By Tom Hals
When U.S. combat veteran Dave Henderson completed his first deployment to Iraq in 2010, he began to experience ringing in his ears and struggled to hear what others around him picked up with ease.
Henderson blames the hearing damage on an earplug that the military bought by the millions from 3M Co and he is one of more than 200,000 veterans and service members suing the company, claiming it covered up known design defects from the Department of Defense.
“We had no choice but to use the 3M earplugs,” said Henderson, 36, a Philadelphia resident who earned a Bronze Star Medal while in the Army from 2007 to 2013. “We trusted that our equipment would work.”
Henderson said he now sleeps with a fan on to help blur “out the ringing in his ears” and sometimes can’t hear when one of his two children is crying.
On Monday, jury selection began in a “bellwether” trial against 3M in Pensacola, Florida. The trial consolidates three lawsuits, will be used to assess key evidence and damages and potentially shape a deal to resolve thousands of other cases, brought mostly by Army veterans between the ages of 30 and 49.
More than 1 million veterans receive compensation for hearing loss, which is the leading service-related disability, according to 2015 government data.
At the heart of the trial is a question that’s central to all the lawsuits: Did earplug designers at Aearo Technologies, which was acquired by 3M, manipulate test results, hide design shortcomings and fail to instruct the military in proper use of the earplugs?
3M has said the Combat Arms Earplugs Version 2, which according to court records cost 85 cents to make and were sold for $7.63, worked and were safe when used and fitted properly. The company has denied the plug was defectively or negligently designed or that the plugs caused injuries, and said in a statement that it will “vigorously defend ourselves against such allegations.”
The Department of Defense, which is not named as a party, said it does not comment on pending litigation.
The litigation is the largest mass tort ever brought in federal court, and one of the many legal risks facing 3M, the maker of Post-it notepads, ACE bandages and the leading U.S. manufacturer of N95 face masks.
In 1997, the Army asked Aearo Technologies, which 3M bought for $1.2 billion in 2008, to provide an earplug that allowed close communications while protecting against intense noise such as firing a shoulder-launched rocket.
The result was a football-shaped plug consisting of three stacked cups on each end that the military used from 2003 to 2015.
For the earplugs to work properly, the flexible cups on the side protruding from the ear sometimes had to be folded back. If not, the plugs would slowly loosen and noise would seep in.
3M has said designers informed the government of the need to fold the plugs, and that it was up to the Department of Defense to convey that information to soldiers.
Veterans argue the military was kept in the dark until the information came to light through separate litigation, which the plaintiffs say prompted 3M to discontinue the earplugs.
Henderson said he hopes that the jury will conclude that 3M failed to protect soldiers, who put their lives on their line for their country.
“This isn’t just about ringing in the ears or hearing loss, it’s about not being able to ever feel truly at peace,” said Henderson.