The 3M earplug litigation has grown into one of the largest mass torts in history. No mass tort has come close to rivaling the number of cases generated by the 3M earplug multidistrict litigation. Service members and veterans allege the Military Dual-Ended Combat Arms Earplugs (CAEv2) distributed by 3M were defective, leading to hearing loss and tinnitus among users. 3M earplug lawsuits have proven to be a lengthy and complicated process. With over a dozen bellwether trials completed and a bankruptcy maneuver underway, the litigation is still ongoing.
About 3M Earplug Lawsuits
Service members are more prone to hearing damage than the average civilian due to exposure to high-intensity noises such as artillery fire, explosive devices, and loud machinery. Therefore, it is standard practice for the military to issue protective equipment, such as earplugs, to personnel to protect their hearing.
Aearo Technologies, the creator of the earplugs and now 3M’s subsidiary, secured an exclusive contract to supply the military with its earplugs from 2003 to 2012. All branches of the armed forces relied on these earplugs, including the Army, Navy, Marines, Air Force, National Guard, and Coast Guard. Also, these earplugs were prevalent among service members deployed to Iraq and Afghanistan.
3M ceased production of the earplugs in 2015, but the 3M earplug claims followed soon after. The company was hit with a whistleblower lawsuit in 2016, and personal injury lawsuits citing hearing loss and tinnitus started to pour in by 2018.
Companies Involved in 3M Earplug Litigation
The 3M earplug litigation focuses on 3M Company and its subsidiary Aearo Technologies.
Aearo Technologies manufactured an early version of the combat earplugs in 1998. The CAEv2 earplugs provided two options for hearing protection through their unique dual-ended design. The earplugs had two ends, one an olive-colored “closed” end and the other a yellow-colored “open” end. The closed end acted as a traditional earplug that protected the user from steady noise, and the open end shielded service members from loud noises while still allowing the wearer to hear lower-level sounds, such as speech.
3M purchased Aearo Technologies in 2008 for $1.2 billion and assumed production and distribution of the CAEv2 earplugs in addition to the military contract.
Injuries Linked to 3M Earplugs
Internal documents show that Aearo Technologies modified the length of 3M earplugs to accommodate the combat helmet and carrying case. However, shortening the earplugs made it difficult for users to insert them deeply enough into the ear canal. The earplugs could loosen without the wearer noticing, thus ruining the protective seal at the ear canal. Defective CAEv2 earplugs allegedly offered little to no hearing protection, resulting in hearing loss and tinnitus.
Hearing loss is the partial or complete loss of hearing. Treatment can assist those suffering from hearing loss, but there is no cure. Losing the ability to hear can also negatively impact mental health and quality of life, leading to anxiety and depression.
Tinnitus is characterized by a ringing or buzzing noise in one or both ears. These phantom noises vary in pitch and consistency, but in some cases, tinnitus can be so loud that it interferes with daily activities and concentration.
The most common service-related disabilities are hearing impairments, with veterans being 30% more likely to suffer a severe hearing impairment than non-veterans, according to the CDC.
Moldex-Metric Inc. Whistleblower Lawsuit Against 3M
In 2016, Moldex-Metric Inc., which manufactures hearing protection products, filed a whistleblower lawsuit against 3M on behalf of the United States government. The lawsuit accused 3M of violating the False Claims Act by knowingly selling defective dual-ended Combat Arms Earplugs, Version 2 (CAEv2), to the Defense Logistics Agency.
Moldex alleged 3M committed fraud against the government by distributing the faulty earplugs to the military without disclosing the major design flaws.
Although 3M denied the allegations, it reached a settlement agreement of $9.1 million with the Department of Justice in 2018 to resolve the lawsuit.
3M Earplug Multidistrict Litigation
With 3M earplug lawsuits rapidly taking off, the Judicial Panel on Multidistrict Litigation consolidated claims into MDL No. 2885 RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION in April 2019. The panel chose the Northern District of Florida as the appropriate district for the 3M earplugs litigation and appointed Judge M. Casey Rodgers to preside over the MDL. These lawsuits assert that 3M knew about the problems with the earplugs early on, with some internal documents indicating the company knew as far back as 2000.
The number of 3M earplug cases in the MDL has since increased from 600 claims to 259,592 cases as of March 2023.
3M Files for Bankruptcy
A little over three years into the 3M earplug MDL, parties had undergone sixteen bellwether trials but still had not reached a global settlement. With more 3M earplug lawsuits joining the MDL and no indication of the litigation slowing down, 3M resorted to a controversial bankruptcy maneuver in July 2022.
3M announced that its subsidiary Aearo Technologies voluntarily entered Chapter 11 bankruptcy proceedings to resolve the growing 3M earplug litigation efficiently and fairly in a timely manner. The company argued that it could take decades to handle the claims on a case-by-case basis, so the bankruptcy was intended to conclude all Combat Arms Earplugs lawsuits in a just way for all parties involved. The company planned to fund a $1 billion trust to settle claims entitled to compensation.
3M hoped to extend Aearo Technologies’ bankruptcy protections to itself, asserting that the bankruptcy should halt all litigation. However, in August 2022, U.S. Bankruptcy Judge Jeffrey J. Graham ruled that lawsuits against 3M could proceed adjacent to Aearo’s bankruptcy. 3M disagreed with Judge Graham’s decision and requested that an appeals court overturn his ruling in December 2022. Despite 3M acquiring Aearo in 2008 and distributing and profiting from the CAEv2 earplugs, it claims it cannot be held independently liable.
Could the Dismissal of Johnson & Johnson’s Bankruptcy Tactic Affect 3M?
Although the 3M earplug litigation dwarfs the number of lawsuits against Johnson & Johnson, the talcum powder claims MDL had racked up a sizeable 37,000 claims by October 2021. Plaintiffs allege Johnson & Johnson talc-based products can lead to ovarian cancer and mesothelioma. Like 3M, the talcum powder lawsuits continued to pile up as J&J lost billions in verdicts, pushing the company to deploy a bankruptcy plot known as the “Texas Two-Step.”
J&J created a subsidiary, LTL Management, and transferred all its talcum powder products and liabilities to the new business. LTL Management quickly filed for Chapter 11 bankruptcy, stopping all talcum powder cancer litigation. The debate surrounding the legality of J&J’s bankruptcy and whether the company enacted it in “bad faith” lasted until January 2023. Finally, the U.S. 3rd Circuit Court of Appeals in Philadelphia ruled J&J had wrongly put LTL Management in bankruptcy. The court noted that LTL Management is worth over $61.5 billion thanks to J&J’s lucrative talcum powder products and brands.
Therefore, the bankruptcy was invalid since LTL Management had access to ample funding and was not in financial distress.
Status of 3M Earplug Litigation
In light of an appeals court dismissing Johnson & Johnson’s infamous “Texas Two-Step” bankruptcy ploy in late January 2023, 3M earplug plaintiffs are seeking dismissal of Aearo Technologies’ bankruptcy.
In February 2023, a committee representing more than 200,000 veterans with claims against 3M filed a motion to dismiss the subsidiary’s bankruptcy. The motion states that 3M modeled its funding agreement with Aearo Technologies off Johnson & Johnson’s agreement with LTL Management.
Now that the appeals court has dismissed Johnson & Johnson’s bankruptcy, the committee argues that 3M’s bankruptcy, which closely resembles J&J’s, should also be dismissed. Plaintiffs contend that 3M is a multi-billion-dollar corporation with plenty of funds to afford handling lawsuits outside bankruptcy court.
3M Earplug Settlements and Verdicts
There is no 3M earplug settlement at this time. In September 2022, Judge Rodgers, in charge of the MDL, ordered all parties to engage in meaningful settlement negotiations. Although Judge Rodgers initially described the settlement talks as “worthwhile and productive,” by January 2023, Judge Rodgers terminated settlement efforts, stating both parties were at an impasse.
Yet, there have been 16 bellwether trials throughout the MDL. Ten out of the sixteen trials have produced substantial verdicts for plaintiffs, while the other six resulted in defense verdicts. 3M continues to assert that the bellwether trials have provided no “clarity or certainty,” but after hundreds of millions in verdicts, this sentiment is simply not true.
Plaintiff Verdict Amount
|May 2021||$7.1 million|
|June 2021||$1.1 million|
|September 2021||$8.2 million|
|November 2021||$13 million|
|November 2021||$22.5 million|
|January 2022||$110 million|
|May 2022||$8 million|
|March 2022||$50 million|
|April 2022||$2.2 million|
|May 2022||$77.5 million|