STATE OF MINNESOTA DISTRICT COURT 

COUNTY OF HENNEPIN FOURTI-I JUDICIAL DISTRICT 

CASE TYPE: PRODUCT LIABILITY 

MICHAEL MORAN, Court File No.; 

Judge: 

Plaintiff, 

SUMMONS 

vs. 

~ COMPA~ANDAEARO 

TECHNOLOGIES, LLC, 

Defendants. 

THIS SUMMONS IS DIRECTED TO 3M COMPANY AND AEARO TECHNOLOGIES, LLC: 

1. YOU ARE BEING SUED. The Plaintiffs have started a lawsuit against you. The 

Plaintiffs' Complaint against you is attached to this Summons. Do not throw these papers away. 

They are official papers that affect your rights. You must respond to this lawsuit even though it 

may not yet be filed with the Court and there may be no court file number on this Summons. 

2. YOU MUST REPLY WITHIN 20 DAYS TO PROTECT - YOUR 

RIGHTS...-Ypu must. give or mail to. the person who signed this Summpns a written response 

called an Answer within 20 days of the date on which you received this Summons. Yoii mtist send 

a copy of your Answer to the person who signed this summons located at: 

~. 

Bassford Remele, A Professional Association, 100 South 5`h Street, Suite 1500, 

Minneapolis, Minnesbta 55402. 

3. YOU MUST RESPOND TO EACH CLAIM. The Answer is your written 

response to the Plaintiffs' Complaint. In your Answer you must state whethei-you agree or disagree 

with each paragraph of the Complaint. Ifyou believe the Plaintiffs should not be given everything 

asked for in the Complaint, you must say so in your Answer. 

4. YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND A WRITTEN 

RESPONSE TO THE COMPLAINT TO THE PERSON WHO SIGNED THIS SUMMONS. 

If you do not Answer within 20 days, you will lose this case. You will not get to tell your side of 

the stoiy, and the Court may decide against you and award the Plaintiffs eveiything asked for in 

the complaint. If you do not want to contest the claims stated in the Complaint, you do not need 

to respond. A default judgment can then be entei-ed against you for the relief requested in the 

complaint. 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 1 of 62
5. LEGAL ASSISTANCE. You rnay wish to get legal help fi-oin a lawyer. If you do 

not liave a lawyer, the Court Administrator inay liave information about places where you can get 

legal assistance. Even if you*cannot get

.

legal help, ,you inust still pi-ovide a written Answer to 

pr6tect your righ-ts or you may loge'the case. 

, . 

6. ALTERNATIVE DISPUTE RESOLUTION. The parties may agree to or be 

ordered t6 participate in an altei-native dispute resolution process under Rule 114 of the 1Vlinnesota. 

General Rules of Practice. You must still send your written response to the Complaint even if you 

expect to use alternative means of resolving this dispute. 

s/Lewis A. Remele, Jr. January 9, 2020 

Plaintiff's attorney's signature Dated 

Lewis A. Remele, Jr. f 

Print or type plaintiff's attorney's name 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 2 of 62
STATE OF MTNNESOTA DTSTRICT COURT 

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT 

CASE TYPE: PRODUCT LIABIf;ITY 

Court File No.: 

MICHAEL MORAN, Judge: 

Plaintiff, 

COMPLAINT 

V. 

3M COMPANY, and AEARO 

TECHNOLOGTES LLC, 

Defendants. 

Plaintiff Michael Moran brings this action against defendants 3M Company and Aearo 

Technologies LLC, ("collectively Defendants") for personal injuries and sequelae thereto 

sustained fi•om Defendants' unreasonably dangerous product, the dual-ended Combat ArmSTM 

earplug (Version 2 CAEv.2) ("Dual-Ended Combat Arms Earplug") and in support thereof alleges: 

INTRODUCTION 

1. This is a prodtict liability action related to a defective earplug created, designed, . 

assembled, coristructed, manufactared; produced, tested, packaged, labeled, xriarketed, advertised, . 

proinoted, made, distributed, suppliecl, and/or• and sold by Defendants: Plaintiffused Defendants' 

Dual-Ended Comb'at Arms E'arplug and, as a result of its defective condition, now suffer from 

Tinnitus and hearing loss. 

i 

.2.. . Defendants.were aware of the defects and risks of the Dual.Ended Combat Arms 

Earplug but nonetheless supplied this dangerously defective product to Plaintiff and the United 

State military for more than a decade without Plaintiff or the United States Military having any 

knowledge of those defects and risks. 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 3 of 62
3. The defective design of the Dual-Ended Combat Arms Earplug prevented Plaintiff 

fi-om obtaining a proper fit and seal when inserting the device into Plaintiff's ear canal. 

4. The defective design of the Dual-Ended Combat Arms Earplug also caused the 

device to loosen imperceptibly in the Plaintiff s ear canal. 

5. As a result of the dangerously defective design of the Dual-Ended Combat Arms 

Earplug, the device did not remain sealed to Plaintiff's ear canals and thus allowed damaging 

sounds to enter Plaintiff's ear canal, unbeknownst to Plaintiff and the United States military. 

6. Defendants failed to warn or instruct Plaintiff or the United States militaiy of the 

defects and risks related to the Dual-Ended Combat Arms Earplug. 

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7. Use of Defendants' Dual-Ended Combat Arms Earplug has caused Plaintiff to 

suffer hearing-related injuries. 

8. Defendants provided the Dual-Ended Combat Arms Earplug to Plaintiff and other 

individuals and/or the United States military between approximately 2003-2015. 

9. Defendants' Dual-Ended Combat Anns Eaiplug has caused thousands upon 

thousands, if not millions, of innocent civilians and military personnel to. suffering lrearing 16ss, 

tinnitus, and/or additional hearing-related injuries, including but not limited to pain, suffering, and 

i 

loss of fundamental life pleasures. 

JURISDICTION AND VENUE ' 

10. - This Court has subject matter jurisdiction over Plaintiff's clairns under Minn. Stat. 

§ 484.01, subd. 1. . 

11. This action is not removable to federal court because Plaintiff asserts no claim 

arising undei-the Constitution, law, or treaties of the United States to satisfy 28 U.S.C. § 1331 and 

because even though the requirements of 28 U.S.C. § 1332(a) may be met, Plaintiff brings this suit 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 4 of 62
in Defendants' home state and therefore 28 U.S.C. § 1441(b)(2) p-ecludes removal. 

12. Venue is proper-iii Hennepin County, Minnesota under 1V41nn. Stat. §§ 542.01 and 

542.09 because 3M resides in Hennepin County in that it lias its resident agent, *an office, and a 

place of business in Hennepin County. 

PARTIES 

Plaintiff 

13. Plaintiff Michael Moran served in the United States National Guard from 2011 to 

2015. Michael Moran is a resident of Alabama. Before joining the military, Plaintiff had no signs 

or symptoms of hearing loss or tinnitus. 

14. Plaintiff was issued a pair of standard-issue Dual-Ended Combat Arms Earplug 

earplugs and wore the Dual-Ended Combat Arms Earplug during of his service. 

15. Plaintiff has been diagnosed with Tinnitus and hearing loss. 

Defendants 

16. Defendant 3M Company ("3M") is a Delaware corporation with its principal place 

of business in Minnesota: Defendant* 3M*has a dominant market share in virtually .every safety 

product market, including hearing protection devices. Defendant 3M is one of the largest 

companies in the United States. 

17. Defendant Aearo Technologies LLC is a Delaware liinited liability company with 

a principal place of business in Indiana. Defendant Aearo Technologies LLC is a subsidi-ary of 

Defendant 3M: At all relevant times, Defendant Aearo Technologies LLC utilized two assumed 

names: Aearo Company and Aearo Tecluiologies. 

18. Defendant 3M is liable for Aearo Defendant's conduct. 

3• 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 5 of 62
FACTUAL ALLEGATIONS 

Def•endants' Crecttiori of the Dua!-ErTded Combat Arms Eurplua 

19. Dual-Ended Combat Arms Earplug is a one-sized, dual-ended, triple-flanged 

eaiplug that Defendants created, manufactured, constructed, assembled, designed, tested, 

promoted, advertised, marketed, disti-ibuted, and/or sold to civilians and the United States military 

from approximately 2003 to 2015. 

20. Each end of the Dual-Ended Combat Arms E'arplug incoi-porates a single-ended, 

triple-flanged earplug called the Ultrafit, which Defendants also designed. 

21. Defendants patented this "multi flanged earplug". d-esign-un Septeinber 19, 1989, as 

set forth in further detail in U.S. Patent-No. 4,867,149. 

22. Although both ends of the Dual=Ended Combat Ai-ms Earplug use the same Ultr.af~t 

earplug; Defendants designed each end to serve a different purpose. 

23. Defendants designed the olive-colored end of the Dual-Ended Coinbat Ai-ms 

Eaiplug to block as much sound as possible, just like the single- ended Ultrafit earplug initially 

designed by Defendants. 

'24: Deferidants i•efei-red' to the * olive=colored end of the Dual-Ended Combat Arms ' 

Eai-plug as the "closed," "blocked," or "linear" end. 

25. Unlike the olive-colored end, the yellow-colored end of the Dual-Ended Combat 

Ai-ms Earplug is attached to a non-linear filter, which provides level- dependent hearing protection 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 6 of 62
so that users can hear low-level sounds (e.g., close- range conversation), while also blocking loud 

impulse sounds (e.g., noises from industrial macliines). 

26. Defendants referred to the yellow-colored end of the Dual-End'ed Combat Arms 

Earplug as the "open," "unblocked," or "non-Iinear" end. 

27. Drs. Pascal Hamery and Armand Dancer fi•om the French-Gei-man Institute of Saint 

Louis ("ISL") designed and patented the non-linear filter in 2000. 

28. According to U.S. Patent No. 6,068,079, ISL's non-linear filter uses a"simple 

' design pei-mitting improved filtering perfoi-mance." 

29. The filter is "placeable in the external auditory canal of a user by means of an 

earplug" and may be used "in a military or industrial environment," providing protection from 

"noise from firearms of all calibers or from industrial machines, such as metallurgical presses." 

30. Dr. Hamery of ISL also designed and patented the "double-ended" design of the 

Dual-Ended Combat Arms Earplug in 2000. 

3.1. According to U.S. Patent No. 6,070,693, ISL's "double-ended" eaiplug "can 

function either in a selective attenuation mode* or a maximum attenuation mode," allowing users 

to "choose between two operating modes of attenuation." 

• 32. ISL's paterit of the "doublerended" design makes clear that "[t]he hearing protector 

is intended to be sealingly inserted into the,auditory canal of the user." 

33. Thus, in addition to designing, developing, and patenting the non-linear filter•used 

in the Dual-Ended Combat Arms Eaiplug, Dr. Hameiy also designed and patented the "doubleended" design of the Dual-Ended Combat Arnis Eai-plug. 

34. Defendants subsequently purchased both patents fi-om ISL and/or obtained an 

exclusive license fi•om ISL to use both patents in the Dual-Ended Combat Arms Earplug. 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 7 of 62
35. Defendants created the Dual-Ended Combat Arms Earplug by inserting ISL's nonlinear filtei-into a channel connecting two triple-flanged Ultrafit earplugs, resulting in a single 

"double-ended" earplug intended for linear and non-linear attenuation as covered by U.S. Patent 

Nos. 4,867,149; 6,068,079; and 6,070,693. 

36. On October 7, 2015, Jeff Hamer• of 3M testified that Defendants' Dual- Ended 

Coinbat Arms Earplug uses the "same basic notion of taking a plug, like the Ultrafit plug, forming 

it yvith a channel in it, and then putting [the ISL] filter in it." 

37. Likewise, on Apri124, 2013, Doug Ohlin of 3M testified that "all [Defendants] had 

to do was insert the [ISL] filter" into Defendants' preexisting design of the triple-flanged Ultrafit 

earplug because "the hole was already there." 

38. The Ultrafit earplug ah•eady contained a small hole in its channel for a"music 

filter." 

39. Mr. Ohlin testified that the United States military purchased the Dual-Ended 

Combat Ai-ms Earplug without providing any product "specifications" whatsoever because 

Defendants devoloped a technologicaliy .simple earplug that.was "ready to go" prior to the 

military's interest in the product. 

40. Thus, in the world of Defendants' own internal documents, "3M is the creator" of 

the Dual-Ended'Combat Ai-rris Earplug. 

Civilian and Military Use 

41. Given the reexistin desi n of the Dual-Ended Combat Ai-ms Eai lu which : . . . . . . . . . • ,.. ... . . p . g. g 

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supposedly offered a"low tecli" solutlo]] for protecting users from harmfttl noises, the United 

States militaiy assigned the Dual-Ended Cornbat Ai-ms Eaiplug a national stock number and began 

purchasing the device in approximately 2003, after the product had already entered the commercial 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 8 of 62
market. 

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42. Defendants directly and/or indirectly 'stfpplied the Dual-Ended Conibat Ai-ms 

Earplug to military personnel and civilians, including Plaintiff, from at least 2003 to 2015, 

regardless of wartime, combat, and/or niilitary-related exigencies. 

43. Biyan McGinley, who testified as 3M's coiporate representative on Apri13, 2013, 

asserted that "we don't differentiate between [private sector companies and governmental entities] 

with any of our products." 

44. Likewise, Elliott Berger, the Division Scientist of 3M's Personal Safety Division, 

testified on October 8, 2015, that the Dual-Ended Combat Arms Earphig is "sold in markets other 

than just the military." 

45. Defendants supplied their commercial distributors with "blister pack version[s] of 

the dual-ended CAE," specifically "packed for retail stores." 

46. The part number and/or SKU of the device was 370-1011. 

47. Mr. Berger of 3M touted the Dual-Ended Combat Arms Earplug to civilians as 

"ideal for oirtdoor shooting and hunting" because the device provided "good protection" for 

"thousands of rounds fired at indoor i-everberant ranges." 

48. Civilians and militaiy. personriel, including Plaintiff, relied on Defendants' 

representations that the Dual-Ended Combat Arms Earplug is safe; effective, and provides-two 

different options for adequate hearing attenuation and/or protection depending upon which end of 

the device is inserted into the user's eai.. 

49. In addition to selling the Dual-Ended Combat Ai-ms Earplug to civilians and the 

United States military, Defendants marketed, distributed, and sold the Dual- Ended Combat Arms 

Earplug commercially under different product names. 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 9 of 62
50. For instance, among other products, Defendants' ARC earplug is structurally and 

technologically identical to the Dual-Ended Combat Ai-ms Earplug. 

.~:.. . 

~ — 

51. On October 21, 2015, Doug Moses of 3M acknowledged that there is no material 

"difference between Combat Arms and an ARC plug in tei-ms of sti-ucture." 

52. In other words, as another 3M executive put it, "[t]he arc plug and dual end combat 

arms plug are the same except for the colors used." 

53. Defendants initially marketed and sold the ARC earplug to civilians, such as 

electrical linemen, who frequently encountered potential noise hazards from electric ares. 

54. Defendants-then targeted the ARC earplug to.a broader commer-cial market, ranging 

fi-orn "utilities business[es]" to "the food processing industry." 

55. : Given this 'identical commercial product, Defendants. did not design or develop the 

Dual-Ended Combat Arms Earplug for exclusive military use: 

56. Defendants design.ed and developed the Dual-Ended Combat Ai-ins Earplug for a 

wide variety of users. 

Defendauts' Testing of the Dual-Ended CombatArirrs Eaiplug 

5-7. Federal and iridustiy-i-egulations- required Defend-ants-to test the safety and efficacy 

of the Dual-Ended Combat Arms Earplug before distributing, supplying, and/or selling the device 

to consumers. 

58. Environmental Protection Agency ("EPA") regulations codified in 30 CFR 211.201 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 10 of 62
et seq., and the Noise Control Act, 42 U.S.C. § 4901 et seq., specifically regulate labeling and 

testing of hearing protection devices. 

59. 70. Hearing protection devices are classified by their potential to reduce noise in 

decibels ("dB"), a term used to categorize the power or density of sound. 

60. Hearing protection devices must be tested pursuant to guidelines and procedures 

promulgated by the Ainerican National Standards Institute ("ANSI"). 

61. These guidelines require manufacturers of hearing protection devices to test for and 

label their devices with a Noise Reduction Rating ("NRR"). 

62. An NRR is a unit of ineasurement used to determine the effectiveness of hearing 

protection devices in decreasing sound exposure in certain environments. 

63. The noise measurement procedure published by ANSI, also known as ANSI S3.19- 

1974, governs the NRR labeling and testing of hearing protection devices. 

64. The higher the NRR number associated with a hearing protection device, the greater 

the potential for noise reduction in certain environments. 

65•. ,' The EPA reqi.iires manufacfurers of hearing protection devices to provide accurate . 

NRRs on the labels of thdir devices. 

Systemic Testing Bias 

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66. Instead of hiring an independent laboratory to test the NRRs of their hearirig 

protection devices, Defendants have regularly used their own EARCAL laboratoiy for that puipose 

since at least December 1999. 

67. The EARCAL laboratory is located in Indianapolis, Indiana. 

68. Unlike independent laboratories, the EARCAL laboratory used and uses 

inappropriate testing procedures that substantially skew the results of the NRR labeling tests that 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 11 of 62
Defendants perfoi-m on their own hearing protection devices. 

69. Mr.•Berger . has nianaged the EARCAL laboratory since at least 1999. 

70. Mr. Berger testified at his October 8, 2015 deposition that instead of using 

randomized panels of test subjects, Defendants "preselect people to test out particular types of 

products," which ultimately "increase[s] the NRRs" of Defendants' hearing protection devices. 

71. EARCAL lab technician Ronald Kieper likewise festified at his October 9, 2015 

deposition that Defeiidants only use panels of individuals who are "able to consistently obtain [the] 

best fit on [a] particular type of hearing protector" and that limiting panels to such subjects in turn 

"raise[s] the NRR" of Defendants' hearing protection devices, inchiding the Dual-Ended Combat 

Arms Earplug. 

72. Defendants have also used the so-called "Dixon Outlier Test" to exclude 

undesirable data from labeling tests on their hearing protection devices. 

73. Mr. Hamer of 3M admitted at his October 7, 2015 deposition that Defendants' 

reliance on the Dixon Outlier Test is anathema to "statistical rules." 

74. fn addition, Defendants' use of their owri EARCAL laboratory allows the "biases" 

of their "lab guys" to go unchecked, unlike in an independent laboratory. 

.75. As a result of Defendants' biases 'and improper testing procedures, Mr. Berger 

acknowledged at his October 8, 2015 deposition that Defendants previously feceived a"large fine" 

fi-om the EPA for using "eveiy legal trick in the.book to get th.e highest-NRRs possible" for their 

hearing pi.otection.devices. 

76. Specifically, on April 6, 1993, Defendants agreed to pay a$900,000 civil penalty 

to settle allegations that they had inaccurately labeled their single- ended foam eai-plugs as having 

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a 35 NRR when in fact the NRR was only 29. 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 12 of 62
\ 

Jruivaiy 2000 Testina 

77. Despite this "six-figure fine" and ongoing concern that the EARCAL laboratory 

"could be setting Aearo up for anotlier fine," Defendants continued using "every legal trick in the 

book" when testir►g the Dual-Ended Combat Arms Earplug. 

78. The EARCAL laboratoiy began testing the Dual-Ended Combat Aims Eaiplug in 

approximately December 1999 or January 2000. 

79. The first test of the Dual-Ended Combat Arms Earplug, which Defendants 

identified as "Test 213015," involved the closed, blocked, or linear end of the device. 

80. The next test of the Dual-Ended Combat Arms Earplug, which Defendants 

designated as "Test 213016," involved the open, unblocked, or non- linear end of the device. 

81. Defendants intended both of these tests to be NRR labeling tests. 

82. Mr. Befger admitted so at his October 8, 2015 deposition, averring that he believed 

Test 213015 was a"labeling test" when Defendants started the test. Similarly, on October 9, 2015, 

Mr. Kieper testified at his deposition that "both of those [tests] were supposed to be labeling tests." 

83. - Because Defendants intended Test 213015 and Test 213016 to be'labeling tests, 

Defendants should not have terminated the tests prior to completion. Nor could Defendarits se11 a 

hearing protection device sueh as the Dual-Ended Combat Arms Eaiplug based on incomplete 

labeling testing. 

84. . For example, Mr. Hamer testified at his October 7, 2015 deposition that Defendants, 

could not.stop a labeling test "if the product [did not] fit right." 1~ or each labeling test, Defendants . 

selected ten subjects to test the Dual-Ended Combat Arms Earplug, many of wlio were their own 

employees rathei-than randomly selected individuals fi-om the general public. 

85. To determine the NRR of each end of the Dual-Ended Combat Arms Earplug, 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 13 of 62
Defendants designed the labeling tests to capture: (1) each. subject's hearing without an earplug; 

(2) each subject's liearing witli'the closed end of the Dual-Ended Combat Arms Earplug inserted 

. .. . . . 

according to standard procedures for proper use; and (3) each subject's hearing with the open end 

of the Dual-Ended Combat Arms Eai-plug inset-ted according to standard procedures for proper 

use. 

86. Defendants monitored the results of each subject during the testing. 

87. After testing only eight of the ten subjects in Test 213015, Defendants terminated 

the test of the closed end of the Dual-Ended Combat Arms Eaiplug. 

88. Mr. Berger told Mr. Kieper to terminate the test of the closed end of the device 

because the average NRR of the eight subjects was only 10.9. 

89. Mr. Hamer of 3M also testified at his October 7, 2015 deposition that a 10.9 NRR 

provided "insufficient" protection for civilians and military personnel. Even an NRR of 17, 

explained Mr. Hamer, would be too low and thus not a"desirable NRR" for the closed end of the 

Dual-Ended Combat Arms Eaiplug. Defendants' internal documents likewise acknowledge that a 

17 NRR provides "low 'attenuation'.'. and insufficient protection from harinful noises. 

90. After the aborted test, Defendants investigated the cause of the low NRR rating for 

the closed end of the Dual-Ended Combat Arms Earplug. 

91. - Defendants determined that when users inserted the closed end of the Dual-Ended 

Combat Arms Eai-plug into theii-ears, the edge of the third flange of the. open end of the earplug 

pressed against the users' ear.s and folded backwards. When the inward .pressure on the eaiplug 

released, the folded flange on the open end pushed back into its original sliape and caused the 

eaiplug to loosen imperceptibly. 

92. In fact, Mr. Kieper testified that when he fitted each subject with the closed end of 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 14 of 62
the Dual-Ended Combat Arms Earplug according to standard instructions, "tlhe flanges of the 

yellow [open] end would sometimes come into contact with their, eaand that would pi-event [users 

. 

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fi-oin] getting the solid [closed] end in their ear deep enough to provide a seal." 

93. 1VIr. Kieper also emphasized that upon fittiiig the test subjects with the Dual-Ended 

Combat Arms Earplug, "[t]hey didn't realize it was coming out." 

94. Defendants therefore concluded that if used as designed and intended, the DualEnded Combat Arms Earplug would loosen imperceptibly and provide "insufficient" hearing 

protection. 

95. Such imperceptible loosening would in turn allow harmful sounds to move around 

the totality of the earplug instead of through it, thus entering the user's ear canal and damaging the 

user's hearing. 

96. Given the symmetrical nature of the product with regard to its flanges, Defendants 

knew in 2000 that the design of the Dual-Ended Combat Arms Earplug prevented a proper fit and 

seal when inserting either end of the device into the user's ear canal according to standard fitting 

procedures. . 

97. Tellingly; when testing the open end of the Dual-Ended Combat Arms Earplug in 

Test 211016, Defendants obtained an NRR of -2. 

98. An NRR-of -2 indicated that the open end of the Dual-Ended Combat Ai-ins Eaiphig 

actually amplified sound i-ather than attenuated sound, as intended. 

99: Defendants knew "something went wrong" in Test 213016 given the negative NRR. 

and "unusually liigh" standard deviations of the test results 

100. Defendants also knew that NRR "[v]alues less than 0 make no sense." 

101. Unsurprisingly, then, Mr. Hamer testified that "the hearing protection device was 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 15 of 62
perhaps not fitted correctly," and Mr. Kieper further testified. that "the green flanges were causing 

the yellow end to come out of [the user's] ear." 

102. Without informing Plaintiff or the United States military, Defendants brazenly and 

perniciously inflated the -2 NRR to a 0 NRR. 

103. Defendants have displayed the 0 NRR on the packaging of the Dual- Ended Combat 

Arms Earplug ever since they began supplying the device to civilians and military personnel. 

104. Defendants have also continued to display the fabricated 0 NRR despite subsequent 

in-house and independent testing that generated significantly different NRRs for the open end of 

the device. 

105. Worse, Defendants touted the obviously invalid 0 NRR as a benefit of the open end 

~ of the device, routinely representing that soldiers and civilians would be able to hear quiet, closerange conversation despite being protected from louder, harmful noises. 

106. In reality, however, Defendants knew all the way back in 2000 about the DualEnded Combat Arms Eai-plug's dangerously defective design, which not only prevents users fi-om 

obtaining *a proper. fit and seal, but also causes the device to loasep. imperceptihly r.egardless of 

which end of the device is inserted into the user's ear. 

107. Ultimately, both ends of the Dual-Ended Combat Arms Eai-plug allow high-level 

and harmful sounds to move around the unsealed earplug and to enter the user's ear, causing 

hearing loss, tinnitus, and/oi: other hearing-related injuries. 

February 2000 Testing 

, 

108. Defendants retested the closed end of the device beginning in Febniary 2000. 

109. Defendants identified this test as "Test 213017" and used a different panel of 

subjects than they used in Test 213015. 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 16 of 62
110. Defendants also used different insertion instnictions than in Test 213015, contrat-y 

to the standard insti-uctions that would be provided to civilians and militaiy personnel. 

. . 

. 

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• , 

. ..., 

.. .., 

111. Defendants conducted this retesting despite the fact that EARCAL laboratory 

policies and procedures did not allow retesting a hearing protection device by reconfiguring the 

device. 

112. In Test 213017, Defendants folded back the yellow flanges of the open end of the 

earplug prior to inserting the closed end into each subject's ear. 

113. This reconfigured fitting procedure ostensibly created a tighter fit and seal than the 

standard fitting procedure that Defendants had used in Test 213015. 

114. As a result of Test 213017, Defendants learned in 2000 that when the flanges of the 

, 

open end of the Dual-Ended Combat Arms Earplug were folded back prior to inserting the closed 

end of the earplug into the user's ear, the flanges of the open end neither touched the user's outer 

ear nor disturbed the seal of the earplug. ~ 

115. Using this reconfigured insertion procedure, Defendants obtained an NRR of 21, 

ahnost twiee the NRR of 10.9 generated in Test 2130 1 5: 

116. Still unsatisfied, Defendants excluded the data of one subject' and retested that 

subject in May 2000, further manipulating the results of Test 213017. Based on the additional 

retest of that subj ect and the modified fitting procedures used in Test 213017, Defendants increased 

the NRR to 22 on the closed end of the Dual-Ended Combat Ai-ms Eaiplug, more than doubling 

the NRR compared to Test 213015, which used Defendants' standard fitting procedures: 

117. Defendants liave displayed tliis manipulated 22 NRR on the Uackaging of the DualEnded Combat Ai-ms Eaiplug ever since this device was first made available to civilian consumers 

and military personnel. 

• 15 

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Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 17 of 62
k 

118. Defendants have done so even thougli Test 213015 generated a 10.9 NRR and 

subsequent testing of the closed end of the device also yielded NRRs lower than 22. 

119. For example, a five-subject test in June 2005, which Defendants identified as Test 

215508, yielded a 15 NRR. 

120. In addition, a three-subject test in Apri12007, which Defendants identified as Test 

215516, yielded a 14 NRR. 

121. Defendants, however, never warned civilians, military personnel, or the United 

States military that they obtained the 22 NRR by testing the Dual-Ended Combat Arms Eai-plug 

on an unrepresentative panel of subjects, that they manipulated the test data of those 

unrepresentative subjects, or that they reconfigured the device by,folding back the flanges of the 

open end before inserting the closed end of the device into the ear canals of the test subjects. 

122. Mr. Hamer testified at his October 7, 2015 deposition that Defendants' testing of 

the Dual-Ended Combat Arms Earplug "with the flan`ge rolled back [was] improper." 

123. He also unequivocally admitted that "the labeling test that 3M's using for Combat 

Arms Version- 2-for the green end is. ndx the appxopriate test.". 

124. In stark contrast to folding back the opposing flanges of the Dual- Ended Coinbat 

Ai-ms Earplug when retesting the closed end of the device; Defendants_did not retest the open end 

based on that reconfigured fitting procedure. 

125. On multiple occasions, however, Defendants did retest the open end of the DualEnded Combat Arms Earplug using standard fitting procedure.s. 

~ 

. 

126. For instance, a ten-subject test in June 2004, which_Defendants identified as Test 

215009, yielded a-1 NRR for the open end of the Dual-Ended Combat Ai-ms Eaiplug. 

127. But Defendants once again scratched that invalid value and improperly labeled the 

16 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 18 of 62
open end of the Dual-Ended Combat Arms Earplug with a 0 NRR. 

128. To make matters worse, Defendants' continued to label the open end of the Dual- Li 

Ended Combat Arms Earphig with a 0 NRR despite subsequent testing generating positive NRRs. 

129. For example, a five-subject test conducted in June 2005, which Defendants 

identified as Test 215507, yielded a 4 NRR. 

130. Another five-subject test conducted in June 2005, which Defendants identified as 

Test 215511, yielded a 6 NRR. 

131. Yet another five-subject test conducted in September 2005, which Defendants 

identified as Test 215515, yielded a 5 NRR. 

132. And a ten-subject test conducted in Apri12006, which Defendants identified as Test 

215012, yielded a 5 NRR. ~ 

133. Faced with these conflicting NRRs, Defendants' internal documents admit that 

~ 

"[w]e are unsure of the con-ect [NRR] for the open end of the CAE Ver. 2[and] that later [NRR] 

tests are the more appropriate." 

134.- Though.Defendants' internal testing demonstrated that the Dual- Erided Combat .. 

Arms Earplug created- "significantly more attenuation in the open position which should detract 

from situational awareness," Defendants continued to label the device with a 0 NRR because 

"°lower attenuation is'more desirable" for the open end of the device. 

135. Indeed, Defendants told civilians and the United States military that the open end 

of the Dual-Ended Combat Arms Earplug enhanced "situational awareness" by allowing the user 

0 

to hear low-level sounds between impulse noises. 

136. Ultimately, given Defendants' intentional manipulation and misrepresentation of 

the NRRs for both ends of the Dual-Ended Combat Arms Earplug, new employees who evaluated 

17 

l 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 19 of 62
the internal testing of the device called the 22 NRR for the closed end and the 0 NRR for the open 

end an utter "mystery." 

Defendants' False Claims About tlae Dual-Ended Contbat Arrns Earplug 

137. Following Defendants' deceptive and unlawful testing of the Dual- Ended Combat 

Ai-ms Earplug, Defendants and/or their distributors sold the device commercially and then to the 

United States military beginning in or around 2003. 

138. Defendants and/or their distributors continued to sell the Dual-Ended Combat Arms 

Earplug to civilians and the United States military until at least November 2015, when Defendants 

discontinued the Dual-Ended Combat Arms Earplug. 

139. Defendants therefore sold the Dual-Ended Combat Arms Earplug commercially 

and to the military for over a decade, reaping millions of dollars in ill-gotten profits from selling 

this defective product each year it was on the market. - 

Inaccurate Noise Reduction Ratings 

140. From at least 2003 to 2015, Defendants inaccurately represented the NRRs of both 

-the-open end•and closed arid-ofthe Dual-Ended Combat A~ms Earplug. 

141: Specifically, Defendants falsely marketed, advertised, and promoted the closed end 

of the Dual-Ended Combat Arms Eaiplug to civilians and the United States militaiy as a linear 

earplug with a 22 NRR. 

142. - However, Defendants' internal testing revealed that the NRR of the closed end of 

the Dual-Ended Combat Arms Eai-plug is only 10.9 when used according to the standard 

instructions for "proper use" that came with the device. 

143. Defendants also falsely marketed, advertised, and promoted the open end of the 

Dual-Ended Combat Arms Earplug to civilians and the United States military as providing 

.18 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 20 of 62
adequate level-dependent hearing protection with a 0 NRR. 

144. ' However, Defendants' initial test revealed that the NRR of the open end of tlie 

Dual-Ended Combat Arms Earplug was -2, while later tests generated NRRs ranging fi-om -1 to 6, 

leaving Defendants entirely "unsure" about the true NRR for the open end of the device. 

145. Defendants thus falsely represented that the Dual-Ended Combat Arms Eaiplug 

ptovided civilians and military personnel with two different liearing protection options for 

providing adequate liearing protection regardless of which end of the plug is used. 

146. This was one alleged benefit that Plaintiff and the United States militai-y relied on 

in purchasing and/or using the Dual-Ended Combat Arms Earplug. 

- Inadequate Instructions and Warnings 

147. Defendants also directly and/or indirectly supplied, sold, and/or distributed the 

Dual-Ended Combat Arms Earplug to civilians and military personnel without disclosing or 

warning about the defective design of the product. 

148. Defendants were aware no later than 2000 of the dangerously defective design of 

the Dual-Ended Combat Arms Earplug and that the. device inadequately protected the hearing of 

~ 

. 

civilian and military users such as Plaintiff. 

149. Specifically, Defendants knew the Dual-Ended Combat Ai-ins Earplug could loosen 

in the user's ear—imperceptible to not only the user but also audiologists visually observing the 

user—thereby pennitting damaging sounds to enter the user's ear through leaks in the seal between 

. ~ 

the user's ear and the earplug. 

150. Yet, Defendants did not adequately warn of the dangerous design defects of the 

Dual-Ended Combat Arms Earplug, despite their knowledge of the same. 

151. Defendants also did not adequately warn or instruct users, including Plaintiff, how 

19 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 21 of 62
to wear and insert the Dual-Ended Combat Arms Earplug in order to achieve the NRR ratings that 

Defendants advertised and pi-omoted over the years. 

152. Although Defendants issued standard instnictions for "proper use" of the DualEnded Combat Arms Earplug, the instructions did not instruct all users to fold back the opposing 

flanges of the earplug before inserting the device into their ears. 

153. ' Defendants' standard instructions also did not warn users that the unrepresentative 

panel of ten subjects who tested the Dual-Ended Combat Arms Earplug in Test 213017 did not 

follow standard instructions for "proper use," but rather folded back the flanges of the opposite 

end of the earplug before inserting it into their ears. 

154. Nor did Defendants' standard instructions for "proper use" inform users that the 

Dual-Ended Combat Arms Earplug would not provide a 22 NRR if they did not fold back the 

opposing flanges on the open end of the device before inserting the closed end of the device into 

their ears. 

155. Instead, Defendants' standard insti-uctions simply directed users, such as Plaintiff, 

to. insert the.Dual-Ended Combat Arms Earplug into-.their ears. - : 

156. The instructions specifically stated: "INSERT the end you have selected into 

earcanal WHILE PULLING ear oufward & upward with opposite hand. ADTUST until earplug 

feels securely seated in the earcanal." 

157. Thus, neither Plaintiff nor the United States militaiy knew that users had to fold 

back the opposing flanges of the eaiplug in order to obtain a.proper seal. 

. 

~ 

158. In fact, when asked whether he had "any documents showing that [he] told the 

Ai-my that the instruction for the Combat Arms Version 2 should instruct [users] to roll back the 

flange," as in Test 213017, Mr. Berger of 3M testified "No." 

20 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 22 of 62
159. Julie Bushman, who previously served as 3M's Senior Vice President of Business 

Transfoi-mation and Information Technology, similarly stated at her October 20, 2015 deposition 

that "[t]here's nothing in [the] instructions for use that mentions rolling back the flange." 

160. Unlike Defendants' "sing]e-sided" earplug, which is•"[s]old in pillow 'packs 

w/instructions," Defendants' internal documents confii-m that the "Dual- Ended" version at issue 

here is "[s]old in [b]ulk [p]ack (no individual instructions)." 

161. Defendants knew that by failing to instruct Plaintiff to fold back the flanges of the 

open end of the Dual-Ended Combat Arms Earplug before inserting the closed end, the earplug 

would not seal to Plaintiff's ears, thereby allowing harmful noise to enter Plaintiff's ears 

unimpeded by the closed end of the earplug. 

162. Defendants also knew that by failing to instruct Plaintiff to fold back the flanges of 

the closed end of the Dual-Ended Combat Arms Earplug before inserting the open end, the earplug 

~ 

would not seal to Plaintiff's ears, thus allowing harnaful noise to enter Plaintiff's ears unimpeded 

by the open end of the earplug. 

1-6•3. And by failing to instruct Pl.aintiff to fold back the opposing flanges before inserting 

the closed end of the Dual-Ended Combat Arms Earplug - into their ear, Defendaiits falsely 

overstated the amount of hearing proteetion supposedly provided by the closed end of the DualEnded Combat Arms Earplug. 

164. M.r. Berger confii-med at his deposition that the 22 NRR only applied to the closed 

end of the Dual-EncJed Combat Arms Earplug if the user folded back the opposing flanges of the 

open end before inserting the closed end into the ear. .~ 

~ 

165. Wlien Defendants did not instruct users to fold back the flanges of the open end, 

Test 213015 revealed a 10.9 NRR for the closed end—less than half of the 22 NRR advertised on 

21. 

1 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 23 of 62
the label of the Dual-Ended Coinbat Arms Earplug. 

166. Mr. Berger also testified that Defendants "couldn't sell those plugs under t11e way 

they were being manufactured and fitted" because he and Mr. Kieper liad terininated Test 213015, 

which Defendarits had "intended to be a labeling test." 

167. In addition, by fabricating a 0 NRR for the open end of the Dual- Ended Combat 

Arms Earplug in the face of contradictory NRR data; Defendants intentionally inisstated the 

amount of protection provided by that end of the device. 

168. Although the open end of the Dual-Ended Combat Ai-rns Eai-plug provides little to 

no protection when used according to standard fitting procedures, Defendants represented to 

Plaintiff and the United States military that the open mode "allow[s] situational awareness yet 

protect[s] against dangerous peak levels with a filter element that reacts instantaneously to provide 

increased protection." 

169. Defendants' labeling, packaging, and marketing of the Dual-Ended Combat Arms 

Eaiplug are thus misleading and have caused thousands upon thousands—if not millions—of 

inrxocent users to suffer hearing loss and tinnitus. 

170.. Further, Defendants' testing, labeling, and..marketing of the Dual- Ended Combat 

Arms Earplug violated EPA regulations, 40 CFR § 21.1.204-04 et seq., the Noise Control Act; 42 

U.S.C. et seq., and ANSI S3.19-1974. 

~ 

171. Given Defendants' improper and duplicitous testing, labeling, and marketing of the 

Dual-Ended Combat Arms Earplug,, all known by Defendants priot_ to 2003, Mr. Berger of 3M 

declared at his October 8, 2015 deposition that "the instructions will be changed." 

172. Defendants discontinued the Dual-Ended Combat Arms Eaiplug on or about 

November 17, 2015, just a few weeks after Mr. Berger promised to change the insti-uctions. 

22 

, 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 24 of 62
Scientific Misrepresentations 

173. 190. In addition to sheltering the defects of the Dual-Ended Combat Ai•ms Earplug, 

misrepresenting the NRR for both ends of the eaiplug, and failing to warn or provide proper 

instructions for using the earplug in civilian and military contexts, Defendants distorted scientific 

sources when marketing, advertising, and promoting the Dual-Ended Combat Arms Earplug to 

Plaintiff and the United States military. 

174. Citing the 1998 Blast Overpressure Study by Daniel Johnson, for example, 

Defendants' marketing brochures declared that "[t]he level-dependent technology used in the 

[Dual-Ended Combat Ai•ms Earphig] has been tested on human subjects and found to be protective 

at 190 dBP for at least 100 exposures (sufficient to cover the loudest weapons in the military 

inventory, including shoulder-fired rockets)." 

175. Given Defendants' gloss on the Johnson study, customers believed that the DualEnded Combat Arms Earplug was "protective at 190 dBP for at least 100 exposures" of the 

"loudest weapons in the militaiy inventoiy:" 

176. Although Defendants repeatedly cited the Johnson study froin 2003 to.2015 when: 

. 

. . 

. . 

. . 

.. 

marketing, advertising, and'promoting the Dual-Ended Combat Arms Earplug, the Johnson study 

does not actually show that the Dual-Ended Combat Arms Earplug is- "protective at 190 dBP for 

at least 100 exposures." 

177. To the contrary, according to a Technical Service Specialist at 3M, the Dual-Ended 

Combat Arms Earplug does "not reduce 190 dB explosions to a safe level." 

178. In a July 9,"2014 email, Ted Madison of 3M infoi-ined Mr. Berger and other 3M 

employees that the Johnson "study only looked at whether the soldiers experienced temporaiy ' 

threshold shifts (TTSs) after a few blasts. There is more and more evidence that damage to the ears 

23 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 25 of 62
can occur even when TTS does not occur." 

179. Mr. Berger echoed Mr. Madison's criticism in the sanie email chain, stating that 

the study "found for a limited number of blasts up to about 190 dB the plugs prevented temporaiy 

~ 

. • . . ~ 

threshold shifts." However, "those were large weapons with much low[er] frequency content. For 

rifle shots that are more hazardous to the ear because of their high-frequency content[,] the 

protection will not be as great." 

180. Mr. Berger also said the Dual-Ended Combat Arms Earplug is "not the optimal 

choice for a gun range" and is "inadequate for indoor gun ranges," even though Defendants have 

advertised the Dual-Ended Combat Arms Earplug for use in indoor and outdoor gun ranges ever 

since they started selling the product. 

181. On Febi-uary 9, 2010, moreover, Mr. Berger declared that "I know on past sheets 

we -liave claimed [that the Johnson study] found the plug protective for impulse noise up to 193 

dBP," but there were "no tests allowed at 193" and "NOT ENOUGH SUBJECTS were exposed 

- to provide a d-efiniiive answer." 

-182: Mr. Berger concluded: "I am unconvinced that. [the study] can. support• the statement. 

that says [the Dual-Ended Combat Arms Earplug] `has been tested on humari subjects and found: 

to be protective at 190 dBP for at least 100 exposures. "' 

183. At best, Berger said, "if might be reasonable to claim 6 exposures." 

. 

184. Even tliough Defendants knew the 1998 Johnson study did not support their claiin, 

that the Dual-Ended Combat Ai-ms Earplug was "protective at dBP for at least 100 exposures," 

Defendants continued to knowingly market, advertise, and promote the product to the public based 

on that false stateinent. 

185. Defendants did so despite acknowledging in their public press releases that 

24 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 26 of 62
"[t]]nnitus, often refer-red to as `ringing in the ears,' and noise-induced hearing loss can be caused 

by a one-time exposure to hazardous impulse noise, or by repeated exposure to excessive noise 

over an extended period of time:"_ 

Fraudulen t 'Concealment 

186. At all times material hereto, Defendants committed a continuing fi•aud in 

obfuscating and failing to disclose facts that were known to them relating to theu-fraudulent testing 

of the Dual-Ended Combat Arms Eai-plug and defective design of the product—facts that were not 

discovered and could not have been discovered by any person or Plaintiff undertaking reasonable 

due diligence. 

187. Plaintiff did not and could not have discovered with -reasonable diligence the 

veritable facts regarding Defendants' misrepresentations, omissions, faulty testing, and the 

defective design of the Dual-Ended Combat Arms Earplug. 

188. Nor could Plaintiff have discovered that Defendants' Dual-Ended Combat Arms 

Eaiplug caused their hearing-related' injuries and/or sequelae thereto because the earplug caused 

imperceptible loosening,. as.Defendants knew all along. . 

189. Defendarits are jointly 'and severally liable to Plaintiff for tlieir individual and 

collective tortious acts. 

Defendants' Discontinuation of the Dual-Ended Combat Arms Earplug 

190. Defendants discontinued the Dual-Ended Combat Arms Earplug on November 17, 

2015.. 

191. Although Defendants supplied the Dual-Ended Combat Arms Eai-plug to innocent 

civilians and militaiy personnel for more than a decade, their discontinuation of this defective ~ 

device had been a long time in the making. 

25 . 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 27 of 62
. i 

192. Defendants' internal testing in January 2000 revealed that the Dual- Ended Combat 

\ • . . 

Anns Earplug was defectively designed and that the defective design caused the earplug to loosen 

imperceptibly in users' ears. 

193. ' Subsequent reports also made clear that "[a]lthough .the Combat Arms Earplug 

(CAE) has been successful, there are a number of problems which need to be addressed which will 

result in changes and extensions to the line." 

194. Given the plethora of problems, Defendants changed the dual-ended design to a 

single-ended concept and created different sizing options in 2005. 

195. In 2013, however, Defendants acknowledged that the list of all potential 

improvements to the Dual-Ended Combat Arms Earplug had "gone unanswered." 

196. In fact, more than 15 years after Defendants learned of the design defect of the 

Dual-Ended Combat Arms Earplug, Defendants finally discontinued this unreasonably dangerous 

product and "recommend[ed] that purchasers interested in [the product] consider 3M Combat 

Arms Earplugs — Generation 4 as an alternative." 

197. The Generation 4 Combat Arms Earplug, unlike.the discoritinued; dangerous, and 

defective Dual-Ended Combat Arms Eaiplug, pi-ovides linear and non-linear protection through a 

single-ended earplug rather than a dual-ended one. 

198. The single-ended Generation 4 Combat Arms Earplug thus does not suffer from the 

same dangerous defects as the Dual-Ended Combat Ai-ms Earplug. The single-ended design of the 

Generation 4 Combat Arms Earplug is also easier for users to insert into their ear canal and obtain 

a proper fit and seal. 

199. Approximately one inonth before Defendants discontinued the Dual- Ended 

Combat Arms Earplug, Mr. Berger testified that the Generation 4 Combat Arms Earpl'ug "did not 

26_ 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 28 of 62
suffer fi-om having a second set of flanges that interfered with grasping the plug well and being 

able to insert it properly." 

200. He also said that the Dual-Ended Coinbat Arms Earphig was "inore difficult to fit 

because [users] don't have a stem or a rigid plastic part to hold onto." Because users do not have 

to "hold onto flanges, whether they're rolled back or not rolled back," Mr. Berger explained that 

the Generation 4 Combat Arms Earplug as well as other single-ended earplugs manufactured by 

Defendants, including the traditional Ultrafit earplug, had an ergonomically "better design." 

201. Indeed, none of Defendants' other pre-molded eai-plugs have rearward-facing 

flanges like the defective Dual-Ended Combat Arms Earplug. 

~ 

202. Mr. Berger summarized some of these design defects in an internal email to 3M 

personnel, declaring that the Generation 4 Combat Arms Earplug is not only "easier to insert 

correctly for a good seal and consistent performance," but it is also "easier to operate since it does 

not require removal and reinsertion to change from the open/weapon's fire mode to the 

cfosed/constant protection mode." 

.203. What's more, unlike the "one-size-fits-all approarh" of the Dual- Ended Combat 

Arms Earplug that users "had to cram in" their ears, the Generation 4 Combat Arms Earplug comes 

in three different sizes—small, mediuin, and large. 

. 

204. These different sizes allow users to obtain an effective seal, in contrast to the onesize-fits-all approach of the Dual-Ended Combat Arms Earplug.-Defendants recognized in 2011— 

at least four years before they discontinued the Dual-Ended Combat Arms Earplug—that using a 

multiple-sized earplug "raise[s] comfort levels substantially" and allows for an "effective seal." 

Other documents reveal Defendants' decades-old knowledge that "[m]ore exact sizing not only 

ensures user comfort, but also a better fitting earplug that would not lose its seal or fall out of the 

0 

27 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 29 of 62
ear." 

205. Because~ the Generation 4 Combat Arms Earplug avoids these and other issues, 

~• . 

Defendants believe it is safer and more effective than the Dual-Ended Combat Arms Earph.ig: 

206. Indeed, when testing the Generation 4 Combat Arms Earplug in its closed position 

per standard fitting procedures, Defendants measured a 23 NRR. 

r 

207. The 23 NRR of the Generation 4 Combat Ai-ms Earplug is more than double the 

10.9 NRR of the closed end of the Dual-Ended Combat Arms Earplug when inserted according to 

Defendants' standard procedures for "proper use." 

208./ The 23 NRR of the Generation 4 Combat Ai-ms Earplug is also higher than the 22 

NRR of the closed end of the Dual-Ended Combat Arms Earplug when inserted according to 

Defendants' reconfigured fitting procedures. 

209. Defendants thus concluded that the Generation 4 Combat Arms Earplug attenuates 

impulse and continuous noise better than the Dual-Ended Combat Arms Earplug. 

210. Even Defendants' "standard Ultrafit" eaiplug outperforms the 'closed end of the 

Dual-Ended Cotnbat Arms Earplug when inserted according to Defendants.' standard instructions . 

or their reconfigured fitting procedure. ' 

211. In a confidential document dated December 12, 2010, Mr. Berger emphasized the 

"unexpectedly low values of inean attenuation" for the closed end of the Dual-Ended Combat 

Arins Earplug compared to the "standard Ultrafit." 

212. Thus, . the development of the Generation 4 Combat Arms Earplug brought 

Defendants "closer and closer (through CAE evolution) to the right solution," but they only 

reached that solution aftei-peipetrating a pi-otracted fi-aud on thousands and perhaps millions of 

innocent civilians and military personnel. 

28 

r 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 30 of 62
213. To make matters worse, this dangerously defective product has not been recalled 

and tlius continues to injure innocent civilians and militai-y personnel. 

Defendants' Attempt to Block a Competitor ftonz Entering the Market 

214. Besides fleecing civilians and the United States military into purchasing the 

dangerously defective Dual-Ended Combat Ai-ms Eai-plug, Defendants also attempted to block 

competitors from entering the eaiphigs market. 

215. For example, one of Defendants' competitors is Moldex-Metric, Inc. ("Moldex")— 

a family-owned company located in Culver City, California. 

216. Among other safety devices, Moldex manufactures a single-sided, non-linear, dualmode earplug called BattlePlugs, which Moldex introduced to the market in approximately 2011. 

217. At the time, Defendants held a virtual monopoly in the market for non- linear 

earplugs. 

218. In order to prevent Moldex from selling BattlePlugs and competing in the earplugs 

market, 3M Defendants sued Moldex in the United States District Court for the .District of 

Minnesota.•See 3M Co:-v..Moldex=Metri'c, 171c., Case No. 12,611 (D. Minn.) ("Moldex P'). . 

• . i 

219. ' The lawsuit accused Moldex of infringing_ U:S. Patent No. 6,070,693 ('6.93 

patent"), which Defendants had purchased andfor licensed from ISL and ultimately used to design 

and develop the Dual-Ended Combat Anns Earphig. 

, 

220. Upon notice of the lawsuit, Moldex immediately informed 3M Defendants that 

BattlePlugs did not infi-inge the `693 patent under any.

legal theoiy. 

221. Undeterred, 3M Defendants stridently ptu-sued their `693 patent claim against 

Moldex seeking injunctive relief in oi-der to force Moldex out of the market. 

222. After Moldex moved for summary judgment on the `693 patent claim, however, 

29 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 31 of 62
3M Defendants sent Moldex a covenant not to sue on both the `693 patent and BattlePlugs in order 

i 

to preclude the disti-ict c6urt fi-om adjudicating the motion. 

223. . 3M Defendants argued that the district court no longer had jurisdiction to hear their 

`693 patent claim or Moldex's dispositive motion of noninfringement. 

224. 3M Defendants then moved to dismiss their infringement claims regarding the `693 

patent with prejudice and to dismiss Moldex's counterclaims of noninfringement and invalidity of 

the `693 patent without prejudice. 

225. On June 19, 2013, the district court dismissed with prejudice 3M Defendants' 

claims against Moldex relating to the `693 patent. The district court also dismissed without 

prejudice Moldex's claim for a declaration that BattlePlugs did not infringe the `693 patent. 

226. Although 3M Defendants ultimately abandoned their lawsuit, Moldex was forced 

to incur significant legal and other expenses in defending against 3M Defendants' baseless and 

malicious patent infringement claim. 

227. In June 2014, Moldex filed an antitrust sham litigation and malicious prosecution 

actiori against 3M Defendants, alleging that 3M Defendants'- prosecution of the `693 patent-claim 

in Moldex I was objectively baseless as no reasonable litigant could have expected to succeed on 

the merits. See Moldex Metric, Inc. v. 3M.Co., Case No. 14-1821 (D. Minn.) ("Moldex IP'). 

228. Moldex also alleged that 3M Defendants filed the `693 patent claim in order to 

drive Moldex out of the eaiplugs mai-ket. 

229. The district court denied 3M Defendants' motion to dismiss Moldex's malicious 

prosecution claim on the ground that Moldex had shown "clear and convincing evidence" in 

suppoi-t of its malicious prosecution claim. 

230. The district court then granted Moldex's motion for summary judgment on the 

i 

30 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 32 of 62
objective baselessness of 3M Defendants' `693 patent claim, holding that "[n]o i-easonable litigant 

could realistically expect success on the merits of 3M's claini that Moldex Meti-ic infi-inged the 

`693 Patent." 

231. In addition to filing and prosecuting a baseless patent infi-ingemeiit lawsuit against 

Moldex, 3M Defendants used other predatory and nefarious conduct in attempting to force this 

family-owned company out of the earplugs market. 

232. For instance, 3M Defendants falsely maligned Moldex's BattlePlugs in order to 

persuade the United States military to purchase the Dual-Ended Combat Ai-ms Earplug through 

the JWOD (Javits-Wagner-O'Day) federal program. 

233. And shortly after 3M filed its frivolous `693 patent infringement claim against 

Moldex, 3M lodged a spurious protest against a solicitation that the United States military had 

awarded to Moldex. 

Defendants' Settlement with the United States Government 

234. On May 12, 2016, Moldex filed a sealed gui tain complaint against Defendant 3M 

under the False Claims Act, 31 U.S.C. § 3729 et seq. See United States ex rel, Moldex-Metric, Inc: 

v. 3MCo., CaseNo. 3:16-6v-01533 (D.S.C.). 

235. Moldex alleged, on behalf of the United States, that Defendant 3M sold the DualEnded Combat Arms Earplug to the "U.S. military for more thaii a decade without its knowledge 

of the defect." 

236. The United States intervened on July 25, 2018, in order to hold Defendant 3M liable 

for its fraudulent conduct. 

237. One day later, Defendant 3M agreed to pay $9.1 million to resolve the allegations 

that it knowingly sold the Dual-Ended Combat Arms Earplug to the United States militaiy without 

31 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 33 of 62
ever disclosing the design defects that hampered the effectiveness of this unreasonably dangerous 

hearing protection device. 

.238. As one government official put it: "3M should have told the US Government about 

the slippage issues" with the Dual-Ended Combat Arms Eatplug. 

TOLLING OF STATUTES OF LIMITATIONS 

239. Under the' Servicemembers Civil Relief Act, the period of Plaintiff's militaiy 

service may not be included in computing any statute of limitations applicable herein. See 50 

U.S.C. § 3936. 

240. Plaintiff could no,t, by the exercise of reasonable diligence, have discovered 

Defendants' wrongful acts as the cause of Plaintiff's injuries at an earlier time, because, at the time 

of these injui-ies, the cause was unknown to Plaintiff. Plaintiff did not suspect, nor did Plaintiff 

have reason to suspect, the cause of these injuries, or the tortious nature of the conduct causing 

these injuries, until less than the applicable limitations period prior to the filing of this action. 

241. Further, the iunning of the statute of limitations has been tolled by reason of 

Defendants' fraudulent concealment. Through their affirmative.misrepresentations and omissions, 

Defendants actively concealed from Plaintiff the risks associated with the defects in the DualEnded Combat Arms Earplug and that the device caused their injuries and/or sequelae thereto: 

242. - Through their ongoing affirmative misrepresentations and omissions, Defendants 

committed continual tortious and fraudulent acts. 

243. As a result of Defendants.' actions, Plaintiff was unaware, and could not reasonably 

laiow or have learned througli reasonable diligence that he had been exposed to the defects and 

risks alleged herein, and that those defects and risks were the direct and proximate result of 

, 

Defendants' acts and omissions. 

32 

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244. Through Defendants' affin-native misrepresentations and omissions pertaining to 

the safety and efficacy of the Dual=Ended Combat Ai-ms Earplug, Plaintiff was prevented fi-om 

discovering this information sooner because Defendants misrepresented and continued . to 

misrepreseiit the defective nature of the Dual-Ended -Combat Arms Eai-plug. 

CAUSES OF ACTION 

i 

COUNT I: DESIGN DEFECT - NEGLIGENCE 

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

246. At all times relevant to this action, Defendants had a duty to design, manufacture, 

formulate, test, package, label, produce, create, make, construct, assemble, market, advertise, 

promote, distribute, and sell the Dual-Ended Combat Arms Earplug with reasonable and due care 

for the safety and well-being of users, including Plaintiff and other civilians and military personnel 

who used the device. 

247. Plaintiff was a foreseeable user of the Dual-Ended Combat Arms Earplug. 

248. Defendants knew civilians'and military personnel such as Piaintiff would use the 

Dual-Ended Combat Arms Earplug. 

249: The Dual-Ended Combat Arms Earplug is defective because it. loosens 

impereepiibly in the user's ear, thereby permitting damaging sounds to enter the user's ear canal 

by traveling around the outside- of the earplug while the user incorrectly believes that the earph.ig 

is working as intended. 

250. When the Dual-Ended Combat Arms Earplug is inserted into the ear according to 

standard fitting instnictions, a proper seal is not foi-med with the ear. 

251. The defect has the same effect for both ends of the device because the earplug is 

symmetrical. In either scenario, the earplug may not maintain a tight fit and seal in some users like 

33 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 35 of 62
Plaintiff, allowing dangerous sounds to bypass the earplug altogether and thus damage the user's 

liearing, unbeknownst to the user. 

252. . Defendants failed to exercise reasonable and due care under the circumstances and 

therefore breached their duty of care in the following ways: 

a. Defendants failed to design the Dual-Ended Combat Arms Earplug 

in a manner that protected Plaintiff from injury; 

b. Defendants failed to design the Dual-Ended Combat Arms Earplug 

in a manner that provided lineal-and non-]inear protection; 

C. Defendants failed to design the Dual-Ended Combat Arms Earplug 

in a manner that provided the amount of linear and non-linear 

protection as represented; 

d. Defendants misrepresented the NRRs of the Dual-Ended Combat 

Arms Eaiplug when used according to standard instructions; 

e. Defendants failed to test the Dual-Ended Combat Arms Earplug 

properly and thoroughly; 

f. Defendants failed to analyze the testing data of the Dual-Ended 

Combat Arms Earplug properly and thoroughly; 

g. Defendants claimed the Dual-Ended Combat Arins Earplug had 

benefits that.itdoes not in fact have; 

h. Defendants designed, manufactured, distributed; and sold the DualEnded Cbmbat Arms Eaiplug without adequately warning of the 

significant and dangerous risks ofusing the device; 

i. Defendants desigiied, manufactured, distributed, and sold the DualEnded Combat Arms Earplug without providing adequate or proper 

instructions to avoid foi-eseeable hai-m; 

j. Defendants designed, manufactured, distributed, and sold the DualEnded Combat Arms Earplug even though its risks and dangers 

outweighed aiiy purported benefit of using the device; 

k. Defendants failed to fulfill the standard of care required of a 

reasonable and pi-udent manufacturer of heai-ing protection devices; 

1. Defendants continued to manufacture and distribute the Dual- 

•• • : . - .- . 

Ended Combat Ai-ms Earplug to civilians and the United States 

- . . . • - • . .... . ..,. .-- .•.. - .. .. . .. . . 

34 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 36 of 62
militaiy after they knew or should have known of the device's 

adverse effects oi-the availability of safer designs; 

in. - Defendants assumed the -dufy to warn of the.defects'and--risks *of the 

Dual-Ended Combat Ai-ms Earplug by providing instnictions and 

information related to its benefits and effectiveness, but Defendants 

failed to provide adequate warnings and instructions; and 

n. Defendants provided inaccurate scientific and/or technical 

information when advertising, marketing, promoting, and supplying 

the Dual-Ended Combat Arms Eaiplug. 

253. Defendants knew or slhould have known that the defective condition of the DualEnded Combat Ai-ms Eaiplug made the device unreasonably dangerous. The Dual-Ended Combat 

Arms Earplug was unreasonably dangerous when used by Plaintiff, who followed the instructions 

provided by Defendants and used the earplug with common knowledge of its characteristics and 

according to its common usage. 

254. At the time the Dual-Ended Combat Arms Earplug left Defendants' possession, the 

device was in a condition that made it unreasonably dangerous to Plaintiff. 

255. At the time Plaintiff used the Dual-Ended Combat Arms Earplug, the device was 

in a- condition that made it unreasonably dangerous to Plaintiff. 

256. The Dual-Ended Combat Arms Earplug used by Plaintiff was expected fo. arid did 

reach Plaintiff without substantial change in the condition in which the device was manufactured, 

sold, distributed, and marketed by Defendants. 

257. A-t all relevant times, Plaintiff used the Dual-Ended Combat Ai-ms Earplug in the 

manner in which the device was intended to be used. 

258. As designers, developers, manufacturers, inspectors, advertisers, distributors, and 

suppliers of the Dual-Ended Combat Arms Eaiplug, Defendants had superior knowledge of the 

product and owed a duty of care to Plaintiff. 

35 

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v 

259. It was foreseeable tl~at Defendants' misrepresentations, actions, and omissions 

wotild cause severe, permanent, and debilitating injuries to Plaintiff. 

260. Defendants' conduct was a substantial factor in bringing about the injuries and/or 

sequelae thereto sustained by Plaintiff because Defendants designed, manufactured, tested, sold, 

and distributed the Dual-Ended Combat Ai-ms Earplug used by Plaintiff. 

261. As a direct and proximate result of Defendants' negligence, Plaintiff suffered 

serious and dangerous injuries and/or sequelae thereto, including but not limited to Tinnitus and 

hearing loss. 

262. As a direct and proximate result of Defendants' negligence, Plaintiff requires and/or 

will require more healthcare and services and did incur medical, health, incidental, and related 

expenses. ' 

263. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the future. 

- WHEREFORE, Plaintiff demands judgment against Defendants and requesfs 

compensatory damages, together with interest, costs of suit, attorneys' fees, and such other rejief 

as the Court.deems equitable and justl . 

COUNT II: DESIGN DEFECT - STRICT LIABILITY 

. ~ • . 

264. Plaintiff restates the allegations above as if fully rewritten herein. 

, 

. . . 

265. Defendants -designed, manufactured, and sold the Dual-Ended Combat Arms 

Eai-plug. 

266. Plaintiff was a foreseeable user of the Dual-Ended Combat Anns Eai-plug. 

' Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549.191 et seq. 

36 : 

Lq 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 38 of 62
267. The Dual-Ended Combat Arins Earplug is defective because it loosens 

imperceptibly in the user's ear, thereby permitting damaging sounds to enter the user',s ear canal 

by traveling around the outside of the earplug while the user incorrectly believes that the earplu~ 

is working as intended. 

268. The Dual-Ended Combat Arms Earplug is also defective because it fails to contain 

adequate wainings of the significant risks of using the earplug, it fails to contain adequate or proper 

instructions for use, and the risks and dangers of using the device outweigh any purporfed benefit. 

269. Defendants knew that the defective condition of the Dual-Ended Combat Ai-ms 

Earplug made the device unreasonably dangerous to Plaintiff. 

270. The Dual-Ended Combat Arms Earplug is dangerous when used by ordinary users 

~ such as Plaintiff, who used the device as it was intended to be used. 

271. The Dual-Ended Combat Arms Earplug is dangerous to an extent" beyond what 

would be contemplated by the ordinary user who purchased and/or used the device because it 

allows dangerous 

.

sounds to enter the user's ear canal.' ' 

272. At all ~relevant times, an economically and . technologically feasible and safer 

alternative 'design existed for the Dual-Ended Combat Arms Earplug, . 

273. At the time the Dual-Ended Combat Arms Earplug left Defendants' possession, the 

Dual-Ended Combat Arms Earplug was defective and in a condition- thaf made the device 

unreasonably dangerous to Plaintiff. 

274. At the time Plaintiff used the Dual-Ended Combat Arms Earplug, the device was 

defective and in a condition that made it um-easonably dangerous to Plaintiff. 

275. The Dual-Ended Combat Arms Eaiplug used by Plaintiff was expected to and did 

reach Plaintiff without substantial change in the condition in which the device was manufactured, 

37 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 39 of 62
sold, distributed, and marketed by Defendants. 

276. At all relevant times, Plaintiff used- the Dual-Ended Combat Arins Earplug in the 

manner in which the earphig was intended to be used. 

277. The Dual-Ended Combat Arms Earplug was the proximate cause of Plaintiff's 

Tinnitus and hearing loss because the design of the earplug allows dangerous sounds to bypass the 

earplug altogether, thereby posing a serious risk. 

278. Defendants' conduct was a substantial factor in bringing about Plaintiff's injuries 

J 

and/or sequelae thereto because Defendants designed, tested, manufactured, sold, and distributed 

the Dual-Ended Combat Arms Earplug that caused those injuries and/or sequelae thereto. 

279. As a direct and proximate result of Defendants' defective design of the Dual-Ended 

Combat Arms Earplug, Plaintiff suffered serious and dangerous injuries and/or sequelae thereto, 

including but not limited to Tinnitus and hearing loss. 

280. As a direct and proximate result of Defendants' defective design of the Dual-Ended 

Combat Arms Earplug, Plaintiff requires and/or will reqiiire more healthcare and services and did 

- . . • . •/ . . - . - . . ; 

. 

- . 

. 

. . . 

: incur medical, health, incidental, and related expenses. 

281. Plaintiff may also be required to obtain additional medical and/or hospital care, 

attention, and services in the future. 

: - WHEREFORE, Plaintiff demands judgment against Defendants and request compensatory. .

damages, together with interest, costs of suit, attorneys' fees, and such other i-elief as the Court 

deems equitable and just'. 

COUNT III — FAILURE TO WARN — NEGLIGENCE 

2 Plaintiff intends to seek to amend to add a claim for punitive damages pui-suant to Minn. Stat. 

_ 549. ].91 et.seq.. 

38' 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 40 of 62
282. Plaintiff restates the above allegations as if rewritten fully herein. 

283. 'At all times relevant to this action, Defendants had a duty to niantifacture, design, 

formulate, test, package, label, produce, create, make, , constnict, assemble, market, advertise, 

promote, distribute, and sell the Dual-Ended Combat-Arms Eai-plug•with reasonable and due care 

for the safety and well-being of Plaintiff, who were subject to and used the product. 

284. Plaintiff was a foreseeable user of the product. 

285. The Dual-Ended Combat Arms Earplug is defective because it loosens 

~ 

imperceptibly in the user's ear, thereby pei-mitting damaging sounds to enter the user's ear canal 

by traveling around the outside of the earplug while the user incorrectly believes the earplug is 

working as intended. 

286. Defendants breached their duty to Plaintiff by failing to warn of the risks and 

dangers of using the Dual-Ended Combat Arms Earplug as intended. 

287. The Dual-Ended Combat Arms Earplug did not warn or instruct that it allows 

harmful s6unds to bypass the earplug, thereby posing a*serious risk. 

288. Defendants also breached their duty to ,Plaintiff because they failed to wai-n or 

instruct that their testing subjects did not-follow starldard instructions, buf rather used a 

reconfigured method of folding back the opposing flangeg before inserting the device into their 

. eiirs. 

289. Defendants also breached their duty to Plaintiff because they failed to warn or 

insti-uct that. following Defendants' standard insti-uctions for insertion would not achieve a 22 NRR 

and would thereby pose a serious risk to Plaintiff. 

290. Defendants further breaclied their duty to Plaintiff because they failed to warn or 

instruct that they had not adequately or properly tested the Dual- Ended Combat Arms Ear-plug. 

~ 

: 39 

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291. The warnings and instructions of the Dual-Ended Combat Anns Earplug did not 

provide the amount of information that an ordin.aiy consuwiiei-would expeci when using the device 

in a reasonably foreseeable manner. 

292. Had Plaintiff received proper or adequate warnings or instructions as to the risks of 

using the Dual-Ended Combat Ai-ms Earplug, including but not limited to instructions directing 

them to fold back the opposing flanges of the device, Plaintiff would have heeded such a warning 

or instruction. 

293. Defendants' failure to warn of the design defect oi-risks and dangers of the DualEnded Combat Arms Earplug proximately caused Plaintiff's injuries and/or sequelae thereto. 

294. As a direct and proximate result of Defendants' failure to warn, Plaintiff suffered 

serious injuries and/or sequelae thereto, including but not limited to Tinnitus and hearing loss. 

295. As a direct and proximate result of Defendants' failure to warn, Plaintiff requires 

and/or will require more healthcare and services and did incur medical, health, incidental, and 

related expenses. I 

296. ,.Plaintiffmay also require.additional'medical and/oi• hospital care,.atteution, and 

services in the future. . 

WHEREFORE, ' Plaintiff demands judgment against Defetidants and requests 

compensatory damages, together witb- interest, costs of suit, attonleys' fees, and such other relief 

as the Court deems equitable and just3. 

COUNT IV — FAILURE TO WARN — STRICT LIABILITY 

297. Plaintiff restates the allegations above as if fiilly rewritten herein. 

' Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

: 549.191.et seq. 

40 

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~ 

298. Defendants designed, manufactured, and sold the Dual-Ended Combat Arms 

Earpl.ug. 

299. Plaintiff was a foreseeable user of the Dual-Ended Combat Arms Earplug. 

300. The Dual-Ended Combat Arms Earplug is defective because it loosens 

imperceptibly in the user's ear, thereby permitting damaging sounds to enter the user's ear canal 

by traveling around the outside of the earplug while the user incorrectly believes that the earplug 

is working as intended. ` 

301. The Dual-Ended Combat Arms Earplug is defective and unreasonably dangerous 

even if Defendants exercised all proper care in the preparation and sale of the product. 

302. Defendants knew that the defective condition of the Dual=Ended Combat Arms 

Earplug made the device unreasonably dangerous to users such as Plaintiff. 

303. The Dual-Ended Combat Arms Earplug is dangerous when used by an ordinary 

user who used the device as intended. 

•304. The Dual-Ended Combat Arms Earplug is dangerous to an extent beyond that 

contemplated b.y the ordinary user who purchased and/or_ used. the device because it allows 

: dangerous sounds 'to enter the user's ear. 

305. . Defendants kriew or should have known of the -defective. design of the Dual-Ended 

Combat Arms Earplug at the time they provided the device to Plaintiff. • 

306. At the time the Dual-Ended Combat Arms Eaiplug left Defendants' possession; the 

earplug was defective and in a condition that made it um-easonably dangerous to Plaintiff. 

307. At the time Plaintiff used the Dual-Ended Combat Arms Earplug, the device was 

defective and in a condition that made it unreasonably dangerous to Plaintiff. 

308. The Dual-Ended Combat Arms Eai-plug used by Plaintiff was expected to and did 

41 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 43 of 62
reach Plaintiff without substantial change in the condition in which the device was manufactured, - 

sold, distributed, and marketed by Defendants. 

309: At all relevant times, Plaintiff used the Dual-Ended Combat Ai-ms Earplug in the 

manner in which the device was interided to be used. 

310. The Dual-Ended Combat Arms Earplug is defective because Defendants failed to 

warn or instruct that the device allows dangerous sounds to bypass the earplug altogether, posing 

a serious risk to users. 

311. The Dual-Ended Combat Arms Earplug is also defective because Defendants failed 

to warn or instruct that their testing subjects did not follow standard instructions, but rather used a 

reconfigured method of folding back the opposing flanges before inserting the device into their 

ears. 

312. The Dual-Ended Combat Arms Earplug is also defective because Defendants failed 

to wam or instruct that following their standard instructions for insei.tion would not achieve a 22 

• . . .~.. . 

NRR and would thus pose a serious risk to users. 

- 313. The Dual-Ended. Combat Arms- Earplug is also.defective because Defendants failed 

to warn or instruct—oi-inadequately warned and instructed-that the device had riot been 

adequately or properly tested. 

314. The*warnings and instructioris that accomparlied the Dual-Ended Combat Arms 

Eaiplug failed to provide the level of informativn that an ordinaiy consumer, including Plaintiff, 

would expect when using the product in a manner reasonably foreseeable to Defendants. _ 

315. Had Plaintiff received proper or adequate wai7lings or insti-uctions as to the risks of 

using the Dual-Ended Combat Arms Earplug, including but not limited to instructions to fold back 

the opposing flanges, Plaintiff would have heeded the warning and/or instruction. 

42 

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~ 

. 316. The Dual-Ended Combat Arms Eaiplug proximately caused Plaintiff's Tinnitus and 

hearing loss because the device allows dangei•ous sounds to bypass the earplug altogether, thereby 

posing a serious risk to Plaintiff. 

317. Defendants' conduct was a substantial factor in causing Plaintiff's injuries and/or / 

sequelae thereto because Defendants designed, tested, manufactured, sold, and distributed the 

Dual-Ended Combat Arms Earplug that caused the Tinnitus and hearing loss. 

318. As a direct and proximate result of Defendants' failure to warn, Plaintiff suffered 

serious injuries and/or sequelae thereto, including but not limited to Tinnitus and hearing loss. 

319. As a direct and proximate result of Defendants' faihire to warn, Plaintiff requires 

and/or will require more healthcare and services and did incur medical, health, incidental, and 

related expenses. 

320. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the future. 

WHEREFORE, Plaintiff demands judgment against Defendants. and requests 

compensatory damages, torgether- with interest,.costs of suit, attorneys' fees, and such further relief ' 

. 

J 

as the Court.deems eqititable and just4. 

COUNT V- BREACH OF EXPRESS WARRANTY 

321: Plaintiff restates the allegations above as if fully* rewritten herein. 

322. Thi•ough Defendants' public statements, descriptions, and promises relating to the 

Dual-Ended Combat Arms Earplug, Defendants expressly warranted that the product was safe and 

4Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549.191 et seq. 

43 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 45 of 62
, 

ef.fective for its intended use and was designed to prevent hannful sounds fi-om entering and thus 

damaging the user's hearing. 

323. These w.arranties came in one or more of the following.forms: 

a. publicly made written and verbal assurances of safety; 

b. press releases, media dissemination, or unifoi-m promotional 

information intended to create demand for the Dual-Ended Combat 

Arms Earplug, but which contained misrepresentations and failed to 

warn of the risks of using the product; 

C. verbal assurances made by Defendants' consumer relations 

personnel about the safety of the Dual-Ended Combat Arms 

Earplug, which also downplayed the risks associated with the 

product; and 

d. false, misleading, and inadequate wi-itten infoi-mation and packaging 

supplied by Defendants. 

324. When Defendants made these express warranties, they knew the intended purposes 

of the Dual-Ended Combat Arms Earplug and warranted the product to be in all respects safe and 

: proper for such purposes. 

325. Defendants drafted the documents..and/or. made.statements upon which: these 

warranty claims were based- and, in doing so, defined the terms-of those warranties. 

326... The Dual-Ended Combat Ai-ms Eaiplug.does not conform to. Defendants' promises, 

descriptions, or affirmations, and is not adequatety packaged, 

327. When Defendants made these express warranties, they knew the labeled, promoted, 

and/or fit for the ordinary purposes for which it was intended. 

328. All of the aforeinentioned written materials are known to Defendants and in their 

possession, and it is Plaintiff's belief that these materials shall be produced by Defendants and 

made part of the record once discoveiy is completed. 

329. As a direct and proximate result of Defendants' breach of these wai7-anties, Plaintiff 

44 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 46 of 62
suffered serious injuries and/or sequelae thereto, including but not limited to Tinnitus and hearing 

loss. 

330. As a direct and proximate result of Defendants' breach of the express warranties, 

Plaintiff i-equires and/or will •require more healthcare and services and did incur medical, health, 

incidental, and related expenses. 

331. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the future. 

WHEREFORE, Plaintiff demands judgment against Defendants and requests 

compensatory damages, together with interest, costs of suit, attorneys' fees, and sucl~fiirther relief 

as the Court deems equitable and justs. 

COUNT VI - BREACH OF IMPLIED WARRANTIES 

332. Plaintiff restates the allegations above as if fully rewritten herein. 

333. At all times material to this action, Defendants were merchants of the Dual-Ended 

. .. . . . . . . . . . . 

. . . . . . . ... . 

- • . <. . . Combat Arms Earplug. . 

:. . ~ . . . . . 

334. Plaintiff was a foreseeable user of the Dual-Ended Combat Azxns Eai•plug. 

. • ~ 

335. At the time Deferidants marketed, sold,' arid distributed the Dual- Ended Combat 

, • 

Arins Earplug, Defendants knew of the intended use of the Dual- Ended Combat Ai-ms -Earplug, 

irripliedly wairanted the Dual-Ended Combat Arms Eaiplug to be fit for a particular puipose, and 

warranted that the Dual-Ended Combat Arms Eajplug was of inerchantable quality and effective 

for such use. 

336. Defendants knew or had reason to know that Plaintiff would rely on Defendants' 

, 

' Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

: 549.191 .et seq. . 

45 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 47 of 62
judgment and skill in providing the Dual-Ended Combat Arms Earplug for its intended use. 

337. Plaintiff reasonably relied upon the skill and judgment of Defendants as to whether 

the Dual-Ended Combat Arms Earphig was of inerchantable qualit.y, safe, and effective for its 

intended use. 

338. Contraiy to Defendants' implied wai-ranties, the Dual-Ended Combat Airns Earplug 

is neither of inerchantable quality, nor safe or effective for its intended use, because the device is 

unreasonably dangerous, defective, unfit, and ineffective for the ordinary purposes for which it is 

used. 

339. The Dual-Ended Combat Ai-ms Eai-plug was sold without adequate instructions or 

warnings regarding the foreseeable risk of harm posed by the device. 

340. Defendants breached their implied wan-anties to Plaintiff because the Dual-Ended 

Combat Arms Earplug was not adequately tested and was not of inerchantable quality, safe, or fit 

for its foreseeable and reasonably intended use. 

341. Defendants breach of their implied warranties violated numerous statutes, including 

but not limited to: . . 

a. Indiana Code Ann. §§ 26-1-2-314 et seq.; 

b. . Minn. Stat: Ann. §§ 336.2-314 et seq.; 

c. Ala. Code §§ 7-2-314 et'seq. 

342. Plaintiff could not have discovered that Defendants' breached their wan-anties or 

the danger in using the Dual-Ended Combat Ai-ms Earplug. 

343. As a direct and proximate result of Defendants' breach of implied warranties, 

Plaintiff suffered serious injuries and/or sequelae thereto, including but not limited to Tinnitus and 

hearing loss. 

46 . 

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. . . . 

344. As a direct and proximate result of Defendants' breach of the implied wan-anties, ~ ~ - 

Plaintiff requires and/or will require more healtlicare and services and did incur medical, health, 

incidental, and related expenses. 

345. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the future. 

WHEREFORE, Plaintiff demands judgment against Defendants and requests 

compensatory damages, together with interest, costs of suit, attorneys' fees, and such further relief 

as the Court decros equitable and justb. 

COUNT VII - NEGLIGENT MISREPRESENTATION 

346. Plaintiff restates the allegations above as if fully rewritten herein. 

347. Defendants had a duty to tell Plaintiff and the public the truth of the efficacy, risks, 

~ 

and harms associated with the Dual-Ended Combat Arms Earplug. 

348. Defendants breached their duty by falsely representing to Plaintiff and the public 

that the Dual-Ended Combat Ai-ms Earplug had been properly tested and *found to be effective 

wiien Defendants knew_ or should have known that the device. is defective, had not been properly 

. . ~ . 

or adeguately tested, and that Defendants had 'manipulated the test results. 

349. Defendants also breached their duty by falsely representing to Plaintiff and the 

public that the insriuctions for use of the Dual-Ended Combat-Arn1s Earplug were proper and 

adequate and would result in the advertised NRR when Defendants knew or should have known 

these statements were false. 

350. Defendants were in fact aware that they unlawfully manipulated the testing of the 

' Plaintiff intends to seek to amend to add a claim for punitive damages pui-suant to Minn. Stat. 

54-9..19 ] -et seq. . 

. . .. . . . . . 

: . 

47 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 49 of 62
Dual-Ended Combat Arms Eai-plug and that their instructions were inadequate and improper. 

351. Defendants failed to exercise ordinary care in the representation of the Dual-Ended 

Combat Arms Earplug dtu-ing its manufacturing, sale, testing, quality assurance, quality control, 

and/or distribution into interstate commerce, in that Defendants negligently misrepresented the 

safety and efficacy of the device. 

352. As a result of these misrepresentations and omissions, Plaintiff suffered serious 

injuries and/or sequelae thereto, including but not limited to Tinnitus and hearing loss. 

353. As a direct and proximate result of these misrepresentations, Plaintiff requires 

and/or will require more healthcare and services and did incur medical, health, incidental, and 

related expenses. 

354. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the fttture. 

WHEREFORE, Plaintiff demands judgment against Defendants and requests 

compensatory damages, together with interest, costs of suit, attorneys' fees, and such furthei-relief 

as-the Court.deems equitable•and just7. 

COUNT VIII — FRAUDULENT MISREPRESENTATION 

355. Plaintiff restates the- allegations above as if fully rewritten herein. 

356.. Defend•ants falsely and fraudulently represented to Plaintiff and the public that the 

Dual-Ended Combat Arms Eaiplug had been propei•ly -tested, was fi-ee from all defects, and 

contained adequate warnings and instructions. 

357. Defendants also falsely and fraudulently represented to Plaintiff and the public that 

' Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549:1.91 et.seq. 

48 i 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 50 of 62
t 

the Dual-Ended Combat Arms Eai-plug functioned properly~and promoted the closed end as having 

a 22 NRR and the open end having a 0 NRR. 

358. Defendants 

.

also manipulated testing of the Dual-Ended Combat Arms Earplug, 

resulting in false and misleading NRRs and improper fitting instructions. 

359. Defendants therefore knew that the Dual-Ended Combat Arms Eaiplug'could and 

would injure Plaintiff. 

360. When Defendants made these representations, they knew their claims were false, 

and they willfully, wantonly, and recklessly disregarded the truth. 

361. Defendants made these false representations with the intent of defrauding Plaintiff 

and the public, and with the intent of inducing Plaintiff and the public to recommend, purchase, 

and/or use the Dual-Ended Combat Arms Earplug, all of which demonstrate a callous, reckless, 

willful, and depraved indifference to the health, safety, and welfare of Plaintiff. 

362. At the time Defendants made the foregoing representations, and at the time Plaintiff 

used the Dual-Ended Corribat Arms Eaiplug, Plaintiff did not know of the falsity of the 

representations and reasonably believed thern to be -true. 

363. . In reliance'upon these representations, Plaintiffwas in fact induced to and did use 

the Dual-Ended Combat Arms Earplug, thereby susiaining.injuries and/or sequelae thereto. 

364... As a result of the foregoing acts and' omissions, Plaintiff suffered serious injuries 

and/or sequelae thereto, including but not limited to Tinnitus and hearing loss. 

~ 

365. As a direct and proximate result of.the foregoing acts and omissions, Plaintiff 

requires and/or will require more healthcare and services and did incur medical, health, incidental, 

and related expenses. 

366. Plaintiff may also require additional medical and/or liospital care, attention, and 

.49 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 51 of 62
services in the fuhu-e. 

WHEREFORE, Plaintiff deinands judgment against Defendants and requests 

compensatoiy damages, together with interest, costs of suit, attorneys' fees, and such other relief 

as the Court deems equitable and just8. 

COUNT IV - FRAUDULENT CONCEALMENT 

r 367. Plaintiff restates the allegations above as if fully rewritten herein. 

368. At all times relevant, Defendants misrepresented the safety and efficacy of the 

Dual-Ended Combat Arms Earplug for its intended use. 

369. 385. Defendants knew or were reckless in not knowing that their representations 

were false. 

~ 370. In their representations to Plaintiff, Defendants fraudulently concealed and 

intentionally omitted the following material information: 

a. the flawed and deliberately manipulated testing of the Dual- Ended 

Combat Arms Earplug; 

b. the inadeqtiate amount of $earing protection prQvided by:the Dtia1- 

Ended Cornbat "s Earplug; 

C. the inadequacy of the staridard instriictions for proper use of the 

Dual-Ended Combat Arms Eaiplug; 

d. the defective, iinproper, negligent, fraudulent, and dangerous design 

of the Dual-Ended Combat Ai•ms Earplug; and : 

e. the dangerous effects of the Dual-Ended Combat Arms Eaiplug. 

371. Defendants had a duty to disclose the foregoing issues to Plaintiff. 

372. Defendants had sole access to the material facts concerning the defective nattu•e of 

8Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549.191 .et seq: 

50 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 52 of 62
the product and its propensity to cause dangerous injuries and/or sequelae thereto, including but 

not liinited to Tinnitus and hearing loss. 

373. Defendants' concealment of inforination regarding the safety and. 

 efficacy of the 

Dual-Ended Combat Arms Earplug was willful, wanton, and/or. reckless and was intended to 

mislead Plaintiff into using the product. 

374. Defendants knew that Plaintiff could not determine the tnith of this information. 

375. Plaintiffreasonably relied on facts revealed, which negligently, fraudulently, and/or 

purposefully did not include facts that Defendants concealed. 

376. As a direct and proximate result of the foregoing concealments and omissions, 

Plaintiff suffered serious injuries and/or sequelae thereto, including but not limited to Tinnitus and 

hearing loss. 

~ 

377. As a direct and proximate result of the foregoing concealments and omissions, 

Plaintiff requires and/or will require more healthcare and services and did incur medical, health, 

incidental, and related experises. 

378.. Plaintiff may also require. additiorral medical and/or hospital care, attention, and 

services in the future. . 

WHEREFORE, Plaintiff - demands judgment. against Defendants and requests 

compensatoiy damages, together with interests, costs of suit, attorneys' fees, aiid siich other relief 

as the Court deems equitable and just9. 

COUNT X- FRAUD AND DECEIT 

379. Plaintiff restates the allegations above as if fully rewritten herein. 

' Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

•549. l 9l et seq. 

51 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 53 of 62
380. Defendants conducted unlawful and improper testing on the Dual- Ended Combat 

Anns Earplug. 

381. As a result of this unlawfttl and improper testing, Defendants blatantly and 

intentionally omitted certain test results and distributed false information that misrepresented the 

amount of hearing protection provided by the Dual-Ended Combat Arms Earplug. 

382. Defendants had a duty when disseminating information to disclose truthful 

information and a parallel duty not to deceive the public and Plaintiff. 

383. The - information that Defendants distributed to Plaintiff contained false and 

misleading material.representations and/or omissions concerning the safety and efficacy of the 

Dual-Ended Combat Arms Earplug. 

384. Upon information and belief, Defendants intentionally suppressed and/or 

manipulated test results to misrepresent the amount of hearing protection provided by the DualEnded Combat Arms Earplug. 

385. In making these misrepresentations, Defendants intended to deceive and defraud* 

. . .' . .. .. . - • ~- 

the piiblic and Plainti.ff, to gain the confidence of the public and• Plaintiff, and to induce the public - 

and Plaintiff to purchase, request; dispense; recommend, and/or continue using the Dual-Ended 

Combat Arms Earplug. 

386.• Defendants also made the foregoirrg false claims and false representdtions with the 

intent of convincing the public and Plaintiff that the Dual- Ended Combat Arms Earplug is 

a 

effective and safe for use. 

387. These representations and the others alleged herein were false when made, and/or 

made with a pretense of actual knowledge when knowledge did not actually exist, and/or were 

made recklessly and without regard for the truth. 

...~. .~:. • . . ~....~.... .- 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 54 of 62
0 

388. Defendants intended these false representations to deceive and defi-aud Plaintiff, to 

induce Plaintiff to i-ely upon them, and to cause Plaintiff to purchase, use, and/or rely on the Dual- 

..~ ... 

. . . . .. . . . . , . . .. . .. . .. .. . . . . . .. . .. 

Ended Combat Arms Earplug. 

389. Defendants recklessly and intentionally misrepresented the efficacy and safety of 

the Dual-Ended Combat Arms Earplug to the public and Plaintiff for the specific purpose of 

influencing the marketing of a product that only Defendants knew was dangerous and defective or 

"J\ 

not as safe as other altei-natives. 

390. Defendants willfully and intentionally failed to disclose material facts regarding the 

dangers and safety conceins of the Dual-Ended Combat Arms Earplug by concealing and 

suppressing material facts regarding such information. 

391. Defendants willfully and intentionally failed to disclose material facts and made 

false representations in order to deceive and lull Plaintiff into purchasing, using, and/or relying on 

the Dual-Ended Combat Arms Earplug. J 

392. Plaintiff did in fact rely on and believe Defendants' representations to be true at the 

time Defendants made the representations.. 

393. Plaintiffwere thus induced to purchase, use, and/or.rely on the Dual- Erided Combat 

Arms Earplug based on Defendants' false representations. 

394. At the time Defendants rriade'these representations, Plaintiffdid'not know about 

any safety concerns regarding the Dual-Ended Combat Arms Earplug. 

395. Plaintiff did not discover the true facts regarding Defendants' false representations; 

nor could Plaintiff have done so with reasonable diligence. 

396. Had Plaintiff known the true facts, they would not have purchased, used, and/or 

relied on the Dual-Ended Combat Arms Eaiplug. 

53* 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 55 of 62
397. Defendants' conduct constitutes fi-aud and deceit and was committed and/or 

perpetrated willfully, wantonly, and/or purposefully on Plaintiff. 

398. As a result of the foregoing acts and omissions, Plaintiff suffered serious injuries 

and/or sequelae thereto, including but not limited to Tinnitus and hearing loss. 

399. As a direct and proximate result of the foregoing acts and omissions, Plaintiff 

requires and/or will require more healthcare and services and did incur medical, health, incidental, 

and related expenses. 

400. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the future. 

WHEREFORE, Plaintiff demands judgment against Defendants and requests 

coinpensatory damages, together with interests, costs of suit, attorneys' fees, and such other relief 

as the Court deems equitable and just' °. ~ 

, 

COUNT XI - NEGLIGENCE PER SE 

401. Plaintiff restates the allegations above as if fully rewritten herein. 

402. At all times, Defendants'.had an obligation to comply with applicable statutes and 

regulations, including the Noise Control Act and implementing regulations, in the labeling and 

testing of the Dual-Ended 'Combat Arins Earplug. 

403. Defendants' actions as described herein violated applicable stattrtes and 

regulations, including but not limited to 42 U.S.C. § 4901 et seq., and 40 C.F.R. § 211.201 et seq., 

i 

which regulate hearing protection devices such as the Dual-Ended Combat Arms Earplug, as well 

as NRR labeling and testing of such devices. 

, 

10Plaintiff intends to seek to amend to add a claim for punitive dainages pursuant to Minn. Stat. 

.549..191 et seq.. , 

54 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 56 of 62
~ 

404. Specifically, Defendants violated 42 U.S.C. § 4907 and 40 C.F.R. §§ 211.104, 

211.210, and 211.211 by mislabeling the Dual-Ended Combat Arms Eaiplug, misrepresenting the 

NRR on the label of the device, and/or by failing to inchide proper fitting instructions to achieve 

the NRR stated on the label of the device. 

405. Defendants did not follow the "[m]ethods for measurement of sound attenuation" 

stated in 40 C.F.R. § 211.206 and as required by ANSI S3.19-1974. 

406. Defendants violated 40 C:F.R. § 211.207 by failing to properly calculate the NRR 

of the Dual-Ended Combat Arms Eaiplug. 

407. Plaintiff is within the class of persons that these statutes and regulations are 

intended to protect. 

408. Plaintiff's injuries and/or symptoms are the type of harm that these statutes and 

regulations are intended to prevent. 

409. Defendants' violations of the foregoing statutes and regulations, among others, 

constitutes negligence per se. 

410. As a direct and proximate result of Defendants' statutory and regulatory violations, 

Plaintiff suffered serious injuries and/or sequelae thereto, including but not limited to Tinnitus and 

hearing loss. 

411. As a direct and proximate result of Defendants' statutory and regulatory violations, 

Plaintiff requires and/or will require more healthcare and services and did incur medical, health, 

incidental, and related expenses. 

412. Plaintiff may also require additional medical and/or hospital care, attention, and 

services in the future. 

WHEREFORE, Plaintiff demands judgment against Defendants and requests 

55 

. •• . . .. . . • . . ~ .. . . . . . . 

.. . . . .' .,. .~ . . ., . .. . . _ 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 57 of 62
compensatoty damages, together with interest, costs of suit, attorneys' fees, and such other relief 

as the Court deems equitable and just' ~. 

COUNT XIII — CONSUMER FRAUD AND/OR UNFAIR AND 

DECEPTIVE TRADE PRACTICES UNDER STATE LAw 

413. Plaintiff restates the allegations above as if fully rewritten herein. 

414: Plaintiff hereby brings a cause of action for consumer fraud and/or unfair and 

deceptive trade practices under applicable state law. 

415. Plaintiff would show that pursuit of these consumer product claims under 

Minnesota law is for the benefit of the public. 

416. Plaintiff purchased and/or used the Dual-Ended Combat Arms Earplug and suffered 

ascertainable losses as a result of Defendants' actions in violation of these consumer protection 

laws. 

417. Had Defendants not engaged in the deceptive conduct described herein, neither 

Plaintiff nor the United States military wbuld have purchased* and/or paid' for'the Dual-Ended 

Combat Ahns.Earplug. 

'418. Nor would Plairififf-have incurred telated medical' cosfs and injuries•from using the 

device. n 

419. Fraudulent, unfair, and/or deceptive practices that violate consumer protection laws 

include the following: 

a. representing that goods or services have approval, characteristics, 

uses, or benefits that they do not have; 

b. advertising goods or sei-vice with the intent not to sell them as 

advertised; and 

11Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549.191 et seq. 

56 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 58 of 62
C. engaging in fi-audulent or deceptive conduct that creates a likelihood 

of confusion. 

420. Plaintiff*was injured' by Defendants' iinlawful conduct, which-was iritended to 

artificially create sales of the Dual-Ended Combat Arms Earplug. 

421. Defendants have a statutory duty to refrain from fraudulent, unfair, and deceptive 

acts or trade practices in the design, development, manufacture, promotion, and sale of devices 

such as the Dual-Ended Combat Arms Earplug. 

\ 

422. Defendants' deceptive, unconscionable, unfair, and/or fraudulent representations 

and material omissions to PlaintifP and the United States military constituted consumer fraud 

and/or unfair and deceptive acts and trade practices in violation of consumer protection statutes, 

including but not limited to: 

a. Id. Code Ann. §§ 48-601 et seq.; 

b. Minn. Stat. §§ 325D.43, et seq., §§ 325F.67 et seq., §§ 325F.69 

(pursuant to Minnesota's Private Attorney General statute, Minn. 

Stat. § 8.31); and 

C. AIa..Ala. Code §§ 8-19-1 etseq. 

: 423: Plaihtiff - w6uld fnrth'er• :shovb . that - under thLse and 'other cofisumer 'protecti on 

statutes, Defendants are the suppliers, manufacturers, -advertisers, and sellers of the Dual-Ended 

~ Combat Arms Earplug, who are subject to liability under such legislation from fraudulent, urifair, 

deceptive, and unconscionable consumer sales practices. 

424. The actions and omissions of Defendants are uncured or incurable. 

425. Defendants were put' on notice of these issues by the investigation of the United 

States, numerous complaints filed against them, and individual letters and communications from 

certain Plaintiff and others within a reasonable amount of time after Defendants' conduct was 

publicly disclosed. 

57 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 59 of 62
~. .. 

426. Defendants had actual knowledge of the defective and dangerous condition of the 

Dual-Ended Combat'Arms Earplug and failed to take any action to cure those conditions. 

427. Plaintiff relied upon Defendants' misrepresentations and omissions in deciding to 

use the Dual-Ended Combat Arms Earplug instead of another hearing protection device. 

( 

428. By reason of the fraudulent and unlawful acts engaged in by Defendants, and as a 

direct and proximate result thereof, Plaintiff has sustained economic losses and other damages and 

~ 

are entitled to statutory and compensatory damages in an amount to be proven at trial. 

~ WHEREFORE, Plaintiff demands judgment against Defendants and requests 

compensatory damages, together with interest, costs of suit, attorneys' fees, and other relief as the 

Court deems equitable and just12. 

COUNT XIV - UNJUST ENRICHMENT 

429. Plaintiff restates the allegations above as if fully written herein. 

430. Defendants have enjoyed numerous revenues from sales of the Dual-Ended Combat 

Arms Earplug. 

431. It is unjust to a11ow Defendants: to earn revenues. and retain the benefits and profits . 

from the Dual-Ended Combat Arms Earplug while Plaintiff suffered serious injuries and%or 

sequelae thereto, including but not limited to Tinnitus and hearing loss: 

WHEREFORE, Plaintiff " demands judgment against' Defendants ' and 'requests 

compensatory damages, together with interest, costs of suit, attorneys' fees, and other fui-ther relief 

as the Court deems equitable and just": 

12Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549.191 et seq. 

13Plaintiff intends to seek to amend to add a claim for punitive damages pursuant to Minn. Stat. 

549.191 et seq. 

58 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 60 of 62
PRAYER FOR RELIEF 

WHEREFORE, Plaintiff requests fi•om Defendants, jointly and severally, compensatory 

damages, together with appropriate equitable relief, costs and attorneys' fees as follows: 

A. Award of monetary damages, including compensatory relief, to which Plaintiff is 

entitled at the time of trial in an amount exceeding $50,000. 

B. Award of pre- and post judgment interest. 

C. Award of costs and attorneys' fees. 

D. Award of all such other and further relief as may be available at law or equity and 

may be proper under the circumstances. 

DEMAND FOR JURY TRIAL 

Plaintiff demands a trial by jury on all issues so triable. 

ACKNOWLEDGMENT 

The undersigned acknowledge sanctions may be imposed under Minn. Stat. § 549.211 

BASSFORD REMELE 

A Profesfional Association 

. . ' . . ... -• . . . . . '• • • . • . . ... - .• '.• . - .. • , - . • 

Dated: Januaiy 9, 2020 By: s/Lewis A. Remele, Jr. 

Lewis A. Remele, Jr. (MN #90724) 

Aram V. Desteian (MN #396021) 

Casey'D. Marshall (MN #395512) 

' •100 South 5tfi Street; -Suite 1500 

Minneapolis, MN 55402-1254 

Telephone: (612) 333-3000 

Facsimile: (612) 333-8829 

Email: lremele(cr bassford.com 

adestei an(ibassforcl. com 

cmarshall(~7),bassford. com 

1J 

59 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 61 of 62
Mikal C. Watts (pending Pro Hac Vice) 

Francisco Gueira IV (pending Pi•o Hac Vice) 

Erin Rogiers (pending Pi-o Hcrc Vrce) 

Watts Guerra*Ll;P 

5726 W. Hausman Rd., Suite 119 

San Antonio, Texas 78249 

Telephone: (210) 448-0500 

Facsimile: (210) 448-0501 

Email: mcwatts(a;wattsguen-a.com 

fguerra(a)wattsg,uerra, com 

eroeiers~.wattsguerra.com 

ATTORNEYS FOR PLAINTIFF 

60 

-. .... ~ ... ..-..• ....--~-- 

-- •• .•.•~-•• ~..•:t.-~~~..•..... .. .~. 

Case 3:20-cv-02729-MCR-GRJ Document 1-1 Filed 01/24/20 Page 62 of 62