As the end of December approaches, it has been nearly five months since 3M’s subsidiary, Aearo Technologies, filed for bankruptcy to resolve litigation concerning the company’s defective earplugs. This announcement paused all lawsuits that allege faulty 3M earplugs caused tens of thousands of veterans to lose their hearing. While an appellate court deliberates on whether Aearo Technologies’ Chapter 11 bankruptcy protection extends to 3M, a group of veterans has filed a new motion to allow their claims to move forward. Plaintiffs in 13 cases requested the judge to lift the stay on their claims because they received earplugs post-2008 after 3M acquired Aearo Technologies.
Major 3M Earplugs Design Flaw Failed to Safeguard Hearing
From 2003 to 2015, the U.S. military issued 3M’s Combat Arms Earplugs, Version 2 (CAEv2), to service members. Energy-control technology company Aearo Technologies created an early version of the earplugs in 1998. The 3M Company purchased Aearo for $1.2 billion in 2008, assuming the production of the dual-ended earplugs and continuing to supply the military through its exclusive contract. Tens of thousands of service members in the Army, Air Force, Marines, National Guard, and Navy relied on the earplugs to shield them from hazardous sounds from artillery, explosions, and military equipment.
The dual-ended design was intended to provide service members with varying degrees of noise cancellation, but the earplugs possessed a critical defect. An investigation launched by the U.S. Department of Justice discovered the stems of the earplugs were too short to fit securely in the user’s ear. The shortened length could break the seal in the ear canal, leaving service members vulnerable to damaging noise levels.
Bankruptcy Filing Halts 3M Earplugs Litigation
Lawsuits allege veterans developed hearing loss and tinnitus due to 3M’s CAEv2 earplugs. A 2018 whistleblower lawsuit against 3M accused the company of violating the False Claims Act by knowingly distributing the defective earplugs. The United States asserted Aearo Technologies and 3M were aware that the earplugs could loosen but neglected to inform the military of the glaring design defect. 3M agreed to pay $9.1 million to settle the allegations. However, this was not the end of the company’s legal woes.
By 2022, the 3M earplugs multidistrict litigation grew to unprecedented numbers, containing over 250,000 claims. A majority of the bellwether trials produced favorable plaintiff verdicts, leaving 3M to pay over $100 million. With more cases slated to join the ballooning MDL and several plaintiff victories, 3M announced in July that Aearo Technologies voluntarily entered bankruptcy. The company also revealed its plans to create a $1 billion trust to settle the remaining 3M lawsuits.
Veterans Hope to Remove Stay On 3M Earplugs Lawsuits for Post-2008 Service
While a bankruptcy judge ruled that Aearo Technologies’ bankruptcy protection does not exempt 3M from litigation, the company adopted the new argument that it cannot be held independently liable for the earplugs originally manufactured by Aearo. Judge Rodgers, overseeing the MDL, stayed all litigation until the appellate court decides whether 3M’s argument is valid.
In the meantime, a group of plaintiffs filed a motion in November 2022, asking Judge Rodgers to allow their cases to proceed. The plaintiffs proposed that the dilemma as to whether 3M is independently liable for the lawsuits is irrelevant to their claims since they received 3M earplugs after the 2008 acquisition of Aearo Technologies.
In the motion, plaintiffs establish that successor liability is not an issue because they are pursuing claims solely against 3M. Plaintiffs assert their claims are directed towards 3M’s actions and conduct after 2008. The plaintiffs state that their injuries occurred after 3M obtained Aearo Technologies. Therefore, the veterans requested that their claims proceed regardless of the 3M’s bankruptcy maneuver.