Shouldn’t Protecting Our Soldiers Be an Absolute? 3M Apparently Thought Giving Second Rate Hearing Protection Was Enough — It Should Not Be

Searcy Denney Scarola Barnhart & Shipley
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Searcy Denney Scarola Barnhart & Shipley

Honor and Protect Our Soldiers

Tales of corporate wrongdoing have pervaded society for decades. Take the Takata airbag scandal, in which a Japanese manufacturer of the automobile-safety device churned out tens of millions of defective ones that, at latest count, have killed over two dozen motorists and injured hundreds of others. Take the Volkswagen scandal, in which the German icon schemed its way around emissions regulations by installing software that faked the levels of toxins its engines were releasing into the air. Take Big Pharma, the daunting moniker given to the titans of the prescription-drug and medical-equipment trade whose products have done immeasurable harm to consumers. It seems it is more important in the minds of those in the CEOs’ seats to save a buck instead of a life.

“Public perceptions of crime are no longer exclusively dominated by images of an urban underclass and so-called ‘street crime,’ but increasingly involve the illegal activities of corporate executives and managers,” according to a white paper on ResearchGate titled “Corporate Wrongdoing and the Limits of the Criminal Law.” “This wave of corporate scandals has prompted policymakers around the world into a systematic reevaluation of regulatory strategies that, in many cases, has resulted in a significantly expanded role for the criminal law in regulating the organization, financing, and activities of corporations.”

The bad behavior has reached a new low. This time, the victims are members of the military, the heroic men and women protecting the freedom and rights of all who live in the United States. The culprit: 3M™ Combat Arms™ Dual Ended Earplugs, Version 2. Information about the earplugs no longer appears on the 3M Web site, but a page featuring the 3M™ Combat Arms™ Single Tip Corded Earplugs describes them thusly: “3M™ Combat Arms™ Earplugs (CAE) meet the demanding hearing protection needs of the armed forces. In the Open / Weapons Fire mode, CAE allows greater situational awareness than a common foam earplug yet helps attenuate dangerous peak levels with a filter element that reacts quickly to provide increased protection. In the Closed / Constant Protection mode, CAE protects against high-level steady noises like those in tracked vehicles and air transport. The corded version of the Combat Arms utilizes a new finger-touch rocker cover that can be operated while the earplug is in the ear.”

The Web site lies. Hearing loss, loss of balance and tinnitus have plagued those who have used the 3M earplugs because of an undisclosed defect – the product was too small for the ear canal and gradually would loosen and slip out, leaving wearers at risk.

“It is an absolute disgrace that 3M would purposefully provide defective equipment to U.S. service members, knowing that those service members would rely on that defective equipment in combat,” attorney Andrew Cobos told MilitaryTimes.com in an article titled “Hundreds of vets are suing over these defective combat earplugs.” “Their fraud resulted in lifelong injuries to America’s warriors. 3M’s actions cannot, and should not, be tolerated.”

In 2018, 3M agreed to a $9.1 million settlement in response to a qui tam, or whistleblower, lawsuit, as outlined in the False Claims Act. The whistleblower, in this case was a competitor, filed the case on behalf of the federal government.

“This settlement demonstrates the commitment of the Defense Criminal Investigative Service and our law enforcement partners to hold companies accountable for supplying substandard products, in particular products that could directly impact our service members’ health and welfare,” DCIS Special Agent in Charge Robert Craig Jr. said in a press release. “DCIS protects the integrity of Defense Department programs by rooting out fraud, waste, and abuse that negatively affect the wellbeing of our troops.”

Since then, lawsuits brought by veterans in states including Maryland, Missouri, North Carolina and Texas continue to mount, as plaintiffs seek justice against the Minnesota-based corporation. The cases could be consolidated by the United States Judicial Panel on Multidistrict Litigation.

“To transfer a case, the Judicial Panel on Multidistrict Litigation must determine that the transfer will (1) be for the convenience of parties and witnesses; and (2) promote the just and efficient conduct of the related lawsuits,” Searcy Denney Scarola Barnhart & Shipley attorney Katherine Kiziah writes in a blog titled “3M Combat Arms™ Earplugs: Lawsuits Filed By Individual Service Members May Be Headed for Consolidation.” “If the Judicial Panel determines a case should be centralized, they will also determine at the hearing which judge will handle the centralized proceedings. General opinion is in favor of consolidation, given the similarity of all of the claims asserted and the number of claims filed – as well as the scores of lawsuits expected to be filed in the future. The real question may be which judge is appointed to oversee centralization – suggestions have included judges in the District of Minnesota (where 3M headquarters is located), the Eastern District of Louisiana, and the Western District of Missouri.”

A hearing is set for March 28, 2019.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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