Every American who volunteers for military service knows their sacrifice could ultimately cost them their lives. While these brave men and women who serve our country are willing to accept the dangers they might encounter on the battlefield from enemy forces in combat, we should take every action to limit the negative impact of the equipment they use on the battlefield.
According to recent litigation, that wasn’t the case for hundreds of thousands of veterans and current service members who say they suffered auditory injuries from defective dual-ended Combat Arms Earplugs, or CAEv2.
The CAEv2 earplugs were originally manufactured by Aearo Technologies, an Indianapolis-based company that 3M acquired in 2008. For more than a decade — from 2003 to 2015 — surrounding 3M’s acquisition of Aearo, the military purchased the earplugs, which were engineered to protect soldiers from damaging noise. These kinds of earplugs were necessary to protect the ears of soldiers fighting in places like Afghanistan and Iraq, where they engaged in ground warfare amid gunfire and explosions.
Unfortunately, according to recent litigation the earplugs often came loose, exposing many troops to permanent hearing loss and/or tinnitus. In a previous settlement, 3M agreed to pay $9.1 million to resolve allegations that it knowingly sold the earplugs, without disclosing defects, to the U.S. military.
To send a message to the corporate sector and get compensation for those who suffered injuries, a class of nearly a quarter of a million plaintiffs took 3M to task in what became the largest mass tort lawsuit in American history.
Recently, the Minnesota-based 3M agreed to settle the class action suit for a total amount of $6 billion, consisting of $5 billion in stock and $1 billion in 3M stock, which would be paid out over six years until 2029. 3M did not admit liability in either this or the $9.1 million settlement.
Although every manufacturer should exercise due care and caution before it sends any product into the stream of commerce, those getting military contracts should exercise extra caution since any potential default could have exponential impacts in combat situations.
If the large class of plaintiffs accepts the settlement, each veteran could be awarded an average of about $25,000 — or more — depending on how severe their injuries are. Whatever the case, plaintiffs who accept the settlement should be able to keep the full amount of their award since compensation for physical injuries is generally tax free.
The settlement sends a strong signal to corporate America, as it follows a federal judge’s rejection of the company’s attempt to file for Chapter 11 bankruptcy.
Veterans Affairs facilities are also prohibited from recovering any part of a settlement for physical injuries or satisfy a medical lien, and also restricted from decreasing medical or disability benefits for service members who accept such awards. This means that veterans should be able to collect the settlement and continue getting whatever treatment they are entitled to under law.
While the settlement can never restore the hearing loss suffered by the plaintiffs, it is a victory for the veterans who had the tenacity to file the suit. Having confidence in the protective gear service members use when risking their lives is the least our men and women in uniform deserve. Hopefully, a judgment will soon be approved by the class and court to ensure that service members are not forced to wait for their fair share.
Our service members are one of the most valuable commodities that America has. They put themselves in harm’s way to guarantee the security of our nation. The very least we can do is make their safety a priority by ensuring they receive the equipment and training they need to succeed — and survive.
Terrence M. Andrews is a former federal prosecutor and Homeland Security senior official who served in the Bush administration. He now teaches Homeland Security Law and Policy for the Department of Education and Public Service at the University of Maryland’s Global Campus.
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