A 3M subsidiary claims that U.S. Defense Department records show that over 175,00 military members who allege the Maplewood-based company's earplugs were defective have normal hearing under key medical standards.
The filing this week in U.S. Bankruptcy Court is the latest turn in the legal war between 3M and over 200,000 veterans and current service members over 3M's Combat Arms CAEv2, which were once standard military issue.
Plaintiffs claim the earplugs were defective, causing them hearing loss and tinnitus. 3M claims the earplugs were safe.
3M put its Aearo Technologies subsidiary, where the earplug product originated, into Chapter 11 bankruptcy protection as one effort to resolve Combat Arms claims.
Aearo, in a filing this week, said an analysis of Defense Department audiometric data shows the "vast majority" of earplug plaintiffs did not suffer hearing loss under the standards of the American Medical Association (AMA) and the World Health Organization (WHO).
Aearo claims that under AMA criteria, almost 90% of plaintiffs have no hearing impairment; under WHO standards, more than 85% of plaintiffs have normal hearing. Nearly one-quarter of plaintiffs whose hearing is impaired under AMA or WHO standards had those conditions before using 3M earplugs, the company added.
"These data reinforce the need for parties to work together to reach a reasonable resolution, based in data and scientific evidence, that does right by veterans entitled to compensation and puts an end to this litigation," Charles Mullin, a claims valuation expert working for Aearo, said in a 3M news statement.
Plaintiffs' attorneys pilloried Aearo's analysis, calling it a "sleight of hand."
The defense data demonstrates that approximately 85% of plaintiffs suffer from hearing loss or tinnitus, lead plaintiffs' attorneys Bryan Aylstock and Chris Seeger said in a news statement.
"This [Aearo] filing is yet another illustration of the bad faith exhibited by 3M," they said. "There is simply no route for 3M to resolve this litigation if it continues to take the offensive and impractical position that 90 percent of servicemembers and veterans are liars with worthless claims."
In one of the largest U.S. mass torts, 3M faces over 200,000 lawsuits in U.S. District Court in northern Florida. Over the past two years, military plaintiffs won 10 of 16 earplug bellwether trials in Florida and juries awarded them nearly $300 million.
3M could face billions of dollars in liabilities for the remaining earplug suits.
After the District Court trials, 3M placed the Aearo subsidiary in Chapter 11 protection in the U.S. Bankruptcy Court in Indiana. Aearo also is named as a defendant in the earplug suits against 3M.
Aearo asked the Bankruptcy Court to extend the litigation freeze — or "automatic stay" that is general practice during a bankruptcy — to 3M itself, a controversial move aimed at taking away earplug litigation jurisdiction from the Florida federal court. Bankruptcy Judge Jeffrey Graham denied 3M's request.
3M has appealed Graham's decision, while plaintiffs have asked Graham to dismiss the Aearo bankruptcy. Decisions on both requests are pending.
