A Florida federal judge ruled that 3M cannot avoid allegations that it sold defective earplugs by arguing the government contract preempts those claims, saying the company has failed to show the military exercised any real control over the design of the plugs.

According to Friday’s order, while the military certainly wanted and bought the Combat Arms earplugs or CAEv2, they had already been largely designed and the military made no demands or specifications about the design in its contract.

“Indeed it is not too much to say that the Army wanted Aearo’s earplug, and at one point even went so far as to make clear that it would not commit to purchasing the earplug unless it could be stored inside a military carrying case and worn underneath a Kevlar helmet,” the judge wrote, “But, the design already existed – it came into existence without any input from the Army and Aearo’s subsequent actions changing the length of the CAEv2’s stem were not compelled by the terms of any government contract.”

In the MDL, more than 140,000, military members say the earplugs were defectively designed and made, causing them to develop tinnitus and suffer hearing loss.

3M’s contract with the government does not explicitly dictate the earplugs’ design, the judge wrote, nor is there evidence of a “back and forth” between 3M and the government that resulted in the design specifications.

In a statement, lead counsel for the plaintiffs in the case said they are pleased that 3M’s government contract defense was rejected

“3M’s own internal e-mails and testimony show how the company was aware its earplugs were defective, failed to inform the military, and then joked about how they profited from this deception,” the attorneys said. “We look forward to trial so that veterans can finally hold 3M accountable for the permanent, life-altering hearing damaged they suffered due to the company’s negligence and callous disregard for our troops’ safety.”

The judge did allow 3M access to the Veterans Benefits Administration disability ratings and general description of diagnoses for two of the plaintiffs as that information could be relevant to their claims for loss of future earning capacity.

 

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