3M on appeal says first trial in massive earplug litigation went 'off the rails'

3M Co on Friday urged a U.S. appeals court to bring to an end lawsuits by service members who say combat earplugs it sold were defective and caused their hearing damage, because the military was responsible for the product's design.

So far, plaintiffs have won more than $160 million combined in six bellwether trials, including a $110 million award in January to two U.S. Army veterans. Juries sided with 3M in five other trials.

3M, in a brief filed in its appeal of the company's first trial loss in the massive litigation, told the 11th U.S. Circuit Court of Appeals that the case "careened off the rails" long before a jury awarded three veterans $7.1 million last year.

That verdict was awarded to Luke Estes, Lewis Keefer and Stephen Hacker in the first of 11 trials so far in what is the largest federal multidistrict litigation in U.S. history with more than 280,000 cases pending.

The company said the case and others like it should have been tossed pre-trial but U.S. District Judge M. Casey Rodgers in Pensacola, Florida, wrongly rejected its argument that any defect was based on a design mandated by the U.S. Army.

As a result, 3M said that under a legal doctrine known as the government-contractor defense, 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.

"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 lawyers led by Paul Clement of Kirkland & Ellis wrote.

Bryan Aylstock, a lawyer for the plaintiffs at Aylstock, Witkin, Kreis, & Overholtz, in a statement called the appeal "yet another attempt by 3M to blame the military for its misconduct," and urged the 11th Circuit to reject its arguments.

Aearo Technologies LLC, which 3M bought in 2008, developed the Combat Arms Earplug Version 2, or CAEv2. Plaintiffs allege the company hid design flaws, fudged test results and failed to provide instructions for the proper use of the earplugs.

3M argued the military approved the precise design for the company to follow for the CAEv2 and "introduced and required the very feature plaintiffs claim rendered the product defective," the shortening of the earplug.

3M said when it learned doing so might cause fitting issues, it provided the Army with a technique to address the problem. But 3M said the military told it not to include any instructions as it wanted to instruct soldiers itself how to use them.

The case is Keefer v. 3M Company, et al, 11th U.S. Circuit Court of Appeals, No. 21-13131.

For the plaintiffs: Bryan Aylstock of Aylstock, Witkin, Kreis, & Overholtz, Shelley Hutson of Clark, Love & Hutson and Chris Seeger of Seeger Weiss

For 3M: Paul Clement of Kirkland & Ellis

(This story has been updated to include a comment from the plaintiffs' lawyer.)

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