Army settlement with earplug maker may lead to more suits by veterans

Retired Army General Jay Gothard said a legal settlement, between the maker of an earplug used by the military and the United States Department of Justice, made him feel violated.

In the lawsuit, the U.S. government claimed that Dual-Ended Combat Arms Earplugs, made by Aearo Technologies but later acquired by 3M and sold to the Army, were "dangerously defective" and contributed to significant hearing loss in service members.

According to the U.S. Department of Veterans Affairs, more than half (52 percent) of combat soldiers return home with moderate or severe hearing loss. It costs taxpayers an estimated $1 billion to treat the problem.

Gothard showed WRAL News two identical sets of earplugs he was issued to dull the din of explosives and guns.

"We spend a lot of our national treasure to insure that our national service members have the best equipment in the world – unfortunately, perhaps that didn't occur with these earplugs," he said of the Combat Arms earplugs.

The Department of Justice asserts that Dual-Ended Combat Arms Earplugs used by the military between 2003 and 2015 were defective, and that "3M employees were aware of the defects ... several years before 3M Aearo became the exclusive provider of the earplugs to the military." The DOJ alleged that the company knew the earplugs were too short for proper insertion and did not work correctly.

In July, the government recently reached a $9.1 million settlement with 3M.

“The Department of Justice is committed to protecting the men and women serving in the United States military from defective products and fraudulent conduct,” said Acting Assistant Attorney General Chad A. Readler of the Department’s Civil Division in announcing the settlement. “Government contractors who seek to profit at the expense of our military will face appropriate consequences.”

Raleigh attorney Ben Whitley, who represents some veterans, points out, "But none of that money goes to the veterans. That money is going back to the government and the whistle blower."

Whitley has over 100 veteran clients for whom he is working to recover losses for the loss of their hearing. He anticipates filing civil lawsuits on their behalf.

For Gothard, it's a case of tinnitus which results in a constant buzzing.

"It sounds like a chorus of probably 10,000 cicadas on my shoulders 24 hours a day," he said.

3M did not admit any guilt or liability in the settlement.

A 3M spokeswoman told WRAL News:

3M has a long history of serving the U.S. military. We have sold and continue to sell thousands of products to help our troops and support their missions, with safety as a key component. 3M disagrees with many of the allegations made by the government about the legacy Combat Arms Earplug product, and we do not believe it is the cause of injury. We chose to settle the matter for a variety of reasons, including to avoid further legal fees and because we do not relish the prospect of being in litigation with such an important and valued customer as the U.S. military or the government.​

It's not quite so easy for Gothard to put his problems behind him.

"I'll live the rest of my life with a hearing problem which was probably aggravated by using these earplugs for a number of years," he said.

After serving more than three decades in the Army, he's expecting to face another battle – this time in court.