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Military Contractor Lawsuit Based In Pensacola

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3M
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A number of lawsuits against a U.S. military contractor are being funneled through a law firm in Pensacola.

If you’ve watched any local TV stations in the past month or two you’ve no doubt seen commercials talking about a legal action against 3M, the major supplier of ear protection to the U.S. military.

“These Combat Arms version 2 ear plugs were ubiquitous. They were all the military from about 2002 to 2015," said Bryan Aylstock, an attorney at the Aylstock, Witkin, Kreis and Overholtz law firm in Pensacola.

He says the ear plugs in question were dual-ended. One end was designed with flanges to help secure the plug and block out up to 22 decibels of sound. The other end was designed to let some sound in so solders in the field could hear each other. It didn’t work.

"(The ears plugs were) designed improperly. It was a defective design with this triple-flange design with two ends because everybody’s ear canal is different. There are different sizes. You can be a very large person and have a very small ear canal and vice versa. So the flange design allowed for imperceptible loosening of this ear plug. So the service member didn’t even know that (their) ear plug is not fitting correctly. And then when that loud noise came, or a series of loud noises, their ear drums and the cilia get permanently damaged. So you sustain permanent and irreversible hearing loss, or what’s known as tinnitus, or ringing in the ear.”

Aylstock is the lead attorney overseeing the lawsuits. He says his firm successfully argued that the presiding judge for all cases in the matter should be here in Pensacola. Fifty-two other lawyers have been appointed by the judge to lead the suits around the country. One of the main messages of the action is that no one is suing the government.

“The government is not a defendant in our lawsuit at all. The government was duped. The government filed suit under a keytam, or a false claims whistleblower type action. And they brought suit against 3M for falsely representing the noise reduction rating of these ear plugs. And so the 3M Company settled the lawsuit, actually the documents show (they) pled nolo contendere, and paid the government $9.1 million for those false claims. What 3M did NOT do, and they still haven’t taken responsibility for, is compensate the service men and women who served this country wearing these defective ear plugs and now suffer this permanent and irreversible hearing loss and tinnitus.”

Firms around the country are running ads about the legal action, which is open to former and currently serving members of the military. Aylstock says he would oppose making this a class action suit where most of the money would end up with the lawyers.

“These are individual lawsuits at this point. People get confused about class-action and mass-tort claims sometimes, but what our firm is doing is representing individual service men and women who served this country and wore these ear plugs and now have service-related hearing loss or tinnitus. And we’re doing it on an individual basis. The cases are consolidated for pre-trial purposes, but when the cases need to be tried they’re not going to be tried in one big class-action most likely. They’ll be tried individually. So you have the opportunity to file an individual lawsuit with a lawyer representing just you, along with the other people in your position.”

And even though 3M has already settled and paid off the government in that ear plug case, that doesn’t mean these cases will be easy.

“3M is a multi-billion-dollar company and they have hired the best lawyers in the country to represent them. And what they are doing right now is pursuing some affirmative defenses. One of their main claims, or defenses, is ‘because we developed this for the government, we should get the immunity that the government has, because we were just doing what the government asked us to do’. In essence that’s called the government contractor defense.”

The cases are all still in the preliminary phase, and there is still time for people with hearing loss to bring their own suit.

When asked for comment on this story, 3M sent this statement in an email to WUWF: “3M has great respect for the brave men and women who protect us around the world, and their safety is our priority. We have a long history of partnering with the U.S. military, and we continue to make products to help protect our troops and support their missions. The company worked in close coordination with the U.S. military on the Combat Arms Earplugs Version 2 product, and its design reflected the direction and feedback of individuals acting on the military’s behalf. We deny this product was defectively designed and will vigorously defend ourselves against such allegations.”