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3M Not Entitled to Governmental Immunity in Combat Earplugs Cases

August 17, 2020
Colson Hicks Eidson

Combat Earplugs manufactured by 3M Company between the years 2003 and 2015 have been found to be defective and have caused severe hearing damage to military service members and contractors. In 2018, the US Justice Department announced that 3M Company agreed to pay $9.1 million to resolve allegations that the company knowingly supplied defective earplugs to be used by military service members in combat zones and in training. It was alleged that the company knew their earplugs had a design defect that caused them to loosen in the wearer’s ear but failed to warn the US military or service members of the defect.

A whistleblower in the case came forward about these allegations under the False Claims Act. However, the settlement did not include any payments made to those harmed due to the defective earplugs. Those harmed by these faulty devices have been left to file lawsuits against 3M to recover compensation.

3M has attempted to claim they were operating under the duty of the federal government and thereby eligible for governmental immunity from the civil claims filed against it. However, US District Judge Casey Rodgers of the Northern District of Florida has refused to toss out thousands of claims based on this argument. Judge Rodgers said in her ruling that “Defendants have identified no authority — none — in which a defendant having no design obligation to the federal government nonetheless enjoyed the benefit of the government’s sovereign immunity pursuant to Boyle.” Here, she was referring to the US Supreme Court’s 1988 decision in Boyle v. United Technologies Corp.

Judge Rodgers agreed that shielding a private company from civil liability, the same afforded to the federal government in similar cases, would not be appropriate. The cases will proceed.

More than 800,000 former servicemembers are now suffering from hearing damage according to lawsuits filed against 3M. The first of the bellwether trials for these cases is set to begin on April 5, 2021.