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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS LIABILITY 

LITIGATION

This Document Relates To

KYLE CLARK,

 Plaintiff,

v.

3M COMPANY,

 Defendant.

Case No. 3:19md2885

Jury Trial Demanded

Complaint

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

PLAINTIFF’S ORIGINAL COMPLAINT

1. Plaintiff, KYLE CLARK (“Plaintiff”), by and through his attorneys, 

Thomas J. Henry Law, PLLC, now come before this Court and complain of 

Defendant 3M COMPANY (“Defendant,” “3M,” or “3M/Aearo”) for personal 

injuries resulting from Defendant’s defective and unreasonably dangerous product, 

Dual-ended Combat ArmsTM earplugs (Version 2 CAE v. 2). At all times relevant 

hereto, the Dual-ended Combat ArmsTM earplugs were designed, manufactured, 

marketed, and distributed by Defendant.

I. INTRODUCTION

2. Plaintiff, a United States Air Force and Kentucky Air Force 

National Guard Veteran, brings this suit to recover damages arising from 

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personal injuries sustained while in training and/or on active military duty 

domestically and abroad. Plaintiff used Defendant’s defective and unreasonably 

dangerous Dual-ended Combat ArmsTM earplugs during live grenade training, 

training firing, other live fire training, troop transport, vehicle maintenance, and 

during other training and combat exercises. Defendant sold the Dual-ended 

Combat ArmsTM earplugs to the U.S. military for more than a decade without the 

military and/or Plaintiff having any knowledge of the defect(s) and failed to 

adequately warn the military and/or Plaintiff of the defect(s). Defendant’s Dualended Combat ArmsTM earplugs were standard issue in certain branches of the 

military, including Plaintiff’s, between at least 2003 to at least 2015. 

Defendant’s Dual-ended Combat ArmsTM earplugs have to-date never been 

recalled. Thus, Defendant’s Dual-ended Combat ArmsTM earplugs have likely 

caused thousands, if not millions, of soldiers to suffer significant hearing loss, 

tinnitus, vertigo, headaches, and additional injuries related to hearing loss, 

including but not limited to pain and suffering and loss of the pleasures of life.

II. PARTIES

3. Plaintiff, a U.S. Air Force and Kentucky Air Force National Guard

Veteran, is a citizen and resident of Kentucky. Plaintiff joined the U.S. Air Force 

and Kentucky Air Force National Guard in 2008. At the time of enlistment, 

Plaintiff had no signs or symptoms of hearing loss, tinnitus, vertigo, headaches, 

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or any other hearing-related injuries or illnesses. Plaintiff served in the Air Force 

and Kentucky Air Force National Guard from 2008 to 2017 and routinely 

worked as a security forces specialist. Plaintiff was issued and wore Defendant’s 

Dual-ended Combat ArmsTM earplugs beginning in approximately 2012 to 2013. 

Plaintiff is now suffering from tinnitus and hearing loss. 

4. 3M Company is a Delaware corporation with its principal place of 

business in Minnesota.

III. JURISDICTION AND VENUE

5. Plaintiff’s filing of this Complaint in this district does not alter the 

choice-of-law analysis and does not constitute a waiver of any of Plaintiff’s 

rights to transfer to another district at the conclusion of pretrial proceedings in 

this case. Plaintiff has filed this Complaint in this district in order to advance the 

efficient and orderly resolution of claims arising from Defendant’s conduct. At 

the conclusion of pretrial proceedings in this case, Plaintiff will be entitled to 

transfer his claim to the state of his residence, the Western District of Kentucky.

6. This Court has diversity jurisdiction over this action under 28 

U.S.C. §1332(a) because the amount in controversy exceeds $75,000.00 and 

Plaintiff is a citizen of a different state than Defendant. 

IV. FACTUAL BACKGROUND

7. Based upon information and belief, and upon the pleadings and 

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allegations as contained in United States ex rel. Moldex-Metric, Inc. v. 3M 

Company, Case No. 3:16-cv-01533-DCC (D.S.C. 2016), Plaintiff states as 

follows:

8. On July 26, 2018, Defendant agreed to pay $9.1 million to resolve False 

Claims Act allegations that it knowingly sold the Dual-ended Combat ArmsTM 

Earplugs to the United States military without disclosing defects that hampered the 

effectiveness of the hearing protection device. See United States Department of 

Justice, 3M Company Agrees to Pay $9.1 Million to Resolve Allegations That It

Supplied the United States with Defective Dual-Ended Combat ArmsTM Earplugs 

(Jul. 26, 2018), available at https://www.justice.gov/opa/pr/3m-company-agreespay-91-million-resolve-allegations-it-supplied-united-states-defective-dual (last 

visited May 17, 2019). 

9. This False Claims Act lawsuit was filed under seal and not unsealed 

until July 26, 2018. Plaintiff had no notice of the Dual-ended Combat ArmsTM 

earplugs defects until after July 26, 2018. Additionally, 3M did not recall or issue 

any non-package warnings regarding the Dual-ended Combat ArmsTM earplugs at 

any time prior to this lawsuit being filed. 

10. The Dual-ended Combat ArmsTM earplugs were originally designed 

and created by a company called Aearo Technologies (“Aearo”), which 3M wholly 

acquired, including liabilities, in 2008. 

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11. Defendant designed the Dual-ended Combat ArmsTM earplugs to 

provide soldiers with two different options for hearing attenuation depending upon 

how the plugs are worn. If worn in the "closed" or "blocked" position (olive end in), 

the earplugs are intended to act as a traditional earplug and block as much sound as 

possible. And if the earplugs are worn in the "open" or "unblocked" position (yellow 

side in user’s ear), the earplugs are intended to reduce loud impulse sounds, such as 

gunshots, while allowing the user to hear quieter noises like commands spoken by 

fellow soldiers and approaching vehicles. A small hole in the stem of the earplug is 

the mechanism by which these quieter noises were intended to enter the ear. Both 

sides of the dual-sided earplugs were purported to provide adequate protection for 

soldier’s ears when worn.

12. The effectiveness of earplugs, including the Dual-ended Combat 

ArmsTM earplugs, are rated using a Noise Reduction Rating (“NRR”). The higher 

the NRR of a hearing protector, the more effective it will be at reducing noise. The 

stated NRR of the Dual-ended Combat ArmsTM earplugs was 22 NRR with the green 

end inserted and 0 NRR with the yellow end inserted.

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13. The application of NRR is regulated by the Environmental Protection 

Agency ("EPA") pursuant to the Noise Control Act, 42 U.S.C. § 4901, et seq., which

governs the testing and attendant labeling of hearing protective devices like the 

Dual-ended Combat ArmsTM earplugs. Specifically, 40 C.F.R. § 211.206-1 provides 

that:

The value of sound attenuation to be used in the calculation of the Noise 

Reduction Rating must be determined according to the "Method for the 

Measurement of Real-Ear Protection of Hearing Protectors and Physical 

Attenuation of Earmuffs." This standard is approved as the American National 

Standards Institute Standard (ANSISTD) S3.19- 1974.

14. Additionally, 40 C.F.R. § 211.204-4(e), of the EPA regulations requires 

certain “supporting information” must accompany hearing protection devices sold 

in the United States:

The following minimum supporting information must accompany the device 

in a manner that insures its availability to the prospective user. In the case of 

bulk packaging and dispensing, such supporting information must be affixed 

to the bulk container or dispenser in the same manner as the label, and in a 

readily visible location. Instructions as to the proper insertion or placement of 

the device.

15. In approximately January 2000, employees from 3M/Aearo began 

testing the Dual-ended Combat ArmsTM earplugs at its own E-A-RCAL laboratory,

rather than an independent laboratory. Also, several test subjects were employees of 

3M/Aearo. 

16. 3M/Aearo’s employees tested: (1) the subject's hearing without an 

earplug inserted; (2) the subject's hearing with the open/unblocked (yellow) end of 

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the Dual-ended Combat ArmsTM earplug inserted; and (3) the subject's hearing with 

the closed/blocked (olive) end of the Dual-ended Combat ArmsTM earplug inserted. 

3M/Aearo designed the testing so that they could monitor and stop the testing if the 

desired NRRs were not obtained. Such monitoring is in violation of the EPA’s 

standards for NRR testing.

17. 3M/Aero tested all test subjects with the open end of the Dual-ended 

Combat ArmsTM earplug to obtain an invalid -2 NRR, which would indicate that the 

closed end of the earplug actually amplified sound, like a hearing aid. 3M/Aero later 

represented this test’s -2 NRR as a “0” NRR, which 3M/Aero has displayed on its 

packaging since its launch.

18. While monitoring the January 2000 testing, 3M/Aearo prematurely 

stopped the tests after achieving barely half the NRR they were expecting for the 

Dual-ended Combat ArmsTM earplug. 3M/Aearo immediately investigated why the 

Dual-ended Combat ArmsTM earplugs had performed so poorly and discovered that 

the earplug stem was too short to properly fit the ear canal. 3M/Aearo was aware at 

this time that the Dual-ended Combat ArmsTM earplugs were not performing as 

anticipated due to design defects.

19. 3M/Aearo had previously shortened the stem of the prototype of the 

Dual-ended Combat ArmsTM earplugs so that the earplugs would fit into a specific 

carrying case issued to all noise-exposed Army personnel. 

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20. 3M/Aearo compensated for the known short-stem defect by using a 

different fitting method in their next testing. In February 2000, 3M/Aearo re-tested 

the Dual-ended Combat ArmsTM earplugs by having the test subjects fold the 

outward-facing flanges of the earplug backwards prior to insertion into the ear canal. 

This modified fitting increases the overall length of the Dual-ended Combat ArmsTM 

earplug and allows the user to obtain a proper fit in the ear canal.

21. The February 2000 testing with the modified fitting procedure allowed 

3M/Aearo to achieve the desired NRR of 22 on the closed end of the Dual-ended 

Combat ArmsTM earplug. 

22. Despite purposefully changing the fitting procedure for testing, 

3M/Aearo never properly warned serviceman that the only potential way to achieve 

this purported NRR of 22 was to fold-back the flanges on the opposite end prior to 

insertion. The fitting instructions accompanying the Dual-ended Combat ArmsTM do 

not instruct the wearer to fold-back the opposing end’s flanges.

23. Defendant’s standard fitting instructions state the wearer is to grasp the 

earplug by the stem and insert it into the ear canal. However, when inserted in this 

way, the Dual-ended Combat ArmsTM earplugs have design defects that cause them 

to loosen in the wearer’s ear and not seal the ear canal from damaging noises. When 

the Dual-ended Combat ArmsTM earplugs loosen, sound can travel around the 

earplug and directly enter the ear canal, as if the wearer had no hearing protection at 

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all. Because the Dual-ended Combat ArmsTM earplugs are symmetrical, this defect 

occurs whether the yellow or green end is inserted.

24. 3M's/Aearo's Dual-ended Combat ArmsTM earplugs were sold to the 

military beginning in at least late 2003 and continued to be sold directly and 

indirectly by 3M to the military until at least late 2015, when Defendant 

discontinued, but did not recall, the earplugs. As of the date of this filing, the Dualended Combat ArmsTM earplugs have never been recalled and may be in continued 

use by soldiers and others to this day.

25. The military likely purchased, at a minimum, one pair of 3M's Combat 

ArmsTM earplugs for each deployed soldier annually involved in certain foreign 

engagements between at least 2003 and at least 2015. See McIlwain, D. Scott et al., 

Heritage of Army Audiology and the Road Ahead: The Army Hearing Program, 

AMERICAN JOURNAL OF PUBLIC HEALTH, Vol. 98 No. 12 (Dec. 2008).

26. Since 2003, 3M/Aearo has been awarded multiple Indefinite-Quantity 

Contracts (“IQC”) from the U.S. military in response to Requests for Proposal

(“RFP”). From 2003-2012, 3M/Aearo was the exclusive supplier of selective 

attenuation earplugs to the U.S. military. 3M/Aearo knew at the time it bid for the 

initial IQC that the Dual-ended Combat ArmsTM earplugs had dangerous, 

undisclosed design defects.

27. 3M/Aearo responded to the military’s Requests for Proposal (“RFP”) 

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with express certifications that it complied with the Salient Characteristics of 

Medical Procurement Item Description (“MPID”) of Solicitation No. SP0200-06-

R-4202. However, 3M/Aearo knew at the time it made its certifications that the 

earplugs did not comply with the MPID. 

28. The pertinent Salient Characteristics set forth in the MPID, which were 

uniform across all RFPs, in relevant part, are as follows:

2.1.1 Ear plugs shall be designed to provide protection from the impulse 

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

normal speech and other quieter sounds, such as voice commands, on the 

battlefield. 

2.2.2. The sound attenuation of both ends of the ear plugs shall be tested in 

accordance with ANSI S3.19. 

2.4 Workmanship. The ear plugs shall be free from all defects that detract 

from their appearance or impair their serviceability. 

2.5 Instructions. Illustrated instructions explaining the proper use and 

handling of the ear plugs shall be supplied with each unit.

Solicitation No. SP0200-06-R-4202 at 41-42.

29. 3M/Aearo discovered the Dual-ended Combat ArmsTM earplug’s 

defects during their initial testing, but represented to the military that the earplugs 

possessed a 22 NRR in the closed position and 0 NRR in the open position. 

Defendant knew that the Dual-ended Combat ArmsTM earplugs could not obtain 

these NRRs using the standard fitting procedures contained in the earplug’s 

packaged instructions.

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30. Defendant included standard instructions for "proper use" of the 

earplugs in the packaging for the earplugs as required by the EPA, Noise Control 

Act, and the MPID. Defendant's standard instructions for "proper use" of its Dualended Combat ArmsTM earplugs do not instruct wearers to fold back the flanges of 

the opposite end before inserting the plug into the ear. Instead, Defendant improperly 

instructs wearers to simply insert the earplugs into the ear canal. 

31. By failing to instruct wearers of the Dual-ended Combat ArmsTM 

earplug to fold back the flanges on the open/unblocked end of the plug before 

inserting the closed/blocked end of the plug into their ears (which is necessary to 

achieve the "22" NRR), 3M/Aearo falsely overstates the amount of hearing 

protection provided by the closed end of the plug. 

32. 3M's/Aearo’s packaging and marketing of such earplugs with a labeled 

NRR of "22/0" thereby misleads the wearer and has likely caused thousands, if not 

millions, of soldiers to suffer significant hearing loss, tinnitus, vertigo, and migraine 

headaches. 3M/Aearo continued to use these inaccurate NRRs to market the earplugs 

to the military for more than ten years without disclosing the design defect in the 

earplugs. 

33. Plaintiff reserves the right to supplement these facts after discovery.

V. CAUSES OF ACTION

First Cause of Action 

Design Defect Negligence

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34. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

35. At all times relevant to this action, Defendant had a duty to 

manufacture, design, formulate, test, package, label, produce, create, make, 

construct, assemble, market, advertise, promote, and distribute, the Dual-ended 

Combat ArmsTM with reasonable and due care for the safety and well-being of U.S. 

military service men and women, including Plaintiff, who were subject to and used 

the Dual-ended Combat ArmsTM earplugs during their service with the U.S. military. 

36. Plaintiff was a foreseeable user of the Dual-ended Combat ArmsTM 

earplugs and Defendant knew that the Dual-ended Combat ArmsTM earplugs would 

be used by U.S. military service men and women, including Plaintiff. 

37. The Dual-ended Combat ArmsTM earplugs are defective in that the 

design of the earplug causes them to loosen in the wearer’s ear, imperceptibly to the 

wearer, thereby permitting damaging sounds to enter the ear canal by traveling 

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

is working as intended. 

38. When the Dual-ended Combat ArmsTM is inserted into the ear 

according to standard fitting instructions, a proper seal is not formed with the ear 

canal. 

39. The defect has the same effect when either end is inserted because the 

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earplugs are symmetrical. In either scenario, the effect is that the earplug may not 

maintain a tight seal in some wearers ear canals such that dangerous sounds can 

bypass the plug altogether thereby posing serious risk to the wearer’s hearing 

unbeknownst to him or her. 

40. Upon information and belief, Defendant failed to exercise reasonable 

and due care under the circumstances and therefore breached this duty in the 

following ways:

a. Defendant failed to design the Dual-ended Combat ArmsTM in a manner 

which would result in an NRR of “22” when used with the closed, olive 

end inserted, according to the standard fitting instructions provided by 

Defendant. 

b. Defendant failed to properly and thoroughly test the Dual-ended Combat 

ArmsTM earplugs; 

c. Defendant failed to properly and thoroughly analyze the data resulting 

from testing of the Dual-ended Combat ArmsTM earplugs; 

d. Defendant designed, manufactured, distributed, and sold the Dual-ended 

Combat ArmsTM earplugs without an adequate warning of the significant 

and dangerous risks of the earplugs; 

e. Defendant designed, manufactured, distributed, and sold the Dual-ended 

Combat ArmsTM earplugs without providing proper instructions to avoid 

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the harm which could foreseeably occur because of using the earplugs in 

the manner the Defendant’s standard fitting instructions directed; 

f. Defendant failed to fulfill the standard of care required of a reasonable and 

prudent manufacturer of hearing protection products, specifically 

including products such as the Dual-ended Combat ArmsTM earplugs; and 

g. Defendant negligently continued to manufacture and distribute the Dualended Combat ArmsTM earplugs (Version 2 CAEv.2) to the U.S. military 

after Defendant knew or should have known of its adverse effects and/or 

the availability of safer designs.

41. Defendant knew or should have known that the defective condition of 

the Dual-ended Combat ArmsTM earplugs made it unreasonably dangerous to the 

U.S. military service men and women who used the earplugs. The Dual-ended 

Combat ArmsTM earplugs were dangerous when used by ordinary U.S. military 

service men and women who used it with the knowledge common to the U.S. 

military as to the product's characteristics and common usage. 

42. Defendant knew or should have known of the defective design at the 

time the Dual-ended Combat ArmsTM earplugs were used by Plaintiff. 

43. At the time the Dual-ended Combat ArmsTM earplugs were used by 

Plaintiff and left the possession of Defendant, the Dual-ended Combat ArmsTM 

earplugs were in a condition which made it unreasonably dangerous to the ordinary 

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U.S. military service member. 

44. At all relevant times, Plaintiff used the Dual-ended Combat ArmsTM 

earplugs in the manner in which they were intended. 

45. As designers, developers, manufacturers, inspectors, advertisers, 

distributors, and suppliers, of the Dual-ended Combat ArmsTM earplugs, Defendant 

had superior knowledge of the Dual-ended Combat ArmsTM earplugs and owed a 

duty of care to Plaintiff. 

46. It was foreseeable that Defendant’s actions, omissions, and 

misrepresentations would lead to severe, permanent, and debilitating injuries to the 

Plaintiff. 

47. The Dual-ended Combat ArmsTM earplugs were the proximate cause of 

Plaintiff’s personal injuries – specifically Plaintiff’s sensorineural hearing loss and 

tinnitus. Defendant’s conduct was a substantial factor in bringing about the injuries 

sustained by Plaintiff because 3M designed, manufactured, tested, sold, and 

distributed the Dual-ended Combat ArmsTM earplugs to the U.S. military.

48. As a direct and proximate result of Defendant’s negligence in designing

and distributing the defective Dual-ended Combat ArmsTM earplugs, Plaintiff 

suffered serious and dangerous side effects, including sensorineural hearing loss and 

tinnitus, and has further suffered the injuries and damages as alleged herein. 

49. WHEREFORE, Plaintiff demands judgment against Defendant and 

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requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Second Cause of Action 

Design Defect- Strict Liability

50. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

51. Defendant is engaged in the business of designing, manufacturing, and 

selling the Dual-ended Combat ArmsTM earplugs.

52. Plaintiff was a foreseeable user of the Dual-ended Combat ArmsTM 

earplugs. 

53. The Dual-ended Combat ArmsTM earplugs are defective in that the 

design of the earplug causes them to loosen in the wearer’s ear, imperceptibly to the 

wearer, thereby permitting damaging sounds to enter the ear canal by traveling 

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

is working as intended. 

54. Defendant knew that the defective condition of the Dual-ended Combat 

ArmsTM earplugs made it unreasonably and inherently dangerous to the U.S. military 

service members who used the device. 

55. The Dual-ended Combat ArmsTM earplugs were inherently dangerous 

when used by an ordinary user who used it as it was intended to be used. 

56. The Dual-ended Combat ArmsTM earplugs were dangerous to an extent 

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beyond which would be contemplated by the ordinary user who purchased the device 

because the design of the Dual-ended Combat ArmsTM earplugs allow for dangerous 

sounds to bypass the plug altogether, thereby posing a serious risk to a U.S military 

service members’ hearing unbeknownst to him or her. 

57. Defendant knew of the defective design at the time the Dual-ended 

Combat ArmsTM earplugs were provided to Plaintiff. 

58. At the time the Dual-ended Combat ArmsTM earplugs left Defendant’s 

possession, the Dual-ended Combat ArmsTM earplugs were defective and were in a 

condition which made them unreasonably dangerous to the ordinary U.S. military 

service member who used them. 

59. At all relevant times, Plaintiff used the Dual-ended Combat ArmsTM 

earplugs in the manner in which they were intended. 

60. The Dual-ended Combat ArmsTM earplugs were the proximate cause of 

Plaintiff’s hearing loss and tinnitus because the design of the earplugs allows for 

dangerous sounds to bypass the plug altogether thereby posing a serious risk to 

Plaintiff’s hearing unbeknownst to him. 

61. Defendant’s conduct was a substantial factor in bringing about 

Plaintiff’s personal injuries because Defendant designed, tested, manufactured, sold, 

and distributed the Dual-ended Combat ArmsTM earplugs that caused Plaintiff’s 

hearing loss and tinnitus. 

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62. As a direct and proximate result of Defendant’s design defect, Plaintiff 

suffered serious and dangerous side effects, including hearing loss and tinnitus, and 

has further suffered the injuries and damages as alleged herein. 

63. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Third Cause of Action 

Breach of Express Warranty

64. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

65. Through Defendant’s public statements, descriptions of the Dual-ended 

Combat ArmsTM earplugs, and promises relating to the Dual-ended Combat ArmsTM 

earplugs, Defendant expressly warranted, among other things, that the Dual-ended 

Combat ArmsTM earplugs were safe and effective for their intended use, and were 

designed and constructed to prevent harmful sounds from bypassing the earplugs to 

protect the user’s hearing. 

66. These warranties came in one or more of the following forms: (i) 

publicly made written and verbal assurances of safety; (ii) press releases and 

dissemination via the media, or uniform promotional information that was intended 

to create a demand for the Dual-ended Combat ArmsTM earplugs (but which 

contained material misrepresentations and utterly failed to warn of the risks of the 

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Dual-ended Combat ArmsTM earplugs); (iii) verbal assurances made by Defendant’s 

consumer relations personnel about the safety of the Dual-ended Combat ArmsTM 

earplugs which also downplayed the risks associated with the Dual-ended Combat 

ArmsTM earplugs; and, (iv) false and misleading written information and packaging 

supplied by Defendant. 

67. When Defendant made these express warranties, it knew the purpose(s) 

for which the Dual-ended Combat ArmsTM earplugs were to be used and warranted 

it to be in all respects safe and proper for such purpose(s). 

68. Defendant drafted the documents and/or made statements upon which 

these warranty claims are based and, in doing so, defined the terms of those 

warranties. 

69. The Dual-ended Combat ArmsTM earplugs do not conform to 

Defendant’s promises, descriptions, or affirmation of fact, and was not adequately 

packaged, labeled, promoted, and/or fit for the ordinary purposes for which such 

earplugs are used. 

70. Plaintiff further alleges that all of the aforementioned written materials 

are known to Defendant and in its possession, and it is Plaintiff’s reasonable belief 

that these materials shall be produced by Defendant and be made part of the record 

once Plaintiff is afforded the opportunity to conduct discovery. 

71. As a direct and proximate result of Defendant’s breach of the express 

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warranties, Plaintiff suffered serious and dangerous side effects, including hearing 

loss and tinnitus, and has further suffered the injuries and damages as alleged herein. 

72. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Fourth Cause of Action 

Breach of Implied Warranties

73. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

74. As a service member, Plaintiff was a foreseeable user of the Dual-ended 

Combat ArmsTM earplugs.

75. At the time Defendant marketed, sold, and distributed the Dual-ended 

Combat ArmsTM earplugs, Defendant knew of the use for which the Dual-ended 

Combat ArmsTM earplugs were intended and impliedly warranted the Dual-ended 

Combat ArmsTM earplugs to be fit for a particular purpose and warranted that the 

Dual-ended Combat ArmsTM earplugs were of merchantable quality and effective 

for such use. 

76. Defendant knew, or had reason to know, that Plaintiff would rely on 

Defendant’s judgment and skill in providing the Dual-ended Combat ArmsTM 

earplugs for its intended use. 

77. Plaintiff reasonably relied upon the skill and judgment of Defendant as 

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to whether the Dual-ended Combat ArmsTM earplugs were of merchantable quality, 

safe, and effective for its intended use and purpose. 

78. Contrary to such implied warranties, the Dual-ended Combat ArmsTM 

earplugs were neither of merchantable quality, nor safe or effective for its intended 

use, because the Dual-ended Combat ArmsTM earplugs were, and are, unreasonably 

dangerous, defective, unfit and ineffective for the ordinary purposes for which the 

Dual-ended Combat ArmsTM earplugs were used. 

79. The Dual-ended Combat ArmsTM earplug was defectively designed and

manufactured, and was distributed and sold without the provision of reasonable

instructions or warnings regarding the foreseeable risk of harm posed by the Dualended Combat ArmsTM earplugs to service members, including Plaintiff.

80. As a direct and proximate result of Defendant’s breach of implied 

warranties, Plaintiff suffered serious and dangerous side effects, including hearing 

loss and tinnitus, and has further suffered the injuries and damages as alleged herein. 

81. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Fifth Cause of Action 

Failure to Warn – Negligence

82. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

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83. At all times relevant to this action, Defendant had a duty to 

manufacture, design, formulate, test, package, label, produce, create, make, 

construct, assemble, market, advertise, promote, and distribute, the Dual-ended 

Combat ArmsTM with reasonable and due care for the safety and wellbeing of U.S. 

military service men and women, including Plaintiff, who were subject to and used 

the Dual-ended Combat ArmsTM earplugs during their service with the U.S. military. 

84. Plaintiff was a foreseeable user of the Dual-ended Combat ArmsTM 

earplugs. 

85. The Dual-ended Combat ArmsTM earplugs are defective, in part, in that 

the design of the earplug causes them to loosen in the wearer’s ear, imperceptibly to 

the wearer, thereby permitting damaging sounds to enter the ear canal by traveling 

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

is working as intended.

86. The Dual-ended Combat ArmsTM earplugs contained no warnings, or in 

the alternative, inadequate warnings and/or instructions, as to the risk that the Dualended Combat ArmsTM earplugs would allow for dangerous sounds to bypass the 

plug altogether, thereby posing a serious risk to Plaintiff’s hearing, unbeknownst to 

him. 

87. The Dual-ended Combat ArmsTM earplugs contained no warnings or

instructions, or in the alternative, inadequate warnings or instructions, that subjects

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in testing did not follow Defendant’s standard instructions for insertion, but rather

the “modified” insertion method requiring the wearer to fold back the flanges of the

opposite end before inserting the plug into the ear.

88. The Dual-ended Combat ArmsTM earplugs contained no warnings or

instructions, or in the alternative, inadequate warnings or instructions, that following 

Defendant’s standard instructions for insertion would not achieve the “22” NRR and 

would thereby pose a serious risk to Plaintiff’s hearing unbeknownst to him.

89. The warnings and instructions that accompanied the Dual-ended 

Combat ArmsTM earplugs failed to provide that level of information that an ordinary 

consumer would expect when using the Dual-ended Combat ArmsTM earplugs in a 

manner reasonably foreseeable to Defendant. 

90. The Defendant knew, or should have known, of the danger at the time 

the Dual-ended Combat ArmsTM earplugs were provided to Plaintiff.

91. Had Plaintiff received proper or adequate warnings or instructions as to 

the risks associated with the Dual-ended Combat ArmsTM earplugs, including but

not limited to instructing wearers to fold back the flanges on the open/unblocked end 

of the plug before inserting the closed/blocked end of the plug into the ear, Plaintiff 

would have heeded the warning and/or instructions.

92. The Dual-ended Combat ArmsTM earplugs were the proximate cause of 

Plaintiff’s hearing loss and tinnitus because design of the earplugs allows for 

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dangerous sounds to bypass the plug altogether thereby posing a serious risk to 

Plaintiff’s hearing unbeknownst to him. 

93. As a direct and proximate result of Defendant’s failure to warn, Plaintiff 

suffered serious and dangerous side effects, including hearing loss and tinnitus, and 

has further suffered the injuries and damages as alleged herein. 

94. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Sixth Cause of Action 

Failure to Warn – Strict Liability

95. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows:

96. Defendant is engaged in the business of designing, manufacturing, and 

selling the Dual-ended Combat ArmsTM earplugs

97. Plaintiff was a foreseeable user of the Dual-ended Combat ArmsTM 

earplugs.

98. The Dual-ended Combat ArmsTM earplugs are defective in that the 

design of the earplug causes them to loosen in the wearer’s ear, imperceptibly to the 

wearer, thereby permitting damaging sounds to enter the ear canal by traveling 

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

is working as intended.

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99. The Dual-ended Combat ArmsTM earplugs are defective and 

unreasonably dangerous even if Defendant exercised all proper care in the 

preparation and sale of the product.

100. Defendant knew that the defective condition of the Dual-ended Combat 

ArmsTM earplugs made it unreasonably dangerous to the U.S. military service 

members who used the device.

101. The Dual-ended Combat ArmsTM earplugs were dangerous when used 

by an ordinary user who used it as it was intended to be used. 

102. The Dual-ended Combat ArmsTM earplugs were dangerous to an extent 

beyond which would be contemplated by the ordinary user who purchased and/or 

used the device because the design of the Dual-ended Combat ArmsTM earplugs 

allow for dangerous sounds to bypass the plug altogether, thereby posing a serious 

risk to a U.S military service members’ hearing unbeknownst to him or her.

103. Defendant knew of the defective design at the time the Dual-ended 

Combat ArmsTM earplugs were provided to Plaintiff.

104. At the time the Dual-ended Combat ArmsTM earplugs left Defendant’s

possession, the Dual-ended Combat ArmsTM earplugs were defective and were in a 

condition which made them unreasonably dangerous to the ordinary U.S. military 

service member who used them.

105. At the time the Dual-ended Combat ArmsTM earplugs were used by 

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Plaintiff, the Dual-ended Combat ArmsTM earplugs were defective and were in a 

condition which made them unreasonably dangerous to the ordinary U.S. military 

service member who used them.

106. At all relevant times, Plaintiff used the Dual-ended Combat ArmsTM 

earplugs in the manner in which they were intended.

107. The Dual-ended Combat ArmsTM earplugs contained no warnings, or in 

the alternative, inadequate warnings and/or instructions, as to the risk that the Dualended Combat ArmsTM earplugs would allow for dangerous sounds to bypass the 

plug altogether thereby posing a serious risk to Plaintiff’s hearing unbeknownst to 

him.

108. The Dual-ended Combat ArmsTM earplugs contained no warnings or 

instructions, or in the alternative, inadequate warnings or instructions, that subjects 

in testing did not follow Defendant’s standard instructions for insertion, but rather 

the “modified” insertion method requiring the wearer to fold back the flanges of the 

opposite end before inserting the plug into the ear.

109. The Dual-ended Combat ArmsTM earplugs contained no warnings or 

instructions, or in the alternative, inadequate warnings or instructions, that following 

Defendant’s standard instructions for insertion would not achieve the “22” NRR and 

would thereby pose a serious risk to Plaintiff’s hearing unbeknownst to him.

110. The warnings and instructions that accompanied the Dual-ended 

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Combat ArmsTM earplugs failed to provide the level of information that an ordinary 

consumer would expect when using the Dual-ended Combat ArmsTM earplugs in a 

manner reasonably foreseeable to Defendant.

111. Had Plaintiff received proper or adequate warnings or instructions as to 

the risks associated with the Dual-ended Combat ArmsTM earplugs, including but 

not limited to instructing wearers to fold back the flanges on the open/unblocked end 

of the plug before inserting the closed/blocked end of the plug into the ear, Plaintiff 

would have heeded the warning and/or instructions.

112. The Dual-ended Combat ArmsTM earplugs were the proximate cause of 

Plaintiff’s hearing loss and tinnitus because the short-stem design of the earplugs 

allowed for dangerous sounds to bypass the plug altogether thereby posing a serious 

risk to Plaintiff’s hearing unbeknownst to him.

113. Defendant’s conduct was a substantial factor in bringing about 

Plaintiff’s personal injuries because Defendant designed, tested, manufactured, sold, 

and distributed the Dual-ended Combat ArmsTM earplugs that caused Plaintiff’s 

hearing loss and tinnitus.

114. As a direct and proximate result of Defendant’s design defect, Plaintiff 

was caused to suffer serious and dangerous side effects, including sensorineural 

hearing loss and tinnitus, and has further suffered the injuries and damages as alleged 

herein.

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115. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Seventh Cause of Action 

Fraudulent Misrepresentation

116. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

117. Defendant falsely and fraudulently represented to Plaintiff, and/or the 

public in general, that the Dual-ended Combat ArmsTM earplugs had been properly 

tested and were free from all defects. 

118. Defendant intentionally manipulated testing of the Dual-ended Combat 

ArmsTM earplugs, resulting in false NRRs and improper fitting instructions. 

119. The representations made by Defendant were, in fact, false. 

120. When said representations were made, the Defendant knew those 

representations to be false and it willfully, wantonly and recklessly disregarded 

whether the representations were true. 

121. These representations were made by said Defendant with the intent of 

defrauding and deceiving Plaintiff and the public in general, and were made with the 

intent of inducing Plaintiff and the public in general, to recommend, purchase, and/or 

use the Dual-ended Combat ArmsTM earplugs, all of which evinced a callous and 

willful disregard to the health, safety and welfare of Plaintiff herein. 

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122. Defendant knew or should have known that the Dual-ended Combat 

ArmsTM earplugs had a potential to, could, and would cause severe and grievous 

injury to the users of said product. 

123. Defendant brought the Dual-ended Combat ArmsTM earplugs to the 

market, and acted fraudulently, wantonly and maliciously to the detriment of 

Plaintiff.

124. At the time the aforesaid representations were made by Defendant and, 

at the time Plaintiff used the Dual-ended Combat ArmsTM earplugs, Plaintiff was 

unaware of the falsity of said representations and reasonably believed them to be 

true. 

125. In reliance upon said representations, Plaintiff was indeed induced to 

and did use Dual-ended Combat ArmsTM earplugs, thereby sustaining severe and 

permanent personal injuries. 

126. Said Defendant knew and was aware or should have been aware that 

the Dual-ended Combat ArmsTM earplugs had not been sufficiently tested, were 

defective in nature, and/or that they lacked adequate and/or sufficient instructions. 

127. As a result of the foregoing acts and omissions, Plaintiff suffered

serious and dangerous side effects including, hearing loss and tinnitus, and has 

further suffered the injuries and damages as alleged herein. 

128. WHEREFORE, Plaintiff demands judgment against Defendant and 

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requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Eighth Cause of Action 

Fraudulent Concealment

129. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows:

130. At all times relevant, Defendant misrepresented the safety and efficacy 

of the Dual-ended Combat ArmsTM earplugs for their intended use. 

131. Defendant knew, or should have known that their representations were 

false. 

132. In representations to Plaintiff, Defendant fraudulently concealed and 

intentionally omitted the following material information: 

a. that testing of the Dual-ended Combat ArmsTM earplug was deliberately 

flawed; 

b. the amount of hearing protection provided by the Combat ArmsTM 

earplug; 

c. that Defendant was aware of the defects in the Dual-ended Combat 

ArmsTM earplug; 

d. that the Dual-ended Combat ArmsTM earplug was defective, and would 

cause dangerous side effects, including but not limited to hearing 

damage or impairment; 

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e. that the Dual-ended Combat ArmsTM earplug was designed and 

manufactured negligently; 

f. that the Dual-ended Combat ArmsTM earplug was designed and 

manufactured defectively; and

g. that the Dual-ended Combat ArmsTM earplug was designed improperly. 

133. Defendant was under a duty to disclose to Plaintiff the defective nature 

of the dual-end Combat ArmsTM earplug.

134. Defendant had sole access to material facts concerning the defective 

nature of the product and its propensity to cause serious and dangerous side effects, 

and hence, cause damage to persons who used the dual-end Combat ArmsTM earplug, 

including Plaintiff, in particular. 

135. Defendant’s concealment and omissions of material facts concerning, 

inter alia, the safety and efficacy of the Dual-end Combat ArmsTM earplug was made 

purposefully, willfully, wantonly, and/or recklessly, to mislead Plaintiff into 

reliance, continued use of the dual-end Combat ArmsTM earplug, and actions 

thereon, and to cause him to purchase and/or use the product. Defendant knew that 

Plaintiff had no way to determine the truth behind Defendant’s concealment and 

omissions, and that these included material omissions of facts surrounding the Dualend Combat ArmsTM earplug, as set forth herein. 

136. Plaintiff reasonably relied on facts revealed which negligently, 

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fraudulently and/or purposefully did not include facts that were concealed and/or 

omitted by Defendant. 

137. By reason of the foregoing, Plaintiff suffered serious and dangerous 

side effects including, hearing loss and tinnitus, and has further suffered the injuries 

and damages as alleged herein. 

138. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Ninth Cause of Action 

Negligent Misrepresentation

139. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows:

140. Defendant had a duty to represent to Plaintiff and the public in general 

that the Dual-ended Combat ArmsTM earplug had been properly tested and found to 

be effective. 

141. Defendant was aware its testing procedures and fitting instructions 

were unlawfully manipulated. 

142. The representations made by Defendant were, in fact, false. 

143. Defendant failed to exercise ordinary care in the representation of the 

Dual-ended Combat ArmsTM earplug, while involved in its manufacture, sale, 

testing, quality assurance, quality control, and/or distribution into interstate 

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commerce, in that Defendant negligently misrepresented the Dual-ended Combat 

ArmsTM earplug’s safety and efficacy. 

144. Defendant breached its duty in representing the Dual-ended Combat 

ArmsTM earplug’s serious defects to Plaintiff. 

145. As a result of the foregoing acts and omissions, Plaintiff suffered

serious and dangerous side effects including, hearing loss and tinnitus, and has 

further suffered the injuries and damages as alleged herein. 

146. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Tenth Cause of Action

Fraud and Deceit

147. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

148. Defendant conducted improper testing on the Dual-ended Combat 

ArmsTM earplug. 

149. As a result of Defendant’s intentionally-misleading testing, Defendant 

blatantly and intentionally distributed false information which overstated the amount 

of hearing protection provided by the Dual-ended Combat ArmsTM earplug. 

150. As a result of Defendant’s unlawful and improper testing, Defendant 

intentionally omitted and misrepresented certain test results to Plaintiff. 

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151. Defendant had a duty when disseminating information to the public to 

disseminate truthful information and a parallel duty not to deceive the public and 

Plaintiff. 

152. The information distributed to Plaintiff by Defendant contained 

material representations of fact and/or omissions concerning the hearing protection 

provided by the Dual-ended Combat ArmsTM earplug. 

153. These representations were false and misleading. 

154. Upon information and belief, Defendant intentionally suppressed 

and/or manipulated test results to falsely overstate the amount of hearing protection 

provided by the Dual-ended Combat ArmsTM earplug. 

155. That it was the purpose of Defendant in making these representations 

to deceive and defraud the public and/or Plaintiff, to gain the confidence of the 

public, and/or Plaintiff, to falsely ensure the quality and fitness for use of the Dualended Combat ArmsTM earplug and induce the public, and/or Plaintiff to purchase, 

request, dispense, recommend, and/or continue to use the Dual-ended Combat 

ArmsTM earplug. 

156. Defendant made the aforementioned false claims and false 

representations with the intent of convincing the public and/or Plaintiff that the Dualended Combat ArmsTM earplug was fit and safe for use. 

157. That these representations and others made by Defendant were false 

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when made, and/or were made with a pretense of actual knowledge when knowledge 

did not actually exist, and/or were made recklessly and without regard to the actual 

facts. 

158. That these representations and others, made by Defendant, were made 

with the intention of deceiving and defrauding Plaintiff, and were made in order to 

induce Plaintiff to rely upon misrepresentations and caused Plaintiff to purchase, 

use, rely on, request, dispense, and/or recommend the Dual-ended Combat ArmsTM 

earplug. 

159. That Defendant, recklessly and intentionally failed to adequately 

represent the dangerous and serious health and/or safety concerns of the Dual-ended 

Combat ArmsTM earplug to the public at large, Plaintiff in particular, for the purpose 

of influencing the marketing of a product known to be dangerous and defective 

and/or not as safe as other alternatives. 

160. That Defendant willfully and intentionally failed to disclose the 

material facts regarding the dangerous and serious safety concerns of Dual-ended 

Combat ArmsTM earplug by concealing and suppressing material facts regarding the 

dangerous and serious health and/or safety concerns of Dual-ended Combat ArmsTM 

earplug. 

161. That Defendant willfully and intentionally failed to disclose the truth, 

failed to disclose material facts and made false representations with the purpose and 

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design of deceiving and lulling Plaintiff, into a sense of security so that Plaintiff 

would rely on the representations made by Defendant, and purchase, use and rely on 

the Dual-ended Combat ArmsTM earplug. 

162. That Plaintiff did in fact rely on and believe the Defendant’s 

representations to be true at the time they were made and relied upon the 

representations and were thereby induced to use and rely on the Dual-ended Combat 

ArmsTM earplug. That at the time the representations were made, Plaintiff did not 

know the truth regarding the dangerous and serious safety concerns of the Dualended Combat ArmsTM earplug. 

163. That Plaintiff did not discover the true facts with respect to the 

dangerous and serious health and/or safety concerns, and the false representations of 

Defendant, nor could Plaintiff with reasonable diligence have discovered the true 

facts. 

164. That had Plaintiff known the true facts with respect to the dangerous 

and serious health and/or safety concerns of Dual-ended Combat ArmsTM earplug, 

Plaintiff would not have used and/or relied on the Dual-ended Combat ArmsTM 

earplug. 

165. That Defendant’s aforementioned conduct constitutes fraud and deceit, 

and was committed and/or perpetrated willfully, wantonly and/or purposefully on 

Plaintiff. 

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166. As a result of the foregoing acts and omissions, Plaintiff suffered

serious and dangerous side effects including, hearing loss and tinnitus, and has 

further suffered the injuries and damages as alleged herein. 

167. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Eleventh Cause of Action 

Kentucky Consumer Protection Act (“KCPA”)

168. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows:

169. Defendant’s actions are deceptive and in clear violation of KCPA, 

entitling Plaintiff to damages and relief under Ky. Rev. Stat. §367.110 et seq.

170. The Defendant’s conduct was deliberate, willful, intentional and

motivated by profit and is indicative of a complete indifference for the safety of

Plaintiff. Particularly:

a. They deceptively and unfairly permitted a known defective ear plugs to 

be manufactured which in turn created unreasonable risk of injury to 

Plaintiff;

b. They deceptively and unfairly disregarded information it had available 

regarding defects in its Dual-ended Combat ArmsTM earplugs;

c. They deceptively and unfairly altered Dual-ended Combat ArmsTM 

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earplugs during fitting as part of its alleged testing for the purpose of 

securing test results that would enable it to sell its defective Dual-ended 

Combat ArmsTM earplugs;

d. They deceptively and unfairly completed the said testing as above to 

ensure that the test results would give the false impression that the 

Dual-ended Combat ArmsTM earplugs met required noise attenuation 

parameters;

e. They had actual acknowledged that the Dual-ended Combat ArmsTM 

earplugs and components did not comply with established guidelines 

and they deceptively and unfairly kept this information from the U.S. 

government and end users including Plaintiff;

f. They deceptively and unfairly failed to warn the user public of the 

defect for fear that this information would adversely affect the 

confidence of the consumer and thus result in a decrease of profits for 

the Defendant;

g. They deceptively and unfairly failed to report the safety defect to the 

U.S. government, the consuming public and all potential users.

171. Defendant’s conduct was deceptive and unfair and motivated by profit 

and is indicative of a complete indifference for the safety of Plaintiff. The Defendant 

has had knowledge of the defect and deceptively and unfairly concealed evidence 

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because of the cost of rectifying the defect in order to protect their profits without 

regard to the safety of the consumer.

172. Defendant was under a duty to disclose this information to the Plaintiff, 

as well as laws requiring it not to engage in false and deceptive trade practices, and 

as otherwise alleged in this complaint, because Defendant made representations and 

partial disclosures concerning the nature and quality of their product which they had 

a duty to correct, because Defendant was in a superior position to know the true state 

of the facts about the dangerous and defective nature of its known risks to the 

Plaintiff.

173. Plaintiff did not know, and could not learn, the material facts and 

important information Defendant omitted and suppressed. The facts and information 

deceptively and unfairly suppressed and concealed by Defendant is material, and of 

such a nature that it can be reasonably presumed that the suppression and 

concealment of such facts were material facts which were misrepresented to 

Plaintiff.

174. As a result of Defendant’s deceptive and unfair omission of material 

facts, the U.S. government and end users including Plaintiff acted to their detriment 

in purchasing the Dual-ended Combat ArmsTM earplugs, which they would not have 

purchased.

175. As a result of Defendant’s practices, Plaintiff has suffered actual 

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damages in that he used the Dual-ended Combat ArmsTM earplugs which are 

dangerous and defective that has caused and will continue to cause Plaintiff damages 

and increased risk of bodily injury and other damages.

176. Plaintiff is a consumer within the meaning of KCPA, who owned, 

purchased and/or acquired Dual-ended Combat ArmsTM earplugs.

177. Defendant acted deceptively in the design, manufacture, supply and/or 

sale of the Dual-ended Combat ArmsTM earplugs.

178. Kentucky Revised Statutes, §§367.110 et seq makes unfair and/or 

deceptive trade practices in the conduct of any trade or commerce illegal.

179. Kentucky Revised Statutes, §367.220 creates a private right of action 

for individuals who are aggrieved by an unfair and/or deceptive trade practice by 

another person.

180. Kentucky Revised Statutes, §367.220(3) provides that the prevailing 

party in litigation arising from a cause of action pursuant to the KCPA shall be 

entitled to recover reasonable attorney’s fees and costs from the non-prevailing 

party.

181. Kentucky Revised Statutes §367.170(1) states that a person has violated 

the KCPA by “unfair or deceptive acts or practices in the conduct of any trade or 

commerce.”

182. Defendant willfully and knowingly engaged in the above referenced 

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deceptive and unfair acts and omissions including causing to be designed, 

manufactured, supplied and/or sold the Dual-ended Combat ArmsTM earplugs in 

violation of 42 U.S.C. § 4901, et seq., that govern the testing and attendant labeling 

of hearing protective devices like the Dual-ended Combat ArmsTM earplugs, as well 

as: 40 C.F.R. § 211.206-1 and 40 C.F.R. § 211.204-4(e) of the EPA regulations.

Defendant engaged in these deceptive and unfair acts in an effort to secure millions 

of dollars in sales, which constitutes trade and commerce as defined by Ky. Rev. 

Stat. §367.110(2), and is therefore subject to KCPA.

183. Defendant’s acts constitute unconscionable, deceptive, or unfair acts or 

practices in violation of KCPA.

184. Upon information and belief, Defendant continues to deceptively 

conceal and understate the existence of defects in the Dual-ended Combat ArmsTM 

earplugs; the safety risks associated with the Dual-ended Combat ArmsTM earplugs; 

and the increased risk to the Plaintiff, and public associated with the Dual-ended 

Combat ArmsTM earplugs.

185. As a result of Defendant’s unfair and deceptive trade practices, Plaintiff 

suffered damages, which entitles him to relief.

186. WHEREFORE, Plaintiff demands judgment against Defendant for 

relief as set forth in the Prayer for Relief below, as well as all costs of this action and 

a trial by jury of all issues to be tried.

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Twelfth Cause of Action 

Gross Negligence

187. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows:

188. The wrongs committed by Defendant were aggravated by the kind of 

malice, fraud, and grossly negligent disregard for the rights of others, the public, and 

Plaintiff, for which the law would allow the imposition of punitive damages (and 

which Plaintiff seeks, as set forth below).

189. Such punitive damages are appropriate given Defendant’s conduct, as 

further alleged herein, which includes the failure to comply with applicable 

guidelines and standards, including but not limited to ANSI, OSHA, EPA, and MPID 

guidelines and standards, which recklessly caused substantial injuries to Plaintiff (or, 

when viewed objectively from Defendant’s standpoint at the time of the conduct, 

involved an extreme degree of risk considering the probability and magnitude of the 

potential harm to others), of which Defendant was actually, subjectively aware of 

the risks involved, but nevertheless proceeded with conscious indifference to the 

rights, safety, or welfare of others, or included a material representation that was 

false, with Defendant knowing that it was false or with reckless disregard as to its 

truth and as a positive assertion, with the intent that the representation is acted on by 

Plaintiff.

190. Plaintiff relied on the representations and suffered injuries as a 

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proximate result of this reliance.

191. Plaintiff seeks to assert claims for punitive damages in an amount 

within the jurisdictional limits of the Court, as set forth below.

192. Plaintiff also alleges that the acts and omissions of the Defendant, 

whether taken singularly or in combination with others, constitute gross negligence 

that proximately caused the injuries to Plaintiff. In that regard, Plaintiff seeks 

punitive damages in amounts that would punish Defendant for its conduct and which 

would deter other manufacturers from engaging in such misconduct in the future.

193. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

Punitive Damages

194. Plaintiff incorporates by reference all preceding paragraphs as if fully 

set forth herein and further alleges as follows: 

195. Defendant has acted willfully, wantonly, with an evil motive, and 

recklessly in one or more of the following ways:

a. By failing to disclose material facts regarding the dangerous and serious 

safety concerns of Dual-ended Combat ArmsTM earplug by concealing 

and suppressing material facts regarding the dangerous and serious 

health and/or safety concerns of Dual-ended Combat ArmsTM earplug; 

b. By failing to disclose the truth and making false representations with 

the purpose and design of deceiving and lulling Plaintiffs, and others, 

so that they would use and rely upon the Dual-ended Combat ArmsTM 

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earplug; 

c. By falsely representing the dangerous and serious health and/or safety 

concerns of the Dual-ended Combat ArmsTM earplug to the public at 

large, and Plaintiff in particular.

196. WHEREFORE, Plaintiff demands judgment against Defendant and 

requests compensatory damages, punitive damages, together with interest, costs of 

suit, attorneys’ fees, and such further relief as the Court deems equitable and just.

VI. TIMELINESS AND TOLLING OF STATUTES OF LIMITATIONS

197. Plaintiff filed this lawsuit within the applicable limitations period of 

first suspecting that the Dual-ended Combat ArmsTM earplugs caused his injuries. 

Plaintiff could not, by the exercise of reasonable diligence, have discovered the 

wrongful cause of the Dual-ended Combat ArmsTM earplugs-induced injuries at an 

earlier time, because, at the time of these injuries, 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. 

198. Furthermore, the running of any statute of limitations has been tolled 

by reason of Defendant’s fraudulent concealment. Through their affirmative 

misrepresentations and omissions, Defendant actively concealed from Plaintiff the 

risks associated with the defects in the Dual-ended Combat ArmsTM earplugs. 

199. As a result of Defendant’s actions, Plaintiff was unaware, and could not 

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reasonably know or have learned through reasonable diligence that the Plaintiff had 

been exposed to the defects and risks alleged herein, and that those defects and risks 

were the direct and proximate result of Defendant’s acts and omissions. 

200. Through Defendant’s affirmative misrepresentations and omissions 

pertaining to the safety and efficacy of the Dual-ended Combat ArmsTM earplugs, 

Plaintiff was prevented from discovering this information sooner because Defendant 

herein misrepresented and continued to misrepresent the defective and dangerous 

nature of the Dual-ended Combat ArmsTM earplugs. 

201. Additionally, pursuant to the Servicemembers Civil Relief Act, the 

period of Plaintiff’s military service may not be included in computing any statute 

of limitations applicable herein. See 50 U.S.C. § 3936.

VII. JURY DEMAND

Plaintiff hereby demands a trial by jury as to all claims in this action.

VIII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays as follows: 

i. That process issue according to law; 

ii. That Defendant be duly served and cited to appear and answer herein, 

and that after due proceedings are had, that there be judgment in favor 

of Plaintiff and against Defendant for the damages set forth below, 

along with court costs, pre-judgment and post-judgment interest at the 

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legal rate; 

iii. Pain and suffering (past and future); 

iv. Wage loss (past and future); 

v. Loss of earnings and loss of earning capacity; 

vi. Medical expenses (past and future);

vii. Loss of enjoyment of life (past and future); 

viii. Mental anguish and distress (past and future); 

ix. Disfigurement (past and future); 

x. Physical impairment (past and future); 

xi. Attorney’s fees; 

xii. Punitive or exemplary damages in such amounts as may be proven at 

trial; and 

xiii. For all such other relief, as to which Plaintiff may show himself justly 

entitled.

Dated: October 11, 2019 Respectfully submitted,

/s/Thomas J Henry

THOMAS J. HENRY LAW, PLLC

Tjh.3m@thomasjhenrylaw.com

521 Starr Street

Corpus Christi, Texas 78401

Telephone No.: (361) 985-0600

Facsimile No.: (361) 985-0601

TX Bar: 09484210

Case 3:19-cv-03730-MCR-GRJ Document 1 Filed 10/11/19 Page 46 of 47
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/s/Roger Turk

THOMAS J. HENRY LAW, PLLC

Rlt.3m@thomasjhenrylaw.com

521 Starr Street

Corpus Christi, Texas 78401

Telephone No.: (361) 985-0600

Facsimile No.: (361) 985-0601

TX Bar: 00788561

/s/Lesley Paniszczyn

THOMAS J. HENRY LAW, PLLC

lpan.3m@thomasjhenrylaw.com

521 Starr Street

Corpus Christi, Texas 78401

Telephone No.: (361) 985-0600

Facsimile No.: (361) 985-0601

TX Bar: 24079103

/s/Laurie Dobson

THOMAS J. HENRY LAW, PLLC

ldobson.3m@thomasjhenrylaw.com

521 Starr Street

Corpus Christi, Texas 78401

Telephone No.: (361) 985-0600

Facsimile No.: (361) 985-0601

TX Bar: 24087431

Attorneys for Plaintiff

Case 3:19-cv-03730-MCR-GRJ Document 1 Filed 10/11/19 Page 47 of 47