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Government Preemption Doesn’t Apply to 3M Earplugs

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Along with nearly 2 billion respirators 3M is making, it continues to make earplugs (different design) for the military, and 3M cannot argue in Florida Federal Court that its case should be preempted.

FloridaIn a Florida federal court last week, a group of military plaintiffs said that 3M can't argue that a government contract preemption gives it clearance to exit its 3M earplug lawsuit, which alleges the Combat Arms Earplug v2 made for the military is defective, because the earplugs were also advertised for civilian use.

3M’s 'government made me do it' Defense

3M’s argument is that the case should be preempted because it made the Combat Arms Earplug v2 for the military only and discussed specifications with the government, according to Law360. As well, 3M said it communicated the earplugs' issues to the military and the military distributed instructions to its audiologists on how to deal with the problem.

But the plaintiffs disagreed. “3M's 'government made me do it' defense fails on numerous grounds and should be denied by the court," they told Law360. "The government never approved specifications for the Combat Arms Earplug v2, and 3M has already paid $9.1 million to the federal government to resolve allegations that it concealed the product's defects and dangers from the military. "

More than 140,000 plaintiffs in the MDL (which was consolidated last April in Florida federal court from eight lawsuits from California, Minnesota, Oklahoma and Texas, along with 635 related actions in more than 30 federal courts) claim the earplugs were also sold and marketed for civilian use. Plaintiffs argue that 3M did not represent a “uniquely federal interest” and that the military did not study and evaluate the design or approve precise specifications.

In its defense, 3M stated that it brought up the alleged defect with the government, but it approved the design anyway. The American multinational conglomerate further stated that it informed the military about earplugs’ issues and distributed instructions to its audiologists on how to deal with the problem.

If this were so, the government caused its own military to develop tinnitus and suffer hearing loss. The case is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, in the U.S. District Court for the Northern District of Florida.

The $9.1 million settlement

Since the July 2018 settlement when 3M agreed to pay $9.1 million to settle whistleblower claims that the company and its predecessor Aearo Technologies Inc. knew the earplugs were defective when they sold them to the military, more than 7,400 personal injury earplug lawsuits have been brought against 3M, according to federal court data compiled by Syracuse University researchers. Some of those cases were consolidated in the Florida MDL (above), and attorneys are still receiving complaints from veterans nationwide. As part of the settlement, 3M did not admit any liability.

Defending and Denying 3M Earplug Design

Fanna Haile-Selassie, a spokesperson for 3M, said the company continues to sell an updated version of its combat earplugs to the U.S. military, reported ABC News at the end of March 2020. Haile-Selassie said the company worked closely with the military on the earplug design. While 3M earplug lawsuits claim the company failed to disclose a flawed design and testing method and accuses the company of violating the False Claims Act by making and presenting false statements and conspiring to defraud the government, 3M continues to defend its product.

“We deny this product was defectively designed and caused injuries, and we will vigorously defend ourselves against such allegations,” Haile-Selassie told ABC News in a statement.

As for the nearly $5 million contract for 3M respirators, the office of Congresswoman Betty McCollum (D-MN), who represents the district where 3M is based, said they have “every confidence” in the company, despite the prior [defective earplug] allegations.


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