3M corporation, long a staple of American industry, has recently been rocked by a string of lawsuits related to defective earplugs it sold to the U.S. military in what has been termed the largest multi-district litigation in U.S. history.1 As of the writing of this article, plaintiffs (all former U.S. military veterans have been awarded a staggering combined amount of $160 million in six bellwether trials.2 The entire controversy stems from 3M’s 2008 acquisition of Aearo Technologies, the company which manufactured the earplugs.3 The reason Aearo’s design of earplugs appealed to the U.S. military resulted from its innovative design: the dual-ended design allowed one end to block out as much sound as possible while the other end protected a user’s ears from extremely loud noises such as gunfire or explosions.4 This design was advantageous because it allowed troops to communicate with fellow soldiers nearby during loud situations.5
In a recent filing, 3M sought to appeal its first trial loss in the massive multi-district litigation. In its appeal before the Eleventh Circuit, the company’s lawyers sought to invoke a legal doctrine known as the government-contractor defense.6 Essentially, the company argued that this federal doctrine preempted the plaintiff’s state law claims of product defect and failure to warn.7 The defense has its roots in the concept of sovereign immunity.8 The essential elements for this defense were resolved in the case of Boyle v. United Technologies Corp. pursuant to a split among the circuits.9 Based upon the rule articulated in Boyle, 3M would have to prove the following elements in order to avoid liability: (1) the United States approved reasonably precise specifications [of the product’s design]; (2) the equipment conformed to those specifications; and (3) the supplier (3M) warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. 10 Invocation of this defense may signal a strategic shift in how 3M handles the flurry of litigation that has arisen from this tragic issue. Either way, this recent filing could set the stage for the mountain of other cases the embattled conglomerate is confronted with.
1 Brooke Sutherland, 3M Adds Another Legal Worry to Its Pile of Headaches, BLOOMBERG, Feb. 14, 2022, https://www.bloomberg.com/opinion/articles/2022-02-14/3m-adds-an-earplug-legal-worry-to-its-pile-of-headaches. 2 Nate Raymond, 3M on appeal says first trial in massive earplug litigation went ‘off the rails,’ REUTERS, Feb. 25, 2022, https://www.reuters.com/legal/litigation/3m-appeal-says-first-trial-massive-earplug-litigation-went-off-rails- 2022-02-25/.
3 Supra note 1.
8 Steven Brian Loy, NOTE: The Government Contractor Defense: Is It a Weapon Only for the Military?, 83 Ky. L.J. 505, 506.