This year has seen increasing litigation against 3M by military veterans for injuries arising from the company’s Combat Arms Earplugs. Between 2003 and 2015, 3M (and its predecessor Aearo Technologies) manufactured and sold its earplugs to the military touting its ability to prevent exposure to loud noises. The lawsuits allege that the earplugs were designed in a defective manner and that 3M failed to warn users of the defect or to provide proper instructions for their use. As a result, plaintiffs claim they suffered hearing loss, tinnitus and loss of balance.
These suits are not the first complaints about the earplugs. Last year, the Department of Justice announced that a False Claims Act case against 3M was settled for $9.1 million resolving allegations that 3M knowingly sold the earplugs to the US military without disclosing defects that hampered the effectiveness of the device.
After the settlement, veterans began filing actions in several states. In the Spring of 2019, lawsuits filed in Texas, California, Oklahoma, and Minnesota were consolidated into a multidistrict litigation (MDL) action and moved to the Northern District of Florida. Discovery is in progress with document production due in September. The complaints allege that Aearo/3M knew about the defect as early as 2000 and manipulated test results to make the earplugs appear to meet government standards. Furthermore, the injuries resulted because the earplugs did not provide a snug fit and would loosen imperceptibly which effectively rendered the earplugs useless.
Although the False Claims Act case was settled, there was no determination or admission of liability. Accordingly, the veterans suing 3M will have to prove the earplugs were defectively designed, manufactured and distributed. Research has shown that the two most prevalent service connected disabilities for veterans in the United States are tinnitus and hearing loss. Exposure to noise can induce hearing symptoms such as “temporary threshold shifts (TTS), tinnitus, hyperacusis, recruitment, distortion or abnormal pitch perception.” Unlike civilians, military personnel often cannot avoid or limit exposure making ear protection a necessity.
Many earplug claims require medical experts to assess the nature, etiology, extent, and prognosis of a plaintiff’s symptoms. For example, specialists in Occupational and Environmental Medicine (“OEM,” or “Occupational Medicine”) can focus on the diagnosis and treatment of work-related illness, injury, and exposure, including noise-related hearing loss. Otolaryngology experts trained in the medical and surgical treatment of disorders of the ear, nose, and throat may be consulted to determine the type and severity of the plaintiff’s injury. Audiologists can perform tests to explicitly analyze hearing loss and track the trajectory of hearing loss by comparing new tests to prior data. Lastly, Acoustic Engineers (a subspecialty of Mechanical Engineering) can analyze earplug design to identify sources of device failure.
Although the earplugs were discontinued in 2015, the defective pairs were not recalled and thus are still likely used by soldiers and sold by other vendors, according to the lawsuits. As a result, we will see continuing litigation in this area for years to come.
If you are considering litigation in this area, Elite Medical Experts can help you find nationally recognized expert witnesses specializing in Otolaryngology, Occupational Medicine, Audiology, and Acoustic Engineering. Contact us today for a consultation.
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