Defrauding Taxpayers and Injuring Military Personnel for Profit: 3M's Defective Earplugs | Levin Papantonio Rafferty - Personal Injury Law Firm

Defrauding Taxpayers and Injuring Military Personnel for Profit: 3M's Defective Earplugs

In August of 2018, the 3M Corporation entered into a $9.1 million settlement with the U.S. government over allegations that it had deliberately sold defective equipment to the Department of Defense. The equipment in question was the Combat Arms Earplugs Version 2, or CAEv2.

One of the hazards of military service, whether in training or in the field, is loud noises that can result in permanent hearing loss. According to the company's sales literature, the CAE was specially designed to “ the demanding hearing protection needs of the armed forces.”

3M claimed their device had advantages over standard foam earplugs in having two distinct modes of operation: an “Open/Weapons Fire” mode for use around firearms and explosive ordnance, and “Closed/Constant Protection” mode for protection against loud, steady sounds such as aircraft and heavy armed vehicles. These modes could be toggled with the use of an “in-ear switching mechanism.”

The CAEv2 was also supposed to fit 98% of adult ear canals. This was the basis of the cause of action in a lawsuit against 3M, brought under qui tam, or whistleblower provisions of the False Claims Act (FCA). 3M was accused of selling a product to the government that they knew to be defective. According to a Defense Department press release, the CAEv2 was too short for proper insertion into the ear canal. As a result, the device could slowly come loose without the user's awareness. 

The Combat Arms Earplug was originally designed by Aearo Technologies, a company that specialized in personal protection technologies. Aearo was acquired by 3M in 2007. The qui tam lawsuit alleged that 3M was aware of the defective design when it took over Aearo, and failed to disclose this information when it entered into its contract with the Department of Defense.

In settling the case, 3M has not admitted to any wrongdoing.

Unfortunately, U.S. history is full of examples of people – individuals as well as “corporate people” – who have attempted to get rich on the backs of our service personnel. One of the earliest was the “Hall Carbine Affair” during the American Civil War.

In 1861, an arms dealer named Arthur Eastman acquired several thousand rifles in a deal that was initially backed by financier J.P. Morgan, which were purchased for $3.50 each. Those rifles were subsequently resold to the Union Army for $22 apiece. The model turned out to have a defect that caused the weapon to misfire, causing severe hand injuries. Whether or not Morgan knew about the defect is still a topic of debate (he was exonerated at the time), but the scandal has long been considered to be a classic example of war profiteering – and it eventually led to the passage of the “Lincoln Law,” which is the basis of the modern FCA.

In 1863, the Congressional Committee on Government Contracts issued the following statement: “Worse than traitors in arms are the men who pretending loyalty to the flag, feast and fatten on the misfortunes of the nation.” That statement was echoed in the recent DoJ press release by Acting Assistant Attorney General Chad Readler: “Government contractors who seek to profit at the expense of our military will face appropriate consequences.”