"You have reached the Tinnitus Support Hotline: please leave a message after the beep."
By Michael Gipson
Whether the 30% of military veterans who suffer from tinnitus do so due to their own hubris or due to ineffective hearing protection is up for debate. Regardless, there are twice as many veterans asking their loved ones to repeat themselves than civilians {1}. When service members are ordered to work around jet engines, firing weapons, humming server rooms, or endure the screaming of a superior officer, they are expecting an opportunity to do these tasks with safety in mind -- if only for the prolonged efficacy of the military as a whole. That's why most careers in the military issue their troops hearing protection of some sort. But veteran hearing-loss statistics are showing that either their hearing protection wasn't working, or perhaps our nation's finest couldn't figure out which orifice to put the earplugs in.
The leading company for hearing protection equipment to the military has been 3M for decades. To summarize the outcome of an otherwise lengthy (6 years) litigation, 3M has been ordered to pay $6B to over 300,000 registered complaints{2}. Many veterans doing the math online estimate a payout of a little less than the cost of one of those energy drinks they got addicted to during their deployment.
One particularly unusual thing about this case is the jurisdiction under which it was decided. "This litigation currently consists of eight actions pending in four districts, as listed on Schedule A. The Panel also has been notified of 635 related federal actions filed in 33 districts."{3} The spread nature of so many lawsuits called for the centralization and transfer of jurisdiction over the case. And while "all parties support(ed) centralization" they couldn't agree on where to transfer it to. Prior to the centralization and transfer of the lawsuit, the courts had to agree that all lawsuits involve common questions of fact and that centralization will "promote the just and efficient conduct of the litigation."{3} It was determined that due to the interstate commerce of earplugs to the Department of Defense, the multitude of diverse locations involved in related lawsuits, and the capability of the judge in the Northern District of Florida, that the case was to be centralized and moved there. The particular element of this case that allowed federal courts jurisdiction is found under 28 U.S.C. Section 1332 which addresses the diversity of the citizens of different states. With the 3M trial meeting both requirements of the plaintiffs from different states, are also not from the corporations' headquartered state, and the dollar amount exceeds the threshold, this was able to be heard in a federal court.{4}
This resolution to the complex jurisdictional issues this collection of cases had allowed the trial to move forward and ultimately award those veterans who relied on 3M earplugs to protect their hearing. Veterans everywhere can now celebrate with a resounding "Huh? What?"
One question this proposes, is that many active duty military personnel are stationed overseas. Even so, these overseas or deployed military members have to record a state of residence. If any overseas or deployed service members were involved, how does this affect the jurisdiction? Does the involvement of veterans (who are now considered civilians) exclude all military courts from being involved? Much of jurisdiction relies on the "citizenship" rules and almost all active duty and veteran personnel have complicated histories of where they consider, legally, their home.
Does this mean that any product sold by a large company sold in multiple states would need to settle any lawsuits in a federal court? Is it possible for a lawsuit of this scale to remain in-state? What would that scenario look like?
{1} Schmidt CJ, Kerns RD, Finkel S, Michaelides E, Henry JA. Cognitive Behavioral Therapy for Veterans With Tinnitus. Fed Pract. 2018 Aug;35(8):36-46. PMID: 30766380; PMCID: PMC6263445.
{2} Gregg A, Tan E. 3M to Pay $6B to Settle Hearing-Loss Lawsuits Over Military Earplugs. The Washington Post. August 29, 2023
{3} IN RE: 3M Combat Arms Earplug Products Liability Litigation. 366 F.Supp.3d 1368 (2019)
{4} Mauet, T., Marcus, D., Pretrial, Eleventh Edition. P. 68 - 85
Great post Michael. I've sat in that booth many times, and have wondered if I've ever actually heard the beep or not. One question I have, was there a level of harm the service member needed to have in order to be a participant in the suit? If so how was that level determined and verified?
ReplyDeleteHey there! From what I understood, the veteran needed to have a diagnosis of hearing loss and/or tinnitus on record. I do not think they needed to be 0% rated for disability though...
DeleteAfter reading The Washington Post article, I found it very interesting that the case emerged from a whistleblower lawsuit filed by a rival earplug maker. Why no mention of this being a whistleblower lawsuit?
ReplyDeleteMy only thought about why a rival earplug maker would want to file this lawsuit in the first place, is the potential gain they might receive from military personnel not wanting to use 3M earplugs and maybe the military switching to the rival earplug makers instead? It seems that the military no longer buys these types of earplugs, or at least the ones that are part of the lawsuit stopped being purchased in 2015.
I think you might have gotten the amount that is expected per plaintiff wrong though. $25,000 would pay for a lot of energy drinks, but I guess that might be too low for someone's hearing in the first place. I have minor tinnitus and it is awful and my grandfather served in the Air Force during Vietnam as a B-52 Captain Chief Navigator, so I understand the pain of a family member who served in the military losing his hearing.
But while earplugs might seem like the easiest solution to being in loud noise environments, will it ever fully solve the problem? I wouldn't be surprised if additional lawsuits are brought in the future, maybe not in the military but other industries like airport/airplane handlers.
Leigh Ann...the whistleblower was a separate lawsuit and is not included in the proposed $6 billion settlement. It was actually settled previously and its settlement prompted the filing of the individual lawsuits by veterans. The $25,000 is an estimated average; the actual amount will vary depending on the severity of the injury. Your prediction that other suits for hearing loss will be filed involving other industries is certainly possible, although most employees are limited to claims under workers compensation laws.
DeleteAwesome job Michael, this was a great post.. Your sense of humor made this read refreshing while also aptly explaining this 3M class-action lawsuit as someone who is just learning about it for the first time. My question pertains to substantive matter jurisdiction in federal courts. I know you explained the criteria met by this lawsuit to be under federal court jurisdiction as 1) diversity jurisdiction and 2) jurisdictional amount requirement. While this criteria is correct for meeting federal jurisdiction requirements, is this case actually under federal jurisdiction because the United States military is a federal agency? I suppose this also begs your question of “Does the involvement of veterans (who are now considered civilians) exclude all military courts from being involved?”.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteMichael, I enjoyed your authorship narrative and tone throughout the blog post. Learning about the injustice and mistreatment of our service members is always disheartening. However, you made the content informative and engaging.
ReplyDelete3M is no stranger to lawsuits... But that's neither here nor there.
When I researched this story on my own, I found that this is a mass tort lawsuit, so plaintiffs will be compensated individually based on their damages/harm. Payment may end up being substantial for some, but will never rectify the loss and damages of hearing or tinnitus - our senses are priceless.
Tinnitus is one of the most common VA disability claims but rarely approved (generally, if any, only compensating tinnitus claims $100/month). Will this trend continue now with 'proof' of inadequate ear protection for service members? It is my opinion that part of the settlement should include 3M subsidies to VA disability (specifically for tinnitus and hearing loss to increase disability compensation), as well as contribute to hearing loss prevention research and prevention. However, I recognize that this would probably have to come with an admission of guilt/liability. Similar to the big tobacco settlement.
Harley...an admission of liability/guilt would be devastating for 3M as there are numerous other cases that are still pending in state courts and that admission could be used against the company. I am confident that one of the primary considerations to settle was to reduce the huge amount of attorneys fees 3M was incurring defending the hundreds of lawsuits all across the country. Forbes magazine reported that 3M had incurred over $453 million dollars in legal costs in defending the claims.
DeleteThanks for posting the case details so clearly and bringing some thoughtful questions up regarding to the case. I think there are so many complex arguments around the case and the part that "The company did not admit liability in that settlement" makes me wonder. According to the article, M3 is not liable for their products, even when their products could possibly cause cancer, lower fertility, birth defects and other health issues through their chemical products. So, the veterans sued the company for the sake of their health. They should be rewarded for their service to the country, but they are coming home with ear problems. That's very sad.
ReplyDeleteI am glad that the veterans and those who got victimized by their product raised the issue to the public so the company can possibly be responsible for their production. Also, one of your questions was, " Does this mean that any product sold by a large company sold in multiple states would need to settle any lawsuits in a federal court?". I think their cases will be settled in a federal court because several states are involved.
Naomi...it is common in most settlements that the settling party does not admit to liability or fault. We will discuss this issue later in the semester.
DeleteWhy then is an apology letter included with a settlement? This has always perplexed me because an apology letter must be carefully constructed to avoid the implication of liability or admitting fault which seems to me to be condescending. It would fall on deaf ears for me and in some ways seem like a slap in the face. How do most plaintiffs feel about apology letters when the defendants do not admit fault?
DeleteI have permanent hearing loss from working in manufacturing for almost ten years. Ear plugs were always provided, but I cannot say I wore them all of the time. I did try, likely didn't.
ReplyDeleteHowever, upon reading about any noise level above 85 decibels (crowded restaurants, traffic, lawn mower) that can harm hearing, I was shocked. Most earplugs have a rating of 30 decibels, but with a shotgun being 140 decibels, how much is that really stopping the sound.
I expect that my experience could have been the same in the military. Being that hearing loss and tinnitus are permanent, it is unfortunate. I would be interested in the percentage of veterans compared to enlisted numbers for each age group.
Travis...good hearing is something we have a tendency to take for granted and not take adequate protections. Unfortunately, given the pervasive use of ear pods and our tendency to play music too loudly, the problem is only going to get worse.
DeleteAs I have been reading about jurisdiction in our text, it has my head spinning and this didn't help. It is so complex! So many if, then, but scenarios.
ReplyDeleteBased on comments made about payouts, I would be curious what it actually amounts to, but it sounds like it is possibly assessed on an individual basis which has me asking more questions about class action suits. Is it typical for payouts to be the same for all members of the class, or do they actually take into consideration level of harm for each individual in the class (which seems very overwhelming) and determine compensation that way?
Kara...when learning about jurisdiction a spinning head is a common occurrence! :) Hopefully, your head will spin a little less after our class discussion.
DeleteThank you for your post—and for your service—Michael.
ReplyDeleteTinnitus has been a persistent affliction in my life for over a decade. Mine manifests as a constant pitch of 8000Hz, and I truly miss the sound of silence. Unlike the men and women who served, my tinnitus didn't arise from rendering service to our country, which must add an extra layer of frustration for those seeking relief.
I appreciate your questions regarding jurisdiction in this case and would be interested in learning more about how it was determined, as well as how military courts might factor into a case like this. As I looked into the case myself, it was intriguing to discover that another company, Aearo Technologies, originally designed the earplugs implicated in the lawsuit. 3M acquired Aearo and rebranded everything with 3M branding, but they retained Aearo as its own LLC. 3M's strategy involved having Aearo's LLC file for Chapter 11 bankruptcy in an attempt to shield themselves from liability. Ultimately, this strategy proved unsuccessful.
The settlement does appear to leave much to be desired for the plaintiffs. With an average payout of roughly $20,000, subtracting the approximately 40% that will go to their attorneys, factoring in potential taxes they now owe, considering that some of the award appears to be in the form of 3M stock, and acknowledging that any actual cash will be disbursed over a five-year period, it may not feel like much of a victory for these veterans.
Ryne...generally, personal injury recoveries, whether from a jury award or a settlement are not taxable to the recipient and it is unknown whether the $6 Billion dollar settlement fund includes any payment of attorneys fees incurred by plaintiffs. Most likely it does not. Class action settlements generally address recovery of plaintiff's attorneys fees as all the plaintiffs are represented by the same legal counsel, which is not the case in the 3M litigation. We will discuss contingent fees later in the semester
DeleteActually interesting that you mention the jurisdiction of military courts here. Did a quick search for whether retired veterans are still subject to the UCMJ, and was led to a recent publication from the Congressional Research Service (https://crsreports.congress.gov/product/pdf/LSB/LSB10945). It seems as though the topic is thorny, as it hits a peculiar area of legislative lacuna that fails to delineate retired servicemembers from those who are in the Reserves or are transferred to "fleet reserve." I'm not quite certain whether the Executive branch has the leeway to direct the DoD to clarify that point (since the DoD has the authority to manage the military justice system), but this might be something that actually has to be taken up by Congress to be fully clarified.
ReplyDeleteTyler...you are correct that the jurisdictional reach of the military courts is very complex and varies depending on the specific issue and context. For the purposes of the 3M litigation, however, the military courts would not have had jurisdiction to hear civil tort claims by service members against a private company
ReplyDeleteHuh? What? That was good.
ReplyDeleteThere's a narrow rope that service members balance on. Do they give some? Do they give all? Do they just not give a...? When does it apply? Service members have gone through virtually everything from nuclear testing and agent orange to mandated vaccines and combat.
Maybe the question should be on whether companies, that DOD chooses to outfit the military in whatever way, become liable to the individual service member(s)? Should/Could an award from a court ruling disqualify a veteran from receiving disability for that same issue? Does a ruling like 3M give a service member autonomy when it comes to their health like some exercised during COVID-19? What would that mean to orders and articles?
At the heart of all this is why all the red tape and hurdles? No doubt there should be a process - due process. For matters like this, the Camp Lejeune toxic(poisoned really) water, Agent Orange (also now Blue Water), etc.:
Why such a slow process when there is ample evidence?
Why such little to no accountability when generals have known?
Why all the semantics and disqualifying definitions when a person who worked on aircraft carrying agent orange is exposed to it but does not get the benefits because he/she/they did so in an area not covered in the CFRs?