A federal jury has awarded $7.1 million to three army veterans who alleged that defective 3M military earplugs caused their permanent hearing damage. 

Friday’s verdict bodes poorly for 3M, which now faces up to 240,000 similar claims from service members, veterans and some civilians in what’s now the largest mass tort in U.S. history.  The lawsuits claim 3M’s earplugs have caused constant ringing in the ears known as tinnitus as well as partial and total hearing loss.

Jurors in the first bellwether trial awarded $2.1 million in punitive damages to each veteran and a total of $830,500 in varying compensatory damages for medical expenses, pain and suffering, and lost wages.

3M discontinued the earplugs, which were used in combat and training missions in Iraq, Afghanistan and the United States, in 2015. 

Bellwethers: Test Trials That Highlight Trends 

The five-week trial ending April 30 was the first of three 3M military earplug bellwether trials. The lawsuits have been grouped together in U.S. District Court for the Northern District of Florida in a type of mass tort known as multidistrict litigation.

Bellwether trials are individual lawsuits carefully selected as test cases from the group of consolidated lawsuits. They’re used to gauge the strength of allegations and evidence and to get a sense of jury awards, thereby providing a basis for settlements or fueling a company’s ongoing defense against claims.

Many of the pending claims have been “administratively filed” in a placeholder arrangement per Bloomberg Law, noting that more than 500 similar cases are pending in state court in Minnesota where 3M is headquartered. Reuters reported a total of 3,349 lawsuits filed according to 3M’s most recent quarterly statement.

Veterans Accuse 3M of Hiding Earplug Defects, Putting Their Hearing at Risk

Plaintiffs accused 3M of failing to warn about known design defects, “fudging test results” and failing to instruct the military on how to get the proper seal, Reuters reported.

Aearo developed the Combat Arms Earplugs, Version 2 in the 1990s. They were the first dual-ended earplugs which allow the wearer to either block all sound or allow in softer sounds such as voice commands – while still protecting against gunfire, explosives, and other intense combat noises – when inserted in the opposite direction.

However, plaintiffs claim that 3M knew for years that the CAEv2 earplugs were prone to loosening, with first Aearo and then 3M failing to warn the military of their own lab and test results, according to The Wall Street Journal and Star Tribune.

At Issue: Who’s Responsible for Problems Caused By Shorter Earplugs?

At the heart of the 3M military earplug lawsuits, according to the StarTribune, is the Army’s 1999 request to Aearo Technologies to shorten the earplugs so they’d fit into a standard issue military carrying case. 

However, tests conducted by Aearo in 2000 found that the shorter earplugs didn’t always fit right and weren’t always effective, unless they were positioned in a specific way, according to court documents. (Aearo developed the earplugs and sold them to the military until 3M bought Aearo in 2008.)

3M claims it informed the military about the need for proper earplug fit, and that the military was responsible for communicating this to soldiers, according to another StarTribune report.  

The current wave of litigation kicked off in 2018 after 3M, without admitting guilt, agreed to pay $9.1 million to the U.S. government to resolve allegations that 3M and Aearo knowingly sold defective earplugs to the military. The version two combat earplugs were too short to fit properly and could loosen imperceptibly, the Justice Department said. 

3M Continues to Defend Its Military Earplugs, Others Disagree

3M continues to defend the safety of its earplugs in company statements and in an email to MedTruth. 

“We do not believe the plaintiffs met their burden of proving that the CAEv2 product was defectively or negligently designed or caused each plaintiff’s purported injuries,” 3M Communications Manager Fanna Haile-Selassie said.

“While we are disappointed and disagree with today’s verdicts, they are just the first step in this litigation. We believe there are multiple grounds for appeal, including those outlined in our filed mistrial motion, and are evaluating our legal options. We remain confident in our case and are ready to defend ourselves against plaintiffs’ allegations at the upcoming trials,” she wrote.

During the trial, 3M placed responsibility for the design and delivery of the earplugs on the military, Law360 reported. 

Plaintiff’s attorney Bryan Aylstock and U.S. District Judge Casey Rogers don’t accept 3M’s assertion. 

“The evidence is clear: 3M knew their earplugs were defective, yet they allowed our servicemembers to suffer these life-altering injuries,” Aylstock said in a statement reported by Law360. “We look forward to beginning the second bellwether trial on May 17, and to fully holding 3M accountable for the damage they have caused to those who served our nation.”

And while Rogers acknowledged that the military played a role in earplug design, she rejected 3M’s attempt to shift responsibility.

Rogers ruled that 3M can’t tell the jury at trial "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.”

Upcoming Bellwether Trials

The second and third bellwether trials are scheduled for May 17-28 and June 7-18. Each of those involve just one service member.