Combat arms earplugs provided to the U.S. military by 3M Corporation are defective, according to lawsuits filed by veterans who have suffered hearing loss.

In July 2018, the Minnesota-based company agreed to a settlement of $9.1 million to the U.S. Department of Justice in order to resolve whistleblower allegations that it sold defective earplugs to the Department of Defense.

Having settled the whistleblower claims does not shield them from individual lawsuits, however. Currently, they are facing injury lawsuits brought by veterans who now suffer from permanent hearing loss and tinnitus from what they say was a poorly-designed and defective product.

Dual-Ended Combat Arms Earplugs, Version 2

The original combat arms earplugs were a product designed and developed by Aearo Technologies in the late 1990s. That company was taken over by 3M in 2007, as was its product line.

3M claimed that the latest version of the earplugs, designated as CAEv2, was designed to fit 98 percent of all adult ear canals as well as being adjustable.

Unlike standard foam earplugs, the CAEv2 offered two different modes of operation, which could be toggled by using an “in-ear switching mechanism.”

One of them, “Open/Weapons Fire,” was intended for use when working with firearms and explosives. The alternative was “Closed/Constant Protection” mode, which was to be employed when the user was exposed to loud, steady noises such as motors and aircraft engines.

Defects Were Exposed

The original lawsuit against 3M was filed on behalf of the U.S. government under the False Claims Act by a former employee. Allegedly, 3M was aware that the combat arms earplugs failed to fit in the ear canal properly due to improper design. As a result, the product could gradually come loose without users knowing about it.

As part of their settlement with the DOJ, 3M was not required to admit to any liability. That, as well as the penalty, which is generally considered to be little more than a proverbial slap on the wrist, has angered veterans and their advocates.

Damage Associated With The Earplugs

CBS goes into detail about the type of damage that service members say is associated with the earplugs. Service members describe both hearing loss and tinnitus, or a constant ringing in the ears. 

Though most people think of sound as entering through the ear canal, CBS cites Dr. Thomas Roland of NYU Langone Health, who says that “sound enters not only through the ear canal but also through something know as bone conduction.” Sound waves hit the bones of the skull, and move the bone.

According to Dr. Roland, earplugs block sound coming in through the ear canal, but not through the skull. He goes on to say, “if you completely block the ear, sound above a certain level can still get to the inner ear through bone conduction, still be very damaging.”

Service members are often exposed to extremely loud noises — at the level that they may damage hearing through bone conduction even if the service member is wearing ear plugs.

Reportedly ear plugs cannot stop this kind of hearing damage, even if they are well designed. This news may be surprising and devastating to service members who were given hearing protection that they relied on to preserve their hearing.

Such a problem on top of alleged design flaws in the 3M ear plugs may have placed service members’ hearing in serious jeopardy. One service member told CBS that he was told that the 3M ear plugs were the best on the market, but he says he still suffered hearing loss after using them.

Individual Lawsuits Move Forward

According to a local Minneapolis newspaper, the Star Tribune, there are currently 11 cases now pending against 3M. However, an attorney interviewed in the story said that was just the beginning. Interest in this issue is spreading among veterans, and additional claims are expected to number in the thousands.

Tinnitus and hearing loss are among the most common combat and training injuries suffered by military personnel.

Other lawyers who have filed lawsuits say they have been contacted by hundreds of veterans now suffering from serious hearing loss – all of whom used combat arms earplugs during their tours of duty.

It is possible that the cases will be consolidated into multidistrict litigation. Unlike a class action, plaintiffs in MDL retain their individual claims.

Pretrial procedures are carried out before a single judge, after which a handful of cases are selected as “bellwether” trials in order to determine how future cases will play out and whether or not parties will agree to a settlement or continue to litigate.