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According to the U.S. Census Bureau, there were over 800,000 veterans living in the state of Pennsylvania between 2013 and 2017. The Center for Philanthropy states that Pennsylvania has the nation’s fourth largest veteran’s population and that the number of vets jumped by 46 percent between 2009 and 2013.

Many of those veterans may be suffering from hearing loss and tinnitus because of potentially defective earplugs used in both the Afghanistan and Iraq wars between 2003 and 2015. The manufacturer, 3M Company, recently agreed to pay $9.1 million to resolve allegations that it knowingly supplied defective earplugs to the United States government.

3M Earplugs Supposed to Help Protect Soldiers’ Hearing

The 3M dual-ended Combat Arms Earplugs Version 2 (CAEv2) were standard issue in the military during foreign conflicts between 2003 and 2015 and were designed to protect the ears and hearing during military activities.

3M CAEv2 Military Earplug

The two-in-one design, if worn with the green “closed” side in, were supposed to perform like regular earplugs, while if worn with the yellow “open” side in, were supposed to significantly reduce loud sounds from battlefield explosions, while still allowing soldiers to hear quieter sounds like spoken commands or approaching enemy combatants.

The earplugs were originally created by Aearo Technologies, which 3M acquired in 2008. 3M was aware of the exclusive contract Aearo had with the military to supply these types of earplugs, and according to the whistleblower lawsuit which recently settled, also knew of the defects associated with these earplugs.

3M Knowingly Supplies Defective Earplugs to the Military

In 2016, competing earplug manufacturer Moldex-Metric, Inc. filed the whistleblower lawsuit under the “False Claims Act,” claiming that 3M not only knew that their earplugs were defective, but that they also fraudulently conducted testing required pursuant to applicable U.S. military and U.S. Environmental Protection Agency (EPA) standards.

The problem with the earplug is that the stem is too short, so it can loosen after its inserted in the ear canal in a way that is imperceptible to the wearer but still diminishes the earplug’s effectiveness. This can cause damaging sounds to travel into the ear canal and cause hearing loss. Even if the wearer presses the earplug farther into the ear, it is still likely to loosen, destroying the seal and allowing sounds to penetrate the ear canal.

According to the complaint, Aearo was aware of the problem as early as the year 2000, when it completed testing on the earplugs. In February of that year, company personnel tested the noise reduction rating (NRR) on the earplugs. Results showed the products weren’t working as well as expected. Personnel discovered the loosening problem, so they manually manipulated the earplugs to mitigate the effects of the defective design in order to improve the test results.

The complaint further alleges that, despite knowledge of the loosening problem, Aearo replied to a Request for Proposal (RFP) to supply large quantities of the earplugs to the military. As part of the contract vetting process, the company had to certify that their products complied with military standards, even though they didn’t. They eventually won the contract and became the exclusive provider of these earplugs to the military for over a decade.

The plaintiffs in the lawsuit stated that Aearo’s response to the RFP constituted a false statement and that they failed to warn the military about the defects associated with their products. They also failed to advise users of the modified fitting procedure for the earplugs in the earplug’s instructions for use.

3M to Pay DOJ $9.1 Million in Whistleblower Lawsuit

In the summer of 2018, 3M agreed to a large settlement of $9.1 million with the DOJ for knowingly selling defective earplugs to the military. As part of the settlement, the whistleblower will also receive $1,911,000.

Veterans who wore these earplugs during their terms of service and who are now suffering from hearing loss or tinnitus may be able to recover damages in a personal injury lawsuit.

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