In 2018, 3M settled a lawsuit brought against it on behalf of the United States Government under the False Claims Act for $9.1 million. The company was facing claims that it fraudulently billed the federal government for defective earplugs that it provided for use in combat. This amount was paid to the federal government as opposed to the service members who were damaged by the earplugs that failed to work. Below is more information that you need to know about the earplugs and the legal process that has unfolded in the wake of revelations that these earplugs are allegedly defective. If you are interested in filing a military earplug lawsuit contact us.
Combat arms lawsuit
Update – August 2023
As of August 2023 , nearly all 3M earplug lawsuits have not been settled. There have been 16 “bellwether” lawsuits which have gone to jury trials in a three year span. The ear plug verdicts have been unequally divided between the manufacturer and the injured and aggrieved victims. There have been 10 Jury verdict wins for the victims. The manufacturer has won 6 bellwether trials.
3M has won enough jury trials to justify, in their mind, not reaching a global ear plug settlement.
The Qui Tam Lawsuit a precursor to the military earplug lawsuits
The False Claims Act provides relief for taxpayers in the event that the government is overcharged or fraudulently billed in any way. This statute applies in a wide variety of situations from requests for reimbursement filed pursuant to Medicare to any goods or services that are sold to the federal government. This law dates back to the time of the Civil War, when profiteering and outright fraud resulted in large damages to the federal government. The False Claims Act provides that those who defraud the federal government may pay as much as three times the damages that are caused to the government. This is meant to deter those that would attempt to defraud the government and can be a large potential source of liability for government contractors.
3M Military Earplug lawsuit
Much of the damages that have been collected by the government have actually not been the results of lawsuits that have been brought by the federal government. Instead, these suits are filed by whistleblowers acting as “private attorney generals.” Their incentive to bring these legal actions is that they receive 15 to 25 percent of the money recovered if the lawsuit is successful. The government has the option to take over the lawsuit after it has been filed. If it does not elect to do so, the whistleblower prosecutes the lawsuit to its conclusion. This is known as a qui tam lawsuit, and the policy is these types of actions are actually encouraged since they are a net positive for society.
Who Filed the Qui Tam Lawsuit?
In this event, the lawsuit was filed by a company named Moldex-Metric. There are very few restrictions on who can be a whistleblower under the False Claims Act. Here, the whistleblower was a competitor of 3M in the earplugs space. The two companies have a long history of being litigious and bitter competitors. 3M purchased the company that was the original designer and manufacturer of these earplugs in 2008 and assumed the possible liabilities when it did so. The two companies have fought patent and antitrust lawsuits. Moldex-Metric had knowledge that these earplugs were defective in the manner that will be described below. In addition, Moldex-Metric alleged that 3M knew of this defect and went out of its way to conceal it. According to the qui tam lawsuit, 3M’s own tests revealed that these earplugs were defective, yet the company falsified the required certifications that stated that the product complied with military standards. The lawsuit further alleged that 3M knew that these products were defective six years before it even sold a pair of earplugs to the military.
Competitor pursues earplug lawsuit
In effect, Moldex-Metric was bringing a product liability lawsuit against 3M on behalf of the Defense Logistics Agency. Moldex-Metric had a motivation to gain the upper hand against its competitors by demonstrating the public that 3M’s product was defective. Selling earplugs to the government is a lucrative market given the number of soldiers that must be outfitted with these implements. Conceivably, if 3M was found to have defrauded the federal government, than Moldex-Metric would stand a much better chance of receiving future business from the federal government since the government would be less likely to purchase 3M’s products. In this case, however, 3M stopped manufacturing these specific earplugs in 2015. ‘
Military earplug settlement
Moldex-Metric had filed this lawsuit in May 2016 on behalf of the Defense Logistics Agency, who purchased the earplugs for the federal government. DLA is often the Department of Defense agency that purchases products for use by the entire Defense Department. The federal government took over the conduct of the lawsuit. Eventually, the Department of Justice elected to enter into a settlement with 3M. In the settlement, 3M agreed to pay $9.1 million to the United States Government. The court stated that half of the suit was restitution and the other half was punitive damages. The federal government has unlimited discretion to settle a lawsuit, and it is continually weighing its chances of success in the lawsuit against the amount that it can recover. Many times, the government will settle for less than the full amount of damages in order to avoid a lengthy and resource-draining trial.
Where Does the Qui Tam Settlement Money Go?
The bulk of the settlement was received by the federal government. The settlement specified the percentage of the settlement that the whistleblower was to receive. In this instance, Moldex-Metric was awarded $1.9 million for filing the lawsuit. In addition, $645,000 was paid to relator’s counsel for their legal fees and expenses. After the whistleblower and their attorney was paid, the balance of the settlement went to the federal government. Generally, these monies are deposited into the agency’s settlement fund. In some instances, the monies are deposited with the United States Treasury. This money is meant to compensate the taxpayer for the fraud perpetrated on the general public and is not distributed to the individual veterans who may have been harmed. Service members who have been impacted by the purportedly defective product must both file for veterans benefits as well as wage their own legal battle against the manufacturer of these earplugs.
Why Are These Earplugs Alleged to Be Defective?
The specific defect that is alleged with these earplugs relate to them not being the proper size. The problem is that these earplugs have been claimed to be too short on both ends of the earplugs. The inadequate size means that they are prone to move in the ear canal. When that happens, the earplugs provide less protection than they would if they had remained in place since they cannot provide the tight seal that is necessary to preserve the user’s hearing. The earplugs need to be in the ear canal in order to provide the protection that soldiers need.
Veterans who suffer from tinnitus
When these earplugs have moved, service members have suffered various side effects that have impacted their hearing. Some veterans have experienced hearing loss that has ranged from partial to severe. Other service members have been diagnosed with a condition called tinnitus, which will be described below. In fact, hearing problems are the most common disability for veterans to have and costs the United States Government billions of dollars in disability payments and care expenses for those who have these conditions. There are nearly 1.3 million veterans who suffer from tinnitus and another 1.1 million who have some form of hearing loss. Of course, not all of these veterans have experienced damage to their hearing from defective earplugs, but this issue certainly has served to increase the number of veterans who have suffered this damage.
What is tinnitus?
Tinnitus is otherwise known as ringing in the ears. It can be caused by either a sudden loud blast or prolonged exposure to loud noises. These are the most common causes of tinnitus, although there may be other factors that are responsible for it. The truth of the matter is that, in a deployment environment, there could be a variety of things besides loud noises that can impact a servicemember’s well-being to the point where they experience tinnitus.
Tinnitus is an uncomfortable and difficult sensation that can cause serious ongoing psychological and health issues. Many people suffer from this condition, but more severe cases can be extremely debilitating. Tinnitus may be associated with hearing loss, but one can suffer from this condition and have their hearing remain perfectly intact. Often, tinnitus is the first sign that one is experiencing hearing loss.
Veterans who file claims for tinnitus
Among veterans, the number of reported cases of tinnitus has skyrocketed as the United States has fought two wars this century. Military.com states that over 150,000 veterans were diagnosed with the condition just in 2015 and the number grows each year. The American Tinnitus Association reports that the number of veterans who file claims for tinnitus increases by 15 percent each year, but the rate of growth may eventually slow as foreign wars wind down and fewer service members are deployed. The Veterans Administration keeps over 1,000 audiologists on staff at various locations across the country to help treat these disabled service members.
Tinnitus can be treated with many different types of therapies. There currently is no cure for this condition, but much research is being done towards that end. Some treatments currently in use focus on attempting to get the brain to stop sending the signal to the brain. One possible treatment that is being tested is a nerve implant that can send a signal to retrain the brain since tinnitus is partly a neurological condition. However, this treatment, if approved and effective, would be expensive given that it would require an invasive procedure.
How Defective Earplugs Can Cause Tinnitus
Defective earplugs can cause tinnitus by failing to protect the servicemember from loud sounds to which they may be exposed. While tinnitus is usually caused by prolonged exposure to these sounds, all it can take is one loud noise to permanently cause the condition. When soldiers are deployed, the loud noise would generally come from some sort of explosion. Earplugs need to be completely in the proper position to provide the maximum possible protection for a soldier. Earplugs that have shifted are ineffective and fail to provide the proper amount of protection. When earplugs are not long enough on either end, they stand a larger chance of shifting out of place.
Product Liability Lawsuits Against 3M
In addition to the qui tam lawsuit that 3M settled, there have been numerous other private lawsuits that have been filed against 3M. Given the sheer number of veterans who were given these combat earplugs to use while deployed, the volume of claims against 3M could be staggering by the time this litigation reaches its conclusion. While 3M was not required to admit liability for the defective earplugs as part of the terms of its settlement with the federal government, the company is likely facing a large amount of liability should it be found to be legally responsible for the condition that the veterans have suffered. This liability would far outweigh the amount of profits that 3M has realized from the sale of these earplugs.
There is the potential for tens of thousands of veterans to file suits against 3M for the defective earplugs. 3M’s contract with the federal government called for it to provide approximately 750,000 pairs of these earplugs annually, and the company supplied these earplugs from the time it was awarded the contract in 2006 through the time that it discontinued the product in 2015. Hundreds of suits have already been filed in many different federal court districts. Given the publicity that the possible product defects received from the qui tam settlement, this is likely only the start of the lawsuits as numerous investigations are underway. There is a hearing of the Judicial Panel for Multidistrict Litigation in March 2019 which will determine whether all of the suits that have been filed will be consolidated for purposes of pre-trial and discovery matters. There is a difference between multidistrict litigation and a class action suit insofar as a class-action suit consolidates all of the claims in one single legal proceeding for the duration of the claim. Multidistrict litigation is often the process that is used when there are thousands of lawsuits filed across different states.
Who Can File a military earplug lawsuit Against 3M
Any veteran who has been given these earplugs and has suffered some sort of hearing damage is eligible to file a Combat arms earplug lawsuit in court provided that the lawsuit is brought within the applicable statute of limitations. In order to prevail at trial, a plaintiff using a RI product liability lawyer would have to show that the earplugs were defective and that the hearing damage was caused, at least in part by the defective earplugs. It is unclear at this point how much veterans may receive if it is proven that these earplugs were defective, or if 3M settles these lawsuits. While 3M is contesting liability at this point, 3M may seek to enter into a global settlement of these claims and establish a settlement fund at some point. Many of these suits are seeking punitive damages beyond the usual claims for lost wages, pain and suffering and medical expenses. If a jury finds 3M liable and decides to assess punitive damages against 3M, the amount of recovery may skyrocket. If you are seeking a hair relaxer lawyer, ozempic lawsuit or a mesothelioma class action attorney, contact us.