Combat veterans suing the manufacturer of 3M military earplugs claim the company failed to protect them from hearing loss and accuse 3M and its predecessor, Aearo Technologies, of being aware that its product was defectively designed, reports WBTW-TV.

The cause of action

The 3M military earplugs, sold as Combat Arms Earplugs Version 2 (CAEv2), feature a double-ended design. When inserted into the ear canal one way, they are supposed to provide protection from the sound of sudden explosions, such as gunfire. Inserted the other way, the earplugs should protect against steady rumbling or roaring sounds like aircraft engines or motor vehicles. The design was intended to allow military personnel to hear voices or the sound of approaching enemies while blocking out harmful noises.

The main problem with these earplugs is that they were allegedly too short to properly fit users’ ears. As a result, service members may have suffered permanent hearing loss as well as ringing in the ear (tinnitus) and/or other “phantom” sounds.

The allegations

Interestingly, the problem was brought to the government’s attention not because of veterans’ complaints about hearing loss, but rather a qui tam, or whistleblower lawsuit. Rival earplug manufacturer Moldex-Metric and 3M had been engaging in numerous court battles over the years (primarily over allegations of patent infringement) when the former filed the lawsuit on behalf of the government in 2016.

Whistleblower Moldex-Metric claimed that 3M had made false and misleading statements about previous versions of its military earplugs and that the CAEv2 had failed to pass safety tests, thus violating its Defense Department contract. Specifically, Moldex-Metric claimed that the length of the 3M military earplugs was insufficient, causing them to “loosen imperceptibly,” per a statement from the Department of Justice. As a result, service members wearing these earplugs were not aware that they were vulnerable to hearing damage.

Ultimately, 3M settled that lawsuit with the Department of Justice for $9.1 million. The DOJ says that even 3M’s own in-house testing showed the product to be defective. However, under the settlement terms, 3M was not required to admit any wrongdoing, according to the Minneapolis Star Tribune.

Current litigation

More than 200,000 current and former soldiers are taking part in litigation against 3M over its allegedly defective earplugs, according to a recent report in the Minneapolis Star Tribune.

These lawsuits over 3M military earplugs have been consolidated into what is known as multi-district litigation. A small number of cases were chosen to act as test cases—or bellwethers. Bellwether trials are intended to give parties on both sides some indication of how juries will determine liability going forward. At that point, the two sides may choose to settle or to continue the litigation.

Several bellwether lawsuits went to trial in Florida federal court in April 2021. The jury found 3M liable for hearing damage suffered by the veterans in the bellwether trials, and awarded each of three plaintiffs $2.1 million in punitive damages and a total of $830,500 in compensatory damages, according to Reuters. Since then, several plaintiffs have been successful in court – though 3M has appealed some jury verdicts.

In September 2022, two veterans filed another lawsuit against 3M aiming to block the company’s spinoff into healthcare. Veterans in the case say that this move is 3M’s latest attempt to dodge liability in earplug lawsuits after a bankruptcy court denied to halt cases after its subsidiary – the original earplug manufacturer – declared bankruptcy.

Who is at risk for hearing loss?

The 3M military earplugs are no longer being manufactured. However, they were standard issue for field personnel serving in Iraq and Southwest Asia from 2002 to 2015. Anyone who was on active duty in the U.S. Armed Forces during that time may be at risk for serious hearing damage and may have grounds for legal action against the manufacturer.