3M’s legal battle over combat-grade earplugs

3M’s legal battle over combat-grade earplugs

Nathan Frei, a former active duty infantry officer who served from 2011 to 2015 and Judge Advocate General in the US military, first noticed problems with his hearing in 2013, shortly after his death. back from training with the US Navy. Nate was identified with tinnitus and is now one of more than 200,000 plaintiffs suing 3M over its Combat Arms earplugs.

Nathan Frei

Former active duty US Army infantry officer Nathan Frei said that between 2011 and 2015 he underwent some of the most intense training the US military had to offer. With it came loud noises – everything from weapons to helicopters to explosions.

To protect his hearing, Frei wore standard earplugs made by 3M.

Today, he is one of more than 200,000 service members and veterans sue the conglomerate. 3M stock, which hit a new 52-week low on Wednesday, is one of the worst performing industrial stocks this year, down more than 16% in 2023, compared to the XLI Industrial ETFswhich is down 1.5% since the start of the year.

The plaintiffs claim that the 3M earplugs were “defective” and did not protect against hearing loss and tinnitus.

“We used [the earplugs] whenever we were surrounded by loud noises,” Frei, who lives in Seattle, told CNBC. “And I relied on that hearing protection during that time.”

From 2003 to 2015, Aero technologies and its parent company, 3M, manufactured and supplied the United States military with Combat Arms CAEv2 Earplugs. Earplugs were standard issue for soldiers in Afghanistan and Iraq and were designed to protect servicemen’s hearing during military training and during combat.

3M Combat Arms CAEv2 Earplugs


Each earplug had two ends: The green end was designed to block out all sound. The yellow end, signaling “whisper mode”, was supposed to block out loud sounds, but allowed the user to hear quieter noises, such as conversations.

I don’t look like someone who should probably have as much hearing loss as I did at my age.

Nathan Frei

Former active duty U.S. Army infantry officer

“We were told that by wearing ‘whisper mode’ we could still protect our hearing,” said Frei, who says he first noticed hearing problems in 2013.

“I heard a ringing,” Frei recalls. “At first I thought it was a TV that was on. So I searched and walked around the house looking for where the noise was coming from before realizing it was just in my head.”

Over the years, the 35-year-old said, his hearing problems got worse. Department of Veterans Affairs records shared by Frei with CNBC show he was later diagnosed with tinnitus.

“It’s constant,” he said. “It’s a loud ringing in my ears – very similar to buzzing.”

He said the ringtone is so disruptive that it sometimes keeps him awake.

“I don’t look like someone who should probably have as much hearing loss as I did at my age,” he said.

3M’s response

3M attorney Eric Rucker told CNBC the company has great respect for the men and women of the military and that their safety has always been a priority.

Maplewood, Minnesota, world headquarters of the 3M Company.

Michel Siluk Getty Images

“The purpose of creating [the Combat Arms earplugs] was to work with the military to solve one of the oldest problems they had, which was soldiers not wearing their hearing protection around loud noises and in combat,” Rucker said.

Rucker said the caps were designed in conjunction with the US military and tested by the Air Force, Army, National Institute for Occupational Safety and Health, and others.

“All of these tests show that Combat Arms earplugs, when properly fitted and used according to its instructions, work to protect people’s hearing,” he said.

Rucker conceded that military audiologists were “well trained in how to train and adapt people to use earplugs”, but argued that “it should have worked and protected their hearing in environments where it was appropriate to use these earplugs”.

After filing a whistleblower complaint in 2016accusing 3M of selling “dangerously defective” earplugs, the the company agreed to pay $9.1 million to the Department of Justice to resolve the allegations without admitting liability.

Soon after, there was a flood of new costumes from hundreds of thousands of other service members.

Where are things today

Today, the lawsuits have been consolidated in federal court in Florida, creating what some are calling largest mass crime in US historyeven surpassing multidistrict litigation involving Johnson & Johnson’s talc products.

3M has lost 10 of the 16 cases that have gone to trial so far, with a total of $265 million awarded to 13 plaintiffs to date.

“There have been several landmark trials. And unfortunately, Aearo and 3M were unable to present all of the evidence related to the original product design, military involvement in product design, any issues regarding the instructions, and how to use the product, and how well the product performed, including some testing information that was excluded from some trials,” Rucker said.

“This is all on appeal. And we hope that the decisions on appeal will ensure that more information comes out,” he added.

Combat Arms earplugs, when properly fitted and when used according to its instructions, work to protect people’s hearing.

3M new data recently revealed this shows that 90% of a group of 175,000 plaintiffs have no hearing impairment by medically accepted standards, according to US Department of Defense records. Lead plaintiffs’ attorneys call the data a “misrepresentation.”

“3M deliberately skewed this data by relying on hearing standards that do not measure the frequencies most affected by noise, thereby obscuring the hearing damage suffered by veterans,” said Bryan Aylstock and Chris Seeger, senior co-advocates for military and veterans, in a joint statement.

3M disagreed with these claims, telling CNBC: “The data confirms what 3M has maintained throughout this litigation: the second version of the Combat Arms earplugs were safe and effective to use. has been confirmed by every independent third-party organization that has tested the product, including the Army Research Laboratory, Air Force Research Laboratory, NIOSH, and others.”

Liability risk

Mizuho’s executive director, Brett Linzey, wrote in a note to clients that “even the low end of combat arms lawsuits already settled (or even half that amount) equates to quite sound that 3M may have to settle”.

According to a Wall Street analyst, 3M’s liability exposure could potentially run into the billions.

“Do the math on the number of plaintiffs, which is north of 200,000 and you take the average settlement value — the simple math that gets you well north of $10 billion to $20 billion,” analyst Stephen Tusa said. from JPMorgan, to CNBC. 3M told CNBC the estimate was “completely speculative.”

“We will continue to defend the cases. But the vast majority of these claims don’t have complete information,” Rucker said.

In a legal move that would indemnify 3M, the company’s attorneys attempted to place its subsidiary Aearo Technologies under bankruptcy protection and set aside a $1 billion trust to settle the lawsuits. Service members suing 3M accuse the company of using bankruptcy to protect itself and have asked a judge to dismiss it.

A decision on this potential dismissal is expected in April. The pleadings for the appeal of the first flagship trials are scheduled for May 1.

As for Frei, he expects his case to go to trial by the end of the year.

“It drives me crazy,” Frei told CNBC, accusing 3M of “trying to conspire either through bankruptcy or through these arguments to try to avoid accountability for what they’ve done.”

3M’s legal battle over combat-grade earplugs

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