Defendants Knew 3M Earplugs Were Defective and Still Sold to Military: Lawsuits

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: 919.546.8788.

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.

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