3M’s legal battle over combat-grade earplugs

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.

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.

“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.

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.

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.

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.”