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In July of 2018, the United States Department of Justice announced that 3M Company had agreed to pay $9.1 million to settle a lawsuit alleging that the company knowingly provided defective earplugs to the United States military. This was just the latest development in a long and ongoing legal battle over 3M’s allegedly faulty earplugs. If you or someone you know has been affected by this issue, read on for everything you need to know about the lawsuit and how to seek damages.
If you are one of the soldiers with diminished hearing due to these defective earplugs and have served in the U.S. Military since 2003, then you may be eligible for damages through the False Claims Act.
This law allows private citizens to file a lawsuit on behalf of the government in cases where they have been defrauded and if you win your case, then you can recover up to 30% of the total amount recovered by the government through settlements or a trial.
Behind the Defect
In 2000, the Aearo Technologies company developed a new dual-ended combat earplug that was intended to provide protection against both constant noises below 82 decibels and loud impulses above 120 decibels.
According to court documents, as this product was being tested at an independent testing facility in 2003, it failed its own tests. This failure prompted further investigation into why the earplugs were failing to perform as anticipated by their design.
The subsequent investigations revealed that there was a defect hidden within the stem of the earplug which could cause them not to expand properly when placed inside the ears of those using them. Despite these revelations, no action was taken by Aearo Technologies to address the issue.
Instead, in 2006, Aearo was sold to defense contractor company ATK for $226 million and the defective combat earplugs were put into production and sold directly to the U.S. military with no modifications or improvements made on their faulty design whatsoever.
The sale of these earplugs continued until 2008 when ATK was purchased by Cerberus Capital Management LP for $16 million dollars and renamed the Aerospace & Defense Group (ADG). In January of 2016, ADG changed its name again to Orbital ATK after merging with Orbital Sciences Corporation. Then later that same year in July, Northrop Grumman acquired Orbital ATK for a whopping sum of $48 billion dollars at which point they also acquired control over all assets relating to the defective combat earplugs.
In March of 2018, Northrop Grumman agreed to pay $47 million dollars to settle a False Claims Act lawsuit regarding the faulty earplugs and in July of that same year, they sold their aerospace manufacturing business (including all assets associated with the defective combat earplugs) to defense contractor company Collins Aerospace Systems for $30 billion dollars.
The U.S. Military’s Investigation Discovery
Despite all these ownership changes, it wasn’t until as late as 2015 when an independent government testing facility conducted another round of tests on samples pulled from active military troops overseas that this issue was ever brought up again.
Accordingly, once it came out that the dual-ended earplugs were failing to perform as anticipated, a whistleblower lawsuit was filed by Moldex-Metric Inc. under the False Claims Act against Aearo Technologies in 2010 alleging that they had been knowingly selling defective products to the United States military since 2003.
Then again in 2016, a second whistleblower lawsuit was filed against Aearo Technologies and its successor companies ADG and Orbital ATK accusing them of engaging in fraudulent conduct through false statements made on their contract with the U.S. government regarding their compliance with federal product standards between 2003 and 2015 when it came to these faulty combat earplugs which were ultimately being used by many military personnel overseas during this time period without either party being aware of any potential defects or failures associated with the product.
The Litigation Process
Since the lawsuits were filed, there have been a number of hearings and motions in order to try and move the case along as quickly as possible.
In September of 2017, a U.S. district court judge in Minnesota denied Aearo Technologies and its successor companies’ motion to dismiss the lawsuit on the grounds that it was filed too late or that there had been no evidence presented to support the allegations made by Moldex-Metric Inc. However, in February of 2018, this same judge did rule in favor of Aearo Technologies and its successors when they argued that the False Claims Act didn’t apply because none of these companies had ever actually received any money from the government related to these defective earplugs.
This ruling was appealed by Moldex-Metric Inc.’s legal team later that same year in May and in November, the U.S. Court of Appeals for the Eighth Circuit overturned the district court’s decision and sent it back down to be reconsidered.
In May of 2019, yet another motion was filed by Aearo Technologies and its successors in order to have the case dismissed again on these same grounds, but as of right now there is no ruling on this latest motion.
There are several avenues through which military personnel who have been affected by these defective earplugs can recover damages. There are additional options if you’ve sustained other combat-related rehabilitations like damage to your eyesight, loss of smell, or post-traumatic stress to your cognitive functions or reflexes.
Get in contact with a personal injury attorney to research your options.