Trial Date Set in Dispute Over 3M Hearing Protection Devices

On Behalf of | Feb 22, 2021 | Injuries, Products Liability

In March 2020, a federal jury in Florida will hear opening arguments in a mass tort case which alleges that 3M knowingly furnished defective earplugs to servicemembers.

The initial trial is a bellwether trial which helps “help the parties and the court determine what the evidence is, what the facts show, and how to proceed following those trials,” explained a lawyer involved with the case. In plain English, if the victim wins the bellwether trial, related cases often settle, like a line of falling dominoes. Such an outcome is more possible, now that a federal judge has disallowed a key 3M defense. Nevertheless, so far, there have been no meaningful settlement talks.

In a statement, 3M’s lawyers said they were “confident in our case and look forward to defending against plaintiffs’ claims at the upcoming trial. As we will demonstrate, the Combat Arms Earplugs Version 2 product was not defectively designed and did not cause injuries.”

3M Earplugs and Proof Issues

In July 2018, 3M agreed to pay a $9.1 million fine to resolve allegations that it knowingly sold defective earplugs to the government. The key word here is “allegations.” 3M did not admit liability and characterized the resolution as a business decision. A few million dollars to 3M is like a few hundred dollars for regular people. If you could pay that sum and get out from under a big cloud, you would probably do it, whether you were guilty or not.

Furthermore, there is a slightly different burden of proof in False Claims Act (whistleblower) cases than there is in civil damages cases. In fact, there are two different burdens of proof in most defective product claims. A Lexington personal injury attorney must understand the subtle difference.

Victim/plaintiffs must establish liability by a preponderance of the evidence (more likely than not). As outlined below, manufacturers are strictly liable for the injuries their defective products cause. So, causation is typically the only issue in these situations.

The problem is that hearing loss is one of the most common chronic conditions in the United States. It’s very difficult to connect hearing loss with a specific cause. The good news is that the burden of proof is low. So, a little evidence goes a long way.

The aforementioned liability usually involves paying compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Additional punitive damages are also available in these claims. That’s where the different burden of proof applies. Victim/plaintiffs must present clear and convincing evidence that the defendant intentionally disregarded a known risk.

C&C is the burden of proof in most child custody cases. If the state wants to take children away from their parents, a mere preponderance of evidence is not enough.

Evidence in these matters usually includes internal reports which indicate that the defendant knew about the product’s issue yet did not correct it. There is ample such evidence regarding 3M earplugs, starting with the aforementioned FCA (False Claims Act) judgement.

Defective Product Claims

The CAEv2 earplugs had a design defect. 3M’s dual end earplugs had a very simple design. That’s part of the reason the DoD bought so many of them. They resemble two very small ice cream cones (the pointy kind) face to face. But instead of ice cream between the two sides, there is a small filter. This filter is designed to allow quiet sounds into the ear, like a conversation, and block louder sounds.

But the filter was a little bit too small. As a result, it did not only let in conversation-like noises. It did not effectively block louder noises.

Generally, companies do not address such design defects because of cost. They calculate that it would be cheaper to pay lawsuit settlements than to go back and start over from scratch.

Manufacturers are also strictly liable for manufacturing defects. Takata airbags are a good example. Beginning in the late 1980s, executives began using ammonium nitrate as a propellant. That’s basically the same chemical which was in the Oklahoma City truck bomb. As a result, the airbags exploded, causing serious injury.

Strict liability means that negligence or fault is irrelevant. Victims need only connect their injuries to the defective product.

The unforeseeable misuse doctrine is basically the only effective defense to strict liability claims. Company lawyers claim that the victims used the products incorrectly, and that incorrect use caused injury.

Emergency car jacks are a good example. These flimsy jacks are designed for emergency tire changes only. They are not designed for other purposes, such as jacking up a vehicle and working underneath it.

If such use injures a victim, the company will most likely claim that the misuse was unforeseeable. However, that’s a matter for jurors to determine.


Companies should not be able to sell cheap products which hurt people and get away with it. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters. #goodelawyers