By Joe Fantini January 11, 2021

All eyes are on what is shaping up to be the biggest mass tort lawsuit in decades. The lawsuit does not involve asbestos, talc powder, Roundup, or any of the usual suspects.

The biggest mass tort lawsuit of the decade may involve an earplug of all things. The defendant is 3M, the manufacturer of earplugs used by the U.S. military for over a decade, from 2003 to 2015, for use in the Iraq and Afghanistan wars.

History of the Lawsuit

Litigation first began with a False Claim Act claim between plaintiffs Moldex-Metric Inc and the U.S. against 3M. It was claimed that a 3M subsidiary, Aearo Technology, sold the earplugs to the military knowing that they did not work properly, yet certifying that they did. That case was settled in 2018 for $9.1 million 3M did not admit liability in that case.

Those settlement funds go toward the government and the whistleblower involved – not the military personnel who were harmed as a result of the earplugs. Military personnel have had to file their claims individually.

Individual soldiers began filing product liability suits. Since the lawsuits involve common questions of fact, the cases have been grouped together as an MDL. Litigation to date includes a ruling by Judge M. Casey Rodgers that 3M does not have immunity as a government contractor.

The case is an example of a multidistrict litigation action (MDL). As claims against 3M grew across districts, the individual cases were combined into the MDL,  IN RE: 3M Combat Arms Earplug Liability Litigation, and assigned to the U.S. District Court for the Northern District of Florida. An MDL is different from a class-action suit. In a class-action lawsuit, all plaintiffs combine to form one lawsuit. In an MDL, each plaintiff continues to maintain their own lawsuit.

The 3M case has amassed over 200,000 actions since it began in 2018. Many more plaintiffs are expected to file suit in the coming months.

The Earplugs: Design, Testing, and Reporting Protocols

Plaintiffs who used the earplugs began to suffer from tinnitus and hearing loss. Tinnitus is a ringing of the ears.

The earplugs, named the combat arms earplug, version 2, had a dual design. One side dampened artillery noise while still allowing the wearer to hear, the other side acted as a traditional earplug. The claims against 3M stem from the assertion that 3M knew that the earplugs were too short to fit properly in the ear canal. They loosened without the wearer becoming aware that the loosening took place.

The lawsuit further claims that testing shown to the military included a modification in the way the earplugs were used. The military was never informed of the need for a modification for optimal protection. In essence, it is alleged that 3M manipulated the test results to meet government requirements.

The lawsuits allege defective design, failure to warn, and improper instructions for use. The lawsuits seek punitive damages for gross negligence, alleging that 3M knew of the problems associated with the earplugs as early as 2000, but failed to address the issue, and continued to sell the product as is to the military.

3M alleges that it worked closely with the military in designing the earplugs. It alleges that the earplugs are a product of the government’s feedback and direction. This defense seems on the thin side. Records unsealed and released in April 2000, show that the earplugs cost 85 cents to make, but were sold for $7.63. The earplugs were a moneymaker for 3M.

The Tip of the Iceberg

Earplug sales went on for a long time and the military market is large. It is suspected that the number of earplug cases amassed into this MDL may be just the tip of the iceberg. And yet, many are not aware of this potentially huge mass tort case.

It is important that if you suffered an injury due to using these earplugs, that you contact a mass tort attorney as soon as possible. These cases require expert representation. Mass torts are a specialty within the legal community.

The first bellwether case is set for trial in Florida on April 5, 2021. Bellwether trials are somewhat like test cases. Both sides try out their arguments. If the case results in a verdict for the plaintiffs, this tends to help move mass tort cases toward settlement.

If this bellwether case is successful for plaintiffs, it is expected that thousands of more plaintiffs will file suit. This could be one of the largest mass tort cases in history, far eclipsing the asbestos cases.