PHILADELPHIA – A federal judge has transferred numerous lawsuits from U.S. military veterans who claimed 3M’s Combat-Arms Earplugs were the cause of their hearing damage and deafness to a Florida federal court.
Per an initial stipulation and order from U.S. District Court Judge Berle M. Schiller issued on April 2, proceedings in the cases would be stayed pending the formation of a multi-district litigation and transfer to a court associated with it for judicial economy.
“The parties hereby stipulate and agree that further proceedings in this matter, including, without limitation, 3M’s obligation to answer or otherwise respond to plaintiffs’ complaint, be stayed pending the Judicial Panel on Multidistrict Litigation’s decision regarding whether this matter will be transferred to an MDL,” Schiller said.
Less than two weeks later, on April 15, a conditional transfer order from the JPML decreed that the dozen actions on the order involved “questions of fact that are common to the [eight] actions previously transferred to the U.S. District Court for the Northern District of Florida” on April 3.
Minnesota-based 3M finds itself the target of litigation from U.S. military veterans nationwide who claim the company’s Combat-Arms Earplugs, worn by troops from 2003-2015, were the proximate cause of hearing damage and deafness to countless military service members.
According to the numerous lawsuits filed against 3M, the earplugs were not safe for use by their military wearers, and allowed loud sounds to penetrate their ears without warning, causing permanent hearing loss, deafness, tinnitus and loss of balance to their users.
The lawsuits claim the earplugs failed because they possessed “a dangerous design defect that caused them to imperceptibly loosen in the wearer’s ear, thus allowing damaging sounds to enter the ear canal around the outside of the earplug.”
Last year, 3M paid $9.1 million to settle a whistleblower fraud claim brought against it by the U.S. government under the False Claims Act, to show the company sold its earplugs to the Defense Logistics Agency, knowing full well they were defective. However, all claims contained in that settlement pertained to allegations only and not to actual liability.
3M allegedly knew about the earplugs’ defects dating back to 2000, but was said to have falsified certification documents approving them for military use nonetheless.
In 2006, the U.S. government contracted with 3M for the latter to provide about 15,000 earplug packages per year, containing 50 pairs per package, for an annual sale price totaling $9 million. The earplugs were sold until 2015, when they were discontinued, but the defective earplugs were never recalled and thus may still be in use in the field.
Six lawsuits, all filed in federal court in Philadelphia on Feb. 22 on behalf of active-duty and retired military service members, seek compensation, punitive damages and other costs from 3M.
• U.S. Army Captain William Anderegg, still on active duty. Before enlisting in the Army, he served for eight years in the U.S. Air Force. A veteran of several combat deployments to Iraq and Afghanistan, Capt. Anderegg suffers from hearing impairment in both ears. Capt. Anderegg was exposed to live fire and heavy artillery, rockets and munitions training.
• U.S. Army 2nd Lieutenant (Ret.) Christopher Baca, who served for eight years, in both Iraq and Qatar. Lt. Baca has hearing loss in one ear and tinnitus in both ears.
• U.S. Air Force Technical Sergeant (Ret.) Peter Cordrey served four tours in Afghanistan during a two-decade career of military service. Sgt. Cordrey currently has partial hearing loss in both ears and has been diagnosed with tinnitus in both ears.
• U.S. Army Specialist (Ret.) Michelle Farren served for four years from 2009-2013, including combat tours in Iraq where she supported field troops conducting interrogations. From using 3M’s earplugs, Spc. Farren suffers from tinnitus in both ears.
• U.S. Army Captain David Henderson, is a West Point graduate and active duty reservist, and has been deployed to Korea, Iraq, and Afghanistan. Capt. Henderson has sustained significant hearing loss in one ear and tinnitus in both ears.
• U.S. Army Private First Class Joseph Robert Junk enlisted out of high school in 2008 and served in an artillery division in Afghanistan, prior to his honorable discharge in 2011. Pfc. Junk has been diagnosed with tinnitus in both ears and hearing loss in his left ear.
Andrew R. Duffy of Saltz Mongeluzzi Barrett & Bendesky, helping to represent the Philadelphia plaintiffs and himself a former U.S. Navy officer, said, “Every one of these plaintiffs, who had no prior hearing impairment before their deployments, put their life on the line for our country, and the ‘reward’ for their service is hearing loss because of 3M’s defective earplugs.”
In the U.S. District Court for the Western District of Texas, hundreds of defective earplug lawsuits have been filed against 3M since the beginning of the year, predominantly by a pair of Houston firms: Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz and Bell, Rose & Cobos.
3M issued a statement in regards to the earplug lawsuits filed against it by various military members:
“3M has great respect for the brave men and women who protect us around the world. We have a long history of serving the U.S. military, and we continue to sell products, including safety products, to help our troops and support their missions. We are not commenting on specific litigation matters at this time,” the company said.
For counts of strict liability, failure to warn, negligence and fraudulent misrepresentation, the lawsuits seek compensatory and punitive damages, plus attorney’s fees, costs of suit, lawful interest and all other claims available by law.
U.S. District Court for the Eastern District of Pennsylvania cases 2:19-cv-00768-2:19-cv-00773
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at firstname.lastname@example.org