62-CV-19-2383

STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF RAMSEY
Sarah Kay Carlson,
v.

Filed in District Court
State of Minnesota
4/9/2019 4:09 PM

SECOND JUDICIAL DISTRICT
Case Type: Civil

Court File No.

Plaintiff,

3M COMPANY,
AEARO HOLDINGS, LLC,
AEARO INTERMEDIATE, LLC,
AEARO, LLC, and
AEARO TECHNOLOGIES, LLC,

COMPLAINT AND
DEMAND FOR JURY TRIAL

Defendants.

PLAINTIFF brings this action against the above-named defendants and states and

alleges as follows:
1.

INTRODUCTION

This case arises out of a multi-year, multi-million dollar fraud that 3M

perpetrated on the United States Government and the men and women who served in the
United States Armed Forces (“USAF”). From approximately 2003 through 2015, 3M sold to
the USAF tens of thousands of dual-ended Combat Arms Earplugs, version 2 (“Combat Arms

Earplugs”) which 3M falsely represented as meeting the military’s specifications, including
that they were suitable for use as hearing protection for military personnel and that they

were free from all defects that impair their serviceability. All the while, 3M knew the

Combat Arms Earplugs were defective and would expose service members to the extremely

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dangerous and disabling noise the Combat Arms Earplugs were supposed to protect
against. 3M settled a False Claims Act lawsuit with the United States Government for over

$9 million, but 3M has yet to remedy the harm it caused to the tens of thousands of service
members injured by the Combat Arms Earplugs. To this day, 3M has failed to issue a recall

for the defective Combat Arms Earplugs, opting rather to discontinue selling the earplugs,

leading to further injury of USAF members. In this case, Plaintiff Sarah Kay Carlson seeks

damages for her injuries caused by 3M’s defective Combat Arms Earplugs during her
military service.

PARTIES

2.

Plaintiff Sarah Kay Carlson is a natural person who resides in St. Paul,

3.

Defendant 3M Company is a Delaware corporation with its principal place of

4.

Defendant Aearo Holding LLC (“AHC”) is a Delaware limited liability

Minnesota.

business in St. Paul, Minnesota.

company with its principal place of business in St. Paul, Minnesota. It was formerly known
as Aearo Holding Corp. It is a wholly owned subsidiary of 3M Company.
5.

Defendant Aearo Technologies LLC (“ATL”) is a Delaware limited liability

company with its principal place of business in St Paul, Minnesota. It is a subsidiary of

Aearo Holding LLC and 3M Company, and has operated under the assumed business names
“Aearo Company” and “Aearo Technologies.”
6.

Defendant Aearo Intermediate LLC (“ATI”) is a Delaware limited liability

company with its principal place of business in Indianapolis, Indiana. It was formerly

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known as Aearo Technologies, Inc.
Company.
7.

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It is a subsidiary of Aearo Holding LLC and 3M

Defendant Aearo LLC (“AL”) is a Delaware limited liability company with its

principal place of business in Indianapolis, Indiana. It is a subsidiary of Aearo Holding LLC

and 3M Company.
8.

In 2008, 3M Company acquired Aearo Holding LLC and the Combat Arms

brand, and began marketing the Combat Arms Earplugs under the 3M brand name.
Plaintiff therefore believes that 3M Company is the successor-in-interest to all rights,
liabilities, and obligations the Aearo entities had with respect to the Combat Arms Earplugs,
and/or works in tandem with each of the Aearo entities to jointly develop and market the

Combat Arms Earplugs from 3M Company’s headquarters in St. Paul, Minnesota. Plaintiff
refers to the defendants individually and collectively as “3M” throughout this Complaint.
JURISDICTION

9.

This court has original jurisdiction under the Constitution of the State of

10.

This Court has personal jurisdiction over 3M Company, AHC, and ATL

Minnesota, Article 6, §3.

because each of them maintains their principal place of business in Minnesota, transacts

business here, and uses real or personal property situated in Minnesota. Minn. Stat. §
543.19. The court has personal jurisdiction over ATI and AL because it acts in a collective

manner and/or as a joint venture, and thus has used or possessed real or personal property
in Minnesota, and has transacted business in Minnesota.

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FACTUAL ALLEGATIONS
THE COMBAT ARMS EARPLUGS
11.

This case concerns 3M’s Dual-Ended Combat Arms Earplugs, version 2 (the

“Combat Arms Earplugs”). As its name conveys, the product is supposed to be combat

ready, purporting to protect USAF service men and women from damaging and disabling
noise during combat and other military missions, with each end of the plug providing a

different kind of protection.

12.

The “open” yellow end is supposed to afford the service member “situational

awareness” by protecting against the disorienting effects of loud impulse noises such as

improvised explosive devices (“IEDs”) and gun fire, yet still allow the service member to
hear low-level noises critical to mission safety such as commands, footsteps and
encroaching enemies.
13.

The “closed” dark green end is supposed to work like traditional earplugs

and block or dampen all noise.

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14.

Filed in District Court
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3M (through its predecessor-in-interest ATI and/or AHC) began selling

hundreds of thousands of Combat Arms Earplugs to the United States military in or around

2003. Starting in 2003 and continuing through 2015, Combat Arms Earplugs were issued
to all deploying USAF service members. 3M (including through its predecessors-in-interest

Aearo Company and/or Aearo Technologies, Inc.) was the exclusive manufacturer and
supplier of the Combat Arms Earplugs.

THE USAF’S REQUIREMENTS FOR THE COMBAT ARMS EARPLUGS

15.

The United States military procured the Combat Arms Earplugs through a

standard requisition process. The military issued solicitations that provided the minimum
requirements the earplugs had to meet, and these became contractual requirements when
3M (ATL prior to 2008) was awarded the contract.
16.

In particular, the solicitations required that the earplugs be “suitable for use

as hearing protectors for military personnel in chronically noisy environments,” and
further required, among other things, that the earplugs meet the following “salient
characteristics”:

a. That the “[e]ar plugs shall be designed to provide protection from the

impulse noises created by military firearms, while allowing the wearer to clearly hear

normal speech and other quieter sounds, such as voice commands, on the battlefield”;
b. That each side of each earplug reduce sound by prescribed decibel levels:
i.

the green end was required to reduce sound 25-40 decibels (depending

ii.

the yellow end was required to reduce sound 0-25 decibels (depending

on the frequency of the sound), and
on the frequency of the sound);

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c. That the ability of the earplugs to reduce sound be tested in accordance with

ANSI S3.19; 1

d. That “[t]he ear plugs shall be free from all defects that detract from their

appearance or impair their serviceability”; and

e. That “[i]llustrated instructions explaining the proper use and handling of the

ear plugs shall be supplied with each unit.”
17.

The solicitations further required 3M to inspect and test each earplug to

18.

But the Combat Arms Earplugs 3M supplied did not meet these

19.

In 2000—years before 3M began supplying the USAF with the Combat Arms

ensure that each one met all of the “salient characteristics.”

requirements, and 3M (ATL/ATI/AHC) knew it at the time of sale.

Earplugs on a large scale—3M’s (ATI/ATL/AHC’s) internal testing revealed that the

Combat Arms Earplugs were dangerously defective.

3M’S SHAM TESTING OF THE COMBAT ARMS EARPLUGS

20.

Environmental Protection Agency (“EPA”) regulations, 40 C.F.R. § 211.201 et

seq., which were promulgated under the Noise Control Act, 42 U.S.C. § 4901, et seq., require

manufacturers like 3M to test and label the Noise Reduction Rating (“NRR”) of hearing
protection devices like the Combat Arms Earplugs.
21.

3M (ATI at the time) did not commission an independent lab to conduct the

testing on the Combat Arms Earplugs as federal law and the military solicitations required.
Rather, 3M purported to conduct the testing in house, and it was a sham.

“ANSI” stands for the American National Standards Institute, which describes itself as
“administrator and coordinator of the United States private sector voluntary
standardization system.”

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22.

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ATI conducted the test on ATI employees and, after testing the earplugs on 8

of the 10 test subjects, the NRR test results turned out to be so far below what ATI expected

for the “closed” green end of the earplugs that ATI stopped all further testing on the green
end. It did, however, continue to test the “open” yellow end on all the test subjects. Such
testing resulted in a -2 NRR for the “open” yellow end of the earplugs.
23.

3M reported the -2 NRR test report as an NRR of “0,” and disclosed it on the

24.

ATI also launched an investigation into why the “closed” green end of the

25.

First, ATI discovered that because the Combat Arms Earplugs are so short, it

26.

Second, ATI discovered that the flanges on one side of the plug interfered

Combat Arms Earplug’s packaging and marketing materials.

earplugs failed during the testing. It discovered that the earplugs were defective.
is difficult to insert the earplug deep enough into the ear to achieve a proper fit.

with the proper fit of the other side of the plug. For example, when the green side of the
plug is inserted and pressed into the ear—per the instructions provided by 3M—the

flanges on the yellow side of the plug are compressed against the ear. Once the pressure
used to insert the plug is removed, the yellow flanges will naturally tend to spring back or
straighten out to return to their original shape, which causes the earplug to dislodge from
the ear in a manner that is imperceptible to the wearer.
27.

These defects would have been even more pronounced when used for their

intended purpose (military missions) than in a laboratory setting because service members

wearing them in the field were more active, and the ear plugs would have been more likely

to dislodge.

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28.

Filed in District Court
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ATI conducted another round of testing, in or around February 2000, this

time testing the “closed” green end of the earplugs by inserting them with the yellow side’s
flanges folded back, and making sure the plugs were inserted deeply into the ear. Because

the yellow flanges were folded back (instead of compressed against the ear), they no longer
had a tendency to move back into their normal position, and thus did not create the

pressure that would dislodge the green end of the plugs out of the ear. This test resulted in

a NRR of 22—a far more desirable result than ATI’s previous testing—that is reported on
the Combat Arms Earplugs packaging for the “closed” green end of the plug.
29.

Because the yellow and green ends of the Combat Arms Earplugs are

symmetrical, both sides of the plug had the same problems achieving a proper fit and had a
tendency to dislodge from the ear. Therefore, ATI’s failure during the January 2000 testing

to fold back the flanges on the green side of the plugs when testing the “open” yellow side
of the plugs, likely led to unreliable results in that previous round of testing.
30.

Nevertheless, ATI did not go back and retest the yellow side of the Combat

31.

Rather, 3M (including ATI) used the results of these two tests to report a NRR

Arms Earplugs by folding back the flanges on the “closed” green side.

of “0” for the “open” yellow side of the plugs, and a NRR of “22” for the “closed,” green side
of the plugs, through 2015.

3M DID NOT REMEDY THE KNOWN DEFECTS IN THE COMBAT ARMS EARPLUGS
PRIOR TO SALE TO THE USAF
32.

Despite the lessons 3M (including ATI) learned in 2000, 3M did not remedy

the Combat Arms Earplug’s known defects. For example, 3M did not enlarge or lengthen
the Combat Arms Earplugs to insure a deeper, more secure fit, and 3M did not increase the

space between the yellow and green flanges to prevent one side interfering with the
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operation of the other. 3M did not take these or any other steps to correct the design
defects it discovered in 2000.
33.

3M failed to include adequate instructions and illustrations explaining the

34.

3M (including ATI) also did not warn Plaintiff that the Combat Arms Earplugs

proper use and handling necessary to achieve the advertised and warranted results.

are defective, and can achieve the NRR testing results it represented only if the Combat

Arms Earplugs are firmly secured into the ear with the flanges on the opposite end of the
plugs folded back. Nor did 3M take any other steps to adequately warn Plaintiff of the
defects in the product.
35.

3M (including ATI) knew that such warnings were necessary because its own

36.

Instead, 3M sold hundreds of thousands of Combat Arms Earplugs to the

testing, on its own employees, revealed the defects.

USAF that 3M knew were defective and did not meet the USAF’s requirements.
3M SETTLES A FALSE CLAIMS ACT ACTION

37.

In July 2018, 3M agreed to pay $9.1 million to settle a qui tam action brought

against 3M on behalf of the United States Government for certain of the conduct alleged in

this case. See United States of America ex rel. Moldex-Metric, Inc. v. 3M Company, Case No.
3:16-133-MBS (D.S.C.), ECF No. 23-1. 2
38.

But 3M has done nothing to remedy the harm it caused to the hundreds of

thousands of USAF service members injured by 3M’s defective Combat Arms Earplugs,

including failing to recall the defective and dangerous Combat Arms Earplugs.

The unsealed complaint in that matter served as a basis for many of the factual allegations
asserted herein.

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PLAINTIFF SPECIFIC ALLEGATIONS
39.

40.

Plaintiff joined the Army Reserves in 2008 at the age of 17.

Prior to joining the military, Plaintiff had never suffered from or been

diagnosed with tinnitus or hearing loss.
issue.

41.

At the time of Plaintiff’s service, the Combat Arms Earplugs were standard

42.

Plaintiff was issued and used the Combat Arms Earplugs when firing

weapons and around other loud noises throughout her service, including while stationed at
bases located in Missouri and Minnesota.
43.

Plaintiff also used the Combat Arms Earplugs while serving on a deployment

44.

Plaintiff wore the Combat Arms Earplugs consistent with 3M’s instructions.

in Iraq as part of Operation Iraqi Freedom.
45.

Plaintiff was never instructed to fold back the flanges of the earplug opposite

of the side Plaintiff inserted into her ear canal.
46.

tinnitus.

Since using the Combat Arms Earplugs, Plaintiff has been diagnosed with
TOLLING OF STATUTE OF LIMITATIONS

47.

Under the Servicemembers Civil Relief Act, the statute of limitations is tolled

48.

The statute of limitations is also tolled because Plaintiff did not, and could

during the period of Plaintiff’s military service. See 50 U.S.C. § 3936.

not through the exercise of reasonable diligence, have learned of the causal connection
between her injury and 3M’s product, act or omission.

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49.

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The statute of limitations is also tolled because 3M (including ATI) actively

concealed their sham testing, falsely represented the efficacy of the earplugs, failed to
disclose that the flanges on the opposing end had to be folded back for the earplugs to be
effective, and failed to disclose that the earplugs are defective.
CAUSES OF ACTION

Count 1: Strict Product Liability—Design Defect
50.

Plaintiff incorporates the paragraphs above as if fully set forth herein.

52.

3M has a duty of care to refrain from selling or distributing defectively

51.

3M is the manufacturer and supplier of the Combat Arms Earplugs.

designed products, i.e. products that present an unreasonable risk of harm to potential
users when used in a reasonably foreseeable manner.
53.

At the time the Combat Arms Earplugs left 3M’s control, they were

defectively designed in that their design failed to prevent harmful sounds from entering

Plaintiff’s ear canal during reasonably anticipated military activity, which was the specific
purpose of the earplugs.
54.

The Combat Arms Earplugs were further defective in that 3M failed to meet

the specifications required to prevent harmful sounds from entering the ear canal under
conditions likely to occur in military service and during combat.
55.

3M falsely certified to the United States Government that the Combat Arms

56.

Harmful sounds such as those permitted by the Combat Arms Earplugs can

Earplugs complied with such specifications.

cause hearing loss and tinnitus when the Combat Arms Earplugs are used in their expected
and ordinary manner.

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57.

As a result of their defective design, the Combat Arms Earplugs were

58.

The defective Combat Arms Earplugs used by Plaintiff were defective when

unreasonably dangerous and unfit for their intended or expected use.

they left the Defendants’ control and were provided to Plaintiff without any change in their

condition and were used by Plaintiff in the intended and expected manner.
59.

Defendants knew or should have known of the defect in the Combat Arms

60.

Defendants breached their duty of care to the Plaintiff to provide non-

61.

Plaintiff suffered injury as a direct and proximate result of the use of the

Earplugs.

defectively designed earplugs.

defectively designed Combat Arms Earplugs in their intended and expected manner.
Count 2: Strict Product Liability—Failure to Warn

62.

Plaintiff incorporates the paragraphs above as if fully set forth herein.

64.

Defendants have a duty to warn foreseeable users of a dangerous product if it

63.

Defendants are the manufacturer and supplier of the Combat Arms Earplug.

is reasonably foreseeable that an injury could occur from its use.
65.

The Combat Arms Earplugs was a dangerous product in that it did not

66.

Plaintiff and those similarly situated would reasonably expect the Combat

prevent harmful sounds from entering the ear canal of Plaintiff and those similarly situated.

Arms Earplugs to prevent such harmful sounds from entering their ear canals and would
reasonably expect proper warning or instructions to prevent such harm.

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67.

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The Combat Arms Earplugs did not come with adequate warnings or

instructions to cause the earplugs to prevent the harmful sounds from entering Plaintiff’s
ear canal when used in their intended and expected manner.
68.

It was foreseeable to 3M that the Combat Arms Earplugs would be

69.

In fact, 3M knew that the Combat Arms Earplugs would be unreasonably

unreasonably dangerous if an adequate warning or instructions was not provided.

dangerous if an adequate warning/instructions was not provided because its own testing
indicated that the Combat Arms Earplug, as designed, would not prevent harmful sounds

from entering the ear canal of Plaintiff and those similarly situated.
70.

3M further knew that without modified fitting instructions, which it never

provided to users of the Combat Arms Earplug, the Combat Arms Earplugs could not

prevent harmful sounds from entering the ear canal.
71.

Such harmful sounds can cause hearing loss and tinnitus when the Combat

72.

Had Plaintiff received a proper warning or instructions, Plaintiff would have

Arms Earplugs are used in their expected and ordinary manner.

not used the earplugs and would have used an alternative device or would have followed

any instructions that would have prevented the Combat Arms Earplugs from permitting
harmful sounds from entering the ear canal.
73.

Plaintiff was injured as a direct and proximate result of Defendants’ failure to

provide a proper warning or proper instructions.

Count 3: Product Liability—Post-Sale Warning

74.
75.

Plaintiff incorporates the paragraphs above as if fully set forth herein
3M is the manufacturer and supplier of the Combat Arms Earplug.
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76.

3M has a duty to provide a post-sale warning or instructions to foreseeable

77.

The Combat Arms Earplugs was a dangerous product in that it did not

users of a dangerous product if it is reasonably foreseeable that an injury could occur from
its use.

prevent harmful sounds from entering the ear canal of Plaintiff and those similarly situated
during its normal and expected use.
78.

Plaintiff and those similarly situated would reasonably expect the Combat

Arms Earplugs to prevent such harmful sounds from entering their ear canals and would

reasonably expect proper post-sale warning or instructions to prevent such harm.
79.

The Combat Arms Earplugs did not come with adequate warnings or

instructions to cause the earplugs to prevent the harmful sounds from entering the

Plaintiff’s ear canal when used in their intended and expected manner, nor was any postsale warning or instructions provided.
80.

It was foreseeable to 3M that the Combat Arms Earplugs would be

81.

In fact, 3M knew that the Combat Arms Earplugs would be unreasonably

unreasonably dangerous if an adequate post-sale warning was not provided.

dangerous if adequate post-sale warning or instructions were not provided because its
own testing indicated that the Combat Arms Earplugs, as designed, would not prevent
harmful sounds from entering the ear canal of Plaintiff and those similarly situated.
82.

3M further knew that without modified fitting instructions, which it never

provided to users of the Combat Arms Earplugs, the Combat Arms Earplugs could not

prevent harmful sounds from entering the ear canal.

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83.

Such harmful sounds can cause hearing loss and tinnitus when the Combat

84.

The Combat Arms Earplugs continue to pose a substantial and dangerous

85.

Service members, such as Plaintiff, who used the Combat Arms Earplugs

86.

Post-sale warnings were feasible and could have been effectively

87.

Had such post-sale warnings or instructions been provided, Plaintiff would

Arms Earplugs are used in their expected and ordinary manner.
risk of harm from the time of sale up to the present.

would have remained unaware of the risk due to its subtle and imperceptible nature.
communicated to users such as Plaintiff.

have not used the Combat Arms Earplugs and would have used an alternative device or

would have followed any instructions that would have prevented the Combat Arms
Earplugs from permitting harmful sounds from entering the ear canal.
88.

The risk of harm in failing to provide a post-sale warning or instructions

89.

Plaintiff was injured as a direct and proximate result of 3M’s failure to

greatly exceeded the cost of providing them.

provide a proper post-sale warning or proper post-sale instructions.
Count 4: Negligence Per Se

90.
91.

Plaintiff incorporates the paragraphs above as if fully set forth herein.

Federal law requires manufacturers of all hearing protective devices to

comply with testing and labeling requirements promulgated by the EPA. See 42 U.S.C. §
4901, et seq; 40 C.F.R. § 211.201, et seq.
92.

3M was required to test and label the Combat Arms Earplugs in accordance

with this federal law.

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93.

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3M violated these statutes and regulations—and therefore breached the

standard of care—by failing to test and label the Combat Arms Earplugs in accordance with
these requirements. In particular, 3M’s sham NRR testing, false statements regarding the

efficacy of the Combat Arms Earplugs, and failure to disclose that the wearer must fold
back the flanges on the opposing end of the earplug violated this federal law.
94.

Plaintiff is within the intended protection of these federal laws and her injury

95.

Plaintiff was injured as a direct and proximate result of 3M’s failure to

is of the type the legislation was intended to prevent.
comply with these provisions.

Count 5: Breach of Express Warranty

96.
97.

Plaintiff incorporates the paragraphs above as if fully set forth herein.

3M expressly warranted, through its certifications to the military that:

a. The Combat Arms Earplugs were designed to provide protection from the

impulse noises created by military firearms, while allowing the wearer to clearly hear
normal speech and other quieter sounds, such as voice commands, on the battlefield;

b. The green end of the Combat Arms Earplugs reduced sound 25-40 decibels

(depending on the frequency of the sound);

c. The efficacy of the Combat Arms Earplugs were tested in accordance with

ANSI S3.19; and

d. The Combat Arms Earplugs are free from all defects that detract from their

appearance or impair their serviceability.
98.

In addition, the packaging and instructions for the Combat Arms Earplugs:

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a. State that they allow wearers to hear low-level sounds critical to mission

safety and, “when needed, the plugs’ ‘filter’ reacts to provide instant protection from
high-level noises. It’s that easy. It’s that quick.”
99.

b. Provide sound attenuation data for each side of the earplugs.

Each of these representations was part of the basis of the bargain for the

procurement of the Combat Arms Earplugs.
100.

But the actual Combat Arms Earplugs Plaintiff used did not conform to any of

101.

Plaintiff was injured as a direct and proximate result of 3M’s breach of these

these warranties.

express warranties.
102.
103.

Count 6: Breach of Implied Warranty

Plaintiff incorporates the paragraphs above as if fully set forth herein.

3M is a merchant of the Combat Arms Earplugs and similar hearing

protection devices.
104.

3M knew or had reason to know the particular purpose the Combat Arms

105.

3M knew or had reason to know the buyer would rely on 3M’s skill and

106.

Plaintiff relied on 3M’s skill or judgment in selecting or providing the Combat

107.

The law implies that the seller warrants or guarantees that the purchased

Earplugs were being used for.

judgment in selecting or providing goods suitable for that purpose.
Arms Earplugs suitable for that purpose.
goods:

a. Would pass without objection in the trade under the contract description;
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b. Are fit for the ordinary purposes for which the goods are used;

c. Are adequately contained, packaged, and labeled as required in the

agreement; and

d. Conform to the promises or stated facts on the container or label.

108.

3M breached these implied warranties by delivering a defective product that

did not work as it was designed to do—it did not protect Plaintiff’s hearing, it did not
conform the USAF’s specification and requirements for the product, it did not provide

proper instructions on how to ensure that the earplugs would perform well, and it did not
conform to the representations stated on the product’s label.
109.

Plaintiff was injured as a direct and proximate result of 3M’s breach of these

implied warranties.
110.
111.

Count 7: Fraudulent Misrepresentation

Plaintiff incorporates the paragraphs above as if fully set forth herein.

3M falsely represented that the Combat Arms Earplugs would protect

military service members hearing from loud and destructive noises and had the specific
Noise Reduction Ratings disclosed on the package and/or labeling.
112.

3M knew this information was false because its own testing had revealed

that the Combat Arms Earplugs were defective, and would not achieve the specific NRR

advertised, when used in the instructed manner.
113.

3M provided no warning or instructions that Plaintiff had to fold back the

114.

Plaintiff reasonably relied on 3M’s false misrepresentations and omissions.

flanges on the opposite end of the plugs to achieve a proper fit to seal out the ambient
noise.

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115.

Plaintiff was injured as a direct and proximate result of 3M’s fraudulent

misrepresentations.
116.
117.

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Count 8: Fraudulent Concealment

Plaintiff incorporates the paragraphs above as if fully set forth herein.
3M fraudulently concealed the following material information:

a. That the Combat Arms Earplugs were defective;

b. That the Combat Arms Earplugs, due to a design defect, had a tendency to

dislodge from the ear, rendering them ineffective at protecting the service member’s
hearing;

c. That the flanges on the opposite end of the earplug had to be folded back to

prevent the earplug from dislodging during use; and

d. That 3M’s NRR testing of the Combat Arms Earplugs was a sham.

118.

3M had a duty to provide this information because 3M knew that the

information it had provided about the earplugs, such as that they were effective at blocking
noise, and had specific NRR ratings, were rendered false and/or misleading without

providing the additional information 3M concealed, and because only 3M had access to this
information.
119.

concealment.
120.

Plaintiff was injured as a direct and proximate result of 3M’s fraudulent
Count 9: Negligent Misrepresentation
Plaintiff incorporates the paragraphs above as if fully set forth herein.

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121.

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3M, in the course of its business, supplied false information that the Combat

Arms Earplugs were free of defects, would protect Plaintiff from loud noises, and had
specific NRR ratings.
122.

3M supplied this false information to induce the purchase and use of the

123.

3M failed to use reasonable care or competence in communicating these false

124.

The USAF and Plaintiff justifiably relied on the information because they had

Combat Arms Earplugs as part of Plaintiff’s military service.
statements to Plaintiff.

no reason to suspect that 3M was providing inaccurate information and had no way of
discovering the truth for themselves.
125.

Plaintiff was injured as a direct and proximate result of 3M’s negligent

misrepresentation.
126.
127.

Count 9: Punitive Damages

Plaintiff incorporates the paragraphs above as if fully set forth herein.

Because 3M’s actions were deliberate and willful, and because 3M acted with

deliberate indifference to the rights and safety of Plaintiff and thousands of other USAF
service members, punitive damages should be awarded.

PRAYER FOR RELIEF

Plaintiff demands judgment against all Defendants for:

a. All compensatory, consequential, incidental and all other money damages in

an amount to be proven at trial;

b. Punitive damages in an amount to be proven at trial;
c. Attorneys’ fees;

20

 62-CV-19-2383

d. Pre- and post-judgment interest at the maximum rate allowed by law;
e. The costs of this action; and

f. Such other and further relief as is appropriate.
JURY DEMAND

Plaintiff demands a trial by jury.

Dated: April 9, 2019

Respectfully Submitted,

NICHOLS KASTER, PLLP
By: _/s/ Michele R. Fisher_______________
Michele R. Fisher, MN Bar No. 303069
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: 612.256.3229
Fax: 612.215.6870
fisher@nka.com
STUEVE SIEGEL HANSON LLP
George A. Hanson (PHV forthcoming)
Crystal R. Cook (PHV forthcoming)
Abby E. McClellan (PHV forthcoming)
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Telephone: 816.714.7100
Facsimile: 816.714.7101
hanson@stuevesiegel.com
cook@stuevesiegel.com
mcclellan@stuevesiegel.com
GIBBS LAW GROUP LLP
Eric H. Gibbs (PHV forthcoming)
Amy M. Zeman (PHV forthcoming)
505 14th Street, Suite 1110
Oakland, CA 94612
Telephone: 510.350.9710
ehg@classlawgroup.com
amz@classlawgroup.com

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 62-CV-19-2383

ISAAC WILES BURKHOLDER & TEETOR, LLC
Mark H. Troutman (PHV forthcoming)
Gregory M. Travalio (PHV forthcoming)
Shawn K. Judge (PHV forthcoming)
Two Miranova Place, Ste. 700
Columbus, OH 43215-5098
Telephone: 614.221.2121
Facsimile: 614.365.9516
mtroutman@isaacwiles.com
gtravalio@isaacwiles.com
sjudge@isaacwiles.com
Attorneys for Plaintiffs

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State of Minnesota
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 62-CV-19-2383

Filed in District Court
State of Minnesota
4/9/2019 4:09 PM

ACKNOWLEDGMENT REQUIRED BY
MINN. STAT. § 549.211
I hereby acknowledge that, pursuant to Minn. Stat. § 549.211, subd. 3, sanctions may

be imposed by this Court if it determines that Minn. Stat. § 549.211, subd. 2, has been
violated.

Dated: April 9, 2019

/s Michele R. Fisher
Michele R. Fisher