In 2018, allegations were brought against 3M Company under the False Claims Act. These allegations claimed that 3M sold its dual-ended Combat Arms Earplugs, Version 2 (CAEv2), to the Defense Logistics Agency—part of the U.S. Department of Defense—while knowing the product had defects that reduced its effectiveness as a hearing protection device.
All Americans owe a debt of gratitude to the men and women who bravely served in uniform. Every service member knows a battlefield is a dangerous place, but our service members should not be put in harm’s way by defective safety equipment, especially when the manufacturer of that equipment allegedly knew or should have known that the product was defective.
If you wore 3M earplugs during active duty service starting in 2003 and later developed hearing loss or tinnitus, you may be eligible for financial compensation.
Speak with a 3M earplugs hearing loss lawsuit lawyer to learn about your options and how best to proceed. The team at Zanes Law will help you seek justice for your loss and get you the compensation you deserve.
Get started by calling our office for a free case evaluation: (833)-890-8329.
WHAT IS A 3M DEFECTIVE EARPLUG LAWSUIT?
Military veterans are filing lawsuits against 3M for defective earplugs the company sold the government for use by military personnel. Not only are veterans finding that they are experiencing hearing problems after using the dual-ended Combat Arms Earplugs, Version 2, they also discovered that 3M knew about the design defects, did not warn the public about them, and unlawfully manipulated testing procedures and fitting instructions.
Now, thousands of service members across the U.S. are seeking damages in 3M defective earplug lawsuits.
On April 3, 2019, the Judicial Panel on Multidistrict Litigation centralized and transferred the 3M Combat Arms Earplug Products Liability Litigation, MDL No. 2885, to the United States District Court Northern District of Florida for pretrial proceedings. All the 3M defective earplug lawsuits allege that the devices sold by the defendant, 3M, were defective, failing in their intended purpose and ultimately causing hearing and ear problems for the military personnel who used them.
The Judicial Panel decided that all the filed actions argue the same issues regarding the “design, testing, sale, and marketing” of 3M’s earplugs. The Judicial Panel also determined that grouping the cases would make sense in terms of efficiency by eliminating the need to both conduct the same discovery over and over again and repeatedly argue the same points of evidence admissibility and other pretrial points. The Panel also acknowledged that a grouping of the cases would make better use of both parties’ resources, as well as those of the judiciary.
At the time of the Order, 635 related federal actions against 3M had been filed in 33 districts.
To be eligible to file a 3M military defective earplug lawsuit, you need to have used the 3M Combat Arms earplugs in some capacity and suffered injury because of it.
You need not be a servicemember or veteran to file a lawsuit. Civilians who used the Combat Arms Earplugs and sustained hearing damage because of the product’s defects may also be eligible to file lawsuits against the manufacturer.
The fact that many of the existing lawsuits have been consolidated into an MDL does not affect your eligibility to file. The MDL simply consolidates the pretrial components of the cases being considered. Across the country, lawyers continue to add additional cases to the MDL docket, and there is still time to file your lawsuit for consideration in court.
If your 3M military defective earplug lawsuit is subject to a transfer order but has yet to be transferred to the MDL court in the Northern District of Florida, you will need to file all future documents in compliance with the Local Rules of the Northern District of Florida.
According to the MDL rules, you can use your local lawyer to represent you in your case, even if they are not licensed to practice in the Northern District of Florida. Your lawyer can be admitted to practice in the Northern District of Florida by completing a modified pro hac vice application.
Each case filed is judged on its own merits.
By filing a 3M military defective earplug lawsuit, and depending upon your specific injuries, you may recover compensation for the following types of damages:
- Medical treatment
- Prescription medications
- Assistive listening devices
- Lost income/wages
- Lost benefits
- Diminished future potential earnings
- Pain and suffering
- Diminished enjoyment of life
- Loss of consortium
The government played the role of “plaintiff” in a 3M defective combat earplugs lawsuit. In the United States ex rel. Moldex-Metric v. 3M Company, Case No. 3:16-cv-1533-MBS (D.S.C.), the government filed a lawsuit against 3M, “to recover penalties and damages arising from false statements made by Defendant….to the Government regarding its dangerously defective dual-ended Combat Arms earplugs, which 3M sold to the U.S. military for more than a decade without its knowledge of the defect.”
3M served as the exclusive supplier of earplugs to the U.S. Department of Defense from 2003 to 2015. The devices were standard issue for service people in the Army, Navy, Air Force, and Marines engaged in foreign conflicts during this time period.
The lawsuit claimed that 3M’s fraud indirectly cost taxpayers by forcing them to cover the cost of:
- Repeated purchases of the dual-ended Combat Arms earplugs over the course of 12 years they were used by the military; and
- The medical treatment of veterans who sustained hearing damage and impairment, the cost of which exceeds any other ongoing medical cost to the military
Moldex-Metric, Inc. (Moldex), a 3M competitor, filed its qui tam action against 3M in May 2016. A qui tam action is one in which a private party (referred to as a relator) brings an action on the government’s behalf under the False Claims Act.
In such a lawsuit, commonly called a “whistleblower” action, the private entity exposes fraud on the government and, as a reward, receives a share of the damages recovered by the government. As such, the U.S. government was the “real” plaintiff in the United States ex rel. Moldex-Metric v. 3M Company case, with the relator being Moldex.
In a July 2018 settlement, 3M agreed to pay $9.1 million to the U.S. government. As a result of their role in the government’s case, Moldex received $1,911,000. The settlement was reached thanks to a coordinated effort by the Civil Division of the Department of Justice, the United States Attorney’s Office for the District of South Carolina, the Army Criminal Investigation Command, and the Defense Criminal Investigative Service.
3M did not admit to any liability as a function of this settlement agreement.
The Combat Arms Earplugs Version 2 (CAEv2) are hearing protection devices sporting an advanced design aimed at filtering peak level noises. They were developed with the specific purpose of shielding military personnel from the loud noises to which they are typically exposed, such as explosives, artillery, aircraft, guns, and so on.
Without some way of protecting their ears during their recurring exposure to such high levels of noise, service men and women risk sustaining internal damage to their eardrums. When the eardrums are damaged in this manner, it can result in tinnitus and severe hearing impairment (SHI).
This type of hearing loss during Operation Iraqi Freedom escalated to “staggering proportions,” according to the book, Listening to War: Sound, Music, Trauma, and Survival in Wartime Iraq, by J. Martin Daughtry. The problem became so debilitating that the military deployed audiologists to address it.
It seemed that the CAEv2 offered a solution. The Department of Defense (DOD) soon took note of the hearing protection devices and their unique, adaptive features—most importantly, their adaptive, dual ends.
Adding to these novel features, the new earplugs finally sold themselves on their reusability and their low unit cost of $10 a pair.
The military distributed the CAEv2 earplugs to soldiers and Marines deployed to Afghanistan in 2001, and the earplugs became standard issue to troops in the Iraqi theater. By 2004, the DOD ensured that all deployed soldiers were issued the earplugs, with the U.S. Marine Corps ordering 20,000 pairs.
Two years later, the DOD entered into its contract with CAEv2 manufacturer, 3M, as the exclusive supplier of earplugs to the U.S. military. Via the 2006 contract, 3M supplied an estimated 15,000 earplug packages annually, each package containing 50 pairs of earplugs, for a guaranteed price of at least $9 million in annual sales for 3M.
Unfortunately, the CAEv2 earplugs also presented another “feature”: a design defect that rendered them completely ineffective at blocking sound for some users, thereby exposing users to the risk of SHI.
The earplugs were discontinued on November 17, 2015.
The 3M earplugs were crippled by several product defects that ultimately stripped the devices of their intended functionality, leading to a substantial spike in hearing loss for both veterans and active-duty military personnel.
Both sides of the 3M earplug included defects, according to lawsuit filings.
The manufacturer claimed that the yellow (open) end of the earplug holds a 0-decibel rating, which would indicate, not the total absence of sound, but rather the lowest-volume sound that is audible to a healthy human ear.
The yellow end design was conceived to shield the soldier from irregularly occurring loud sounds, while still enabling them to hear spoken commands, approaching vehicles, and so on. However, as reported by Moldex in its complaint against 3M and Aearo Technologies, the manufacturer’s testing showed a rating of -2, a level that amplifies sound, much like a hearing aid does.
They reported the test results as showing a 0-decibel rating, conveniently in line with specifications sought by the government for its military earplugs.
For the green (closed) ends of the earplug, 3M continued its perpetration of fraud by knowingly placing on it a 22-decibel reduction rating, which would, on the surface of things, offer constant ear protection during situations of loud combat. However, because of a design flaw (of which 3M was fully aware), the effective protection rating of the earplug is half of what was intended and marketed.
The chief design flaw consisted of a short earplug stem that meant the earplug could not be correctly inserted—from either end—into the ear canal. On the unused side, a large flange blocks the operational side from penetrating the ear to the extent required to function as it should. The earplugs either do not seal, or they loosen without the wearer’s knowledge.
During testing procedures, the manufacturer overcame this design flaw by rolling back the flange on the unused end upon inserting the other end.
Not only did the manufacturer design the earplugs with defects, but they also manipulated tests to get the optimal results for selling their product to the government.
As final fraudulent offenses, the manufacturer did not properly warn or instruct military personnel on how to effectively use and insert the earplugs. Although the earplug packaging suggests that users roll back the flange, it does not inform that such action is required in order for the device to work against hearing damage.
No. Despite their numerous defects, the 3M Combat Arms version 2 Earplugs were never recalled. However, 3M discontinued the medical devices in 2015.
Typically, manufacturers recall defective products voluntarily when their products pose a threat to public health or well-being by presenting a risk of injury. If a manufacturer fails to recall a harmful product, the Food & Drug Administration (FDA) can issue a recall order under 21 CFR 810.
Instead, 3M discontinued the CAEv2 in 2015, around one year before the government filed its lawsuit against the manufacturer. In coverage of the legal action by CBS News, the Department of Justice declined to say which earplugs the military currently uses.
In the same CBS News coverage, 3M made the following statement:
“3M has great respect for the brave men and women who protect us around the world. We have a long history of serving the U.S. military, and we continue to sell products, including safety products, to help our troops and support their missions.”
However, they continued in their response to deny wrongdoing:
“We deny this product was defectively designed and will defend against the allegations in these lawsuits through the legal process.”
The earplugs manufacturer did not comment on ongoing litigation, nor did it comment on the lawsuit settled with the U.S. government, except to explain the rationale for its agreement to settle as a business decision and to reinforce its position of blamelessness:
“Settling the investigation into this discontinued product at this point allows the matter to no longer be a distraction to the business and frees former and current 3M employees from having to go through the inconvenience of a protracted investigation and litigation. We take great pride in our products and this resolution is not an admission of liability, but simply a decision to move forward with our mission to provide high-quality personal safety equipment products to our customers.”
The fact that 3M has discontinued the CAEv2 does not affect its liability for injuries resulting from the use of the hearing protection devices.
The dual-ended design of the 3M defective CAEv2 earplugs enables its adaptive feature that made the devices so attractive as tools to effectively protect the hearing of military personnel in a variety of situations, both in training and on the battlefield.
3M marketed the CAEv2 as “selective attenuation” earplugs. In other words, the devices can be worn two different ways, each providing a different level of attenuation, or reduction of force from high-level sounds hitting the wearer’s eardrums.
Each CAEv2 has two sides, one dark green and the other yellow. The consistency and level of noise to which a soldier expects to be exposed determine which side they insert in their ear.
The olive-green side is intended to act as the earplug’s closed or “blocked” position, thwarting all sound from passing to the eardrum, in the same way, a traditional earplug works. This side of the earplug is for situations that included constant loud noises, such as working around machinery.
The yellow side acts as the earplug’s open or “unblocked” position. It was designed to protect the ear by reducing the sound level of loud noises like explosions, while at the same time enabling the user to hear voices, such as spoken orders, approaching vehicles, enemies ambushing, or other sounds critical to executing operations and maintaining soldier safety.
Both the yellow and green sides of the earplugs included defects. These defects did not allow the devices to perform as promised. As such, many veterans suffered hearing loss and tinnitus, leading to a mass of 3M defective earplug lawsuits.
Regardless of what causes an individual’s hearing loss, the signs of loss are consistent across all cases. Chronic exposure to loud noises, whatever the source, can contribute to hearing loss, according to Mayo Clinic. Symptoms of hearing loss from the 3M military earplugs include:
- Trouble deciphering spoken words, particularly when uttered against background noise or within a crowd
- Muffled sounds, including speech
- Difficulty hearing consonants
- Feeling the need to increase the volume of the radio or television
- Frequently requesting people to talk more loudly, clearly, and slowly
- Not participating in conversations
- Avoiding certain social situations
Many servicemembers and veterans are also complaining of tinnitus. When a person experiences a hearing loss, the impact of the disability ripples through many aspects of the individual’s life. Certainly, the quality of this person’s life suffers tremendously.
When the simple act of conversation turns into an embarrassing challenge, a person with hearing loss can suffer from feelings of isolation. Not only do they miss out on the enjoyment of the conversation, but after a while, they tend to avoid conversations completely, further exacerbating the feelings of aloneness. Over time, the separation can lead to depression.
Scientists have also connected hearing loss in older adults with cognitive impairment and decline. A 2013 study by hearing experts at John Hopkins revealed that over a span of six years, test subjects with a hearing loss experienced a decline in cognitive abilities that occurred 30 to 40 percent faster than test subjects with normal hearing.
The study concluded that one explanation for the link between hearing loss and cognitive decline could be the connection between hearing loss and social isolation, citing previous research that has established loneliness as a risk factor in cognitive decline.
The John Hopkins study further explains that the extent of the declining brain functionality is related directly to the amount of hearing loss each test subject had sustained.
Seventy decibels is what the Environmental Protection Agency considers a safe noise level. As the noise gets louder, the amount of time required to inflict permanent hearing damage decreases. For a frame of reference, a dishwasher registers at 75 decibels. Firearms register between 140-165 decibels.
Even the Occupational Safety & Health Administration (OSHA) cautions that maximum, legally allowable noise exposure without hearing protection for a sound level of 115 decibels is 15 minutes or less.
Considering the continuous, high-level noises brought on by gunfire, explosions, aircraft, and machinery that veterans have been exposed to throughout their military service, it seems likely that their amount of hearing loss would put them at risk for significant decline in cognitive abilities, given what we now know about how the two are connected.
When the 3M Combat Arms version 2 Earplugs failed to protect the hearing of our American soldiers, it set them on a lifelong course of uncomfortable and sometimes debilitating physical, emotional, and mental symptoms.
Veterans who used the 3M CAEv2 have revealed that they suffer from tinnitus, commonly described as the perception of ringing or noise in the ear.
Tinnitus is not a medical condition. The ringing is actually a “phantom noise” and is symptomatic of another underlying problem, such as an ear injury. Usually, the true medical problem is not a significant cause for concern, but the ringing effect itself can range from bothersome to debilitating.
The noise that people report hearing in association with tinnitus can change from one person to the next. Some sufferers hear a ringing or a buzzing. Others might hear a roaring or a clicking. And still, others may experience the sound of humming or hissing.
The pitch, intensity, and location of the noise also change from case to case. Pitches can run high or low, and they can be constant or intermittent. While most cases of tinnitus are audible only to the patient, in some cases, the doctor can also hear the ringing upon conducting an ear examination of the patient.
For many sufferers, tinnitus can interfere with enjoying a peaceful and productive life. The constant ringing, buzzing, or clicking can create difficulty sleeping and lead to fatigue, stress, trouble concentrating, memory problems, depression, and anxiety or irritability.
Several risk factors have been associated with tinnitus, including cardiovascular problems, smoking, being male, and aging. Prolonged exposure to loud noises, such as what military service men and women endure, places soldiers at a significantly high risk of developing tinnitus.
To better understand tinnitus, you should know more about how your hearing works. Within the ear itself, tiny hairs move with the sound wave pressure that enters your inner ear. This movement acts as a catalyst to release electrical signals through the auditory nerve to the brain. Often, when some of these tiny hairs bend or break, random signals are pushed to the brain, resulting in the ringing that is tinnitus.
The top tactic for tinnitus prevention, as listed by Mayo Clinic, is to use some type of hearing protection. According to Mayo, the exposure to noises like firearms and machinery over time harms the ear’s nerves, leading to tinnitus and hearing loss.
Because tinnitus can result from several different causal factors, including hearing loss, experts have a hard time saying with any certainty how long the condition will last in a patient. For some patients, tinnitus lasts only a few days or weeks. For others, the condition never goes away, and for others, it only gets worse.
Unfortunately, no cure exists for tinnitus, although certain treatments can enable patients to better cope with the condition. The severity of your tinnitus and how it affects you will determine the treatment best suited for you.
Among the tinnitus relief options suggested by the National Institute on Deafness and Other Communication Disorders (NIDCD) are the following:
- Cochlear Implants – Most appropriate for people who suffer from severe hearing loss along with their tinnitus, the implant introduces outside sounds to mask the tinnitus.
- Counseling – Some programs can help you better react to your tinnitus, help you relax, and fall asleep.
- Antidepressants/Anti-anxiety Drugs – These medications might elevate your mood and facilitate sleep.
- Hearing Aids – Good for those who have hearing loss, the hearing aid controls outside sound to improve hearing, which reduces the perception of tinnitus.
- Wearable Sound Generators – These devices fit in your ear and mask your tinnitus with soft, pleasant sounds, like music, tones, or a hushing noise.
- Acoustic neural stimulation – A newer approach, this technique is best for people who suffer from very loud tinnitus that does not stop. The patient wears headphones to hear a “broadband acoustic signal embedded in music” that is sent from a small device. The signal changes your neural circuits and desensitizes you to the tinnitus.
- Tabletop Sound Generation – You can buy a generator that plays a variety of pleasant sounds, which might help you go to sleep.
- Medications – None have been proven effective to date.
The NIDCD has been gathering tinnitus researchers since 2009 to consider what types of devices can be developed to treat the condition. The group has set out to further explore the origins of tinnitus hoping this knowledge will direct them in conceiving “therapeutic interventions” to stop the condition.
One idea the collaborative group is exploring involves stimulating the hearing areas of the brain with electrical or magnetic inputs, perhaps using “pacemaker”-type devices similar to those used in alleviating trembling symptoms associated with Parkinson’s disease and obsessive-compulsive disorder.
The most promising areas of research to date include:
- Electrical or magnetic stimulation of hearing areas of the brain
- Hyperactivity and deep brain stimulation
- Repetitive transcranial magnetic stimulation
- Resetting the tonotopic map
As with any other injury, if your hearing damage resulted from the negligence of another person or entity, you have the right to sue for your injury and other damages associated with it. You could seek compensation through a 3M defective earplugs lawsuit.
Even though 3M’s Combat Arms Earplugs version 2 (CAEv2) was discontinued in 2015 — and all manufacturing, sales, and distribution of the product ceased at that time — the earplugs were never recalled. This means the devices remained on shelves, perhaps in military surplus stores, available for purchase by contractors and private or recreational shooters.
Furthermore, anyone could have bought the earplugs online before they were discontinued and could have continued to use them well past the date that they were no longer sold.
If any civilian were to use the earplugs and sustain hearing damage as a result, the individual has just as much a right as a military veteran does to sue 3M for a defective product.
In some cases, the ear injury occurs because an employer refused to correct a safety violation for which they were issued a citation by the Occupational Safety and Health Administration (OSHA). This represents a willful violation, and the employee can file a personal injury lawsuit against their employer for hearing damage resulting from such a breach.
So, if OSHA had advised your employer that the CAEv2 earplugs were defective and harmful to employees’ hearing, and your employer continued to supply them as hearing protection devices, your employer may be liable for any hearing damage sustained by employees who wore the earplugs.
Then there are the cases of people who sustain hearing damage at work due to excessive exposure to high noise levels while wearing defective hearing protection devices. In these cases, the injured worker can sue the manufacturer. For example, if a construction company or contractor provided 3M’s CAEv2 to their crews for use on the job, and the workers sustained hearing damage as a result of the defective devices, the employees can certainly sue 3M as a third party.
3M created flawed earplugs and then fraudulently tested and marketed them to the U.S military to be used by people who are already sacrificing their lives for our country, the claims alleged.
It is vital that we send a message that this defrauding of the American government and its people will not be tolerated, especially when it puts our military’s health at risk.
Suing through a 3M defective earplugs lawsuit will send this message and, at the same time, help injured soldiers and civilians recover the economic costs of their hearing damage, while also acknowledging other damages with settlements and/or awards provided from the courts of law who oversee the cases.
Some of the compensation you could get if you sue for defective 3M earplugs includes:
- Doctor’s and surgeon’s fees
- Hearing aids
- Assistive devices
- Prescription medications
- Lost income/wages
- Lost benefits
- Lost future potential earnings
- Pain and suffering
- Emotional anxiety
- Diminished quality of life
No amount from a settlement or verdict award will restore your hearing or eliminate your tinnitus, but they at least can help with your costs, fill in the gaps if you are no longer able to work and acknowledge the suffering you experienced from your loss.
Your diminished ability to communicate with family and friends, or to enjoy your favorite music—or even just a moment of silence—is priceless. Let’s at least make sure 3M pays for some of what you have been through. Perhaps 3M’s owning up to financial accountability will make the next company think twice before trying to perpetrate this type of negligence and fraud.
HOW MUCH HAS 3M PAID OUT FOR DEFECTIVE EARPLUGS?
As of July 2019, 3M has paid out $9.1 million for defective earplugs. Via a False Claims Act-based lawsuit filed against 3M, the manufacturer agreed to a settlement amount that paid the U.S. government $9.1 million. The whistleblower who exposed 3M’s defective products and fraudulent testing and claims received $1.9 million for their role in the qui tam lawsuit.
To date, no settlement amounts have been released in the personal injury claims that veterans have filed against 3M.
Once veterans began hearing the news of the settlement with the U.S. government, they began filing their own private lawsuits against 3M. The pending claims were centralized and transferred to Multidistrict Litigation (MDL No. 2885) in a U.S. District Court in the Northern District of Florida.
The court will preside over pretrial issues, like evidence admissibility and could oversee settlements for many of the cases.
However, personal injury case settlement amounts, when agreed upon out of court, are not a matter of public record. On the other hand, if a personal injury case goes to trial, then the amounts awarded to the plaintiffs will become a matter of public record.
Although the legal community has begun batting around potential average amounts that plaintiffs may expect to recover from their legal actions against 3M, we are still immersed in the early stages of this process. As such, we cannot speculate about how much you might recover for your injuries.
Many veterans are currently pursuing their claims against the earplug manufacturer. A 3M earplug lawsuit lawyer can help you determine if you could join them.
If your hearing loss is the result of defective 3M Combat Earplugs, you can take legal action by filing a product liability lawsuit to recover your damages, including medical costs, lost income, and benefits—even pain and suffering.
The law is on your side in this matter, and the outcome of the U.S. government’s lawsuit against 3M has set the stage for potential individual, personal injury lawsuits. But keep in mind that 3M is a massive, global, corporate giant, and you will not want to go up against them alone.
As you consider the first steps you might take, think about hiring a lawyer as job number one.
In what can be a stressful endeavor, finding a lawyer who is client focused and results driven will make this legal action so much easier on you.
The legal team at Zanes Law has been helping victims fight for justice for decades.
We know you have a lot going on in your life, and we are happy to meet wherever is most convenient for you—your home, work, or anywhere in the areas around Tucson and Phoenix. Usually, we can meet with you the same day you contact us. We will review the details of your case and give you a solid understanding of the roadmap we will follow to recover your losses and compensate you for your pain and suffering.
Best of all, you can count on our commitment. We work on contingency, meaning you pay us only when and if you get paid.
We will take care of you and your legal rights, every step of the way. We can put you in touch with a trusted doctor who can examine you, diagnose you, and document your injury so a court of law will see a clear connection between your hearing loss and your use of 3M’s defective military earplugs.
Here is what you can expect after calling our offices:
- You will talk to one of our intake specialists who will ask you questions to gain a clear understanding of your case.
- Get together with our team for an in-person interview. We can prepare you for what lies ahead, so you feel more at ease about moving forward. We typically meet the same day—within 24 hours, at the latest.
- Within 48 hours of our in-person meeting, you will meet your team, including your attorney, case manager, and settlement coordinator.
From there, we will do everything—from gathering compelling evidence to calculating your damages; filing your lawsuit; and representing you to lawyers, judge, and jury — so that you can come out a little lighter, more economically stable, and with the appreciation that justice has been served.
Call Zanes Law today at (833)-890-8329 for your free, no-obligation case review.