In my last post I introduced the 3M Earplugs and the (alleged) defects that caused hearing loss in thousands of military service personnel. I thought it would be helpful to bullet point some of the key allegations made by injured soldiers in lawsuits filed against 3M related to these earplugs.

First, I refer to this product simply as the 3M Earplugs. However, the product’s official name is the Dual-Ended Combat Arms Earplugs (CAEv2). So if in your reading you see 3M Earplugs or Combat Arms Earplugs, it is most likely the same product.

Second, I need to provide some clarification on the defendants involved in this expanding litigation. The 3M Earplugs were originally developed and manufactured by Aearo Holding Corporation (which became Aearo Holding LLC) along with the involvement of Aearo Technologies LLC, Aearo Intermediate LLC, and Aearo LLC. It may be a bit confusing, but it’s not uncommon for a company to have subsidiary companies handling research, or development, or the manufacture of a product. In any case, 3M Company bought Aearo Holding LLC in 2008 and with the purchase acquired the Combat Arms Earplugs. The Earplugs were thus placed under the 3M brand, and 3M became entitled to the profits flowing from the earplugs but also became responsible for the liabilities of the product. Thus, 3M Company is the primary defendant in this litigation.

Now let’s take a look at the material allegations in the lawsuit(s) against 3M and Aearo for the 3M Earplugs:

• Many years ago the United States military issued solicitations for bids from companies to supply the military with earplugs. A lot of earplugs, as it turned out.
• The request for bids included detailed specifications for the the way the earplugs must perform.
• The specs required that the earplugs must work effectively for military personnel in “chronically noisy environments,” that they provide hearing protection from firearms and “impulse noises” on the battlefield, with dual sides protecting different levels of noise, and that they be free from defects that would “impair their serviceability.”
• Aearo Holding tested its product around 2000, and the test results indicated that the Earplugs were dangerously defective.
• The testing itself was inadequate. Aearo did not arrange an independent lab to conduct the testing but instead conducted limited testing in-house.
• The original testing was a “sham.”
• Aearo misreported the results of this so-called testing.
• Aearo discovered that its earplugs were too short to insert deep enough into the ear canal to be fully effective.
• Aearo also determined that the flanges on each side of the earplug pressed against the ear panel and pushed the earplug out of position, preventing maximum protection.
• When Aearo folded back these flanges, the earplugs worked more effectively.
• Despite learning about the need to fold back the flanges, neither Aearo nor 3M revised its instructions to indicate how to obtain the best protection from the 3M Earplugs.
• Aearo did not explain the need to fold back the flanges when inserting the earplugs into the ear canal.
• Aearo won the contract to supply earplugs to the U.S. Armed Forces.
• From 2003 to 2015, 3M Earplugs were issued to all deploying U.S. Armed Forces service members. Aearo and later 3M were the exclusive manufacturers of these Combat Arms Earplugs.
• Millions of Combat Arms Earplugs were sold to the military and then delivered to individual service members.
• These soldiers wore the earplugs in combat zones and other dangerously loud environments.
• The soldiers relied on the earplugs to protect their hearing.
• Thousands of soldiers now suffer from hearing loss, tinnitus, other hearing damage, tinnitus, and related health problems.

This month a judicial panel will determine whether to consolidate these cases into a single multidistrict litigation site, likely in Minnesota. (This does not mean your case will be part of a class action. To learn about the difference between an MDL and a class action, check out my post here.) Because of the large number of injured people, I have no doubt such an MDL will be designated.

I am now actively reviewing these cases. If you were a service member between 2003 and 2015, wore the 3M Earplugs, and now suffer from hearing loss or damage, give me a call to discuss your case: (919) 830-5602.

Note: The allegations against 3M in the pending individual lawsuits have not yet been proven in court, and the Defendants have denied some or all of these allegations.

We rely on safety equipment to do what it was meant to do: protect us. But this is precisely what 3M earplugs have failed to do for our troops. The specific product at issue? 3M’s now discontinued Combat Arms earplugs issued to U.S. military servicemen and women from 2002 until 2013. The fundamental flaw with the earplugs? They were too short and therefore could not adequately provide hearing protection to our troops while they were in combat situations or were involved in training activities. The result? Many members of our military now have to deal with irreparable, but completely avoidable, hearing damage from a defective product. Combat situations are dangerous enough as it is. Service members should have the peace of mind that basic safety equipment will be free of fundamental defects and will function properly.

These Combat Arms earplugs got the attention of the United States government. In 2016 the Justice Department accused 3M of knowingly providing defective earplugs after the government learned of 3M’s activities thanks to whistle-blower activities by another earplug maker, Moldex-Metric, Inc. In the summer of 2018, 3M paid approximately $9.1 million to settle the claims made by the government. Justice, however, is far from complete. There are countless veterans and current active duty military now dealing with the hearing damage from relying on these faulty products for hearing protection. These individuals, however, are not seeing a penny from the 2018 settlement. Individual lawsuits against 3M are therefore necessary for those damaged to obtain compensation for the preventable damage done to their bodies.

The Combat Arms earplugs at issue were originally developed by Aearo Technologies; 3M later acquired the company and its products. These earplugs had a two-sided design that was supposed to provide ear protection no matter which side was inserted into the ear. The yellow side was supposed to provide protection against high-level impulsive noise while still allowing the wearer to hear talking, commands and other lower level noises. The other side, the green side, was intended to block out all sounds. According to several lawsuits brought by injured service members, the earplugs did not work as designed, largely because they did not stay in place properly due to their length. Internal documents linked to 3M allegedly suggest that 3M was on notice of the defect and failed to take action. Now, our veterans are paying the price.

It is hard to collect figures on the exact scope of the damage done, especially as it often takes years for hearing issues to fully manifest. Based on 2017 reports, however, the VA has had approximately 81,529 new hearing loss claims in addition to 159,800 new tinnitus claims. The result? A number of our veterans and active duty service members who entered the military with perfect hearing now have to wear hearing aids to cope with hearing loss and are forced to cope with constant ringing in their ears, known as tinnitus. Our veterans and active duty service members should not have to face these largely preventable, permanent conditions. There is no way to reverse this hearing damage; the only recourse is to seek compensation from 3M for the harm they caused.

Note: The allegations against 3M in the pending individual lawsuits (and discussed above) have not yet been proven in court.