A federal judge ruled last week that 3M must face plaintiffs – current and former U.S. military soldiers – in 3M ear plug cases. U.S. District Court Judge M. Casey Rodgers ruled in a Florida federal court that thousands of cases filed by former soldiers against 3M for hearing loss or damage caused by faulty earplugs deserve to be heard in court. Issued Friday, July 24, her decision says 3M cannot use a government contractor defense to avoid accountability in court.
150,000 Soldier Plaintiffs
The judge’s ruling keeps cases alive for some 150,000 plaintiffs who have suffered hearing loss and ringing in the ears (tinnitus) after using CAEv2 earplugs while enlisted in the military. The ruling means those mass tort cases may move forward. Further, it means more cases may be filed in what some legal experts believe may be the largest mass tort litigation in the history of American jurisprudence.
The 3M company settled with the U.S. government for $9.1 million in 2018 after the U.S. Department of Justice held 3M accountable under the False Claims Act for selling defective Combat Arms, or CAEv2 earplugs. 3M sold the defective plugs to the military from the years 2008 to 2015. Before the year 2008, Aearo Technologies, Inc. sold the earplugs to the military beginning in the 1990s. 3M bought Aero Technologies in 2008, arguably inheriting that company’s liabilities as well.
The U.S. government alleged that 3M and Aearo sold earplugs that were too short to fit properly in the ears. The earplugs could imperceptibly shift and hence fail to protect a soldier’s hearing. After a whistleblower came forward in 2018, the government charged 3M with knowing of the problem but failing to inform the government buyers. The shifting earplugs rendered them ineffective against the level of noise they were designed to muffle.
None of the millions which the government recovered went to the hearing-damaged soldiers who had worn the faulty earplugs. Last week’s ruling now opens the door for military members with hearing damage to potentially receive monetary compensation. Thousands of soldiers allege that they suffered permanent hearing loss and lost quality-of-life with tinnitus caused by the faulty plugs.
Government Contractor Defense Fails 3M
The 3M company has claimed from the beginning that it could not be held accountable by injured soldiers because government contractors are protected from tort liability by the “government contractor defense.” Judge Rodgers, however, determined that the clause does not apply in this case. Her decision said that because 3M designed and developed the earplugs before they were sold to the military, and that the plugs were designed without input from the Army or Department of Defense, the company is liable to the soldiers.
3M had also argued that the company shortened the earplugs so that they would fit into government-issued carrying cases. Judge Rodgers, however, found, in her decision, that those changes were also carried out without military input.
“It is a very significant ruling,” said attorney David Matthews, whose law firm represents many current and former military members who allege hearing loss or ringing in the ears after they used 3M Combat Arms CAEv2 earplugs. “It gives us a real fighting chance to help soldiers receive fair compensation for suffering hearing loss or the agonies of tinnitus.”
MDL vs. Class Action
The 3M ear plug litigation is not a class action lawsuit. It is rather a multi-district litigation (MDL). While class action lawsuits bear some similarities with MDLs, the two differ in several respects.
Most importantly, in an MDL action, each of the plaintiffs — individual service members, in this case — will have their own individual lawsuit filed against 3M. Each case must stand on its own merits, and each alleged injury is unique to that plaintiff.
In a class action, by contrast, every plaintiff is part of a single lawsuit, and each plaintiff, in effect, is alleged to have the same injury and alleged to deserve the same compensation.
A plaintiff in an MDL court can exercise greater personal control over what happens than a plaintiff made part of a class action. Similar to class actions, MDLs are designed to consolidate hundreds or even thousands, of similar cases in front of one court for the sake of efficiency.