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3M can't escape Earplug lawsuit under Gov't Contractor Defense


U.S. District judge for the Northern district of Florida, Judge Rodgers, ruled that 3M and Aearo cannot avoid liability under the government contractor defense, clearing the way for the litigation to move forward. Judge Rodgers held that “[a]fter thorough consideration and for the following reasons, the Court finds the record evidence insufficient, as a matter of law, to establish the elements of the government contractor defense as to any of Plaintiffs’ claims.” Judge Rodgers ruled, “[a]ccordingly, Plaintiffs’ motion for summary judgment is granted and Defendants’ motion is denied.”


The federal government contractor defense extends the federal government’s immunity from suits by government employees injured by defective equipment to contractors who provide equipment to the government under government-provided specifications. The United States Supreme Court established this defense in Boyle v. United Technologies Corp. (1988) 487 US 500, 101 L Ed 2d 442, 108 S Ct 2510.


The Supreme Court in Boyle set forth a now well-known three-pronged test a company must pass to prevail on the government contractor defense. Boyle, 487 U.S. 511-512.


Specifically, the defendant contractor must prove that:


1. The United States approved reasonably precise specifications


2. The equipment conformed to those specifications


3. The contractor warned the United States about any dangers in the use of the equipment that were known to the company but not to the government.


See id. at 512. The first two requirements ensure that the government contractor defense is available only when the imposition of state tort liability would frustrate the “discretionary function” exercised when government officials specify designs for military equipment. See id. The third requirement incentivizes contractors to disclose known design defects so that the government may make informed procurement decisions. Id. at 512-13. Together, the three requirements limit the scope of the government contractor defense to those circumstances “where the government has actually participated in discretionary design decisions, either by designing a product itself or approving specifications prepared by the contractor.” Harduvel, 878 F.2d at 1316.


3M argued such claims were pre-empted by federal law, since the Combat Arms earplugs were designed to military specifications. However, plaintiffs argued that the manufacturer could not meet the bar for defense contractor immunity, and Judge Rodgers agreed. In her ruling, Judge Rodgers noted that there was no evidence the military actively participated in discretionary design decisions for the earplugs, negating the argument they were designed to any specific military standards. Because Defendants have failed to produce evidence sufficient to satisfy the test, the government contractor defense is unavailable to them as a matter of law with respect to the failure-to-warn claims in this litigation.


As part of the management of the growing litigation, Judge Rodgers established an early bellwether trial program. These bellwethers are a small group of representative cases, which selected for additional discovery and preparation for early trial dates set to begin in April 2021.


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