On April 20, 2020, a federal judge ordered that court documents be unsealed in the case against 3M regarding earplugs. The documents include depositions as well as memos and emails.
The claim being made against 3M is that between 2003 and 2015 it sold faulty earplugs to the Defense Department for use by military personnel. The claim has over 140,000 veterans who were given these earplugs during fighting in the wars in Iraq and Afghanistan.
3M’s Knowledge of Defects
The plaintiffs allege that 3M sold the products to the US military while knowing they were defective, which constitutes fraud. According to claims made against the manufacturer, it had conducted testing and knew the earplugs wouldn’t provide a secure fit.
The design was supposed to provide dual protection. On one side, which was an olive green color, the person wearing it would receive the full protection of a normal earplug. When the yellow side was inserted, they would still be able to hear low-level sounds while being protected from sounds at a dangerous level. The earplugs were too short to fit securely and could become looser without the person wearing them noticing the change.
According to documents, it cost 3M 85 cents to make each set of earplugs while selling them at $7.63. The product accounted for about 20 percent of operating income for the company. In a deposition that was unsealed, officials with the company didn’t believe it was necessary for the soldiers to know that testing was done in a different way than how the earplugs would be used.
In one instance, an official said it was okay to conceal information about possible defects as long as the product worked most of the time. The deposition went on to state that the official was asked if it as acceptable to sell such a product and hide the negative information from the soldiers and the official said yes.
Many soldiers developed tinnitus or ringing in the ears as well as hearing loss from wearing the defective earplugs, according to allegations made in the lawsuit. 3M has countered by saying they made the products according to specifications and shared all information with the military. Part of their defense is that they are a government contractor. In the past, the Supreme Court has limited state lawsuits in these situations if the government was involved in the design of a product. However, lawyers for the plaintiffs say that defense isn’t accurate for this situation.
The company had agreed to pay $9.1 million as a way to resolve allegations in 2018. An original lawsuit was filed by a whistleblower. Numerous lawsuits were filed after that decision, which have now been combined into a mass tort case rather than a class action lawsuit. This allows each plaintiff to be treated as an individual case.
The case is expected to go to trial something in 2021 in the US District Court of the Northern District of Florida.