Recalled 3M Combat Ear Plugs

Army person with a helmet stares into a green background

Defective 3M Combat Ear Plugs Put Military Service Members at Risk of Harm

 According to a recent article in Military Times, a recall of 3M combat ear plugs has led to a $9.1 million settlement from the company “to resolve allegations that it knowingly sold the U.S. military defective earplugs.” The specific earplugs at issue are Version 2 of the company’s dual-ended Combat Arms Earplugs, and 3M sold them to the Defense Logistics Agency “without disclosing defects that decreased the actual effectiveness of the hearing protection the device offered.” In other words, the defective product put military service members at risk of injury.

What is wrong with these earplugs? The article explains that they were “too short for proper insertion into users’ ears,” and that “as a result, the earplugs could gradually—and subtly—loosen until they did not perform the desired noise cancellation for certain individuals.” Due to the nature of the defect, soldiers using the earplugs and relying on them to prevent injury might not realize that the product was not working properly. This was a design defect, which means that there was an inherent defect in the earplugs. A design defect occurs before a product is ever manufactured, and there is no way that the product can be made in a way that is safe since the defect is in the very design of the product or one of its components.

To be clear, the United States alleged that 3M knew about the ear plug defect, and that it failed to disclose the defect when it agreed to the military contract. The specific lawsuit that resulted in the $9.1 million settlement was brought under the False Claims Act. Through the False Claims Act, a private party can file a claim on the government’s behalf if that party believes the defendants—in this case 3M—“submitted false claims for government funds.” The lawsuit arose under a whistleblower provision of the False Claims Act, and the law allows the whistleblower to receive a portion of funds obtained through a settlement or verdict. In this case, just over $1.9 million of the settlement funds will go to the whistleblower, according to the U.S. Department of Justice.

 Understanding Product Defects and Product Liability Lawsuits

When a product is recalled and a consumer gets hurt, that injured consumer may be able to file a product liability lawsuit. There are several different kinds of product defects that can occur and ultimately can result in a successful product liability claim. The Cornell Legal Information Institute (LII) discusses the three types of product defects:

  • Design defect (the design of the product is defective, meaning that the product has an inherent defect);
  • Manufacturing defect (the defect occurred during manufacture, which means that the product does not have an inherent defect but that something went wrong when the produce was made); and
  • Marketing defect (there is no inherent defect in the product, and no defect occurred in manufacturing, but the company failed to provide information about the product’s risks in marketing it to the public).

The recent settlement emphasizes the importance of holding companies like 3M accountable not only for designing, manufacturing, and marketing defective products, but also for knowingly selling products that are defective and could cause serious harm. A special agent with the Defense Criminal Investigative Service underscored that, in this situation, the product defect “could directly impact our service members’ health and welfare.” 

If you were injured by a defective product, like the 3M ear plugs,  you should discuss your case with a product liability lawyer.

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