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3M Knew of Earplugs’ Hearing Loss Risk, Veterans’ Group Argues

July 6, 2022, 9:35 PM

3M Co. knowingly failed to warn the US military and servicemembers about the risk of hearing loss from use of its combat earplugs, a veterans’ organization told the Eleventh Circuit in a friend of the court brief.

3M knew about a design flaw in its subsidiary Aearo Technologies LLC’s Combat Arms version 2 earplugs that made them ineffective, the Military Order of the Purple Heart Service Foundation said Tuesday. And it didn’t “tell anybody about this defect until it was forced to do so during discovery in an unrelated lawsuit,” the group said.

The company therefore isn’t entitled to immunity from suit as a government contractor, according to the Purple Heart Foundation. “Granting immunity to 3M under these circumstances would create perverse incentives for other defense contractors to conceal defects and expose more servicemembers to the harm the Foundation’s members have suffered,” it said, detailing several veterans’ struggles with hearing loss and tinnitus.

3M is appealing an award of more than $7 million in a three-plaintiff trial and a judgment of more than $1 million for a fourth veteran, in a pair of cases at the US Court of Appeals for the Eleventh Circuit.

3M and Aearo’s appeals come in some of the earliest combat earplug cases to go to trial in consolidated litigation the US District Court for the Northern District of Florida. About 290,000 cases were pending as of June 15, according to the panel overseeing federal multidistrict litigation.

3M and Aearo are challenging a summary judgment ruling on the government contractor defense that applies to the litigation as a whole. Aearo fit the definition of a government contractor when co-creating its Combat Arms earplugs with the military and is therefore protected from liability, they said in briefs in February.

3M didn’t inform the Army about a report written around 2000 finding problems with the earplugs, the Purple Heart Foundation said in its brief. “3M’s only argument on this front is that the Army likely had enough information in its possession to figure out the problem on its own,” it said. “That is not the law.”

Consovoy McCarthy PLLC submitted the brief for the Purple Heart Foundation.

Keller Postman LLC; Ciresi Conlin LLP; Aylstock, Witkin, Kreis & Overholtz PLLC; Seeger Weiss LLP; Quinn Emmanuel Urquhart & Sullivan LLP; and O. Carter Snead of Notre Dame, Ind., submitted the appellate briefs for the plaintiffs. Tracey Fox King & Walters also represents the plaintiffs in one case.

Kirkland & Ellis LLP; Moore, Hill & Westmoreland PA; and Dechert LLP represent 3M and Aearo.

The cases are 3M Co. v. Estes, 11th Cir., No. 21-13131, amicus brief 7/5/22 and 3M Co. v. Baker, 11th Cir., No. 21-12517, amicus brief 7/5/22.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Brian Flood at bflood@bloomberglaw.com