COLUMBIA — In the summer of 2018, Sherri Lydon, the then-U.S. attorney for South Carolina, announced the 3M Co. agreed to a $9 million settlement with the military following allegations the company supplied defective earplugs to men and women fighting and stationed overseas.
Since the 1990s, the St. Paul, Minnesota-based industrial supply company had provided thousands of its signature Combat Arms earplugs to service members.
“Through rigorous enforcement of the False Claims Act, we protect taxpayer dollars from waste, fraud and abuse,” Lydon said. “And in this case in particular, we are proud to defend the integrity of our military programs and ensure that our men and women in uniform are adequately protected as they serve our country.”
As part of the settlement, 3M did not admit liability.
The men and women who wore the earplugs were not directly represented in the case.
But in the past year, lawyers from across the country following the findings in the Columbia settlement have organized one of the largest mass tort lawsuits in recent history, with more than 220,000 men and women in uniform alleging hearing damage from 3M's product.
At least 2,000 former and current service members connected to South Carolina have joined the lawsuit.
Several of these earplug suits are scheduled to go to trial in April in a Pensacola, Fla., federal court. Bryan Aylstock, a Florida-based attorney with Aylstock, Witkin, Kreis & Overholtz, is the lead lawyer on the national case. He said the success of the individual trials will be a sign if they can combine all the lawsuits together, which would be a major development in 2021.
“The sheer number of cases shows how much of an effect this has had on our service members,” Aylstock said. "And it’s not easy for them to bring that lawsuit. Many believe they took the risk and should suffer the consequences, but our service members were hoodwinked.”
Tim Post, a spokesman for 3M, told The Post and Courier that the number of cases is reflective of broad marketing appeals from lawyers and that it doesn't represent the legal and factual merits of a case. He defended the effectiveness of the earplugs.
"We deny the Combat Arms Earplugs Version 2 product was defectively designed and caused injuries," Post said in an email. "The company worked in close coordination with the U.S. military on the product, and its design reflected the direction and feedback of individuals acting on the military’s behalf. The CAEv2 product is effective and safe to use, and we will vigorously defend ourselves against plaintiffs’ claims."
The beginning dates to when 3M bought Aearo Technologies in 2008 and became a major player in the military earplug market. Aearo’s Combat Arms earplug was standard issue for U.S. soldiers in Iraq and Afghanistan.
In 1999, the Army requested Aearo shorten the earplugs so they would fit in a military carrying case better. The company did, but the case plaintiffs allege the fix actually caused the problems.
The dark-colored end of the plug was supposed to block steady noise, from humming vehicles and motors. The yellow end was attached to a filter and when plugged into the ear, it would allow commands and orders to be heard but block sudden loud noise such as gunfire.
Because the plug had been shortened down, the plaintiffs say that in some cases it wouldn't fit in the ear properly.
Tests in 2000 at Aearo’s Indiana laboratory identified the problem and that the product wasn’t fully effective unless it was worn in a certain way, Aearo documents filed in court showed.
Despite the finding, the Combat Arms earplug became a big seller during the War on Terror, with more than $30 million in Combat Arms Version 2 sales from 1999 through 2009, according to court records.
When the U.S. government held 3M to task in 2018 following the South Carolina settlement, injury lawyers throughout the Palmetto State began advertising on billboards near military bases and taking to the radio waves to find clients who may have been injured as a result of the ear plugs.
Lance Cpl. Greg Porter was one of them. The former Marine-turned-Greenville County sheriff's deputy spoke with WSPA-TV in Spartanburg about how his daily life has been changed forever by his hearing damage when he got out of the service in his 20s. He joined the lawsuit.
“When I was evaluated by the VA, they told me I had 30-40 percent hearing loss in both ears and tinnitus,” Porter told the station. "How do you have that much hearing loss by 23?”
Many of those South Carolina cases have been handled by lawyer Beth Middleton Burke.
The Mount Pleasant-based attorney for Richardson, Patrick, Westbrook & Brickman LLC said she's heard at least 100 stories from clients who have dealt with severe hearing damage and loss from their time in the military.
She recalled a married couple who served in the military alongside each other, and now can't sleep at night in the same bed because the ringing in their ears is too severe. She mentioned a young student who tried to get his master's degree after leaving the service but can't hear the lectures because of his tinnitus.
The ear plug case has been covered extensively in the press. Burke estimates that her office gets five to six calls a week from service members trying to join the lawsuit.
"It's one of the largest pieces of litigation I've ever been involved in," Burke said.
But Burke said many veterans don't want to speak up and hopes more come forward to get the compensation she believes they're owed.
"They're great clients," Burke said. "They're a stoic bunch and it's a little difficult to get them to open up."