I know the first thought many veterans have when they see a post or advertisement related to the 3M “earplug lawsuit” is something along the lines of “great, another lawyer trying to get rich off my service and sacrifice.” As a veteran myself, having been issued these same earplugs on numerous deployments and later diagnosed with Tinnitus and hearing loss, I understand those feelings. However, I hope you consider reading this post in its entirety, learning some of the facts of the lawsuit, and that it helps you dispel many myths surrounding the case. If, in the end, you wish to join me in the pursuit of holding 3M accountable, please reach out for a free consultation.
~Attorney Brent Eisberner, Major USMCR
From 2003 until 2015, 3M Company, a Minnesota-based conglomerate, sold its dual-ended Combat Arms Earplugs, Version 2, to the Defense Logistics Agency for the U.S. military to use. 3M designed these earplugs to block out loud noises associated with combat and testing on bases, while continuing to allow soldiers to communicate with one another. Per its contract with the Department of Defense, 3M provided the U.S. military with nearly 750,000 sets of these earplugs every year. However, some of these earplugs were faulty. In 2018, a whistleblower stepped forward to warn service members of the design flaws, and the U.S. Department of Justice stepped in to investigate.
After its investigation, the U.S. government alleged that 3M and its predecessor, Aearo Technologies, knew and failed to disclose that the earplugs were actually too short for proper insertion into the user’s ears. After time, the earplugs could gradually and subtly loosen until they no longer provided protection against loud noises.
These allegations were brought under the whistleblower provisions of the False Claims Act, which allows private parties to sue on behalf of the government. During settlement negotiations, 3M agreed to pay $9.1 million to resolve those allegations, and the whistleblower was paid $1,911,000.00, according to the Department of Justice. The settlement with 3M, however, did not include any admissions of liability or guilt, nor did any of the settlement money actually go to the former service members who wore the earplugs and suffered hearing loss or other complications like tinnitus.
Currently, there is a great deal of misconception revolving around this case. As this case has grown in notoriety, so have social media posts and ads, not all of which are 100 percent accurate. Below are the three most common misconceptions that have arisen due to the misinformation these posts and ads have circulated.
The first misconception regarding this case is that the $9.1 million will be distributed among the injured military members. The settlement that 3M entered into was with the United States, not individual service members. Current litigation against 3M may involve individual veterans and active members, but those suits do not involve dividing up the $9.1 million.
Another common misconception is that the money was paid out via a class action lawsuit. The current litigation is actually known as a multi-district litigation (MDL). MDLs are similar to class actions, but they differ in some major ways. Most importantly, in an MDL, there are many plaintiffs with their own individual suit that are all consolidated into one suit for pre-trial convenience and may be sent back to the smaller courts where they came from for the actual trial. A class action, on the other hand, involves a single lawsuit filed by a large group of people that generally involves only one trial for all of the plaintiffs.
Finally, there is another misconception that if you earn money from a settlement, you will lose your VA disability benefits. This is not true. If you are a veteran receiving disability benefits for hearing loss or tinnitus, a personal injury settlement will not affect those benefits in any way. Disability benefits are allotted for injuries and are not based on income or financial need, so a lump sum of cash from a settlement offer will not impact the money you receive from your disability benefits.
In any event, if you used Combat Arms Earplugs in the military sometime between 2003 and 2015 and have been diagnosed with hearing loss or tinnitus, you could be eligible for benefits. Two of our attorneys at Levine Lyon & Eisberner LLC are veterans and would be more than happy to offer a free consultation. Call us now at 1-888-367-8198.
Photo Courtesy of Brent Eisberner