Products Liability Law Reporter

3M Co. supplied dual-ended Combat Arms Earplugs to the U.S. military. Thousands of service members used the earplugs from 2003 to 2015 for hearing protection from close-range firearms and other loud noises. Service members and combat veterans have reported permanent hearing damage, hearing loss, and tinnitus after using the earplugs.

Plaintiffs in multidistrict litigation alleged the earplugs were defectively designed in that they could loosen slightly during use and move out of a wearer’s ear canal, allowing loud sounds to penetrate and cause hearing damage. In the first bellwether trial in the matter, three former service members who suffered hearing-related injuries—Luke Estes, Lewis Keefer, and Stephen Hacker—alleged that 3M and others were liable for strict liability design defect and failure to warn, negligent design and failure to warn, negligence per se, fraudulent misrepresentation and concealment, and breach of express and implied warranty.

The plaintiffs—who claimed damages for medical expenses, lost earnings, and pain and suffering—asserted that 3M had known of the defect but knowingly sold the product to the U.S. military.

The jury awarded more than $2.4 million to Estes; more than $2.4 million to Keefer, and over $2.2 million to Hacker. Each plaintiff was awarded $2.1 million in punitive damages.

Citation: In re:3M Combat Arms Earplug Prods. Liab. Litig., Nos. 3:19-md-2885, 7:20cv137-MCR-GRJ (N.D. Fla. Apr. 30, 2021).

Plaintiff counsel: AAJ members Bryan F. Aylstock, Neil D. Overholtz, Jennifer M. Hoekstra, Brian H. Barr, and W. Troy Bouk, all of Pensacola, Fla.; Thomas W. Pirtle and AAJ member Katherine Cornell, both of Houston; and AAJ member Thomas P. Cartmell, Kansas City, Mo.