Princeton, NJ (April 29, 2019) — When the Judicial Panel on Multidistrict Litigation (JPML) met on March 28, 2019, to consider consolidation of the claims in the 3M Combat Arms™ Earplugs (CAEv2) lawsuits, the prevailing thought among attorneys and other legal experts was that the JPML would establish a multidistrict litigation for the increasing number of cases nationwide against Minnesota-based 3M Company®.; however, the question of where the cases would be sent was an open question. The Panel recently announced the cases will be sent to the Northern District of Florida before Judge M. Casey Rodgers.
“It’s not surprising that the JPML consolidated these cases. It’s a complex case with thousands of potential claimants, exactly the situation where coordination makes sense,” said Deb Zonies, VP of Mass Tort Services and GC at Verus LLC, a litigation support service firm.
3M’s Combat Arms Earplugs (CAEv2) were issued to military service members from 2003 to 2015 for use both domestically and during deployment, including to combat zones in Iraq and Afghanistan. CAEv2 were the only dual-sided earplugs in use by the military, with one side said to allow low-level sounds such as commands to be heard and the other side intended to offer more complete hearing protection. To date, thousands of veterans have filed lawsuits against 3M claiming the earplugs were defective and led to their noise-induced hearing loss and/or tinnitus (ringing in the ears).
“Lawyers estimate that there may actually be hundreds of thousands of veterans with CAEv2 claims. The cases filed to date may just be the tip of a very large iceberg,” noted Zonies.
According to the Veterans Administration, hearing loss is one of the most prevalent disabilities among veterans. Further, allegations made in a qui tam suit brought in 2016 by a 3M competitor, Moldex, and that was joined by the U.S. government under the False Claims Act, are also likely to impact the latest lawsuits. In the Moldex case, documents allege that 3M employees knew about the earplug defects as early as 2000.
The qui tam suit (United States ex rel. Moldex-Metric v. 3M Company, Case No. 3:16-cv-1533-MBS (D.S.C.) was settled in July 2018, with 3M agreeing to pay $9.1 million to resolve allegations that it knowingly sold its earplugs to the military without disclosing defects that decreased hearing protection.
3M and Moldex have a history of litigation between them: 3M had filed patent litigation in 2012 to block Moldex from selling its earplugs to the military (3M Co. v. Moldex-Metric, Inc., Civil No. 12-611 (D. Minn, 2012); Moldex then filed an antitrust suit in 2015 (Moldex Metric, Inc. v. 3M Company et al, No. 0:2014cv01821 – Document 62 (D. Minn. 2015) which 3M settled. Moldex then brought the qui tam suit.
“What was disclosed and what transpired during these prior litigations will be of great interest in the current matter,” noted Zonies.
“The primary defense currently being discussed by legal experts is government contractor immunity, based on Boyle v. United Technologies Corp., 1988,” she said. “This would require 3M to demonstrate that its earplugs met all three parts of an intensely factual test, generally proving that 1) the U.S. government approved reasonably precise specifications; 2) the equipment provided conformed to said specifications, and 3) the manufacturer gave adequate warning about any issues.
Verus Offers Guidance to Law Firms Working on CAEv2 Cases
As a litigation support service firm, Verus offers the following guidance to attorneys working on CAEv2 cases:
Speak with each veteran to understand the details of their military service and, importantly, the impact the hearing loss and/or tinnitus is having on their lives. As you move forward, ask your clients:
- If they still have their CAEv2, and if so, act to preserve them
- For photos showing them wearing the CAEv2
- What base(s) they served on when they were using the CAEv2
- For detailed information about any IED or ERP exposure
- For a copy of their DD Form 214
“One of the challenges plaintiffs’ attorneys will have is determining damages since the claimants in this litigation are so much younger than those in typical hearing loss cases. The lifetime impact of hearing loss and/or tinnitus is obviously much more significant for someone in their 30s than it is for the typical hearing loss plaintiff who may be in his 70s,” Zonies said.
About Verus, LLC
Headquartered in Princeton, NJ, Verus LLC is a litigation support service firm that provides a full suite of services, including Case Management & Medical Review Services, Settlement Administration, Business & Advisory Services, Analytics and Document Management Services, to mass tort lawyers. Before founding Verus in 2003, the firm’s principals helped design some of the first-ever mass tort settlements and in the process, administered more than 450,000 asbestos personal injury claims and disbursed more than $6 billion in settlement funds and expenses. Since 2003, Verus has administered over five million personal injury claims and disbursed billions more in settlement funds. Today, Verus is fully engaged in providing litigation support services to law firms working on mass torts. The experts who work at Verus have years of experience in handling cases involving defective medical devices including IVC filters, hernia mesh and transvaginal mesh, and dangerous drugs, including Invokana, Taxotere, PPIs, Xarelto, Benicar and Zofran.
Verus employs almost 100 U.S.-based attorneys, nurses, accountants, statisticians and claims adjusters, operations experts, and hardware and software engineers to help mass tort attorneys improve operating results and maximize recoveries for their clients. For more information, visit www.verusllc.com or contact them at firstname.lastname@example.org.