This article contains commentary which reflects the author's opinion
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RIGHT NOW at NRN w/Michael Yoder: 5 Things Armed Services Personnel Serving From 2003-2015 Should Know
Thousands of veterans who served in the Armed Forces between 2003-2015 and suffered hearing loss have sued 3M Company (3M) after allegations surfaced that 3M manufactured and sold defective Dual-ended Combat Arms™ earplugs, Version 2 (CAEv2) to all branches of the military, as reported by the DOJ.
UNRELATED CASE: The story made headlines after a DOJ press release announced that the government and 3M reached a $9.1 million settlement agreement in United States ex rel. Moldex-Metric v. 3M Company. The governments case, however, is entirely unrelated to the lawsuits thousands of veterans have, and continue to file.
If you, a family member, or a friend served in the US military between 2003-2015 and suffered hearing-related injuries, here are five things you need to know about the case.
5. The Case is Not a Class Action
Unlike class actions where the claimants receive very little, if any compensation, each claimant has his/her own lawsuit and the potential to recover substantial compensation is very real.
The lawsuits filed against 3M fall under the practice area called “mass tort litigation.” The critical difference is that a class action is one claim for many people, while mass tort litigation is many cases for many people. In order for a case to be certified as a class action, the Plaintiff’s lawyers must prove to the court that a single incident harmed a large number of people in the exact same way.
However, mass tort cases like this, arise when multiple people are injured in different ways. Some veterans are completely deaf in both ears while others suffer 5% tinnitus in one ear.
The value to which a successful claimant is entitled is commensurate with the severity of the injury, hence, why these cases are not class actions.
4. Anyone with Hearing Loss/Tinnitus who Served Between 2003-2015 is Eligible
Obviously, those who served in the military that did not use the earplugs are not subject eligible for the case. The case is about those who suffered hearing loss because the earplugs were defective; simply suffering hearing loss does not provide a basis to sue 3M.
The other requirement is that the hearing loss is documented. Throughout service, veterans have entry medical examinations, pre-deployment and post-deployment evaluations, and often apply for benefits from the VA after their service. If served between 2003-2015 AND you received a diagnosis during your service or receive VA Benefits for hearing loss or tinnitus, you are eligible to file a lawsuit.
3. If You Receive VA Benefits, Don’t Worry
Congress passed 42 U.S.C. § 2651 which provides the Department of Veteran’s Affairs and TRICARE the right recover expenses paid as a result of injuries caused by a third-party such as 3M; however, there is an exception for service connected disability.
According to Garretson Recovery Group, “how much recovery and in what situations the VA and/or TRICARE would be willing to pursue or potentially waive will depend on the case details.”
Mike Yoder, an attorney who represents hundreds of veterans against 3M, said, “The likelihood that the VA or TRICARE seek any reimbursement from veterans as a result of 3M’s actions is very unlikely. The PSC is fully aware of the implications mandatory reimbursement has upon the settlement of the case. Ideally, the government will forego exercising its right to reimbursement.
Attorney Michael Yoder is currently representing hundreds of veterans against 3M. “To safeguard the compensation our veterans deserve, it is likely that any settlement reached in this case will include a provision that voids any such potential requirement to reimburse the government,” Yoder said.
2. Filing a Lawsuit Will Not Negatively Impact your Active Duty Status
This case is against 3M, not the government. Many men and women on active duty fear that the military may take adverse action against them, demote, or even discharge them as a result of filing a lawsuit.
The confusion is understandable, but again, the case is not against the government. In fact, the government itself sued 3M because they, too, were duped by 3M’s concealment of the earplug’s defects. It is alleged that 3M intentionally concealed the defective design and inadequate product warnings in order to secure a contract worth millions.
1. The Case is Very Procedurally Complex
On April 4, 2019, the United States Judicial Panel on Multidistrict Litigation (JPML) entered an order consolidating thousands of veteran’s lawsuits for pre-trial purposes and assigned the case to Judge M. Casey Rogers in the US District Court for the Northern District of Florida, Pensacola Division.
“Pre-trial purposes” simply means that all discovery (i.e., gathering facts, documents, taking depositions, etc.) will be completed by a small group of highly qualified attorneys called the “Plaintiff’s Steering Committee” (PSC). The PSC is chosen by the Court out of a pool of lawyers who apply for leadership roles. Once appointed, the PSC gathers the evidence and forwards it to the other lawyers litigating the case. Pretty simple.
What’s not simple is understanding–and properly complying with–the Tolling Agreement reached between the parties. On August 27, 2019, Judge Rogers entered a court order setting forth the procedure for preserving cases against the statute of limitations (i.e., the legal deadline for a claimant to file a lawsuit).
Hiring an attorney is almost essential in order to ensure your case is preserved. Claimants must provide detailed answers to complex questions, produce documents held by the Department of Defense, and even medical records within very restrictive deadlines.”Michael Yoder, Esq. – Mass Tort attorney based in Washington, DC
Because the earplugs were used between 2003 and 2015, some claimants injuries arose more 10-15 years ago. Every state has its own statute of limitations and the requirements vary as to how long the statute runs and what events trigger the beginning of that clock. For example, Louisiana law states an action must be filed within one year of the date on which the injury occurred while in North Dakota, a claimant has 11 years from the date the product was manufactured to file a lawsuit.
When asked if he is still accepting clients, Mr. Yoder advised that he was. He also does not charge veterans any out-of-pocket expenses.