3M Allegedly Reported False Safety Results to Procure Lucrative Contract

Kansas City, MOOn February 21, 2019, Jonathan Foster, an Army Reserve veteran, filed a 3M Combat Arms defective earplug lawsuit in the Western District of Missouri. He suffers from tinnitus, a symptom of permanent hearing loss, because the earplugs supplied to him by the Army during his training and subsequent deployment to Afghanistan were badly designed. They failed to protect him from the preventable harm that the manufacturer guaranteed against.

The 3M Combat Arms defective earplugs were standard issue in certain branches of the military between 2003 and 2015, if not longer. They may have exposed hundreds of thousands, if not millions, of soldiers to hearing loss and related injuries from exposure to the noise of military firearms.

To be clear, these are not the tragic injuries of war. These are injuries of the marketplace. 3M locked up a lucrative contract with the military even though it allegedly knew that the products it sold were defective. Classic movie buffs may be reminded of a fictionalized version of the same kind of conflict in the 1948 film, All My Sons . It’s just we don’t much use the phrase “war profiteering” anymore.

Tinnitus more than a nuisance

Tinnitus is ringing in the ears and is often a symptom of permanent hearing loss. It may come through as a persistent roar or a high squeal in one or both ears. In some cases, the sound can be so loud that it interferes with a person’s ability to concentrate or hear external sounds. Since 2005, it has been the most commonly reported service-connected disability among veterans. Jonathan Foster is 27 years old. He has suffered from tinnitus since he was 22, and it may continue for the rest of his life.

In some situations the condition and underlying hearing loss can contribute to psychological disorders, such as depression, suicide ideation, post-traumatic stress disorder, anxiety and anger. The constancy of tinnitus and the perceived lack of control can provoke fear, which exacerbates the problem, leading to a downward spiral of distress.

Flawed testing, inadequate instructions

In January 2000, employees from 3M began testing the Dual-ended Combat Arms earplugs at its own laboratory rather than an outside, independent laboratory. The small group of test subjects included some personally-selected 3M employees. Testing of these subjects produced a result that that did not meet Occupational Safety and Health Administration (OSHA) standards for hearing protection. The design of the earplugs actually appeared to amplify sound under some circumstances. 3M promptly and prematurely terminated the January 2000 testing.

One month later, in February 2000, the company re-tested the earplugs, after instructing test subjects to manipulate the plugs by folding back certain flanges on the exterior end. This caused the devices to seal more tightly in the wearer’s ear canal. The new round of testing, with the new instructions, produced acceptable results.

However, and most importantly, 3M never passed those instructions along to the soldiers. Servicemen were never warned that the only way to achieve proper protection was to fold back the flanges. The standard instructions said little more than “insert in ear.” The combined effects of a poorly designed product and careless directions may have caused countless soldiers to suffer from a permanent disability.

Lucrative military contracts

According to the complaint in Foster v. 3M Company, 3M’s bid on the military earplug contracts contained express, explicit and knowingly false certifications that the equipment complied with specifications set out in the request for a proposal. Since 2003, 3M has been awarded multiple contracts for indefinite quantities of earplugs. Until 2012 the company was the exclusive supplier of this type of earplug to the U.S. military. The military likely purchased, at a minimum, one pair of 3M's Combat Arms earplugs each year for each deployed soldier involved in certain foreign engagements for at least a dozen years.

The cost of deception

How much profit 3M made on the defective earplugs during that period of time is not entirely clear, but the costs are certainly beginning to mount. 3M has agreed to pay $9.1 million to resolve whistleblower allegations under the federal False Claims Act, according to the Justice Department.

This is separate and apart from the hundreds of individual lawsuits now pending or anticipated in the near future. The size of the potential group of service members who were harmed by the defective 3M Combat earplugs suggests that a major class action lawsuit may be brewing. It is important, however, never to let numbers and scale obscure the individual stories of lives, like Jonathan Foster’s, that have been permanently affected by something completely avoidable.