3M loses bid to dodge thousands of lawsuits over military earplugs
7/27/20 REUTERS LEGAL 20:31:02
Copyright (c) 2020 Thomson Reuters
Nate Raymond
REUTERS LEGAL
July 27, 2020
The logo of Down Jones Industrial Average stock market index listed company 3M is shown in Irvine, California April 13, 2016. REUTERS/Mike Blake/File Photo GLOBAL BUSINESS WEEK AHEAD PACKAGE - SEARCH 'BUSINESS WEEK AHEAD 24 OCT' FOR ALL IMAGES
(Reuters) - A federal judge has rejected 3M Co's bid to dismiss thousands of lawsuits by servicemembers and veterans alleging it sold defective earplugs to the military.
U.S. District Judge M. Casey Rodgers in Pensacola, Florida, on Friday was not persuaded by the company's claims that the alleged defect was based on a design mandated by the U.S. Army. Casey ruled that no reasonable jury could conclude that the Army made the company do anything or dictated precise specifications for the earplugs' design.
3M had argued that the military approved precise specifications for the company, a contractor, to follow for the Combat Arms Earplug Version 2, or CAEv2, and took responsibility for training servicemembers how to properly use the earplugs.
Its lawyers, including Kimberly Branscome and Mike Brock of Kirkland & Ellis, said as a result, the plaintiffs' state-law product defect and failure-to-warn claims were preempted due to its role as a federal contractor following government mandates.
But Rodgers said 3M had identified no contract or formal specification in which the Army designated the exact component parts for the device or forbade the company from fulfilling any state law duty to warn about the earplugs' risks.
Rodgers acknowledged military officials had expressed their interest in a dual-ended version of the earplug integrating two different sets of technology, including a component designed by Aearo Technologies, which 3M acquired in 2008.
But Rodgers said the Army's mere expression of interest in a technology cannot legally constitute government approval of precise device specifications, particularly when it did not later meaningfully review the product's underlying design.
"Instead, the undisputed material facts establish that those discretionary design decisions, which are the basis for the design defect claims in this litigation, were made by Aearo alone," the judge wrote.
The lead attorneys for the plaintiffs - Bryan Aylstock of Aylstock Witkin Kreis & Overholtz; Shelley Hutson of Clark, Love & Hutson GP; and Christopher Seeger of Seeger Weiss - in a joint statement welcomed the ruling.
"We are pleased the Court rejected 3M's attempt to blame our nation's military for its defective earplugs that have permanently damaged the hearing of hundreds of thousands of servicemembers," they said.
St. Paul, Minnesota-based 3M in a statement said it was reviewing its options. It said remained confident the evidence at trial would show CAEv2 product was not defective and did not cause any injuries.
Rogers oversees at least 7,866 cases that have been filed in the multidistrict litigation over the device. The plaintiffs' lead lawyers say 200,000 claimants had registered claims with them.
The lawsuits were filed after 3M in 2018 agreed to pay $9.1 million to resolve claims by the U.S. Justice Department that it knowingly sold the earplugs to the military without disclosing defects that hampered their effectiveness.
The lawsuits allege the earplugs were defectively designed by being too short for proper insertion or allowing the in-ear part of the plug to fold, thereby loosening the seal inside the ear canal.
The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court for the Northern District of Florida, No. 19-md-2885.
For the plaintiffs: Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz, Shelley Hutson of Clark, Love & Hutson and Christopher Seeger of Seeger Weiss
For 3M: Mike Brock of Kirkland & Ellis
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