning that the defendant’s damages will be reduced to around $1.2 million.
Two more bellwether trials will take place: Taylor v. 3M et al. in September 2021, and Blum v. 3M et al. in October 2021. So far, the results are looking ominous for 3M, although the results did give 3M some reason for hope. If the final two bellwether cases resolve in a manner similar to the first three, the bargaining advantage is likely to tilt toward the plaintiffs.
Class Action Lawsuits
So far there are no class action lawsuits against 3M, and observers do not expect any. The reason for this state of affairs is that there is too much disparity among the facts of the individual cases, especially with respect to damages, for a class action lawsuit to make any sense.
How Much Will I Receive?
At this point, it is impossible to answer this question. It is possible, however, to list the factors that will probably go into any determination of damages. The most important factors include:
- The severity of your hearing impairment;
- The need for future medical treatment;
- The prognosis for a full recovery;
- The degree of any psychological effects, such as PTSD, that you may be experiencing;
- The effect of your injury on your ability to pursue your occupation;
- Your age, if you can no longer pursue your chosen occupation; and
- The effect of your injury on your ability to care for your loved ones, perform housework, exercise, enjoy hobbies, etc.
How much you receive also depends to a large degree on the skill of your lawyer.
Do You Qualify as a Claimant?
To become involved in the 3M litigation and render yourself eligible for a possible settlement, you must meet the following qualifications:
- You must have a diagnosis of tinnitus from a doctor from around the time of your discharge from the military, or evidence of a hearing loss in the form of an impairment rating from the U.S. Department of Veterans Affairs; and.
- You must have served in the US armed forces at some point between 2003 and 2015.
Consult with an attorney as soon as possible about the statute of limitations deadline for filing a lawsuit. Years sometimes elapse between the use of the earplugs and the first onset of symptoms, and that might affect your deadline for filing a lawsuit.