Judge M. Casey Rodgers, presiding over the 3M earplug multidistrict litigation (MDL), recently held a “Data Day” on February 23, 2023, to review an analysis of records from the Defense Occupational and Environmental Health Readiness System (DOEHRS). Following the presentations, Judge Rodgers questioned the testing methods used by all parties but singled out 3M’s testing as significantly flawed. This notice arrived after 3M proclaimed that the majority of claimants have normal hearing under medically acceptable standards.
3M Asserts Most Claimants Do Not Have Hearing Impairment
Shortly after the “Data Day,” 3M issued a bold statement on March 1, 2023, that most plaintiffs filed in the MDL do not have hearing loss, according to U.S. Department of Defense records. The company argued that audiometric data for 175,000 3M earplug plaintiffs proved that most do not have hearing loss that meets American Medical Association (AMA) and World Health Organization (WHO) standards.
3M declared the data demonstrates that nearly 90% of plaintiffs have no hearing impairment according to American Medical Association standards, while more than 85% have normal hearing according to WHO and National Institute of Health standards. The company remains adamant that its Combat Arms earplugs are not to blame for service members’ hearing loss, citing that nearly a quarter of the plaintiffs with hearing impairment under AMA or WHO standards reported their condition in hearing tests before they used the earplugs.
The company noted the analysis does not account for other potential causes of hearing loss, such as pre-existing conditions, non-military noise exposure, and injuries suffered while not wearing Combat Arms earplugs. 3M believes only a sliver of service members have valid claims, as independent third-party organizations, including the Army Research Lab, the Air Force Research Lab, NIOSH, and others, have deemed the earplugs safe and effective.
MDL Judge Reprimands 3M for Hearing Loss Testing Methods
Despite 3M’s attempts to discredit service members and veterans, Judge Rodgers has criticized the company’s methodology used to reach the previous conclusion that most plaintiffs do not suffer hearing loss.
Judge Rodgers ordered BrownGreer PLC, a neutral third party, to analyze the four methodologies, one from each party and the other two from the court, to determine the number of valid hearing loss claims. BrownGreer PLC demonstrated its findings through a PowerPoint.
Judge Rodgers pointed out that 3M’s “pure tone average-based approach” excludes two frequencies, 4000 and 6000 Hz, most commonly affected by noise. The company’s testing does, however, consider 500 and 1000 Hz, two frequencies rarely affected by noise. Judge Rodgers condemned the exclusion of key frequencies since this is litigation where the alleged injury is noise-induced hearing damage.
While 3M heavily relied on the pure tone average rating schemes of the WHO and American Medical Association, Judge Rodgers stated that even the organizations have cautioned against relying on the schemes for diagnosing or assessing a person’s hearing-related damage.
Judge Rodgers concluded that the testing methodologies of both plaintiffs and defendants need improvement to discern the true number of valid 3M earplug hearing loss lawsuits.