OK to Conceal Information from Soldiers About Defective 3M Earplugs: Deposition

Litigation involving 3M Dual-Ended Combat Arms Earplugs (“3M Earplugs”) is advancing. Recently deposition testimony from 3M and Aearo employees was made public, and some of the answers are troubling. It brings me no joy to play the role of Chicken Little, but when companies are tempted by massive profits, too often those companies will cut corners on consumer safety. In this case, those consumers were millions of soldiers serving their country from 2003 to 2015.

First, in a recent deposition a 3M marketing manager confirmed that 3M was selling the dual-ended earplugs to the military for $7.63, even though it cost the company just $.85 to manufacture, a 900% markup. In an email the 3M employee remarked “LOL,” apparently about the hefty price increase for the 3M Earplugs.

Second, as I wrote about a year ago, one of the central allegations in the soldiers’ claims against 3M is that the company did not adequately test the 3M Earplugs before selling millions of them to the military. Nevertheless, in deposition testimony 3M officials stated that they did not believe it was necessary for soldiers to know that the earplugs were tested under conditions that were different from the conditions the soldiers would experience in the field. In fact, a former vice-president at Aearo Technologies testified that he thought it was OK to conceal information from the government about potential defects in the earplugs. He also confirmed that it was acceptable to sell a product and conceal information that the product could have a negative effect on soldiers.

The 3M Earplugs were originally developed by Aearo Technologies. 3M later acquired the company. These earplugs had a two-sided design that was supposed to provide ear protection no matter which side was inserted into the ear. The yellow side was supposed to provide protection against high-level impulse noise while still allowing the individual to hear commands and other lower level noises. The green side was intended to block out all sounds. According to several lawsuits brought by injured service members, the 3M Earplugs did not work as designed, in part because they did not stay in place properly due to their length. Internal documents suggest that 3M was on notice of the defect and failed to take corrective action. Among other failings, lawsuits allege that Aearo and 3M did not adequately test the 3M Earplugs before making them available to the military and to soldiers in the field.

Soldiers are often exposed to loud, potentially harmful noises, and not just on the battlefield. Some soldiers work with heavy machinery; others serve as mechanics on helicopters and jets; and of course, all are trained in the use of firearms. These workplace noise exposures can quickly harm hearing without proper hearing protection. For more information on these noise hazards in the military, check out my podcast with former Army Ranger Chet Sechrest.

On April 3, 2019, a multidistrict litigation (MDL) site was selected for the 3M Combat Earplugs lawsuits, in the Northern District of Florida before Judge Casey Rodgers. So far over 100,000 lawsuits have been filed. If you were a service member between 2003 and 2015, wore the 3M Earplugs for hearing protection but now suffer from hearing loss or injury, give me a call to discuss your case: 919.546.8788.

Note: Information in this post is derived from news reports. The allegations against 3M in the pending lawsuits have not yet been proven in court, and the Defendants have denied some or all of the allegations.

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