Could 3M be Shielded from Liability in Earplug Lawsuits?
Company 3M faces the largest consolidated federal mass tort claim in U.S. history over earplugs it supplied to the Army and its soldiers from 2007 to 2013. 3M’s Combat Arms Earplugs, Version 2, had design flaws that 3M tried to hide with false test results. A whistleblower brought the matter to light with a qui tam lawsuit under the False Claims Act, and the 3M settled the claims with the government for $9.1 million. But 3M still faces more than 250,000 lawsuits from service members with hearing loss and damage resulting from using the defective earplugs.Now, the U.S. Chamber of Commerce is arguing that the “contractor shield” defense should protect 3M in the lawsuits against it. The contractor shield is a defense that can only government contractors can invoke. The shield allows contractors to share the government’s immunity from tort liability claims on public policy grounds.
Government Contractor Defense
The U.S. government, particularly the Department of Defense, buys many products each year. But the government is typically immune from product liability claims under sovereign immunity unless the government waives its immunity. In the Federal Tort Claims Act (FTCA), the government partially waived its immunity to allow lawsuits in specific situations. See 28 U.S.C. § 2671, et seq. (2010). Under the FTCA, the U.S. government essentially acts as a self-insurer to cover liability for its employees’ negligent and wrongful acts within the scope of their employment.Under the government contractor defense, government contractors that supply products to employees share the government’s tort liability because public policy supports the U.S. being able to procure products at the lowest possible price. Holding contractors liable for defective products could increase prices. Case law affirms this defense. For example, in Boyle v. United Technologies, a federal court shielded a helicopter manufacturer from liability for a defective co-pilot’s emergency escape system that resulted in a service member’s death. See 487 U.S. 500 (1988). However, the U.S. Supreme Court didn’t fully agree with the district court’s reasoning for the contractor shield, creating a three-part test to determine whether a company may claim the government contractor shield:
- The U.S. approved of precise specifications for the product.
- The equipment conformed to these specifications.
- The supplier warned the U.S. about the dangers of using the equipment known only to the contractor.
3M and the Government Contractor Defense
Unfortunately for 3M, a federal judge already shot down their attempts to claim the government contractor defense in July 2020. While 3M has long claimed that they designed the earplugs in conjunction with the Department of Defense, U.S. District Court Judge M. Casey Rodgers ruled that 3M created the earplug design in question without Army input, stating: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.3M is appealing the decision to the U.S. Court of Appeals for the Sixth Circuit, and the U.S. Chamber of Commerce backed them up in a supportive brief to the court.
You Need Experienced Legal Guidance
If you have suffered hearing loss or damage or tinnitus after service in the military using the 3M earplugs, the experienced attorneys at the Madeksho Law Firm can help. Call us at 1-888-910-6376 or fill out our online form. Your consultation will be free, and you don’t pay any fees unless we recover compensation on your behalf. This lawsuit is against 3M – not against the military or the government.
