Since the days of Homer’s epic poem The Odyssey—in which Odysseus urges his fellow sailors to escape the Sirens’ sweet singing by putting beeswax over their ears—humans have sought to block out noise.
As far back as the 16th century, a French surgeon named Ambroise Pare—better known as “The Father of Modern Surgery”—studied the effects of acoustic trauma and hearing loss on French soldiers.
Indeed, military combat seemed to be a particularly acute cause of hearing loss, as some estimates had one-third of Union soldiers suffering from varying degrees of hearing loss at the Civil War’s end.
During and after the Civil War period, hearing loss came to be classified as a disability for the purpose of obtaining U.S. government benefits, from 1862 and 1890 legislation.
However, the first patent for earplugs wasn’t issued until 1884, nearly twenty years later. A prevailing belief of the day held that soldiers could develop tolerance to loud noises and, thus, avoid hearing loss—a notion that persisted even through the early days of earplugs.
Anyone who failed to build up a suitable tolerance for loud noise had a mental weakness, not a physical one, the thought went.
But the military knew better.
In World War I, The British Army used the Mallock-Armstrong company’s “Ear Defenders,” which were made of tin and brass. The “Ear Defenders” touted their ability to render everyday conversations audible, while blocking out higher-decibel noise like gunfire and bursting artillery shells.
By the time of the Second World War, the theory that one could develop tolerance to loud noises was on increasingly shaky ground.
In 1941, the U.S. Army opened the Armored Medical Research Laboratory at Fort Knox, Kentucky, and three years later the lab issued a landmark study that recommended anyone exposed to gunfire blasts be provided adequate hearing protection.
Hearing protection took on more urgent dimensions following the Army Air Corps’ split from the Army, as it became the U.S. Air Force.
The advent of jet engines, plus soldiers’ consistent reports that sound was their most vital sense in combat, led the U.S. military to prioritize hearing protection programs.
The Army published a groundbreaking bulletin to that extent, which was only advisory upon its publication in 1956, called “Noise and Conservation of Hearing.”
The preferred earplug at the time of the Army study was the V-51R, manufactured toward the end of World War II.
The V-51R was a single-flange earplug in five sizes, made of soft vinyl [a flange is a projecting collar- or rim-type shape on one end of the earplug, making the earplug resemble a toadstool].
A 1962 study found that the V-51R provided ample hearing protection up to 8 psi of sound, psi being “pounds per square inch.” For comparison, the study noted that 105mm and 155mm howitzer machine guns emitted sounds ranging from 7-9 psi.
The V-51R had drawbacks, however. It had to be fitted by medical personnel for optimum protection—a process that took several minutes—and some wearers needed different sizes for each ear. Also, many users sought a more comfortable material for their ear canals.
Earplugs moved into the comfort realm starting in 1962, when Ray Benner, a classical musician, and his wife Cecelia Benner started selling the moldable silicone earplugs they had invented, “Mack’s Pillow-Soft Earplugs.”
The “Mack’s” earplugs were meant to sit over the ear, covering the ear canal, and were perhaps best for blocking water or other substances from entering the ear canal.
A few years later, Ross Garner led a team that invented an energy-absorbing resin called “memory foam,” so named for its ability to regain its original shape.
Meant to be squashed and inserted directly into the ear canal, these earplugs debuted in 1972 as “E-A-R” earplugs, and most closely resemble the over-the-counter earplugs we see today.
While earplugs are popular for everyday civilian use, military personnel have more specific—and greater—needs for hearing protection.
According to the Centers for Disease Control and Prevention (CDC), humans’ recommended noise limit is about 85 decibels, about as loud as a power lawn mower. Repeated exposure to sounds beyond 85 decibels can cause hearing loss and other complications.
The CDC reports that most occupational noise exposure is 95 decibels or less, so the average person needs only about 10 decibels of noise reduction—easily achieved by a variety of earplugs or earmuffs. For particularly loud environments, the CDC recommends double protection—that is, earplugs underneath earmuffs.
The general rule is every increase of 10 decibels means the sound is TWICE as loud. A typical machine gun registers about 160 decibels—compare that to a jackhammer, which is 100 decibels.
Though the Army had been using the V-51R earplug, it pressed on for a more comprehensive hearing protection program, fortified in 1970 by adding 25 additional audiologists and the creation of the Occupational Health and Safety Act, or OSHA.
In 1972, the also-new National Institute for Occupational Safety and Health, or NIOSH, set the 85 decibel standard for noise limits.
Though audiologists accompanied U.S. troops to Saudi Arabia in 1991 for the Persian Gulf War, by 2003 in Iraq, an average of one soldier a day was medically evacuated for complaints related to hearing loss.
A study done over a one-year period in 2003-04 found that 58.6 percent of deployed troops suffered at least one of several hearing damage- or -loss symptoms, compared to 4 percent of nondeployed troops.
Outfitting combat soldiers with the double protection of earmuffs and earplugs was impractical, because they had to constantly run, climb and twist, which could dislodge earmuffs.
Also, double hearing protection of that sort would nullify soldiers’ ability to hear anything, thus jeopardizing their ability to hear one another or spoken commands.
Enter 3M, and a subsidiary company called Aearo Technologies.
Aearo, a company based in Indianapolis, secured a government contract to supply the military with its new two-sided earplug. One side of the earplug blocked all sound, while the other side filtered out loud sounds, like gunfire, but would allow softer sounds, like commands from fellow officers.
The Marine Corps was so impressed with the new Aearo earplugs that, according to one account, it ordered 20,000 pairs, temporarily depleting the nation’s supply.
In 2006, 3M signed a government contract to supply 15,000 earplug packages annually, with 50 pairs per package—a total of 750,000 pairs that yielded $9 million in sales each year, according to the Military Times.
In 2007, Minnesota-based 3M bought Aearo for an estimated $1.2 billion, and continued producing and selling the Combat Arms earplugs under the 3M brand name until 2015.
But litigation was on its way.
One major sign that all was not well with the 3M Combat Arms earplugs was a 2016 whistleblower lawsuit from Moldex-Metric, Inc., one of 3M’s competitors.
The Moldex-Metric lawsuit was brought against 3M through a procedure called qui tam, more commonly known as a whistleblower lawsuit.
The federal False Claims Act allows a private company to sue on behalf of the United States when the private plaintiff believes the defendant is receiving government funds for a defective or otherwise misleading product.
Specifically, Moldex-Metric claimed that 3M engineers knew the Combat Arms earplugs were too short and thus offered inadequate hearing protection. Despite this knowledge, Moldex-Metric claimed that 3M sold the defective earplugs to the U.S. military without disclosing the defect.
In 2018, 3M settled the whistleblower suit for slightly more than $9.1 million, without admitting fault in the matter. Moldex-Metric received slightly more than $1.9 million in the settlement.
In recent years, various plaintiffs have sued 3M over the Combat Arms earplugs, with their cases being collected into what’s known as an MDL.
MDL is short for “Multi-District Litigation,” which happens when a single federal court gathers together a series of lawsuits filed across the country against a single defendant, on a common question of fact. MDLs increase judicial efficiency by centralizing the litigation process.
Currently, the Northern District of Florida is hosting the 3M MDL. As of April 2020, there were an estimated 140,000 claims against 3M, with more than 23,000 lawsuits filed against the company in March 2020 alone.
The claim is that 3M produced and sold defective Combat Arms earplugs, which caused users to experience hearing loss and/or tinnitus—a constant ringing in the ears.
Part of 3M’s defense is that it was acting as a government contractor, and thus is immune from suit, according to unsealed depositions—which are interviews of involved parties done under oath, basically.
The legal issues in this MDL center on an allegedly defective product, meaning these thousands of cases—as is true of many MDLs—are based on theories of product liability.
This area of tort law (tort = civil, not criminal, wrongs, compensated by money more so than incarceration) allows plaintiffs to recover for a manufacturer’s negligence.
While negligence can take many forms, some specific types within product liability include:
In order to prove negligence, plaintiffs must prove, among other things, damages. The main damages alleged in this MDL are hearing-related.
Serving in the military is a clear risk factor for hearing loss. A CDC report from 2010 found that veterans were 30 percent more likely to have severe hearing impairment, or SHI, than comparable non-veterans.
Also, veterans who served in the decade from 2001 to 2010 were four times more likely than non-veterans to have SHI. An Army study from 2007 indicated that 52 percent of combat soldiers have moderately severe hearing loss or worse.
Hearing loss, exacerbated by the duration and consistency of exposure to loud sounds, is especially troubling because it occurs gradually and with little to no warning, and once hearing sensitivity is lost it can be mitigated but not reversed, according to a joint Navy/Air Force paper from 2004.
Some degree of hearing loss occurs from aging. The Mayo Clinic estimates that 1 in 3 people aged 65 to 75 has some degree of hearing loss, and about half have some hearing loss after age 75.
But extended exposure to loud noise can bring on hearing loss much earlier.
Most noise-induced hearing loss implicates the cochlea, a snail-shaped structure in the inner ear, while some hearing loss occurs because of problems with the eardrum, in the middle ear.
Tinnitus, a common complaint among the plaintiffs in the 3M MDL, is often called a “ringing” in the ears. However, tinnitus can also be a roaring, clicking, hissing or buzzing, according to the National Institutes of Health. It is most often the result of prolonged exposure to loud noise.
Tinnitus is not a disorder per se, but rather is a symptom—a sign that something is wrong in your ears. There are treatments to lessen tinnitus’ effects, such as hearing aids to mask it or counseling to cope with it, but no cure.
If you are wondering whether you have been harmed by 3M Combat Earplugs, the best thing to do is contact a personal injury attorney. The Clauson Law Firm has co counsel lawyers who specialize in product liability, and 3M Combat Arms earplug litigation in general.