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After the Department of Justice (DOJ) reached a $9.1 million settlement agreement with 3M to resolve allegations that it knowingly sold defective earplugs to the military, a number of veterans have filed personal injury lawsuits seeking compensation for their alleged injuries.

Now, as the number of cases increases, one of those plaintiffs have filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all 3M Combat Arms Earplugs version 2 lawsuits into one federal court for pre-trial proceedings.

In the motion, which was filed on January 25, 2019, the plaintiff requests that the cases be transferred to the District of Minnesota because 3M is headquartered there, and thus the relevant documents and witnesses are located there. The plaintiff adds that coordination in an MDL will “promote the just and efficient conduct of the actions.”

Plaintiff Alleges 3M/Aearo Sold Defective Earplugs to the Military

The plaintiff who filed the motion seeking consolidation filed his personal injury lawsuit against 3M on January 24, 2019, alleging that 3M and Aearo Technologies (which 3M acquired in 2008) manufactured and sold defective dual-ended Combat Arms earplugs. He also alleges that the defendants knew about these defects prior to selling the earplugs to the military, and that they falsified test results to meet military standards and qualify for the multi-million dollar per-year contract with the United States.

At the time the motion to consolidate was filed, eight related actions were pending in four districts. The suits were filed by military personnel who allegedly suffered hearing loss and/or tinnitus as a result of wearing the earplugs.

3M/Aearo supplied the military with earplugs from 2006 through 2015, so the plaintiff notes in the motion that he anticipates thousands of other similar lawsuits will likely be filed in the future.

Company Manually Manipulates Earplugs to Get Desired Testing Results

Competing earplug manufacturer Moldex-Metric Inc. filed a whistleblower lawsuit in the name of the of the United States Government in May 2016, alleging that 3M made false statements to the Government concerning its dual-ended Combat Arms version 2 earplugs. They noted in their complaint that the earplugs had likely caused thousands of soldiers to suffer significant hearing loss and tinnitus, and that the indirect cost to the public has been enormous.

The earplugs can be worn one of two ways: either with the dark, olive side in, or the yellow side in. When worn with the dark side in, they are in the closed or blocked position, and are supposed to block out all sounds similar to traditional earplugs. When worn with the yellow side in, they are in the open or unblocked position, and are supposed to block out only loud sounds like battlefield explosions and gunfire, while still allowing soldiers to hear quieter noises like spoken commands.

The earplugs were originally created by Aearo Technologies, who responded to a bid from the government and won the contract to supply the earplugs in 2006. Prior to that, however, the company had conducted tests on the earplugs and found that in some users, they did not fit correctly, and could slightly loosen, allowing damaging sounds to enter the ear canal.

Rather than go back and redesign the earplugs, testing personnel manually manipulated them, folding the flanges back so the earplugs could be inserted more deeply into the ear. With this change, they achieved the noise reduction ratings (NRR) required by the military. They never instructed users to manipulate the earplugs this way, however. They simply told them to insert the earplugs normally.

Frank Robey, director of the U.S. Army Criminal Investigation Command’s Major Procurement Fraud Unit noted that the settlement between the DOJ and 3M “will ensure that those who do business with the government know that their actions will not go unnoticed.”

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