It seems like such a small thing. An earplug, about an inch long, with two tips (one yellow, one black). It was designed to protect military personnel from hearing damage caused by gunfire and explosions. But now it appears that this little thing, costing only 85 cents to manufacture, was actually too small to do its job effectively and thus spawned the largest multi-district litigation (MDL) surge and one of the most. broad categories of personal injury and product liability. disputes in history.
How it all began
3M company, which makes the tiny plug, is under fire for what these service members claim to be a design flaw that caused them to lose their hearing and develop tinnitus (ringing in the ears).
3M did not originally design the technology built into the earplugs. The socket itself was introduced to the market in 2003 by Aearo Technologies, LLC, which develops and produces technology to control noise, vibration and temperature for industrial and commercial products. Among other innovative products, he is the developer of the ubiquitous foam earplugs that we buy for pennies from the hardware department at Walmart. In 2008, the 3M Company bought Aearo and thus became the parent company of a legacy that would lead to massive litigation ten years later, threatening its own legacy of Post-It Notes, Ace Bandages and Scotch Tape.
From 2003 to 2015, first Aearo, then 3M, manufactured the Combat Arms version 2 (CAEv2) earplugs and sold them to every branch of the service. Version 4 replaced version 2 in 2015 and continues to be released by the military today.
3M’s potential exposure
We do not know how many Combat Arms Version 2 earplugs the military purchased or how many of them were distributed to the military. As of August 31, 2021, when the country withdrew the last military from Afghanistan, more than 775,000 troops had been deployed there. Since 2001, between 1.9 and 3 million military personnel have served in post 9/11 war operations in Afghanistan and Iraq. This does not count the number of personnel posted to bases elsewhere inside and outside the United States who have worked near potentially damaging sound vibrations and who may have received Combat Arms earplugs. .
We also know that the potential exposure to 3M is massive. Hearing loss and tinnitus are by far the most common and prevalent service-related injuries, according to the Department of Veterans Affairs. Current veterans and military and others have so far filed more than 250,000 claims and lawsuits against 3M, claiming the earplug design was flawed and resulted in hearing loss and tinnitus.
The whistleblower trial
This mad rush to trial began with a Alert launcher (who tam) trial brought in 2016 under the False Claims Act by Moldex-Metric, Inc., a competitor of 3M. The law allows private parties to sue on behalf of the government when they believe defendants have made false claims for public funds. Moldex argued that Aearo knew as early as 2000 that CAEv2 was too small to fit the ears of some soldiers.
According to the Ministry of Justice,
3M violated the False Claims Act by selling or having defective earplugs sold to the Defense Logistics Agency. Specifically, the United States alleged that 3M and its predecessor, Aearo Technologies, Inc., knew that CAEv2 was too short to fit properly into users’ ears and that earplugs could loosen imperceptibly and not therefore did not work well for some people. The United States further alleged that 3M did not disclose this design flaw to the military.
In 2018, the government settled the whistleblower lawsuit for $ 9.1 million. The regulations did not require 3M to admit that the product was defective or that it knowingly failed to disclose the defect to the government.
The whistleblower trial, however, does not compensate service members who may have been injured due to their addiction to Combat Arms earplugs and did not limit service members’ rights to seek redress for injuries. by 3M. Since then, more than 250,000 lawsuits have been filed against 3M. These lawsuits have moved to the North District of Florida and will be chaired by the Honorable Casey Rodgers, becoming the greatest example of mass crime (MDL) in history. See 3M Product Liability Litigation, MDL n ° 2885, Master Docket n ° 3: 19md2885.
The Bellwether Trials
This is not a class action lawsuit. Presumably, the plaintiffs did not seek class action status because they recognize that the circumstances and necessary evidence are not sufficiently similar to be admissible. Therefore, the logistics of holding 250,000 trials within a reasonable timeframe, especially given the demands of the pandemic, are mind-boggling. The courts assigned to the MDL have developed processes and procedures to ensure the administrative coordination of these cases. To promote settlement, it is not uncommon in MDL for parties to test the waters by holding representative case trials. These so-called indicator trials are designed to provide the court and the parties with information they can use to determine the value of cases and the terms of potential settlements.
Between March and June 2021, Judge Rodgers held three barometer trials. In the first, the jury awarded three plaintiffs a total of just over $ 7 million. The second indicator ended with a verdict in favor of 3M, concluding that earplugs did not cause tinnitus in a veteran. The third resulted in a jury prize of $ 1.7 million against 3M.
Judge Rodgers has scheduled the start of another group of indicator trials on September 20, 2021 and October 18, 2021, with a possible consolidated trial of three plaintiffs in January 2022.
It is not about repetitions or trials. The decisions are binding on 3M and the individual complainants, but they are not binding on the other claims. In due course, each claim will be resolved on its own merits, either through litigation or some sort of settlement or grievance process. The parties report that there have been no settlement discussions to date and that none of the 250,000+ outstanding cases have been resolved. The parties will scrutinize these indicator trials and upcoming trials in the near future to determine their next steps.
Is it too late for current military and veterans to sue 3M?
Personal injury and product liability lawyers across the country continue to assess and clear cases. But whether a particular military or veteran is entitled to file depends on several factors that can affect the statute of limitations.
This is MDL, which means that cases have been filed across the country and transferred under the auspices of a court and a judge for what the courts intend to be more efficient administration of justice and faster. Even though the cases have been transferred to Judge Rodgers in the North District of Florida, the statute of limitations that applies to each case is the statute of the state where the plaintiff’s original case was or could have been filed. These statutes of limitations vary, with most laws for such cases ranging from two to three years. Determining how a state’s statute of limitations applies to an individual case requires careful analysis of the facts, including when the complainant used the earplugs, when symptoms of hearing loss or tinnitus developed, and when measurable damage attributable to earplugs has been discovered or diagnosed.
Effect of MDL on Veterans Disability Claims
Current and potential claimants should note that filing a complaint against 3M does not affect any VA disability claims that claimants may file. These lawsuits are brought against a private company which sold equipment to branches of the military. Disability claims are made against the Veterans Administration, a government entity. VA disability claims are unaffected by decisions made by a court or jury in private litigation. The VA should conduct their own investigation to determine if the veteran has suffered a hearing loss that would be considered a disability but was not necessarily caused by a defect in the 3M earplugs.
© 2021 Copyright Tribeca Lawsuit LoansRevue nationale de droit, volume XI, number 264