By Sara Randazzo
When Staff Sgt. Benjamin Butler deployed to Afghanistan in 2012, he remembers the distinct green-and-yellow earplugs the Army issued to him as being uncomfortable and not blocking the sounds of aircraft and artillery the way they should have. He later developed premature hearing loss on one side and a ringing in his ears known as tinnitus.
"This is affecting how I live," he said, adding that he needs to play ambient noise while he is sleeping to damp the internal ringing.
Sgt. Butler, 31 years old, is among more than 200,000 service members and veterans who are suing 3M Co., saying it knowingly sold defective earplugs that caused their hearing problems. The first trial, which combines the cases of three Army veterans, has opened in federal court in Pensacola, Fla., and is expected to last through April.
The claims have been consolidated before a U.S. district judge in Florida in what is known as multidistrict litigation. The number of earplug plaintiffs dwarfs those currently alleging harm from any other product or drug, including weedkiller, baby powder and blood thinners.
"They didn't warn about the risks," Florida attorney Bryan Aylstock told jurors during opening statements late last month. "And because of that, these three soldiers have hearing damage, and they're going to suffer with it for the rest of their life."
Minnesota-based 3M, which makes products ranging from N95 face masks to tape, said in a statement the earplugs weren't defective. Its design reflected features the military requested, and the U.S. government not only had input in the products' creation but also was responsible for training soldiers to use them, the company said.
"It's not like you can just hand them out and say, 'Use this product, you're going to be good,'" Mike Brock, an attorney for 3M, said during opening statements. "It has to be fit properly."
A spokesman for the Defense Department, which isn't a party to the lawsuits, declined to comment on ongoing litigation.
The trial is one of three scheduled this year to give 3M and plaintiffs' lawyers a sense of how jurors react to their competing narratives. If any trials end in large plaintiff awards, 3M could face building momentum and pressure to settle. A win in court by the company would likely extend the time before any resolution.
Hearing loss is a chronic problem for military veterans. The Veterans Health Administration said it treated 444,796 veterans for hearing loss and 161,830 for tinnitus in the year ended in September.
The lawsuits question the safety of a uniquely shaped earplug that 3M and a company it acquired, Aearo Technologies, made from 1999 to 2015. The military bought millions of the earplugs, which had an olive green side designed to block sound fully and a yellow end meant to let in nearby voices while shielding the ear from more harmful ballistic noises.
The service members blame 3M for hearing loss and tinnitus, alleging that the company knew for years that the second version of its Combat Arms Earplugs had a tendency to come loose and let in more sound than specified. They claim that 3M didn't give the military adequate instructions on how to use the earplugs and that the technique to create a proper fit wasn't intuitive.
The Florida trial will include testimony from the three plaintiffs, as well as experts on hearing loss and sound testing. Many of their claims revolve around safety testing that the earplugs' creator, Aearo, conducted on the devices after they went to market in 1999. 3M bought Aearo in 2008.
The lawsuits allege that Aearo manipulated the fitting procedures to get a better rating on safety tests but then continued to sell the product with instructions that didn't reflect the proper way to seal the plugs into the ear tightly.
Mr. Brock, 3M's lawyer, said he will show that the veterans whose cases are being heard in Pensacola can't prove that they used the Combat Arms Earplugs for a significant period or that the plugs are the cause of their hearing problems.
"There is no job that you can have that exposes you to more noise than being in the military," Mr. Brock said in court.
The lawsuits began building in 2018, after 3M agreed to pay $9.1 million, without admitting to any liability, to settle allegations brought by the U.S. Justice Department that it failed to disclose deficiencies in the earplugs. The settlement followed a whistleblower complaint filed by an earplug competitor that received internal 3M documents in unrelated patent litigation.
Attorney advertising helped bring in plaintiffs. Since late 2018, about 106,000 television advertisements and 160,000 radio ads have aired nationwide soliciting 3M earplug users, according to the mass-tort intelligence firm X Ante, drawing on Kantar/CMAG data.
Nearly 230,000 earplug claims, including some from police and other nonmilitary plaintiffs, are in the multidistrict litigation overseen by U.S. District Judge M. Casey Rodgers. In securities filings, 3M cites a far lower number of plaintiffs, around 12,400, representing those in lawsuits that have been served on the company. The tens of thousands of others are filed on an administrative docket using a six-page form with a few basic details about each claim.
For Sgt. Butler, representing the fourth generation in his family to serve in the military, he hopes the litigation holds 3M accountable and proves that it made a product that caused permanent damage to American soldiers.
"I want them to own up to it," he said.
Write to Sara Randazzo at firstname.lastname@example.org
(END) Dow Jones Newswires