“Made Me Do It” Defense
Aylstock and his legal team successfully argued in federal court against 3M’s defense, “The government made me do it.” 3M tried to end litigation before it began.
“We always thought 3M was grasping at straws. I viewed this government contract defense as a smoke screen,” says Aylstock. “Being paid by the government doesn’t mean that you have a government contract, particularly when you defraud the government and pay a $9.1 million settlement under the False Claims Act. 3M must accept responsibility for their actions.”
3M Concealed Earplug Testing
Aylstock says 3M sold its defective Dual-Ended Combat Arms earplugs to the military without testing. And after it occurred to them there was no testing, they went ahead with testing but didn’t like results—and then they manipulated test results to get the results they needed to sell the earplug! Neither the military nor the people using the earplugs were told of any defects.
According to the master complaint filed on behalf of all Plaintiffs whose claims are subsumed within MDL No. 2885, “defendants were aware of the defects and risks of the Dual-Ended Combat Arms Earplug but nonetheless supplied this dangerously defective product to Plaintiffs and the United States military for more than a decade without Plaintiffs or the United States military having any knowledge of those defects and risks.
- The defective design of the Dual-Ended Combat Arms Earplug prevented Plaintiffs from obtaining a proper fit and seal when inserting the device into their ear canals.
- The defective design of the Dual-Ended Combat Arms Earplug also caused the device to loosen imperceptibly in Plaintiffs’ ear canals.
- As a result of the dangerously defective design of the Dual-Ended Combat Arms Earplug, the device did not remain sealed to Plaintiffs’ ear canals and thus allowed damaging sounds to enter Plaintiffs’ ear canals, unbeknownst to Plaintiffs and the United States military.
- Defendants failed to warn or instruct Plaintiffs or the United States military of the defects and risks related to the Dual-Ended Combat Arms Earplug.
- Use of Defendants’ Dual-Ended Combat Arms Earplug has caused Plaintiffs to suffer hearing loss, tinnitus, and/or additional hearing-related injuries.
- Defendants provided the Dual-Ended Combat Arms Earplug to Plaintiffs and/or the United States military between approximately 2003 and 2015
Tinnitus Linked to PTSD
Aylstock knows how post-traumatic stress disorder is linked to tinnitus – it exacerbates PTSD. “Severe ringing in the ears can bring back memories of injuries suffered. Of course these memories are stronger for some victims than others but overall, tinnitus makes PTSD worse,” he says.
According to the U.S. Department of Veterans Affairs, tinnitus is the most frequently claimed disability among former service members. In a recent study, the authors described the prevalence of hearing loss and tinnitus in a cohort of Iraq and Afghanistan Veterans (IAV) with common post-deployment condition, including PTSD. They found PTSD and depression significantly associated with increased rates of hearing loss, tinnitus, or both conditions together.
3M Earplug MDL – what next
To date, over 200,000 lawsuits are filed in the multi-district litigation (MDL). “Until 3M takes responsibility for their actions, we are proceeding to trial,” says Aylstock. “While MDL’s do take time, even in the best of circumstances, COVID makes it more difficult,” explains Aylstock, “but Judge Rogers has a track record of managing her docket efficiently and effectively for all litigants who come before the Court.” Now that the 3M’s “government made me do it” defense has been shot down, trials will start in April 2021 and bellwether discovery is currently underway.
3M Market Share
The master complaint states that, “3M has a dominant market share in virtually every safety product market, including hearing protection devices. Defendant 3M is one of the largest companies in the United States.” 3M’s net income in 2018 was a whopping $5.349 billion with astounding revenue of $32.765 billion, an increase of 3.5 percent from the previous year. Its revenue dropped to $32.14 billion in 2019.
Facing more than 200,000 lawsuits currently filed in the MDL, 3M will likely be facing trial before multiple juries in 2021.
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Aylstock’s firm has 25 lawyers and 200 support staff for plaintiffs to discuss their situations with. “We have also hired many military veterans as they understand military issues and can effectively communicate with our clients, especially those with hearing loss.”