Our lawyers are handling 3M earplug lawsuits in all 50 states. If you have a potential claim, do not delay. Call us at 800-553-8082.
Before we get to the meat of what the 3M Combat Arms earplug lawsuits are about, our attorneys first get you updated on the latest news in the 3M earplug litigation.
3M EARPLUG LAWSUIT UPDATES:
July 25, 2022: In the week after the mandatory settlement mediation ordered by MDL Judge Casey Rogers, the parties have been filing a series of motions to gear up for the next massive wave of trials. Lead Counsel for the plaintiffs filed a major motion seeking to exclude or limit 3M’s expert testimony and opinions going into Wave 3 of the earplug cases which could involve thousands of plaintiffs going to trial in large blocks starting next year. Plaintiffs also filed a motion asking Judge Rogers to preserve all Daubert rulings in the previous trial waves.
So when will the 3M earplug lawsuit settle? That is the question many veterans have asked our lawyers in the last week. The 3M earplug lawsuit will settle when 3M finally realizes that it cannot keep deferring resolution of this litigation.
We do not think the stock market - still! - has not baked the cost of a 3M earplug settlement into 3M's stock price. Our thinking, and it is just our lawyers' speculation, is that 3M executives just want to keep delaying taking that hit in the stock price and the pain that will come with that. So they keep kicking the can down the road while hoping for a miracle from the 11th Circuit.
July 18, 2022: There was no 3M earplug settlement from the mediation this weekend. We still believe the majority of these lawsuits will settle in 2022. But a settlement of this magnitude will be a complex endeavor.
July 15, 2022: The 3M earplug settlement talks began today and will go through the weekend in Florida. Just how likely is a 3M earplug settlement?
Progress towards an earplug settlement is probably likely. But a global 3M earplug settlement after three days of negotiations seems unlikely. Earplug victims are frustrated with the pace of settlement. Understandably. And a global 3M earplug settlement is not out of reach. But it is just not likely this weekend.
July 13, 2022: 3M filed a brief asking the court to extinguish judgments in the nine cases they lost. Why 3M's lawyers bother with this motion is anyone's guess. Judge Rodgers stuck the motion as improper, chastising 3M that the court docket is not a repository "for lawyers to preview future litigation strategies."
July 11, 2022: The one thing we do not want to do in a 3M earplug settlement is minimize the differences between the strength of the claims in the final settlement amounts. The fear of this kind of damage averaging is larger claims will get settlement offers that undervalues their claims.
This creates a problem not only for those more seriously injured but also for 3M. Why? If the best cases do not receive settlement offers commensurate with the harm done to them, those plaintiffs will just reject the settlement amounts offered and opt to go to trial.
The point of all of this is that lawyers have to measure twice and cut once before any 3M earplug settlement.
July 8, 2022: 3M wants to weed out every 3M earplug lawsuit that is not a viable claim. Judge Rodgers is helping their efforts. Judge Rodgers granted a defense motion requiring plaintiffs who have not complied with court orders to produce basic information to show cause why their case should not be dismissed.
This sounds like a bad thing. It is not. If you have a solid claim, you support this, too. We want to get rid of the claims that are not meritorious because that will facilitate a 3M earplug settlement that makes sense for all parties.
July 5, 2022: Settlement talks are now just 10 days away. Our 3M earplug lawyers have not used these updates as a "call us" plug. But in the event there is a settlement, there is a chance it will be very hard to find a lawyer after a settlement is reached. So if you are sitting on the sidelines and have not brought a 3M earplug lawsuit but are considering it, now is the time to act. I don't think there are many of you out there who have not yet brought a lawsuit. But if you have not yet spoken to a lawyer about your case, now is the time. You can call us at 800-553-8082 or reach out online for a free consultation.
June 29, 2022: Plaintiffs Luke Estes, Lewis Keefer, Stephen Hacker, and Lloyd Baker filed their response to 3M's 11th Circuit appeal this week. The battleground is the government contractor defense our earplug lawyers talked about from Day 1 of this litigation. Plaintiff's lawyers contend in this brief and throughout this litigation that 3M is not a government contractor entitled to protection under the Feres Doctrine. This is because 3M did not give precise specifications or even have a real contract with the military to provide these earplugs. There will be a hearing before a ruling. Our lawyers believe 3M has a very small chance of winning this appeal. Hopefully, 3M offers reasonable settlement amounts to these plaintiffs and thousands next month more before a ruling is needed.
June 28, 2022: On Sunday, the Wall Street Journal released a story entitled 3M Faces Billions in Liabilities Over $7.63 Earplugs. The WSJ article provides a brief explanation of the massive size of the 3M earplug lawsuit and how it could end up costing 3M billions. The article was prompted by news of the recent mandatory settlement mediation ordered by the MDL class action judge.
The WSJ story is very significant because it marks the first time that one of the big major news outlets has brought attention to just how big of a hit 3M could take over the earplug lawsuits. Despite being the biggest consolidated mass tort in U.S. history, the 3M earplugs litigation and its implications on Fortune 500 companies have gone relatively unnoticed by the general public. 3M has benefited from this anonymity by avoiding external pressure from investors. This WSJ article signals the end of the era and, hopefully, keeps the pressure on 3M going into settlement negotiations.
To help push the settlement negotiations, Judge Rogers appointed Randi S. Ellis as special master for the mediation. Ms. Ellis will also be assisted by retired judge Mark Falk and veteran settlement negotiator Ellen Reisman.
Judge Rogers made it clear in her order that full or partial settlement of the earplug cases is critically important otherwise the federal court system will be flooded with earplug trials next year. The order notes that there are now 233,883 plaintiffs in the Earplugs MDL (down from a high of 282,902). If no settlement is reached in these earplug lawsuits, these cases will be sent back to their home districts for trial in waves of 500 cases at a time.
Our lawyers are constantly asked when will the 3M earplug lawsuit settle? These court-ordered settlement talks are the brightest glimmer of hope we have had for veterans to get reasonable settlement amounts in the foreseeable future.
This order puts 3M under great pressure and alleviates pressure all at the same time. 3M's lawyers will be under great pressure to prepare this many lawsuits for trial. It is a Herculean task for the attorneys.
But settlement pressure-wise, the sobering reality of this order is that there will not be another 3M earplug trial in 2022. So if 3M chooses to kick the can down the road, it can pay a reasonable settlement amount for the cases on appeal to avoid a final ruling and drag this out into 2023.
Our lawyers do not think this will happen. We think the 3M earplug class action will settle in 2022. But that is just a guess and a hope.
May 31, 2022: As expected, Judge Rodgers cut the verdict in Wayman from $55 million to $21.7 million The reason for the reduction is simply limits on punitive damage awards under Colorado law.
May 20, 2022: $77.5 Million Verdict! The final 3M earplug bellwether trial concluded this afternoon and the result was the largest amount awarded to a single plaintiff so far. After a 2-week trial, the federal jury in Pensacola awarded Army veteran James Beal a total of $77.5 million in damages for his claims that 3M’s defective earplugs caused hearing loss and tinnitus. This award brings the total amount of damages in the bellwether trials to $300 million.
May 19, 2022: Day 8 of the trial featured live testimony from 3M expert witness Dr. John Casali from Virginia Tech University. Casali is 3M's go-to expert, a prominent authority in audiology, acoustics, and hearing protection. 3M has used him as an expert in all of the bellwether trials. In addition to Casali’s testimony, 3M’s lawyers presented the jury with clips of video deposition testimony from several witnesses, including the plaintiff’s wife.
May 18, 2022: On Day 7 of the trial, 3M’s defense team presented testimony from Eric Fallon and Dr. James Crawford. Fallon holds a doctorate in audiology and works for 3M as a Technical Senior Service Specialist. Dr. Crawford is an ENT doctor specializing in hearing protection. Both Fallon and Crawford also spent over 20 years in the Army.
May 17, 2022: Let's get you caught up to speed on what is happening in the Beal trial. The first two days of the trial featured nearly eight hours of testimony from the plaintiffs’ leading expert witness, bioacoustics engineer Richard McKinley. McKinley has been a prominent witness in all of the previous bellwether trials.
On Day 3 of the trial, the plaintiffs presented testimony from Elliott Berger. Berger, as every reader of these updates knows, is a former 3M audiology scientist and head of the 3M Personal Safety Division. Berger was one of the people directly involved in the original design and testing of the 3M earplugs at issue in the lawsuits and he has been a key witness in all of the cases.
On Day 4 of the trial, the plaintiff James Beal took the stand in the morning. Beal’s testimony was followed in the afternoon by the plaintiff’s expert Dr. Christopher Spankovich, a clinical audiologist at the University of Mississippi Medical Center.
On the 5th day of trial, the plaintiffs presented testimony from another expert, Dr. Mark Packer. Dr. Packer is an Ear Nose & Throat specialist at Mercy Hospital in St. Louis. Dr. Packer was a key witness in the Sloan/Wayman bellwether trial that resulted in a $110 million verdict against 3M.
Day 6 of the trial featured a series of short video deposition clips and testimony from the plaintiff’s wife, Heather Beal, and several other fact witnesses, including friends or family members of Mr. Beal.
May 17, 2022: In March, bellwether plaintiff Ronald Sloan was awarded $55 million on his earplug lawsuits against 3M, which included $15 million in compensatory and $40 million in punitive damages. 3M has appealed and has not paid the verdict. Sloan filed a motion asking for prejudgment interest on the $15 million in compensatory damages. Judge Rodgers denied that motion. Why? Sloan’s claims are governed by Kentucky law. Judge Rogers ruled that KY law does not allow prejudgment interest on awards for “bodily harm.”
May 16, 2022: Just as the first week of the Beal bellwether trial was wrapping up on Friday, the MDL Judge issued a show cause order threatening to hit 3M’s defense lawyers with sanctions for “willful abuse of the trial process.” Judge Rogers has had a long history of frustration with 3M’s defense counsel dating back over two years. This latest admonishment came after 3M’s lawyers sought to defy long-standing procedural rules regarding deposition designations.
This morning, 3M’s lawyers filed a response to the show cause order attempting to justify their position. This ongoing dispute between Judge Rogers and 3M’s defense attorneys won’t have any impact on the outcome of the Beal trial. But 3M's lawyers are frustrated. There is often turmoil on losing teams. But it seems unwise to go out of your way to create acrimony with the judge and the judge who is trying the Beal case. (Even more bizarrely, the judge trying Beal is the Zantac MDL judge and this same law firm is defending Zantac lawsuits). It is inexplicable and it is not advancing 3M's interests. It is also a distraction from the path to a fair settlement that is in everyone's interest. 3M should focus on settlement talks as opposed to this nonsense.
May 11, 2022: Over 20,000 3M earplug lawsuits were dismissed from the 3M earplug class action lawsuit this week after the plaintiffs failed to file the necessary paperwork required to keep their case active. The missing paperwork that prompted most of the dismissals was the plaintiff’s military service record (DD214).
We never like to see plaintiffs have their cases dismissed. But this might actually get us a step closer to a global settlement of the earplug lawsuits. One of the main obstacles to a 3M earplug settlement is the massive number of plaintiffs (around 270,000). 3M is convinced that not all of these plaintiffs have valid claims. Our lawyers and many soldiers we have talked to agree with 3M on this point. Getting this class action down to the soldiers who were truly harmed will advance an earplug settlement.
May 9, 2022: The last 3M earplug bellwether trial begins today for Army veteran James Beal. The trial is scheduled to last 2 weeks and will be conducted before Judge Robin L. Rosenberg at the federal courthouse in Pensacola. The trial is already off to a good start. Last week, the MDL judge granted a summary judgment motion by Beal which effectively blocks 3M from presenting nearly all of their affirmative defenses, including contributory negligence.
One encouraging thing our 3M earplug lawyers saw over the weekend was an article by NBC News on the 3M earplug lawsuit. Getting the 3M litigation into the mainstream media has oddly been a struggle given there are 300,000 soldiers bringing claims. This type of unwanted attention might help grease the wheels for settlement talks and a global compensation payout for victims.
May 4, 2022: Yesterday, the 3M earplug MDL judge issued a new Case Management Order (CMO # 44) ordering 20,197 earplug lawsuits in the MDL to be moved from the administrative docket onto the active docket.
This appears to be the first initial step in the move toward Phase 2 of the earplug bellwether trials. The plan is for these 20,197 earplug lawsuits to go through pretrial discovery - a daunting process with such a massive group of plaintiffs. The claims would then be sent to their home federal court districts for trial. Each trial will involve large blocks of consolidated plaintiffs.
The logistics of actually taking these cases to trial are hard to imagine. It is easy to forget that a sample size of one for an MDL class action of this size. This is the largest MDL in history.
The earplug bellwether trials with one plaintiff have required two weeks each. A consolidated trial involving 20 or 40 plaintiffs could last for months and would place 3M at a significant disadvantage, battling against that many soldiers and their families in a courtroom.
May 3, 2022: The 16th and last MDL trial will start Monday, May 9, 2022, for James Beal's injury claim against 3M for its defective earplugs. After this trial, Judge Rodgers will send these lawsuits around the country to be tried in waves. This is not a good dynamic for 3M who would rather not battle a group of soldiers in the courtroom. At the same time, the plaintiffs' brief in response to 3M's appeal is due in the 11th Circuit early next month.
If you follow the history of mass tort settlements, there is no question that this moment seems opportune for a global settlement deal in the 3M litigation. But there are no guarantees.
3M has two choices it seems. Risk the entire company on a long-shot appeal. Or offer our soldiers reasonable settlement compensation payouts to resolve these cases.
April 19, 2022: The Vaughn trial started yesterday. The trial is expected to take two weeks and will be tried before Judge Stephen Grimberg.
April 14, 2022 Update: One of the most common questions our lawyers get from soldiers is when will the 3M lawsuits settle? No one knows. But June 27, 2022, is an important date to file away. This is the plaintiffs' deadline to file their opposition brief in Hacker/Estes/Keefer. After this brief is filed, there will be oral arguments and a ruling from the 11th Circuit.
This will be the big test of 3M's government contractor defense. Our lawyers have always said that 3M would be foolish to let the 11th Circuit rule on this before settling the lion's share of these lawsuits. Why? Because if it loses and the U.S. Supreme Court refuses to take the case, 3M will have fired the last arrow in its quiver. At that point, why not keep trying these cases when the average successful jury payout is around $20 million?
Failing to settle before that ruling would be an existential threat to 3M, a company founded 120 years ago. Hard to believe that would be a risk worth taking.
April 13, 2022 Update: Most of the nearly 300,000 plaintiffs in the 3M earplugs litigation have their cases on the “administrative docket.” This allows these soldiers - their lawyers, really, - to hold off on paying the $402 federal filing fee while their lawsuit is in "hold" mode. 3M filed a motion seeking to force all these plaintiffs to pay their filing fees immediately or be dismissed. But "spite" is not a ground to have a motion granted.
Everyone can agree there are some frivolous 3M earplug lawsuits in the 300,000 that are in the MDL class action. But the motion 3M's lawyers filed does not weed out those cases. As the judge said in denying the motion, "Filing frivolous motions will not 'winnow' frivolous cases."
April 8, 2022 Update #2: Unfortunately, the jury found 3M in the Kelley trial. This was a difficult case for the plaintiff. This is a good time to remember that the average jury payout in a 3M earplug lawsuit in the last 30 days has dropped to just over $19 million.
April 8, 2022 Update: On Day 8 of the trial, 3M wrapped up the testimony of Dr. Casali in the morning and devoted the remainder of the day to present expert testimony from Dr. James Crawford. Dr. Crawford is an otolaryngologist who spent 24 years as a doctor in the U.S. Army, specializing in hearing conservation. 3M also filed a motion to bar the plaintiff from offering rebuttal testimony from Dr. Eric Gershwin on procedural grounds.
April 7, 2022 Update: Day 7 of the Kelley trial featured testimony from 2 of 3M’s expert witnesses. In the morning, the jury heard from Jennifer LaBorde, doctor of audiology and hearing aid specialist from the Hearing Center MCC. After lunch, Dr. John Casali took the stand. Casali is 3M's go-to expert in its fight against soldiers seeking compensation for their hearing-related injuries. He is a well-known expert in the field of hearing protection and acoustics and a professor at Virginia Tech University.
April 6, 2022 Update: 3M began presenting its defense with the testimony of Dr. Eric Fallon. Dr. Fallon is the former chief Audiologist at Walter Reed Medical Center. So he sounds pretty credible at first glance. Who does he work for now? 3M.
As they have done in all of the previous bellwether trials, attorneys for 3M also filed a Motion for Judgment as a Matter of Law arguing that punitive damages should be off the table because the plaintiff failed to meet her burden under Texas law.
March 30, 2022 Update: Day 2 of the Kelley trial was devoted to the testimony of Elliott Berger. Berger is retired a 3M scientist and former head of the company’s Personal Safety Division. His testimony has been a focus of all 13 3M earplug bellwether trials. Berger's testimony is crucial because he was a central figure in the original design and development of the Combat Arms Earplugs. Berger has been critical in establishing that there were design flaws in the earplugs that were not revealed to the Army.
March 29, 2022 Update: On the opening day of the Kelley trial, jury selection began in the morning and was finished by lunchtime. Opening statements for both sides began around 2 p.m. and ended two hours later. Then the jury heard video testimony from Ron Kieper, a former employee at 3M with knowledge of the company’s handling of issues with the earplugs.
March 27, 2022 Update: In a historical weekend in the 3M earplug litigation, the Wilkerson jury came back yesterday with an $8 million verdict. 3M was counting on winning Wilkerson to keep afloat the idea that "they win some, we win some" and only the best 3M earplug lawsuits have real value. The company is running out of arguments for its shareholders for not offering fair compensation payouts to victims.
About the 3M Earplug Lawsuits
3M is the St. Paul-based manufacturer and seller of an earplug called Combat Arms. These dark green and yellow earplugs were originally developed by Aearo Technologies, a company 3M bought in 2008. This makes 3M liable for conduct both before and after 2008.
Thousands of soldiers suffered complete or partial hearing loss and tinnitus because of faulty combat earplugs. Combat Arms Earplugs left veterans entirely unprotected from damaging high-level sounds. Our lawyers are handling these cases.
3M earplugs were standard issue equipment intended to protect service members from hearing loss. 3M had an exclusive contract with the U.S. military via the U.S. Department of Defense. The company admitted, however, that the earplugs were defective and did nothing to protect soldiers from significant hearing loss, subjecting them to the risk of deafness.
This means that anyone who served in the military from 2003 to 2015 and suffered permanent hearing damage has a potential product liability lawsuit against the earplug manufacturer.
U.S. service members are often exposed to very loud noises from things like aircraft, artillery, guns, and explosives. Without some sort of ear protection, repeated exposure to these types of high-level noises will cause auditory ailments from internal damage to the eardrums.
The nonlinear dual-ended Combat Arms Earplug Version 2 ("CAEv2") was supposed to protect users by filtering peak-level noises. They were developed by Aearo Technologies which eventually sold their company to 3M.
The design of these earplugs was a comedy of errors. One big problem was that they were too small for the Army’s carrying case. They also made the fit of a soldier’s helmet somewhat of a challenge.
So what did they do? They modified the design by shortening the earplugs. So now they fit. But the device did not go deeply into the ear. So the design flaw was that the stem of the earplug was too short for soldiers with large, or even normal, ear canals.3M Knew the Earplugs Were Defective
3M was aware that the dual-ended Combat Arms earplugs were a defective product but failed to disclose this to the military. Why? There were probably many reasons. But, usually, follow the money, right? These earplugs cost 85 cents to make. They were sold to the military for $7.63.
Most of those soldiers were not being protected at all by the defective earplugs and ended up suffering permanent loss of hearing. These veterans can now sue 3M and demand financial compensation.
Many veterans that call us are wondering if the 3M cases are legit or whether this is all some scam. We get it. There are no guarantees of success. But it is also true that there is no cost to bring a claim and no risk. It is all upside for you. And for the vast majority of plaintiffs, filing a claim requires very little effort.3M Earplugs Questions Our Lawyers Are Commonly Asked
Based on prior verdicts and settlements in cases involving hearing loss, we expect the trial value of 3M earplug cases to be somewhere between $25,000 and $300,000 per person (notwithstanding the over $2 million per person the plaintiffs received in the first hearing protection trials). The settlement payouts will likely be less.
Is this naked speculation? It is. No one knows for sure and the average value is impossible to estimate. Certainly, the expected average individual settlement amount is rising based on these three verdicts. If 3M foolishly continues to try these cases, the compensation payouts in this litigation will likely soar.
How much money veterans will ultimately be getting will depend on the severity of the level of hearing loss. Severe hearing damage lawsuits will be valued higher than tinnitus-only lawsuits.
Our law firm is reviewing claims that meet the following criteria:
- You served in the military between 2003 to 2015
- You wore military-issued earplugs during service
- You were exposed to loud sounds during military service
- You have been diagnosed with hearing loss/tinnitus
If you meet these criteria, all you need to do is contact our office to get your 3M earplug claim filed.
Most law firms, including ours, handle these cases on a contingency fee basis. So there is no upfront payment and no fees or expenses unless you recover money for your injuries.
Based on prior mass tort product liability cases, we anticipate that it will be a year or two before a global settlement is reached with 3M in the earplug litigation. This is frustrating. But the wheels of a mass tort claim move slowly. So 3M earplug plaintiffs should not expect to receive any settlement compensation until late 2021 at the earliest.
No. To date, no plaintiff has settled a 3M earplug lawsuit. Thousands of individual plaintiffs have filed claims against 3M in the defective earplugs lawsuits. As of January 2022, none of these claims have been settled.
But with these three trials completed, it is hard to say what will get 3M in more of a reasonable settlement posture. (It might just be hedge funds accessing the risk and shorting 3M stock on the litigation risk. At some point, someone will notice that the largest mass tort in American history is averaging over $1 million per verdict while 3M's stock price keeps rising.)
Filing a lawsuit against 3M for hearing loss related to defective earplugs is unlikely to have any impact on your eligibility to receive disability benefits. But this is something our lawyers will discuss with you.
Settlement talks are set for July 15, 2022. These settlement talks will last at least three days. There is the possibility settlement amounts will be reached in some 3M earplug lawsuits. What does this mean for victims? Your 3M earplug lawyer would bring a settlement offer back to you for your approval.
Let's go back to the individual settlement value of these cases because all victims have a keen interest in claim value. Jury verdicts and reported settlement amounts in other tinnitus or hearing loss cases suggest an average individual settlement compensation from $50,000 to $300,000 in compensation.
Will this be the settlement value for the 3M lawsuits? The trial value could be in this range or even higher (much higher for the first three victims, as it turns out). The global settlement value - the resolution of almost all of the claims at one time - would likely be less because you rarely get trial value in a mass tort settlement.
The other factor is the sheer volume of these lawsuits. This 3M lawsuit is the largest mass tort in American history. 3M has maybe $35 billion in assets and is worth approximately $100 billion. Let's assume there are 200,000 legitimate cases and the average settlement payout is $100,000 per person. That is $20 billion. So that is an issue that plaintiffs' lawyers have to deal with in these cases.Little More 3M Litigation History to April 2022
Three years ago, in January 2019, an earplug victim's attorney filed a motion asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate all defective earplug cases to a single federal court for coordinated pretrial proceedings.
The court granted this motion in March and the earplug cases are now consolidated in the Northern District of Florida under Judge M. Casey Rodgers. This is called an MDL, which is like a class action lawsuit for pre-trial discovery purposes. This is the first step in the hopes of a favorable global military hearing protection settlement with 3M that would give most victims a reasonable amount of money without ever having to go to court.
What does it mean to you that the JPML consolidated all the federal earplug claims in Florida? It means that no matter where you are, your lawsuit will most likely be housed in Florida while these lawsuits proceed through the multidistrict litigation process.
All you need to do is provide a small bit of information. The hope is that 3M will come to its senses and offer settlement amounts that will encourage the victims to settle their cases out of court. But the per-person payouts have to be high enough to entice victims to settle. We may know more after the July 15, 2022 settlement talks.
3M big defense, that they seemed certain would succeed, to end these cases before they began was asserting that all claims are preempted the “Feres” doctrine. Our lawyers looked at the applicable law and believed the plaintiffs would defeat this argument. We were right.
The plan was to invoke the government contractor defense as a shield from state tort liability using the Feres doctrine. This doctrine arose out of the U.S. Supreme Court decision in Feres v. the United States. Specifically, the doctrine provides a guideline for when our servicemen and women may file a claim for personal injuries. The doctrine bars service members and civilian government employees from bringing claims against the U.S. government for injuries that arose out of or were sustained while engaged in activity “incident to service.”
That does not sound good, right? But the Supreme Court decision in Boyle v. United Technologies Corp in 1988 updates Feres and made our attorneys confident we would prevail. This case promulgates a two-part test that determines whether a state law can be displaced:
- The claim is uniquely of federal interest; and
- There is a significant conflict between “federal policy or interests and state law” or if applying the state law would “frustrate specific objectives of federal legislation”
The decision then lays out a three-part test that provides a claim is pre-empted:
- The U.S. approved reasonably precise specifications;
- The equipment conformed to those precise specifications; and
- The supplier warned the U.S. of the danger associated with the equipment that only the supplier knew of. Applying these tests, product liability attorneys do not think there will be issues with preemption because although 3M knew of the defect and danger associated with using them, they never informed the U.S. military of those dangers (we wrote this two years ago and it held up).
3M's fatal problem is the third prong of the Boyle preemption test. Is the U.S. military going to say that they did know of the danger but still issued the earplugs for hearing protection? There is nothing to suggest that the military had any knowledge of the defect.
3M's preemption arguments failed. Judge Rodgers ruled that 3M "government contractor defense" that protects some defendants from liability when building products to the government's specifications do not apply in this case. 3M cannot even make this argument to the jury, the court ruled, because no reasonable jury could conclude that the military made Aearo/3M do anything. Judge Rodgers ruled that the defendants "may not argue that the government dictated, directed, approved, or otherwise exercised discretion concerning military specifications for any aspect of the design of the CAEv2, or the content of instructions or warnings."Getting a 3M Earplug Lawyer to Fight for You
If you used 3M's Combat Arms Earplugs in the military and have a severe hearing impairment, you may be entitled to financial compensation for your injury. Our 3M earplug lawsuit attorneys get calls and online inquiries about this litigation every single day. Because of the statute of limitations, you must reach out to a lawyer as soon as possible. This is not a deadline you can miss.
Contact us and we can investigate your case and tell you whether or not you may have a valid claim against 3M. There is not a lot required from you at this point besides filling out a 3M earplug lawsuit claim form. There is no risk or cost.
We are contingency fee lawyers. Our attorneys only get a fee if you get compensation. If you need representation, call us at 800-553-8082 or get a free online consultation..
- Who is eligible for compensation in Combat Arms earplug litigation?