Military

Judge sides with military members, rules 3M not exempt from civil claims in defective earplug litigation

August 6, 2020

3M has argued that because it made the earplugs for the U.S. military and discussed specifications about the product with the government, its claims are therefore preempted and the company should not be held liable. Judge Rodgers disagreed, however, citing a lack of evidence of any back-and-forth dialogue concerning design specifications.

In an order filed in July, U.S. District Judge M. Casey Rodgers sided with military members and rejected 3M’s argument that Aearo Technologies LLC, its predecessor, is exempt from civil claims in the defective earplug litigation because of its contract with the government. The litigation, which was consolidated in Florida federal court last year, now includes more than 140,000 military service members, veterans and contractors who claim the earplugs’ defective design caused their hearing loss and/or tinnitus.  

What is the government contractor defense?

The government contractor defense is a federal common law defense that can immunize a government contractor from tort liability in state or federal actions involving injuries from defective products manufactured or supplied under a government contract (a). In order to successfully assert the government contractor defense, a contractor must demonstrate (1) the U.S. approved reasonably precise specifications, (2) the equipment produced conformed to those specifications, and (3) the contractor warned the U.S. about any dangers in the use of the equipment that were known to the supplier, but not to the U.S.

3M has argued that because it made the earplugs for the U.S. military and discussed specifications about the product with the government, its claims are therefore preempted and the company should not be held liable. Judge Rodgers disagreed, however, citing a lack of evidence of any back-and-forth dialogue concerning design specifications. “Indeed, it is not too much to say that the Army wanted Aearo’s earplug, and at one point, even went so far as to make clear that it would not commit to purchasing the earplug unless it could be stored inside a military carrying case and worn underneath a Kevlar helmet,” she comments. “But the design already existed – it came into existence without any input from the Army, and Aearo’s subsequent actions changing the length of the CAEv2’s stem were not compelled by the terms of any government contract” (b).  

3M's CAEv2 earplugs

Michael Sacchet, counsel for the plaintiffs, agreed that the court was right to reject 3M’s argument. “The Court correctly found 3M could not even trigger the defense without a qualifying design contract with the military. Nor could 3M satisfy the first element of the defense assuming such a contract existed. Thousands upon thousands of service members will now proceed to trial in order to hold 3M accountable for defrauding our country and its citizens” (c).  

It’s not too late

If you or a loved one were a U.S. military service member, veteran or contractor between 2003 and 2015 who was diagnosed with partial or total hearing loss or suffer from tinnitus, you may have a claim against 3M for substantial compensation without ever going to court. Complete the intake form here for a free, no-obligation review of your case. Feel free to share this with any friends of family who may have been affected as well – we’re here to help.

References

a. “The Government Contractor,” Information and Analysis on Legal Aspects of Procurement. July 20, 2016. Page 1.

b. https://www.law360.com/articles/1295529/3m-can-t-duck-earplug-suit-with-gov-t-contract-preemption

c. Ibid.

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