It’s a standard sight at firing ranges – individuals wearing heavy ear protection while firing their weapons. Even small, light-weight guns can pose a serious danger to the user’s hearing, which is why even amateur firearm users make sure to wear the proper equipment.
Members of the military who wield heavy-duty weapons day in and day out face a unique threat to their long-term hearing. And those soldiers, sailors and airmen who served in active-duty combat situations were particularly vulnerable to serious hearing damage, frequently exposed as they were to high explosives.
As such, protecting the hearing of servicemen and women has long been a priority for the military – a member of the military who can’t hear will struggle to follow orders or otherwise perform at the level expected of the American armed forces. Starting in 2006, the US military contracted with a company later purchased by the manufacturing giant 3M to provide high-quality ear plugs to the nation’s fighting men and women.
However, the ear plugs proved dangerously inadequate to their task. And now thousands of veterans are suing 3M, alleging that the earplugs were designed in a defective manner, the company that designed them knew their product didn’t work effectively and the company did not warn users of the crippling flaws in their earplugs.
An Ineffective Earplug
Hearing damage is one of the most common dangers faced by America’s veterans. Approximately 50 percent of all veterans experience hearing loss or tinnitus, a condition in which the victim experiences the perception of ringing or buzzing in their ears. The government paid out hearing damage-related disability compensation to nearly three million veterans in 2016.
That’s where the Combat Arms came in. Starting in 2006, a company called Aearo (purchased by 3M in 2008) provided service members with their Combat Arms earplugs. The Combat Arms earplugs boasted a unique “dual-ended” design, with one end painted yellow and the other painted olive green. In theory, users could insert the yellow end and block out particularly loud and dangerous noises while still hearing verbal communications. By inserting the green end, users could completely block out external noise.
Put simply, the ear plugs didn’t work.
A whistleblower brought a lawsuit under the Federal Claims Act alleging that Aearo knew their earplugs failed to protect the user’s ears and sold them to the military anyway. 3M settled that lawsuit in 2018, paying $9.1 million to the federal government and the whistleblower who brought the suit.
But none of that money made its way to veterans who were dealing with hearing loss or tinnitus because they trusted in defective earplugs. These men and women, who fought in brutal theaters of war and often survived multiple tours of duty, were left to deal with the crippling effects of hearing loss and tinnitus without financial compensation.
Private law firms have stepped in and are helping thousands of veterans afflicted with hearing damage file lawsuits against 3M. This damage is often serious, and in some cases the damage can be crippling. As commonly described, tinnitus doesn’t sound particularly worrisome, but those with the condition can find themselves dealing with a lifetime of deafening ringing for which there is no solution.
Law firms are actively looking for veterans who served between 2003 and 2015, were issued Combat Arms earplugs and suffer from hearing loss or tinnitus. Veterans from all branches of the military, the reserves, the Border Patrol and other entities where the ear plugs were issued are eligible to pursue claims.
In addition, veterans who have received disability payments from the military can still pursue legal action against 3M.
The Legal Issues
According to the original False Claims complaint filed in 2016, Aearo knew as far back as the year 2000 that their ear plugs were defective. The complaint alleged that Aearo and its scientists were aware that the earplugs could imperceptibly loosen in the user’s ears, exposing them to dangerous sounds the earplugs were supposed to suppress.
The complaint details Aearo’s testing process, which discovered a structural flaw in the design of the earplug – essentially, the plug was too small, and a flange would press against the user’s ear canal and then loosen, eliminating the plug’s supposed protection capabilities. However, instead of re-designing the earplug, Aearo tweaked the testing process, bending the flanges before inserting the earplugs. They then got the results they wanted and used those results when submitting the plugs to the government.
Crucially, the instructions provided by Aearo/3M do not tell users to bend the flanges before inserting the earplugs.
3M is relying heavily on a 1988 Supreme Court decision, Boyle v. United Technologies. Under the so-called “Boyle Test,” government contractors are not liable if the government approved of the product’s specifications, the equipment met those specifications and the contractor warned the government about the dangers of the products.
The private legal actions are still in their early stages and have been consolidated in a federal court in Florida as part of a multi-district litigation. However, victims do not need to live in Florida or even travel there to pursue a claim against 3M.