3M, the multinational conglomerate involved in the largest mass tort in U.S. history, has filed a brief over a jury’s decision that awarded three U.S. Army veterans $7.1 million in damages for their hearing loss, allegedly caused by defective 3M Combat Arms military Earplugs (CAEv2), Reuters reported

In 3M’s brief of appeal, filed Feb. 25, the company urged the appeals court to bring an end to CAEv2 litigation, arguing that the claims made by Estes, et. al. should have been dismissed in pre-trial motions because the U.S. military mandated the design of the earplugs. 

The consolidated verdict for Luke Estes, Lewis Keefer and Stephen Hacker was the first of 11 bellwether trials. 3M military earplug lawsuits have become the nation’s largest multidistrict litigation, involving hearing damage claims in over 280,000 pending cases, most of which involve U.S. veterans. 

3M acquired CAEv2 military earplugs when it purchased the hearing-protection device’s manufacturer, Aearo Technologies, in 2008. Plaintiffs in the multidistrict litigation (MDL) against the conglomerate accuse 3M of designing a defective product, hiding design flaws, altering tests and failing to provide instructions on the proper use of the earplugs.  

In July 2020, 3M presented this same argument before the U.S. district judge in Pensacola, FL who is presiding over the MDL, Judge Casey Rogers, who ultimately rejected 3M’s government-contractor defense doctrine. 

3M maintains that Judge Rogers wrongly rejected its argument “Because the plaintiffs' state-law product defect and failure-to-warn claims were preempted due to 3M's role as a federal contractor following government mandates.”

Attorneys for 3M wrote in the brief of appeal that "This case falls squarely within the heartland of that defense, and that defense alone should bring this massive and misdirected litigation to an end." 

3M claims that the U.S. military approved the design of the earplugs. The company also claims that when it learned of fitting problems with CAEv2, it alerted the U.S. Army and provided the Army with a solution to address the problem. But 3M maintains that rather than include instructions with each pair of earplugs, the military told 3M that it preferred to instruct soldiers how to use them.

A plaintiffs’ attorney responded to the brief by urging the appeals court to reject 3M’s argument, stating that it was "yet another attempt by 3M to blame the military for its misconduct.”