Pictured above is the 3M combat arms earplug. (Courtesy photo)
Levi K. Hookano
Chief of Claims
Legal Assistance Office
SCHOFIELD BARRACKS, Hawaii -- Soldiers and veterans who may have been injured from the use of the 3M Combat Arms Earplugs should not file their claims with the government due to a Feres bar and the government not being liable for the conduct of contractors. Any cause of action will have to be brought in a private lawsuit against the manufacturer, 3M. Any lawsuits will likely get consolidated into a class action.
Between 2003-2012, the company 3M sold defective earplugs to the government, which were defective in protecting hearing (see image). The relevant product was Combat Arms Earplug (Version 2). These were fielded apparently up until around 2015.
The parties settled in 2018 for $9 million, with $1.9 million of that going to the whistleblower, Moldex-Metric, Inc. The balance of the settlement was paid to the United States under the "False Claims Act." Therefore, the proceeds from this settlement are not going to be distributed to any service members or veterans who may have suffered injuries from using these earplugs.
Service members and veterans who may have suffered injury from these earplugs during the course of their service with the Army are barred from suing the government due to the Feres Doctrine. Although the Federal Tort Claims Act and the Military Claims Act provides limited waiver of sovereign immunity, the FTCA does not extend remedies to service members who are injured incident to their service. (See Feres v. United States, 340 U.S. 135, 1950.)
Also, because the injures were the result of contractor actions, a claim with the government cannot be paid. (See DA PAM 27-162, paragraph 2-15f(1).)
Individual Soldiers who may have been injured as a result of the use of these earplugs should consider filing a claim against the contractor, 3M. It is advised that injured individuals retain private counsel who practice in the area of personal injury and class actions.