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Defendants’ Preemption Argument Fails in 3M Lawsuits

  • July 28, 2020
  • KBA Attorneys
  • No Comments

Judge in 3M lawsuit MDL rules against Defendants

Plaintiffs allege that the 3M Company sold the U.S. government defective combat earplugs for troops on the front lines. The Minnesota-based company settled with the US military regarding claims related to the earplugs. Individual servicemen and women filed lawsuits after losing their hearing or suffering from tinnitus. Tinnitus can cause annoying sounds in quiet surroundings that only the sufferer can hear which include:

  • Ringing
  • Hissing
  • Clicking
  • Buzzing
  • Roaring
  • Whistling

Thousands of cases are pending in federal court.  The 3M Combat Arms Earplug Products Liability Litigation, MDL No. 2885, is before the Honorable M. Casey Rodgers in Florida.

Litigation is moving ahead 

This is a product liability case. As KBA wrote previously, the 3M case has been moving along. The case has moved apace since the MDL was created in April of last year.

There is a process in place to deal with experts and initial trials. Despite COVID-19, the Court is keeping the case on track to have trials.

An initial “science day,” a day when lawyers summarize the interrelationship between legal and science issues in the case, occurred in August of last year. This is a continuing trend in mass tort litigation. The first day addressed each side’s theory of the case or defense in terms of the alleged product defect.. There will be second science day regarding on medications and illicit substances that are associated with tinnitus and/or hearing loss as Defendants try to blame things other than their product.

Plaintiffs’ victory today – Defendants lose  

Today, 3M lost its immunity defense. That is a major loss for 3M. The “judge rejected a key defense plan by the company in thousands of lawsuits related to earplugs used by the U.S. military. 3M . . . expected to use the ‘government contractor defense,’ which provides a legal shield for military contractors.”

The Court ruled that “The [earplug’s] design already existed — it came into existence without any input from the Army . . . .” Additionally, “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.”

KBA is litigating 3M cases with its partners

This is a great day for Plaintiffs. If they lost, the litigation could have ended. Now more veterans and service members can bring claims. We will continue working with our partner co-counsel firms to bring justice to those fighting for our country.