Judge Denies 3M’s “Government Contractor Defense” Strategy For Defective Combat Earplug Lawsuit

Legal News

Lawsuits are mounting against 3M because of the company’s defective Combat Arms earplugs (also known as CAEv2), which has caused many veterans to suffer from hearing loss and/or tinnitus. 

3M attempted to have the lawsuits dismissed by using a legal defense strategy that shields government contractors from liability from defective products. However, on July 24, 2020, a Florida judge ruled there was insufficient evidence “to establish the elements of the government contractors defense” by 3M.

Although 3M did not develop the defective earplugs (a company called Aearo Technologies did, and began selling the earplugs to the U.S. Army in the late 1990s; in 2008, 3M purchased Aearo, and continued to sell the earplugs until 2015), the company claimed that it worked closely with the military in the design of the earplugs. 

In other words, 3M alleged it wasn’t their fault; the military is to blame.  However, the judge ruled that “The [earplug’s] design already existed — it came into existence without any input from the Army.” Furthermore, the judge wrote in the ruling, “The Army never issued a request for a design proposal for the new earplug, there was no competitive bidding process during which the Army established design details for a new earplug from interested contractors.” [SOURCE]

The double-ended Combat Arms earplugs were designed to block out all noise if one particular end of the plug was inserted, and if the opposite end was inserted, the earplugs were supposed to have blocked all harmful noise but allow for commands to be heard. A design flaw in the earplugs caused an undetectable looseness that failed to protect soldiers from ordnance explosions and other loud noises. 

Plaintiffs in 3M lawsuits allege that the company knew that the earplugs were not of sufficient length and did not work properly as designed. A statement from plaintiff’s attorneys said that they were “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 service members. 3M’s own internal e-mails and testimony show how the company was aware its earplugs were defective and failed to inform the military.”

For its part 3M said in a statement, according to StarTribune.com, “We remain confident the evidence will show that the CAEv2 product, which was developed in response to the U.S. military’s request and based on its own specifications and testing, was not defective and did not cause injuries,”

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