A judge has denied 3M a new trial after a jury awarded $50M to a veteran Green Beret alleging injury from Combat Arms earplugs.
Pensacola, FL A Florida federal judge in October denied 3M a new trial after a jury awarded $50 million to veteran Luke Vilsmeyer. Like more than 280,000 veterans, Vilsmeyer claimed that 3M’s CAEv2 earplugs were defective and caused his tinnitus and hearing loss. The judge ruled that the trial evidence “substantially supported” the verdict.
Vilsmeyer’s award ($1 million per year of his injuries – he used the earplugs for more than a decade) is the second largest amount a veteran has won in a number of lawsuits against 3M and the lawsuits have grown (over 280,000 active and former military members have filed complaints) to become the largest federal mass tort litigation in history, Reuters reported.
Luke Vilsmeyer v. 3M Co
According to his lawsuit, Vilsmeyer brought fifteen claims against 3M from injuries he alleges were caused by his use of the Combat Arms Earplug version 2 (“CAEv2”), and his wife filed for loss of consortium. Vilsmeyer claims his hearing was damaged after wearing 3M’s Combat Arms Earplugs Version 2 from 2006 to 2017. The headphones also caused severe tinnitus. The 42-year-old Indiana resident served in the army from 1999 to 2020, first as a howitzer gunner and later as a Green Beret, noted Reuters.
Other plaintiffs also claimed that the company neglected to provide instructions for the headphones, faked test results and kept design flaws hidden. Soon after Vilsmeyer’s verdict, Steven Wilkerson, who served in the Army National Guard and claimed the earplugs caused his hearing loss and tinnitus, was awarded $8 million by a Tallahassee jury. As of March 2022, plaintiffs had won over $160 million combined in six previous bellwether trials, including two U.S. Army veterans who were awarded $110 million in January.
Tinnitus
3M argued that Vilsmeyer's injuries are mild and treatable, but U.S. District Judge Roy B. Dalton Jr. disagreed. "The record substantially supports that plaintiff's tinnitus in particular is in fact quite severe and constant, and as defendants concede, permanent…Even defense counsel could not help but acknowledge plaintiff's credibility and demeanor for truthfulness…So the court will not disturb the jury's evaluation of plaintiff's testimony and the noneconomic damages caused by his injuries, which are substantially supported,” according to the order.
Judge Dalton said that Vilsmeyer's trial testimony was "extremely effective and compelling" in demonstrating the significant emotional impact that have had on his life, how it's impacted his relationships with his wife and children and that it has caused him to lose sleep, reported Law360.
According to the Mayo Clinic, “many times, tinnitus can't be cured” and it can significantly affect quality of life and anyone can experience tinnitus, but these factors may increase your risk:
Loud noises, such as those from heavy equipment, chain saws and firearms, are common sources of noise-related hearing loss. Portable music devices, such as MP3 players, also can cause noise-related hearing loss if played loudly for long periods. People who work in noisy environments — such as… soldiers – are particularly at risk.
Ironically, hearing protection is advised. “Over time, exposure to loud sounds can damage the nerves in the ears, causing hearing loss and tinnitus. Try to limit your exposure to loud sounds. And if you cannot avoid loud sounds, use ear protection to help protect your hearing. If you … work in an industry that uses loud machinery or use firearms (especially pistols or shotguns), always wear over-the-ear hearing protection.”
3M’s Defense
3M has argued all along that the military bears some responsibility for how the earplugs were designed and delivered. In a previous case, 3M on appeal argued that the military was responsible for the product's design and that the plaintiffs' state law claims were preempted because of 3M's role as a federal contractor following government mandates. As well, the company argued—again on appeal in an earlier case—that Aearo Technologies, which 3M bought in 2008, developed the product – which plaintiffs allege hid design flaws, fudged test results and failed to provide instructions for the proper use of the earplugs.
The case is Luke Vilsmeyer et al. v. 3M Co. et al., case number 7:20-cv-00113, and the MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, both in the U.S. District Court for the Northern District of Florida.
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