Products Liability Law Daily Government contractor defense not available to manufacturer of military earplugs
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Monday, July 27, 2020

Government contractor defense not available to manufacturer of military earplugs

By David Yucht, J.D.

It took about 15 years for a military contractor to release an internal report describing flaws in its military earplugs.

A federal judge in Florida determined that there was insufficient evidence presented by a manufacturer of earplugs used by the military to establish that it was entitled to the protection of the government contractor defense. Accordingly, the manufacturer’s motion for summary judgment was denied and the cross-motion of military personnel seeking to dismiss this affirmative defense was granted (In re: 3M Combat Arms Earplug Products Liability Litigation, July 24, 2020, Rodgers, M.).

The Combat Arms Earplug (CAEv2) was a dual-ended earplug designed to provide two different options for hearing protection, depending on which end was worn. The two ends were joined by a stem. The closed end was a traditional earplug designed to protect a wearer from steady-state noise. The open end housed a filter designed to provide protection from loud impulse noises, such as weapons fire, while still allowing the wearer to hear lower-level sounds, such as normal speech. The original design was successfully tested by the French Army. The U.S. Army expressed interest in the earplug. When given samples, the U.S. Army indicated that the earplugs were too long to be worn with the Army’s Kevlar helmet. The Program Manager for the Army’s Hearing Conservation Program somehow cut down the samples on his own. He did not instruct the manufacturer how to shorten the earplugs. The manufacturer independently redesigned the CAEv2 to make it shorter and sent samples to the Army Program Manager, who found them to be "acceptable."

After supplying the CAEv2 to the Army for four months, the manufacturer realized that it had not performed sound attenuation testing on the shorter version of the earplugs it had sent to the U.S. Army. Testing was thereafter conducted and led to an internal report that indicated that the length of the end of the CAEv2 was "too short for proper insertion" and that changing the fitting technique affected the results of the earplug’s tests. This report was never shared with the Army. It was not made available to anyone outside of the manufacturer until approximately 15 years later, when it was produced by 3M Co. (the manufacturer’s successor) in an unrelated lawsuit. Immediately following the release of this internal report, the CAEv2 was discontinued. Military personnel affected by these earplugs sued, asserting state law claims for, among other things, strict product liability based on design defect and failure-to-warn theories. Cross-motions for summary judgment were filed concerning the applicability of the government contractor defense. The manufacturer maintained it was immune from tort liability because the CAEv2 was designed according to military specifications. The military personnel moved for summary judgment, arguing that the government contractor defense did not apply here.

Government contractors—design defect. The court found that the government contractor defense did not shield the manufacturer from design defect liability. The government contractor defense shields federal contractors from tort liability for certain defects in products designed and developed for the federal government. It is related to the federal government’s sovereign immunity; i.e., a contractor working "under the authority and direction" of the federal government should receive the same protection that the government receives. The U.S. Supreme Court previously held (Boyle v. United Techs. Corp. (487 U.S. 500 (1988)) that liability for design defects in military equipment cannot be imposed on federal contractors under state law where :"(1) the government approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the equipment that were known to the contractor but not to the government."

Here, the court noted that when the manufacturer designed the CAEv2, it had no procurement contract with the Army. Nor did it have one when it shortened the earplugs. Even after the Army began using the CAEv2, there was no contract involving the design of the product. The earplug’s design came into existence without input from the Army, and the manufacturer’s subsequent actions shortening the CAEv2’s stem were not compelled by the terms of any government contract. Moreover, none of the Army’s purchase orders included a design component. Consequently, the manufacturer was never "performing [any] obligation under a procurement contract" with the Army "when it came to the CAEv2’s design. "There was no evidence that the Army ever created or received detailed design drawings showing the component parts of the CAEv2, or describing how those parts should be integrated to get her into a finished product. The Army did not participate "in discretionary design decisions."

Government contractors—failure to warn. The court also found that the government contractor defense did not shield the manufacturer from liability for failure to warn. In the federal Eleventh Circuit, the government contractor defense shields manufacturers from failure-to-warn claims only when a federal government contract prohibits a warning or includes warning requirements that significantly conflict with warnings mandated by state law. Here, the manufacturer did not explain how, if at all, the Army exercised its discretion as to warnings. There was no evidence that the Army prohibited the manufacturer from warning of alleged dangers inherent in its earplugs.

The case is No. 3:19md2885.

Attorneys: Bryan Frederick Aylstock (Aylstock Witkin Kreis ETC PLLC) for Lead Counsel for Plaintiffs. Christopher A. Seeger (Seeger Weiss LLP) for Co-Lead Counsel for Plaintiffs. Kimberly O. Branscome (Kirkland & Ellis LLP) and Allison K. Ozurovich (Dechert LLP) for 3M Co., 3M Occupational Safety LLC, Aearo Technologies LLC, Aearo Holding LLC and Aearo Intermediate LLC.

Companies: 3M Co.; 3M Occupational Safety LLC; Aearo Technologies LLC; Aearo Holding LLC; Aearo Intermediate LLC

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