Thousands of veterans sue 3M, saying earplugs led to hearing loss

AUSTIN (KXAN) —  Thousands of veterans have filed lawsuits against the Minnesota-based company 3M, saying that the earplugs the company provided, which were supposed to protect their ears from loud combat-related noises, actually led to hearing problems. 

Many of these veterans filing suits live in Texas. KXAN counted 42 lawsuits filed in the past several days against 3M in the U.S. District Court for the Western District of Texas, Austin Division.  

Most of the veterans and active duty members filing suits say they've suffered hearing loss and tinnitus (ongoing ringing in their ears) because these earplugs — designed to reduce loud sounds like battlefield explosions —  did not adequately protect them. 

These lawsuits have been bubbling up all over the country ever since July 2018 when 3M agreed in a settlement to pay $9.1 million dollars to the U.S. government last fall after allegations that the company knowingly sold defective earplugs to the military. 3M did not admit liability in this case. 

This was during a federal whistleblower lawsuit which alleged that the testing of these earplugs was flawed. 

In that case, the government argued that the company knew their earplugs were too short and that they could loosen without being noticed. The government argued that as a result, the plugs didn't block out all sounds and led to hearing problems.   

"These 3M employees were aware of the defects as early as 2000, several years before 3M/Aearo became the exclusive provider of the earplugs to the military,"  reads one of the lawsuits against 3M filed in the Austin Division.

The parties who are now suing say 3M knew about the design problems in the earplugs but still supplied them to the military.

The earplugs were initially created by a company called Aearo Technologies. 3M acquired Aearo in 2008.  

As some of the sealed information in the federal suit against 3M has become public, veterans and attorneys around the country have filed their own cases.   

KXAN reached out to 3M about these lawsuits, they replied with the following statement:

"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."

What the attorneys are saying 

San Antonio-based attorney Mikal Watts said he represents 6,500 present and former members of the military around the country who say these Combat Arms earplugs didn't protect their ears.

"It's the tip of the iceberg, there's going to be over 100,000 plaintiffs, in this case, would be my guess," Watts said. 

"It's clearly fraudulent testing," he said of the testing 3M did of the earplugs before they were sold to the military. "It's sent our men and women into combat and training areas with extraordinarily damaging noise levels, they thought they were protected." 

Watts filed a motion Tuesday for the Joint Panel on Multidistrict Litigation asking them to consolidate all of the cases in the country in front of Judge Robert Pitman in the Austin Division of the Western District of Texas. 

Watts explained that the panel will decide during a hearing in Washington, D.C. on March 28 whether to consolidate all the cases and which judge will get all of those proceedings. 

"The Austin Division is right smack in the middle of some of the largest military bases in the United States, you have Fort Hood up the road in Killeen, you have Joint Base San Antonio Lackland, you have Fort Sam Houston in San Antonio, you have Laughlin Air Force Base in Del Rio, Goodfellow Air Force Base in San Angelo, and Fort Bliss out in El Paso, all of those are huge bases all in the middle of the Western District of Texas," Watts said. "So we think Austin is geographically central to this litigation nationwide."

"Texas has the most veterans since the start of the post-9/11 wars and that happens to be the time between 2003 and 2015 when our servicemen and women were wearing these 3M earplugs, so there's more of them in Texas than any state in the U.S." he said. 

Watts says there have been hundreds of cases filed in the western district of Texas and an "ever increasing" number of them filed in Austin. 

  Houston attorney Muhammad Aziz has filed 33 of these cases in the Austin Division and more than 100 in the Waco Division.  "I decided to get involved in the case because I feel pretty strongly about it and feel pretty strongly about 3M's misconduct."

Aziz explained that the allegations about these earplugs have caused a big discussion in military communities. "None of them knew up until this year and are now finding out that there could be someone responsible for these issues and tinnitus." 

Aziz has also just filed a motion asking for all the consolidated suits against 3M to be heard by a judge in either Waco or Austin. 

He noted that there are many veterans who've been at Fort Hood who have experienced hearing problems due to training exercises there. 

"I think this is going to play out for many years to come," Aziz said, describing the number of veterans impacted as "staggering."

In his view, the more than $9 million dollars 3M has been asked to pay isn't enough. 

"$9 million dollars for this case is nothing," he said. Aziz said that money goes toward refunding the government contract for the earplugs. Each veteran who is suing is owed much more in compensation.for their past and future impairment, he believes.  

Houston attorney Rusty Hardin has also filed eight of these cases, all of them in the Austin Division because he believes it's likely that all the cases nationally will be consolidated there. (And yes, he's that Rusty Hardin, the one who has represented Roger Clemens, Victoria Osteen, the estate of J. Howard Marshall against his widow, Anna Nicole Smith).

Hardin said the stakes of this case are personal.

"I spent 5 years in the Army back in Vietnam and actually had a hearing loss while I was there, not because of the hearing aids, but because of gunfire that we didn't have hearing aids for," he said. "This is an instrument that's incredibly significant to people in the military."

"These are men and women that are making a sacrifice for their country and when somebody sells them a product that they know is defective that causes these kinds of problems, it's something that deserves to be compensated for and called out," he said. 

Hardin said he started looking into this because one of these veterans contacted his law office. He believes that carrying out lawsuits to represent all these veterans will take a while. 

"I do feel like ultimately, at the end of the day we're going to succeed in getting the right compensation for these folks, but yeah it will take a while, but it's something that definitely needs to be done, regardless of how long it takes."

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