Spc. Coca Temoananui, assigned to the 311th Signal Command, puts in ear protection prior to a helicopter flight, in 2012. A jury on Friday, May 28, 2021, determined 3M was not liable, negligent or fraudulent when selling earplugs to the military, according to court documents. (Debrah Sanders/U.S. Army)
A federal jury in Florida sided with earplug manufacturer 3M that the company’s product did not cause hearing loss for a veteran who used them while serving in the military.
The trial was the second of three scheduled this year that could impact the outcome of a lawsuit involving nearly 236,000 veterans who were issued the earplugs while in the service.
3M, a Minnesota-based company, lost the first trial April in which a jury awarded $7.1 million to three Army veterans who said they suffered from hearing loss and tinnitus because of the earplugs. The second trial involved one veteran, Dustin McCombs, with a similar lawsuit.
The jury on Friday determined 3M was not liable, negligent or fraudulent when selling earplugs to the military, according to court documents.
“We are pleased with today’s verdict and will continue to vigorously defend ourselves in upcoming trials. The Combat Arms Earplug Version 2 product is and has always been safe and effective to use,” 3M representatives said in a statement.
Nearly 236,000 veterans are part of the multidistrict lawsuit against 3M, which claims the company’s dual-sided earplug used by the military for more than a decade, including during the wars in Iraq and Afghanistan, could imperceptibly slip in the wearer’s ear. Work began on the earplugs in the 1990s and 3M sold them to the military until 2015.
The three trials scheduled for this year are bellwether trials, which are used to present a representative of the cases before a jury to gain useful information for potentially reaching a settlement for all cases. It can help both parties determine the costs of subsequent lawsuits.
McCombs’ lead attorneys — Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, PLLC, Shelley Hutson of Clark, Love & Hutson GP, and Christopher Seeger of Seeger Weiss LLP — said in a statement that they are “disappointed” in the jury’s conclusion, but look forward to the next bellwether case, which is scheduled to begin June 7 in Pensacola, Fla.
“We continue to believe that the evidence overwhelmingly demonstrates that 3M knew their [Combat Arms Version 2] earplugs were defective, yet allowed our service members who relied on them for hearing protection to suffer from preventable hearing loss and tinnitus,” the attorneys said. “We will continue to hold 3M accountable for the damage they have caused to those who served our nation.”
No recall was ever issued on the product and a fourth version of the earplug remains in use by the military, according to 3M.
In July 2018, the Justice Department announced 3M agreed to pay $9.1 million to resolve allegations that it knowingly sold the earplugs to the military without disclosing defects that hampered effectiveness. That lawsuit was filed through the whistleblower provision of the False Claims Act, according to the Justice Department.
In settling the claim, 3M did not admit to wrongdoing, according to the company.
Twitter: @Rose_Lori
