3M Combat Earplug Judge Blocks Bid to Shift Blame to Aearo Unit

3M Co. has full potential liability, independent of its subsidiary Aearo Technologies LLC, for service members’ hearing-loss injuries blamed on allegedly ineffective combat earplugs, and may not attempt to pin any portion of blame on Aearo, a federal judge overseeing 230,000 cases said Thursday.

3M engaged in “brazen abuse of the litigation process,” Judge M. Casey Rodgers said in imposing the sanction of preventing future efforts by the company to contest its own liability as a successor to Aearo. The subsidiary and related companies are in bankruptcy proceedings.

The multidistrict litigation will mostly be paused if 3M asks for an immediate appeal, Rodgers said.

The service members allege their use of Aearo Combat Arms version 2 earplugs in noisy military environments led to hearing loss and tinnitus.

After “losing its attempt to piggyback onto Aearo’s bankruptcy protection, the company returned to the MDL and sought to rewrite the history of the CAEv2, its relationship with Aearo, and the litigation by asserting for the first time that it has neither independent nor successor liability for any alleged CAEv2-related injuries,” Rodgers said.

But that was after “nearly four years of affirmatively asserting, advocating, and wielding—to the detriment of Plaintiffs—the precise opposite position in the MDL,” she said. For example, she said, it got punitive damages reduced in one case on the basis that the six defendants were really only one party.

The service members raised the successor liability issue “from the very start of the litigation—both verbally and in the pleadings—but were met with repeated assurances that 3M alone was the responsible party,” she said.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig., N.D. Fla., No. 3:19-md-02885, 12/22/22.