One of the largest mass tort cases in the U.S. is heading to trial this month
By: Jackson Hicks and Sandra Jones, InvestigateTV
Originally Published: March 15, 2021
(InvestigateTV) – Hundreds of thousands of veterans across the country say they’ve suffered hearing loss and permanent ringing in their ears after their government-issued ear plugs failed to protect them.
“I had the hearing of like a 60-year-old man when I was 30,” said Brett James Bailey, an Army veteran. “I’ve come to terms with the fact that at some point I’m probably going to have to have a hearing aid.”
Bailey is just one of more than 200,000 veterans suing the company 3M over a particular type of earplug: Combat Arms Earplugs – Version 2. According to a plaintiff’s attorney spokesperson, the case is now the largest mass tort in U.S. history, and it goes to trial later this month in Florida.
According to the lawsuit, veterans claim that 3M and its predecessor Aearo Technologies “knew the earplugs were defective prior to selling them because they falsified test results and misrepresented their performance specifications to qualify for a multi-million dollar per-year contract with the United States.”
Veterans claim earplugs designed to filter specific noises didn’t filter enough
The earplugs, known as CAEv2, are dual-ended. The two ends are supposed to serve two different purposes.
When worn on one side, it blocks all noise and acts as a standard earplug one might purchase to block loud sounds at a concert or around construction equipment.
But when worn the other way, according to court documents, soldiers are supposed to be protected from loud noises such as machinery and gunfire while still being able to hear instructions from their commanders.
The veterans claim the earplugs would imperceptibly loosen over time and allege that no matter which way the earplugs were worn, there was a problem.
The product was first developed by the company Aearo, which 3M bought in 2008.
In 2016, Moldex-Metric sued 3M over the earplugs, calling them “dangerously defective” in the court complaint. 3M paid $9.1 million in 2018 to settle these claims, according to the Department of Justice.
Moldex said it was the first competitor of the Combat Arms Earplugs, and the lawsuit and subsequent settlement opened the door for veterans around the country to file their own cases.
The veterans’ complaint says that Aearo conducted initial testing using their in-house lab and some of its own employees.
“Aearo’s own employees monitored the test results as the tests were performed, which allowed them to stop the testing at any point if they were not achieving the desired NRR (Noise Reduction Rating).”
According to the complaint, the company would fold back the non-inserted flanges of the earplug so that it created a better seal in the ear. Without doing this, the earplug would not seal properly and therefore not fully protect the wearer from loud noises.
The lawsuit says a design defect is the reason why so many veterans now suffer from hearing loss and tinnitus.
The lawsuit also claims that the packaging for the earplugs did not include proper instructions for wearing the product.
“Aearo also falsely certified that it provided accurate “instructions explaining the proper use and handling of the ear plugs.” Aearo knew when it did so that its own testing had revealed a design defect that needed modified fitting instructions to ensure a proper fit that would deliver the promised NRR. At no time did Defendants disclose the modified fitting instructions to the U.S. military—even after winning the bid.”
In a statement to InvestigateTV, 3M answered questions regarding the earplugs and allegations, with a spokesperson writing that “the CAEv2 product is effective and safe to use, and its design, development and testing reflect the direction, feedback and approval of individuals acting on the military’s behalf.”
3M also wrote that it worked in close coordination with the military on the product, and that “the CAEv2 product’s effectiveness in reducing noise was confirmed by testing conducted by Aearo, the U.S. military, independent labs, and other organizations.”
When asked whose responsibility it was to inform soldiers on how to properly wear the product, 3M pointed to the military.
“Under laws and DOD (Department of Defense) regulations, it is the military audiologists who are responsible for fitting individual service members with earplugs and for the information that was supplied to individual service members about the product’s proper use and fit,” the company wrote to InvestigateTV (full statement below).
Army veteran says he noticed symptoms after his first deployment
Brett James Bailey joined the Army as an infantryman in 2002 and spent 11 years in active service. He is one of the many veterans involved in the case.
In college at the time, he joined the Army at the age of 21 because he felt a sense of duty to protect his country after the attacks on 9/11.
“I didn’t think it was right that I was just hanging out in college, getting drunk, and going to parties and missing class when there’s guys my age out trying out to defend a country.”
According to the complaint filed by Moldex in 2016, all soldiers deployed to Iraq and Afghanistan were issued the Combat Arms earplugs starting in 2004.
And now, after serving in Afghanistan and Iraq, Bailey suffers from both hearing loss and tinnitus. He says he began to notice his symptoms after his first deployment.
“I can remember, like, my ears ringing a lot, hurting… It kind of drowned out everything else.”
He said he brushed it off at first, hoping the ringing would go away. But as time went on, the tinnitus stayed, and his hearing loss became more noticeable.
And now he believes these earplugs issued to him by the military and manufactured by 3M/Aearo are the source of his hearing loss. He joined the lawsuit and seeks to have a chance to prove that in a court of law.
“It’s one thing if you think ‘ok, I might get blown up and get my legs blown off’…but I figured if you wear the earplugs, [hearing loss] shouldn’t be an issue,” Bailey said.
Potential witness in case says the design is the problem
Robert Traynor, an audiologist in Fort Collins, Colorado, who may serve as a potential expert witness for the veterans in a case against 3M pending in Colorado, told InvestigateTV that more than 3 million veterans are receiving compensation from the U.S. Department of Veterans Affairs due to hearing loss and tinnitus.
“It’s a huge problem, and this particular issue exacerbated the issue to a significant degree,” Traynor said.
He says the fault in these earplugs lies within the design itself.
“The thing about the 3M plugs was that when the plugs were in position, they worked their way out and because of that the ear was still exposed to those muzzle blasts,” Traynor said.
3M rejects this claim, stating that the design is not defective and that “early prototypes were designed alongside the U.S. military’s audiologist incorporating his specific instructions on the length and size of the” earplugs.
The Department of Defense would not comment on this lawsuit or provide a copy of its contract with 3M (or Aearo) to show how much was spent by the military on these earplugs.
However, court documents show an invoice to the defense department for 3,398 units of the CAEv2 in January of 2006 at a cost of $323 per unit. That’s a total cost of $1,097,554 for one order.
These documents also show a schedule of supplies, with a guaranteed minimum order of 10,000 packages in 2007.
Reports: Hearing impairments cost taxpayers millions of dollars each year
The VA spends over $1 billion in compensation per year to treat hearing loss in veterans, according to the Army’s website. In 2010, one out of every five hearing aids sold in the U.S. was bought by the VA, according to the Hearing Health Foundation.
According to Traynor, someone with noise-induced hearing loss, like these soldiers, has issues with hearing high-frequency noises or hearing in places with a lot of background noise.
“High frequencies are important for hearing children’s voices, but probably even more important for hearing female voices,” Traynor said. “Someone with noise-induced hearing loss can communicate really well at their job… but they really have difficulty understanding their wife when they go home.”
3M disputes this as well, asserting that testing has “confirmed” that the earplug “met the specifications to decrease noise at every frequency.”
Each side will soon have the opportunity to make their case.
This multi-district litigation case will be tried in the U.S. District court in northern Florida. This is now the largest mass tort in the U.S., surpassing the asbestos suit by thousands so far, according to Bloomberg Law.
This case differs from class-action suits because each claim – or each person’s lawsuit – is treated separately, with each case having its own facts and merits. That means ultimate compensation in a mass tort depends on each veteran’s own claims and damages.
The case is being tried in multiple sections or “bellwether groups.” The first trial is set to begin March 29 in Pensacola, Florida.
To read the original court complaints and 3M’s response filed in court, click on the documents below.
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