Earplug Lawsuits Now Make Up the Largest Active MDL in the Country

We first reported on 3M earplug multidistrict litigation (MDL) in April 2019. At the time, only 640 people had filed lawsuits over the faulty hearing protection. Since then, the number of lawsuits has grown exponentially. Despite the challenges posed by COVID-19, nearly 188,000 people have filed legal claims blaming 3M's CAEV2 earplugs for hearing damage.

CAEV2 stands for Combat Arms Earplugs Version 2. The CAEV2 were designed by Aearo Technologies, which was acquired by 3M in 2008. The CAEV2 were standard issue hearing protection in the U.S. military for nearly a decade. The earplugs were supposed to suppress sounds up to 190 decibels. According to plaintiffs, a design defect rendered the CAEV2 non-functional. 3M discontinued the earplugs in 2015, but the product was never recalled.

Earplug Trials Slated to Begin April 2021

Judge M. Casey Rodgers presides over the CAEV2 MDL (MDL 2885) in the Northern District of Florida. Members of the court are currently completing tasks common to each lawsuit, including:

  • Discovery
  • Depositions
  • Addressing common questions of fact

Judge Rodgers recently set several rules and deadlines. In the pre-trial order, the court scheduled the first bellwether trial for April 5, 2021. This should provide both sides plenty of preparation time before the first trial.

A bellwether trial is the first trial (or group of trials) in an MDL. Bellwethers are often used to gauge the likely direction of subsequent cases.

Judge Ruled Out Military Contractor Defense for 3M

In July, 3M tried to argue for the dismissal of all claims. The company claimed it could not be held liable for complying with a federal contract. If this defense had been successful, all 188,000+ claims could have been dismissed.

In late July, Judge Rodgers ruled that 3M did not qualify for this defense. In her ruling, the judge pointed out the military did not actively participate in design decisions for the CAEV2. Therefore the earplugs were not designed according to military standards.

This decision cleared the way for CAEV2 lawsuits to move forward. The decision also added to 3M's CAEV2-related legal setbacks. The earliest of these problems started years ago with a 2016 whistleblower lawsuit.

Earlier Earplug Settlement May Have Encouraged Civilian Lawsuits

In 2016, Moldex-Metric filed a whistleblower lawsuit against 3M. The lawsuit claimed 3M knew the CAEV2 earplugs were defective and sold them to the U.S. military anyway. If true, 3M's actions would constitute a violation of the False Claims Act. It would also open 3M up to litigation from individuals damaged by the faulty earplugs.

3M settled the lawsuit out of court for $9.1 million. 3M claimed the settlement was not an admission of liability. The company also implied the settlement was a way to get rid of "a distraction to the business."

No matter the reasoning behind the settlement, the whistleblower case garnered substantial attention in the press. The multi-million dollar settlement helped publicize the CAEV2's design flaws. That publicity may have then alerted former CAEV2 users to the culprit behind their unexplained hearing damage. Thus, Moldex-Metric's lawsuit may have indirectly led 188,000 people to sue 3M.

At this point, there are many unknowns in the CAEV2 lawsuit saga. One thing seems certain, though. If the court finds in favor of the plaintiffs in these cases, 3M will likely deal with a larger and more costly "distraction to the business."

Authored by Katy Moncivais, Ph.D.Medical Editor
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Katy Moncivais holds a Ph.D. in Biomedical Engineering from The University of Texas at Austin. She’s an experienced Regenerative Medicine Consultant with a demonstrated history of working in the hospital & healthcare industry. Skilled in adult stem cells, medical devices, biomechanics, bacterial and mammalian cell culture, and regenerative medicine, she provides guidance on an array of topics affecting consumers. In her role at ConsumerSafety.org, Dr. Moncivais works alongside the writing and research staff to help deliver fact-based news stories to consumers. Her unique professional history alongside her rigorous educational background allows her to contribute to a variety of consumer-focused topics with a fresh perspective. In addition, Dr. Moncivais reviews portions of medically driven content to ensure scientific accuracy.
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