3M Combat Arms Earplugs Lawsuits

The jury in the latest bellwether trial that’s part of federal multidistrict litigation  awarded an injured U.S. veteran $8.2 million in October 2021. During his military service, the plaintiff experienced hearing loss and tinnitus as a result of using 3M Combat Arms earplugs. In April 2021, three veterans were awarded $7.1 million in the first of the bellwether trials.

The United States Judicial Panel on Multidistrict Litigation consolidated cases from all over the country into MDL No. 2885 in the Northern District of Florida in 2019. 3M attempted to halt litigation proceedings through bankruptcy court, but in August 2022, the judge refused to pause litigation.

As of April 17, 2023, there were 262,426 lawsuits pending in the MDL. After a pause, settlement talks have resumed as of May 2023.

What is the Moldex Whistleblower Lawsuit? In 2016, Moldex-Metric Inc., which makes respiratory and hearing protection products, filed a lawsuit against 3M and Aearo. The suit claimed the company knowingly sold defective earplugs to the military, committing fraud against the government.

The lawsuit asserted that the “protracted fraud perpetrated on the military by 3M, whose dual-ended Combat Arms earplugs — which were standard issue in certain branches of the military during foreign conflicts between 2003 and 2015 — have likely caused thousands of soldiers to suffer significant hearing loss and tinnitus in addition to exposing millions to the risk caused by 3M’s defective earplugs.”

3M admitted no wrongdoing but agreed to pay $9.1 million to settle the allegations in July 2018, according to a DOJ press release.

Following the settlement,  3M Company and its subsidiary, Aearo Technologies, faced 2,051 lawsuits,consolidated in multidistrict litigation in a Florida federal court for their dual-ended Combat Arms Earplugs. Soldiers and veterans accuse 3M of knowingly committing fraud against the U.S. military, failing to warn the military and soldiers of the earplugs’ defects, and falsifying earplug test results — among other allegations.

Aearo Technologies originally designed and obtained an exclusive military contract for the dual-ended Combat Arms Earplugs in 2003. In 2008, 3M bought the company and took over the contract.

When they sold the earplugs to the military, 3M and Aearo claimed the unique dual-ended design allowed soldiers to insert the olive side to protect against all sound. With the yellow side inserted, the earplugs protected against explosions but allowed soldiers to hear spoken commands or approaching enemies.

Soldiers who thought the Combat Arms earplugs protected them were actually at risk of hearing damage. Injuries claimed in lawsuits include hearing loss, tinnitus and loss of balance according to the Military Times.

Hearing loss is an important concern for the U.S. Department of Defense because it impacts operational effectiveness, medical readiness, and quality of life, according to J.T. Nelson and colleagues’ article in Hearing Research. Each branch of the military performs routine hearing tests on service members and keeps a record of the results. These records will be useful in a lawsuit against 3M for hearing loss.

According to the Department of Defense, symptoms of combat-related hearing problems include:

• Difficulty hearing someone talking three feet away
• Difficulty understanding what people are saying
• Buzzing or ringing in the ears
• A feeling of “fullness” in the ears after leaving a noisy area, such as a concert venue

Veterans who currently receive VA disability compensation for hearing loss or tinnitus can continue receiving their benefits even if they pursue a claim against 3M, according to attorneys. Because the government awards disability compensation based on disability ratings and not income level, a personal injury settlement should not impact benefits.

Scott D. Rowe

Texan Scott D. Rowe was one of the first veterans to file a lawsuit against 3M. An Army combat veteran, Rowe, now 40, was stationed primarily in Fort Hood and Fort Lewis, his lawsuit said.

From 2003 to 2004, Rowe deployed to Iraq as part of Operation Iraqi Freedom. He served in the 4th Platoon of the 411th Military Police Company, known as the “Fighting Bastards.”

While at Fort Hood, Fort Lewis and in Iraq, the Army issued Rowe 3M dual-ended Combat Arms earplugs. He used them during combat and training and suffered hearing loss and tinnitus.

“Every day I have to live with a high-pitched frequency in my ear that’s deafening. I’m never at peace,” Rowe told Courthouse News Service.

Anthony F. Ascanio

Anthony F. Ascanio joined the Marines in 2009. He was 21 at the time. Ascanio was stationed at bases in California and Hawaii. He also served on two deployments to Afghanistan during Operation Enduring Freedom.

During Ascanio’s service, 3M’s dual-sided Combat Arms earplugs were standard issue. He used them during training exercises and on the battlefield in Afghanistan.

He used the earplugs as instructed and was never told to fold back the flanges of the earplug. Now, he suffers from bilateral hearing loss and tinnitus, his lawsuit claims.

According to lawsuits, the stem of the earplugs was too short for soldiers to insert the plug deep enough into the ear canal to obtain a proper fit. This caused the plug to loosen, unbeknownst to the wearer or onlookers. When earplugs loosened, they did not provide proper protection.

Aearo Technologies, the earplugs’ original manufacturer, knew of this defect as early as 2000 — before it obtained a contract to sell the earplugs to the military, according to the Moldex lawsuit.

During testing, Aearo personnel rolled back flanges on the non-inserted side (yellow or olive) to prevent the earplugs from loosening. When 3M bought the company and took over Aearo’s military contract, the scientist and lab technician who’d tested the Combat Arms earplugs joined 3M.

The company did not inform the military of the defect or take steps to correct it, nor did it include instructions to fold back the flanges, according to a lawsuit filed by Anthony F. Ascanio.

“It is an absolute disgrace that 3M would purposefully provide defective equipment to U.S. service members, knowing that those service members would rely on that defective equipment in combat,” attorney Andrew Cobos told the Military Times.

“Their fraud resulted in lifelong injuries to America’s warriors. 3M’s actions cannot, and should not, be tolerated.”

Not only did Aearo and 3M manufacture a defective product, they also misrepresented the effectiveness of the product to the military and the soldiers using it, lawsuits claim. In order to sell its earplugs to the military, Aearo had to meet a certain Noise Reduction Rating requirement (NRR). But lawsuits say Aearo and 3M misrepresented the results of the NRR tests to the military.

“3M (ATI at the time) did not commission an independent lab to conduct the testing on the Combat Arms Earplugs as federal law and the military solicitations required,” according to Ascanio’s lawsuit. “Rather, 3M purported to conduct the testing in house, and it was a sham.”

The NRR required for the olive-colored end was 25 to 40 decibels, and it was 0 to 25 decibels for the yellow end, according to Ascanio’s lawsuit.

During initial testing, Aearo found the olive-colored end only reached an NRR of 10.9 on average. The results were disappointing and they stopped testing on the olive end. The yellow end reached -2 NRR. At -2, the yellow end of the earplug actually amplified the sound and functioned as a hearing aid would, according to the whistleblower lawsuit.

Aearo retested the olive end after folding back the yellow flange. By doing this, they were able to achieve a 22 NRR. For the yellow end, Aearo reported the -2 NRR as a 0. The company reported these results to the military and placed them on marketing materials.

Service members who used 3M dual-ended Combat Arms Earplugs during their military service between 2003 and 2015 and suffered permanent hearing loss or tinnitus may be entitled to compensation. Compensation may cover decreased quality of life, depression, anxiety and other problems caused by hearing damage.

The first step is to contact a lawyer and ask about your case. The consultation is free, and veterans who already collect VA disability benefits or social security will not lose them if they file a lawsuit against 3M.

Once you have scheduled an appointment with an attorney, you can facilitate your consultation by:

• Providing copies of any records of hearing tests you received at the VA to your lawyer
• Writing down the details of your case, including the dates you used the earplugs and the onset of your hearing problems
• Making a list of questions, including questions about fees, documentation and the process and timeline of filing a claim
• Inquiring about your options for settling your claim or going to trial

If you cannot locate the records of your hearing tests, the VA should be able to furnish them.

Don’t hesitate to ask all your questions and get clarification on anything you don’t understand. Effective communication will help you and your lawyer manage expectations and proceed appropriately.

As of May 5, 2023, there haven’t been any approved global 3M earplug lawsuit settlement amounts for the 262,426 lawsuits pending in multidistrict litigation in Florida federal court. After several months of delays, settlement talks resumed on May 3, 2023.

Some lawyers estimate that 3M earplug lawsuit settlement amounts could be anywhere from $5,000 to $250,000, depending on the damages claimed. So far, 3M has spent more than $450 million defending against these claims.

To date, 3M has lost 10 of the 16 bellwether test trials to date. Juries awarded more than $250 million to plaintiffs in these trials. Analysts speculate this litigation could cost 3M billions of dollars, according to Bloomberg.