Pensacola judge weighing lawsuit claiming 3M earplugs damaged veterans' hearing

A federal judge in Pensacola will decide whether to dismiss a lawsuit alleging manufacturer 3M supplied defective earplugs to the U.S. military and caused hearing damage to more than 140,000 service members, veterans and civilians.

In 2016, the government filed a whistleblower complaint alleging 3M's Dual-Ended Combat Arms Earplug, known as CAEv2, was too short to fit properly in some users' ears. The CAEv2 required some users to take an extra step of rolling back one of the cone-shaped ends of each earplug to extend its length and ensure it fit deeply enough into each ear to seal out sound. 

In 2018, 3M agreed to pay the government $9.1 million to resolve allegations that it knowingly sold the CAEv2 to the military without ever disclosing serious design defects.

The settlement money went to the government, not individual service members or veterans, so thousands of them have filed individual lawsuits against 3M alleging the earplugs caused them to suffer hearing loss and ringing in their ears. The cases have been consolidated before Judge M. Casey Rodgers in the U.S. District Court for the Northern District of Florida in Pensacola.

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Last week, both the plaintiffs and the defendant filed motions for summary judgement — dueling requests for the judge to rule that the opposing party doesn't have a valid legal argument and to resolve the case without need for a jury trial.

The plaintiffs argue that 3M used misleading testing data to oversell the effectiveness of the earplugs and that the company sold the earplugs to the government for more than a decade while misrepresenting them as defect-free.

3M is relying on the "government contractor defense," which essentially says contractors are not liable for damages to government employees caused by products built to the government's own specifications. 

The CAEv2 is a two-sided earplug: one side was intended to block as much sound as possible, and the other was designed to allow users to hear soft sounds like speech and footsteps while muffling loud sounds like gunfire and explosions.

In its motion for summary judgement, 3M argued that when the military first received prototypes for the CAEv2 in 1998, it requested the earplugs be shortened by a quarter inch so they would fit into standard-issue carrying cases and so they would not interfere with a soldier’s ability to fasten a helmet chin strap.

3M said while testing the shortened CAEv2 in 2000, they became aware they earplugs did not fit snugly in some users' ears, reducing their effectiveness. They determined the issue could be resolved by folding back one end of the earplug for a tighter fit, and say they informed government leadership and audiologists of the workaround.

"The company worked in close coordination with the U.S. military on the CAEv2 product, and its design reflected the direction and feedback of individuals acting on the military’s behalf," 3M wrote in a statement about the suit. "We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations."

The plaintiffs in the current suit, as did the government prior to the settlement, allege they were not informed of the issues of the earplugs fitting improperly. They claim the instructions that came packaged with the earplugs made no mention of the need to roll one end of the earplug back. They say many users suffered hearing damage because they believed using the CAEv2 as the packaging directed was enough to protect them.

The lead plaintiffs' counsel, Bryan Aylstock of Aylstock Witkin Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson; and Christopher Seeger of Seeger Weiss, said in a statement, "3M's 'government made me do it' defense fails on numerous grounds and should be denied by the Court. The government never approved specifications for the Combat Arms Earplug v2, and 3M has already paid $9.1 million to the federal government to resolve allegations that it concealed the product’s defects and dangers from the military. We will continue to hold 3M accountable on behalf of the 140,000 service members, veterans and civilians who suffer from hearing damage due to these defective earplugs.”

The judge will review both sides' arguments and decide whether to grant one of the parties' motions for summary judgement or deny them both and let the case continue toward a trial.

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In recent days, 3M has come under fire from President Donald Trump for exporting face masks to other countries while the U.S. struggles with shortages caused by the COVID-19 pandemic. 3M has responded that cutting off supply chains to other nations could cause them to retaliate by stopping shipments of goods to the U.S.

Kevin Robinson can be reached at krobinson4@pnj.com or 850-435-8527.