Combat Arms Earplugs, Version 2 (CAEv2) were originally developed by Aearo Technologies, Inc., now a subsidiary of 3M Company, and used by US military troops between 2003-2015. 3M has a long history of being contracted by the military for a wide variety of products (N95 masks currently being utilized for protection against COVID-19 being one of them). The dual-ended earplugs were designed with two sides. One side worked like a traditional earplug, while the other side is supposed to block loud noises (e.g. explosions, jet engines, and other dangerously loud combat noise levels) which could damage the ear drum, while allowing quiet noises, for example an officer’s commands or an approaching vehicle.

A whistleblower lawsuit was filed in May 2016 in the U.S. District Court for the District of South Carolina, bringing the earplug problems to the attention of the U.S. government. The complaint alleged that 3M Company failed to disclose that the earplugs were defective and may loosen in the ear, failing to provide adequate protection. Additionally, the lawsuit caught the eye of the U.S. government, showing their client that Aearo’s testing methods failed to meet required military standards.

Aearo provided Noise Reduction Ratings (NRR) that were based on skewed testing methods, which provided inaccurate results. It is believed that this test, which was created by the 3M Company subsidiary, was designed specifically to artificially inflate the veracity of the Combat Ear Plug. This data was provided as opposed to conducting testing via an independent agency that would have shown the faulty manufacturing of the earplugs. Additionally, the manufacturer failed to test the earplugs under the guidelines of conditions consistent with the fitting instructions provided to combat military troops and civilian contractors.

In July 2018, 3M Company agreed to pay $9.1 million as part of a settlement with the Department of Justice. Even after resolving the complaint by the US government, the company still faces lawsuits from more than 230,000 personal injury and hearing loss claims of former service members. In a recent deposition of Martin Salon, a former VP at Aearo Technologies, when asked if it was okay for 3M to “conceal” information about potential defects related to the earplugs from the government, he responded, “I suppose it is if the product is working in most cases.”

Hearing Loss For Military Veterans

According to the Department of Veterans Affairs, hearing loss is the most common service-related injury suffered by former servicemen/women. As of 2014, more than 933,000 veterans were receiving disability benefits related to hearing loss and another 1.3 million receiving disability for tinnitus-related issues.

Current Status Of Lawsuits

In April 2019, more than 600 Combat Ear Plug lawsuits were consolidated and sent to the Northern District of Florida (MDL #2885) to be overseen by a military veteran, Judge M. Casey Rodgers. This litigation has evolved into the largest MDL ever, with more than 290,000 claims now filed. The first bellwether, a plaintiff pick of three servicemen moved forward simultaneously, resulting in a jury award of $7.2 million. The third bellwether, a pick by the court of a single serviceman, resulted in a $1.7 million verdict for the plaintiff. In the fourth bellwether trial, a defense pick that ended in October 2021, a jury returned with an $8.2 million verdict for a single plaintiff. A split trial in November of two plaintiffs returned one verdict for the defense, however, the other resulted in a multimillion-dollar verdict for the plaintiff, with a Florida jury awarding $13 million to a sergeant in the ARMY. As of May 2022, there have been 15 bellwether trials. Nine of those trials have been won by plaintiffs, with the largest jury award for a single plaintiff so far being $50 million. In August 2023 3M announced a $6.01 billion settlement to resolve more than 250,000 cases.

Links:

1. https://dlbjbjzgnk95t.cloudfront.net/1067000/1067278/16318505803.pdf
2. https://www.justice.gov/opa/pr/3m-company-agrees-pay-91-million-resolve-allegations-it-supplied-united-states-defective-dual
3. https://www.research.va.gov/topics/hearing.cfm
4. https://www.wsj.com/articles/3m-loses-first-trial-over-military-earplugs-11619809398
5. https://www.reuters.com/legal/litigation/3m-loses-third-trial-huge-military-earplug-mass-tort-2021-06-19/
6. https://www.reuters.com/legal/litigation/3m-hit-with-82-million-verdict-fourth-military-earplug-trial-2021-10-01/
7. https://www.reuters.com/legal/litigation/jury-awards-record-13-million-latest-3m-earplug-bellwether-2021-11-15/
8. https://www.startribune.com/3m-wins-latest-case-over-allegedly-defective-military-earplugs/600116976/
9. https://www.reuters.com/legal/litigation/jury-says-3m-owes-50-mln-us-army-veteran-latest-earplug-trial-2022-03-25/
10. https://www.forbes.com/advisor/legal/product-liability/3m-earplug-lawsuit/