In July 2018, the Justice Department announced a $9.1 million settlement with 3M over allegations that the company knowingly provided defective Combat Arms Earplugs to U.S. soldiers. These earplugs failed to protect soldiers’ hearing and have been linked to a dramatic increase in hearing loss diagnoses in veterans and active-duty service members.
Ashcraft & Gerel regularly represents members of the armed forces and is thoroughly investigating these claims. We deeply appreciate your service to our country and want to hold this company accountable for the damage it caused.
The Defective Product
Manufacturer: Aearo Technologies and 3M (3M purchased Aearo in 2008 for $1.2 Billion).
- 3M Combat Arms Earplugs
- Dual-Ended Combat Arms™ Earplugs, Version 2 (CAEv2)
Supply Dates to US Military: 2003 to 2015
Discontinuance Date: November 17, 2015
Quantity Supplied to Military: The exact count is under investigation because Aearo and 3M entered limitless Indefinite-Quantity Contracts with the US Government. A 2006 contract proposed a minimum supply of 500,000 pairs and estimated the maximum number supplied could total as high as 2,250,000 pairs.
Overseas Deployments: Afghanistan, Cameroon, Chad, Eritrea, Ethiopia, Georgia and Djibouti, Haiti, Iraq, Jordan, Kenya, Lebanon, Liberia, Libya, Mali, Somalia, Syria, Turkey, Uganda, Yemen, etc.
Other Involvements: routine training use; air base and military base use by all branches; regular use by service members in the Coast Guard, Marines, and Navy.
How the device worked: 3M Combat Arms Earplugs claimed to offer service members the benefit of two distinct types of earplugs in one unit. The Yellow (Open-End) was intended to protect against loud impulse noises while allowing the soldier to still hear critical verbal commands. The Green (Closed-End) was intended to provide constant noise protection for heavy machinery and other constant loud combat scenarios.
Design, Specifications, and Testing:
- The initial complaint alleged Aearo/3M rigged product testing to make Combat Arms Earplugs seem more effective on paper to the military than the earplugs actually performed in real life.
- Filings allege Aearo/3M fraudulently claimed its testing met ANSI and other material regulatory standards for ear protection the government required in its bid process.
- Filings allege Aearo/3M submitted additional false claims about the effectiveness of Combat Arms Earplugs in subsequent years to renew the contract and continue its exclusive supply of defective ear protection to the military.
Yellow (Open-End) Defects:
- Filings allege Aearo/3M fraudulently claimed a 0 decibel rating on the yellow open-end, and claimed this plug would allow the soldier to hear critical spoken and other audible commands in the field with the earplugs inserted while still protecting the soldier from unexpected and intermittent loud explosions.
- In reality, this end did not function as promised. It reduced decibel levels and made it more difficult to hear critical commands.
- Company testing on the open-end did not comply with mandatory standards and actually resulted in a facially invalid -2 decibel result (a negative result implies an “amplification” effect).
Green (Closed-End) Defects:
- Filings allege Aearo/3M fraudulently put forth a 22 decibel reduction rating on the closed-end and claimed this end would provide a constant level of ear protection during continued high noise combat situations.
- In reality, a known design flaw in Combat Arms Earplugs limited the amount of protection the closed end provided by approximately half the protection rating.
- This flaw unknowingly exposed soldiers to significantly greater amounts of potentially damaging noise in combat.
The Design Flaw:
- The double ended earplug stem is too short. It prevents the soldier from inserting either end into the ear canal correctly.
- The large end flange on the unused end physically blocks the side in use from penetrating far enough into the ear.
- In testing Combat Arms Earplugs, Aearo/3M employed a correction technique to overcome this flaw, where the user would physically roll back the large flange on the unused end when inserting the ear plug.
Failure to Warn or Instruct:
- Warnings and Instructions provided to military personnel instructed wearers to simply “insert” the green or yellow end based on the desired usage situation.
- The packaging suggests that some wearers may obtain a better fit by rolling back the first flange on the un-used side. This suggestion knowingly hid the fact that the design of the product itself required the roll-back technique for soldiers to benefit from the product’s claimed effectiveness in protecting against permanent hearing damage.
Injuries Caused by 3M Combat Arms Earplugs:
- Diagnoses include but are not limited to hearing loss, tinnitus (noise or ringing in ears), and deafness.
- The impact of these injuries is significant. Recent estimates suggest as many as 52%-60% of veterans suffer from hearing loss. A 2015 article estimates the VA spends over $1 billion per year to treat hearing loss in 800,000+ veterans.
About Ashcraft & Gerel: Founded in 1953, Ashcraft & Gerel is a national recognized firm based in the Washington, DC metropolitan region. The firm has a longstanding tradition of representing active and retired members of our nation’s military. In the historic Agent Orange case, A&G represented more than two thousand Vietnam War veterans injured by sustained exposure to the defoliant during the war. Our DC offices are located a stone’s throw from the White House and approximately 3 miles from the Pentagon.