3M’s battle-grade earplug litigation

Nathan Frei, a former active-duty infantry officer who served from 2011 to 2015, first noticed problems with his hearing in 2013, shortly after returning from training with the US Army. 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 from 2011 to 2015 he underwent some of the most intensive training the US Army had to offer. There were also loud noises – everything from guns to helicopters to explosions.

To protect his hearing, Frei wore commercially available earplugs 3M.

Today, he is one of more than 200,000 military members and veterans suing the conglomerate. 3M stock, which hit a fresh 52-week low on Wednesday, is one of the worst-performing industrial stocks this year, shedding more than 16% against the stock in 2023 XLI Industrials ETFwhich is down 1.5% year-to-date.

Plaintiffs allege that 3M earplugs are “defective” and did not protect against hearing loss and tinnitus.

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

From 2003 to 2015, Aearo Technologies and its parent company 3M manufactured and supplied Combat Arms’ CAEv2 eartips to the US military. The earplugs were standard equipment for soldiers in Afghanistan and Iraq and were designed to protect military personnel’s hearing during military training and combat.

3M Combat Arms CAEv2 Ear Tips


Each earbud had two ends: The green end was designed to block all noise. The yellow end, signaling ‘whisper mode’, was designed to block loud noises – but allowed the user to hear quieter sounds like conversations.

I don’t look like someone who at my age should probably have as severe a hearing loss as I do.

Nathan Frei

Former US Army active duty infantry officer

“We were told we could still protect our hearing by wearing ‘whisper mode,'” said Frei, who claims to have first noticed problems with his hearing in 2013.

“I heard the doorbell ringing,” Frei recalls. “At first I thought it was a TV that was on. So I searched and searched the house trying to figure out 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 had gotten worse. Department of Veterans Affairs records that Frei shared with CNBC show he was later diagnosed with tinnitus.

“It’s constant,” he said. “It’s a loud ringing in my ears — very much like a buzzing.”

He said the ringing was so annoying that it occasionally kept him awake.

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

Answer from 3M

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

Maplewood, Minnesota, global headquarters of the 3M company.

Michael Siluk Getty Images

“The purpose of creating [the Combat Arms earplugs] was to work with the military to solve one of the longest-standing problems of soldiers not wearing their hearing protection in loud noise and in combat,” Rucker said.

According to Rucker, the connectors were developed in conjunction with the U.S. military and have been tested by the Air Force, Army, the National Institute for Occupational Safety and Health, and others.

“All of this testing shows that when properly fitted and used as directed, Combat Arms earplugs protect people’s hearing,” he said.

Rucker acknowledged that military audiologists are “well trained in how to train people and get people fit to use earplugs,” but claimed “it should have worked and protected their hearing in environments where those earplugs were appropriate.” to use.”

After a 2016 whistleblower lawsuit was filed accusing 3M of selling “dangerously defective” earbuds, the company agreed to pay the Justice Department $9.1 million to resolve the allegations, without admit liability.

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

Where things are today

Today, lawsuits were consolidated in a Florida federal court, resulting in what some are calling the largest mass tort act in US history, even surpassing litigation in several districts Johnson & Johnson’s talc products.

3M has lost 10 of the 16 cases brought to trial to date, with 13 plaintiffs awarded a total of $265 million to date.

“There were several landmark processes. And unfortunately, Aearo and 3M have not been able to provide all the evidence regarding the original design of the product, the involvement of the military in the design of the product, and any issues regarding the instructions, and how to use the product and how well that product worked, including some test information that was excluded from certain studies,” Rucker said.

“All of this is on appeal. And we hope the appeal decisions will result in more of that information coming out,” he added.

Combat Arms earplugs, when properly fitted and used as directed, protect people’s hearing.

3M recently released new data showing that 90% of a cohort of 175,000 plaintiffs do not have a hearing impairment by medically accepted standards, according to US Department of Defense records. Lead attorneys for the plaintiffs call the data a “misrepresentation.”

“3M intentionally distorted this data by relying on hearing standards that do not measure the frequencies most affected by noise, in order to hide the hearing damage suffered by veterans,” said Bryan Aylstock and Chris Seeger, co-lead counsel for the Service Members and Veterans, in a joint statement.

3M contradicted these claims, telling CNBC, “The data supports what 3M claimed during this litigation: The second version of the Combat Arms eartips were safe and effective to use.” This has been verified by every independent third-party organization that has tested the product, including the Army Research Lab, Air Force Research Lab, NIOSH, and others.”

liability risk

Brett Linzey, Mizuho’s executive director, wrote in a note to customers that “Even the low end of the previously settled lawsuits against Combat Arms (or even half that amount) equates to some pretty healthy liabilities that 3M may be facing.” is.”

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

“Calculate the number of plaintiffs, which is over 200,000, and take the average comparison — the simple math gets you well past $10 billion to $20 billion,” JPMorgan analyst Stephen Tusa told CNBC. 3M told CNBC that the estimate was “entirely speculative.”

“We will continue to defend the cases. But the vast majority of these claims do not contain complete information,” Rucker said.

In a legal maneuver that would indemnify 3M, the company’s lawyers sought to place its subsidiary Aearo Technologies in bankruptcy protection and set aside a $1 billion trust fund to settle the lawsuits. The service workers suing 3M accuse the company of using bankruptcy to shield itself and have asked a judge to dismiss it.

A decision on this possible dismissal is planned for April. Oral hearings for the appeal of the first Bellwetter trials are scheduled for May 1st.

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

“It makes me angry,” Frei told CNBC, accusing 3M of “trying to escape responsibility for what they did, either through bankruptcy or through these arguments.”

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