In July 2018, 3M settled a lawsuit with the federal government over its Combat Arms Earplugs, Version 2 (CAEv2), which it had sold to the US military. The lawsuit alleged that 3M knowingly supplied them with defective earplugs that may have resulted in the hearing loss and impairment of hundreds of thousands of military personnel.
I do not think this will be the last Combat Arms Earplug lawsuit that 3M will have to settle.
- We now know that a jury agrees that 3M did something very wrong, awarding three victims a $7.1 million earplug verdict.
Combat Arms Earplugs, Version 2
The CAEv2 earplugs were originally manufactured by Aearo Technologies, which 3M acquired in 2008. They were sold to the military between 2003 and 2015. The military used CAEv2 earplugs to protect soldiers’ hearing from loud noises such as gunshots or explosions.
The earplugs were meant to be dual-ended, with each side providing different levels of protection. One side could completely protect someone from noises made by gunfire or explosions, while the other could protect from loud noises without blocking low-level sounds such as a soft-sounding voice. This allows fellow soldiers to hear each other while nearby while protecting themselves from explosions or gunshot noises.
Government Lawsuit against 3M
Before a quarter of a million people brought claims against 3M, the federal government sued 3M for defective earplugs.
The federal government’s lawsuit against 3M settled for $9.1 million. It accused them of fraudulently claiming that the earplugs were safe to use.
Both 3M and Aearo allegedly knew that the devices were too short to fit into some soldiers’ ears.
This is more than problematic because it means that thousands of service members were put at risk for hearing loss or impairment. It alleged that they falsified test results, thus deceiving the government into thinking these earplugs were safe for military use.
The lawsuit also alleges that Aearo had known about this defect as early as the year 2000. In 2014, over 900,000 veterans received disability benefits for hearing impairment, while 1.3 million received compensation for tinnitus. These issues, while treatable, are often permanent.
(Read that paragraph again. It is absolutely incredible. Was no one minding the store when this many disability claims were being filed?)
3M’s competitor, Moldex-Metric brought on the lawsuit in 2016 under the False Claims Act. The act allows parties independent of the government to sue on behalf of them for fraud. Private companies can sue the government if they feel that the defendants submitted false claims in order to receive government funds.
Besides the obvious benefits of knocking back a competitor, the Department of Justice reported that Moldex-Metric will receive $1.9 million of the whole settlement for their whistleblowing efforts. This was also payback. 3M and Moldex-Metric have had a history of suing each other over many years.
3M had accused Moldex-Metric of infringing upon some of its earplug patents. Moldex responded by counter-suing 3M for making false accusations, claiming that its products had predated 3M’s. It also referred to 3M’s dual-ended earplugs, which failed safety tests, thus violating its military sales contracts.
Fraudulent claims made by 3M’s brochure
3M’s brochure on its Combat Arms Earplugs indicates that the company made fraudulent claims about its product. It claims that the earplugs’ sizing options can fit properly in 98 percent of the adult population. It also claims that there are 100 percent product testing protocols with respect to “impedance characteristics.”
The brochure FAQs include questions on proper fit, noting one should have someone else check for proper size if the earplugs are not blocking any sound. This brochure proves that 3M fraudulently claimed that their product was safe to use. It claims that there has been a 100 percent product. However, if this was the case, the manufacturers would have modified the product or warned that there is a risk that the earplugs are too short to fit in some people’s ears.