What if you experienced repeated exposure to repeated, sustained, loud noises as a part of your work, but your employer provided you with earplugs to protect your ears? Likely, you would trust the earplugs would effectively protect your hearing, or at least lessen the intrusion of sound. This situation occurred within the US Armed Forces; however, the situation ended with a large number of veterans suffering hearing loss; ensuing a string of lawsuits against the manufacturing company.
Members of the US Armed Forces, including the Army, Marine Corps, Air Force, and Navy, often experience exposure to frequent, sustained loud noises as part of their daily jobs. In 2003, the U.S. Department of Defense contracted 3M and its predecessor, Aearo Technologies, a well-known technology corporation, to produce combat earplugs in an attempt to help service members prevent hearing loss, tinnitus, and other conditions resulting from repeated exposure to damaging noises.
The Department of Defense frequently outsources the manufacturing of its safety equipment, awarding the contract for producing it to the lowest bidder. Upon entry into basic training, every trainee received the earplugs, and the various branches of the military issued them at different times throughout the service member’s career, particularly immediately before firing range training or deployment to a combat zone. Service members were required to wear the issued earplugs during times of exposure to sustained noise.
To fulfill the contract, 3M designed earplugs especially for the Department of Defense. The CAEv2 were dual-sided, black and yellow ear plugs designed to serve two functions.
However, the earplugs failed to protect service members from the noises 3M designed them to block.
As many service members began to experience hearing loss, ringing of the ears (tinnitus) and other ill effects from the earplugs’ failure, an investigation began. Further study proved that a set of fins on the earplugs prevented the devices from forming a seal against the ear canal of the wearer, a feature crucial to blocking sound. The loose fit also caused the earplugs to fall out frequently, including while service members fired weapons and needed the protection most. However, 3M continued to manufacture and provide the earplugs to millions of service members between 2003 and 2015.
A whistleblower filed a qui tam lawsuit, alleging that both Aearo and 3M were aware of the issues with the earplugs but continued to provide them anyway, knowingly risking the hearing of service members and defrauding the US government. Qui tam lawsuits exist to encourage whistleblowers to come forward, and promise a percentage of the settlement reached.
Internal documents surfaced, proving that 3M tested the earplugs in 2000 and found them to have a noise level reduction rating (NRR) of zero – the earplugs had absolutely no effect. Worse, the earplugs offered no protection while leading service members to believe they had protection against noise levels. In 2018, 3M settled with the US government for $9.1 million, though none of the settlement money went to veterans suffering hearing loss.
Now that a judge has awarded a settlement, other veterans suffering hearing loss and tinnitus as a result of faulty earplugs may experience some success filing their own lawsuits for willful negligence on 3M’s part. Currently, hundreds of veterans and active duty military are filing claims against 3M. None have successfully filed claims against the military or US government, who 3M deceived.
The suits are not a class action lawsuit. Rather, each veteran procures his or her own attorney and files a lawsuit separately. Then, a single judge will likely hear all the cases in one particular area as a mass tort litigation. However, since all cases are still separate, the judge will retain the ability to award settlements or damages individually.