3M earplugs. Courtesy photo

Lawyers are gearing up to file thousands of lawsuits on behalf of U.S. military members in a battle over allegedly defective earplugs that 3M sold for more than a decade.

So far, 3M faces more than 50 lawsuits by individual service members, primarily veterans, who allege its dual-ended Combat Arms Earplugs, used in both training and in combat, had a defective design that caused them hearing loss and ringing in the ears, called tinnitus. 3M was the exclusive supplier of earplugs to the U.S. military from 2003 to 2012. More than 800,000 former service members now suffer from hearing damage, according to the lawsuits.

“The number of potential plaintiffs will be massive,” said Mikal Watts of Watts Guerra in San Antonio, who filed a lawsuit Monday on behalf of a retired Army sergeant who now wears hearing aids. Watts predicted that several hundred thousand people could sue. “There were other products available that could have done the job, but 3M made a king's ransom perpetrating a massive fraud on the Department of Defense and hundreds of thousands of patriotic men and women who risked their lives.”

A spokeswoman for 3M, which agreed to pay $9.1 million last year to settle similar allegations by the U.S. Department of Justice, refused to comment on the lawsuits. “3M has great respect for the brave men and women who protect us around the world,” wrote Fanna Haile-Selassie in an email. “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.”

On Monday, Kim Branscome, a Los Angeles partner at Kirkland & Ellis, appeared before the U.S. Judicial Panel on Multidistrict Litigation to represent 3M in all the cases, filed in eight states including California, Georgia and Texas. Branscome obtained a defense verdict last year on behalf of Johnson & Johnson in a case alleging its talcum powder products caused a woman's mesothelioma. She also has represented General Motors in its ignition switch litigation and BP in lawsuits brought over the Deepwater Horizon oil spill.

Plaintiffs lawyers Rick Paul of Paul LLP of Kansas City, Missouri, and William Sieben of Minneapolis-based Schwebel, Goetz & Sieben moved last month to coordinate the 3M cases into multidistrict litigation in Minnesota. They filed a case Jan. 24 on behalf of a former Marine who now wears hearing aids. Other lawyers have pushed for Missouri or Louisiana; 3M's response is due Feb. 19.

The MDL panel has scheduled a hearing on the cases for its March 28 hearing in Washington, D.C.

3M discontinued the earplugs in 2015. One side of the earplugs, which was olive green, blocked all noise, while the other side, which was yellow, reduced loud noise but allowed service members to hear conversations and commands. The cases allege that Aearo Technologies, the original manufacturer, which 3M purchased in 2008 for $1.2 billion, knew as early as 2000 that the earplugs had a design defect that caused them to loosen, according to the lawsuits. Aearo allegedly used its own laboratory and employees for the testing, and, when the results failed to meet the standards required under federal noise regulations, came up with a quick fix that would help it obtain U.S. government contracts. Further, the suits allege, 3M failed to warn the U.S. military or its service members of the defect, or instruct them on how to use the quick fix for themselves.

The U.S. Department of Veterans Affairs now spends more than $1 billion a year treating hearing damage in service members, the suits say.

“These are people who served our country honorably in very dangerous conditions and are suffering life-changing injuries as a result of the company's misconduct,” said Travis Lenkner of Chicago's Keller Lenkner, who has filed nine lawsuits so far and has 1,000 clients. “And the nature and extent of the injuries bears that out.”

The suits, which seek punitive damages, mimic allegations in a whistleblower suit filed in 2016 against 3M by a competitor. 3M had sued the competitor, Moldex-Metric Inc., for patent infringement, but U.S. District Judge Joan Ericksen of the District of Minnesota dismissed the case. Moldex-Metric then sued 3M for malicious prosecution and brought the False Claims Act case, in which the DOJ intervened in 2018.

Under the DOJ's settlement agreement, which reimbursed the U.S. government and compensated Moldex-Metric, 3M did not admit liability. Plaintiffs lawyers were undeterred.

“These cases would be strong cases without the fact of the qui tam settlement,” Lenkner said. “The allegations are true, and we intend to prove them at trial, wherever and whenever given the opportunity. But the added fact of the government's act to join the whistleblower case, and 3M agreeing to settle immediately upon the government's intervention, are probative, even if the settlement itself did not contain an admission of liability.”