The judge overseeing the 3M Combat Arms Earplugs version 2 (CAEv2) multidistrict litigation (MDL) — believed to be the nation’s largest MDL in history — sanctioned 3M for its attempt to dodge legal liability over its allegedly-defective military-issued earplugs via Chapter 11 bankruptcy protection for its subunit, Aearo Technologies.
U.S. District Judge M. Casey Rodgers issued a 22-page order in late December, which granted the plaintiffs' motion for summary judgment on 3M's "full and independent liability" for hearing loss injuries that resulted from users—mostly U.S. Army veterans of the Iraq and Afghanistan wars—wearing the CAEv2 earplugs. Judge Rodgers found that 3M's attempts to hide behind bankruptcy and transfer its CAEv2 liabilities onto its subsidiary, Aearo Technologies, warrants a sanction, Law360 reported.
Users of CAEv2 were not aware that the earplugs did not fit properly and thus failed to protect their hearing.
3M completed its acquisition of Aearo Technologies, the original manufacturer of CAEv2, in 2008. A whistleblower lawsuit filed in 2016 by a rival earplug company publicized the allegedly faulty design in CAEv2. Shortly after, 3M settled claims that it supplied the military with faulty earplugs with the U.S. Department of Justice for $9.1 million.
Then the number of plaintiffs filing claims against 3M skyrocketed. The MDL was approved in 2019. To date, in the first wave of MDL cases, 16 bellwether trials have been tried. Juries in 10 of those trials have awarded plaintiffs $300 million in damages.
In July 2022, 3M attempted to dodge legal liability for CAEv2 claims by placing its subsidiary, Aearo, in Chapter 11 bankruptcy protection.
3M has also tried to dodge liability by arguing that it should be immune from liability because it is a defense contractor for the U.S. military. After that argument was rejected, 3M attempted to foist partial blame on soldiers’ hearing damage squarely on the U.S. military, arguing that the Department of Defense bears some responsibility, considering it was involved in the design of CAEv2 and how the hearing-protection devices were distributed.
"Scorched earth battle was waged against every theory of liability alleged in this litigation, yet there was nary a whisper that Aearo, and not 3M, was the only proper target, or even a target at all," Judge Rodgers said, per Law360.com.
The order by Judge Rodgers describes 3M’s attempts to evade legal liability as a “scheme” and that if the Chapter 11 bankruptcy plan were to be successful, “3M would reap all the benefits … with none of the attendant burdens.”
The order also mentions that as early as 2019, legal representation for 3M would not raise an issue as to which party, 3M or Aearo, should be held responsible for CAEv2 liabilities.