In re 3M Combat Arms Earplug Prods. Liab. Litig.

Decision Date24 July 2020
Docket NumberCase No. 3:19md2885
CourtU.S. District Court — Northern District of Florida


This is a multidistrict products liability action against 3M Company and its predecessor, Aearo Technologies, LLC, for damages related to Plaintiffs’ use of the Combat Arms Earplug ("CAEv2").1 Defendants have invoked the government contractor defense and both sides have moved for summary judgment on the applicability of the defense to some or all of the claims in this litigation. After 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. Accordingly, Plaintiffsmotion for summary judgment is granted and Defendants’ motion is denied.

I. Background

The CAEv2 was a dual-ended, triple-flanged earplug designed to provide two different options for hearing protection, depending on which end was worn. Each end of the CAEv2 was constructed from a single-ended, triple-flanged earplug called the Ultrafit, which was independently designed and patented by Defendants in 1989.2 The two ends were joined by a stem. The olive-colored (or "closed") end was a traditional, linear earplug designed to protect a wearer from steady-state noise. The yellow (or "open") end housed a non-linear 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 non-linear technology was invented and patented by the French-German Research Institute of Saint-Louis ("ISL") in 2000. Defendants sold the CAEv2 and/or its feature-identical commercial equivalent from July 1999 until the product was discontinued in 2015.

The Department of Defense ("DoD") has long prioritized protecting its personnel from hearing loss resulting from occupational noise exposure. To that end, the DoD established a comprehensive Hearing Conservation Program administered, in part, by the United States Army Center for Health Promotion and Preventive Medicine ("CHPPM"). During the time period relevant to this litigation, the Hearing Conservation Program was managed by Dr. Doug Ohlin, who was then a civilian employee of CHPPM.3 Various Army research facilities—including the United States Army Laboratory and the United States Army Aeromedical Research Laboratory—assisted with the hearing conservation efforts.

The record reflects that the Army was interested in non-linear hearing protection since at least the mid-1990s. During that period, Army audiologists learned that ISL had developed a non-linear technology designed to "dramatic[ally] improve[ ]" the sound attenuation performance of the currently available non-linear hearing protection devices. See Garinther Trip Report, D1, ECF No. 1071-2 at 3. In 1995, the Army tested ISL's non-linear filter against several other non-linear hearing protectors using twenty-seven active duty military subjects exposed to simulated battlefield noise conditions.4 For these tests, ISL's non-linear filter was housed in a single-sided, triple-flanged Ultrafit earplug with a shortened stem. The study showed that the modified-Ultrafit earplug "performed better" than the other devices tested and concluded that the modified-Ultrafit earplug "may be a satisfactory solution" to the Army's non-linear hearing protection needs, although "not enough subjects were exposed to provide a definitive answer." See Blast Overpressure Studies Report dated May 1998, D10, ECF No. 1071-11 at 145. Aearo, itself, had no involvement in this study.

In 1996, Georges Garinther, an Army researcher, "participated" in a series of non-linear earplug tests conducted by ISL and the French Army.5 For these tests, three different stand-alone earplugs were fitted with ISL's non-linear filter, one of which was the single-ended, triple-flanged Ultrafit earplug designed by Aearo.6 Preliminary testing results showed that all three earplugs incorporating ISL's non-linear technology worked as intended; that is, they protected hearing "as effectively as" the standard foam earplugs typically worn by French soldiers, while also enabling the test subjects to hear commands "much better" than the standard earplug. See Garinther Trip Report on Visit to ISL (5 to 23 December 1996) dated March 19, 1997, D1, ECF No. 1071-2 at 5. Garinther shared the preliminary results with Dr. Ohlin and another Army official, Felix Sachs, and sent them samples of three non-linear earplugs used in the testing. Aearo was not present for, or involved in, this study.

In the late 1990s, Aearo makes its first appearance in this story. On June 9, 1997, ISL wrote a letter to Dr. Elliott Berger, a Division Scientist with Aearo at the time, advising him of the "very good" results of recent "field experiments"—again, with the French Army—using the single-ended and triple-flanged Ultrafit, modified to incorporate ISL's non-linear filter.7 See D1, ECF No. 1088-2 at 2. At that time, ISL requested "unofficial" pricing information for Ultrafit earplugs containing ISL filters and invited Aearo to attend "final testing" of the device later that same year.8 See id. at 2-3. Shortly thereafter, Aearo sent 200 single-ended Ultrafit prototypes to ISL for testing. From the testing, ISL concluded that the prototype's stem was too long, which reduced its noise attenuation capabilities. See id. at 2-3. As a solution, ISL proposed a final prototype with a shorter stem and suggested ways in which Aearo could shorten the stem. See id. at 2-3. There is no evidence that the U.S. Army was a part of these discussions between ISL and Aearo.

In November 1997, Garinther again "participated" in earplug tests conducted by ISL and the French Army.9 See Garinther Report on Visit to ISL (21 to 29 November 1997) dated March 2, 1998, D1, ECF No. 1071-2 at 9-12. Although it is unclear from Garinther's report which earplug housing the ISL filter was tested, given ISL's recent collaboration with Aearo on prototypes, it is reasonable to infer that it was the single-ended UltraFit. See also id. at 11 (noting that the French Army was going to issue a request for proposal for 300,000 non-linear earplugs and that it was "probable" that Aearo would manufacture it as the manufacturer of the Ultrafit). Once again, French soldiers were used as test subjects. See id. at 9-11. Preliminary analysis of the testing data showed that no soldiers had unacceptable hearing loss within 24 hours of using the nonlinear earplug in firing exercises. See id. at 10-11. Based on the test results, Garinther concluded that the non-linear, single-ended Ultrafit earplug provided "acceptable hearing protection." See id. at 11. He further recommended that the United States Army "consider[ ]" using the non-linear Ultrafit earplug "since its use by weapon crews would reduce hearing loss among soldiers while permitting them to hear voice commands and combat related sounds." See id. at 12. Aearo was not present for, or involved in, this testing.

In light of the recent test results, the French Army issued a request for proposal for 300,000 non-linear, single-ended UltraFit earplugs. See id. at 11. The French Army also needed traditional earplugs, which, again, would provide protection against steady-state noise. ISL appears to have proposed three configurations to fulfill the French Army's dual hearing protection needs: (1) two separate earplugs, one non-linear and one traditional earplug; (2) a non-linear earplug with two tiny holes that could be closed for attenuation of constant noise; and (3) a dual-ended or "reversible" earplug with a non-linear end and a traditional end. See id.

On December 16, 1997, Aearo and officials from the United States Army met and discussed a non-linear earplug for the first time. That day, the Army—more specifically, Garinther, Dr. Ohlin, and two other Army officials—hosted representatives from ISL and Aearo, including Dr. Elliot Berger, at Aberdeen Proving Ground, a U.S. Army facility located in Aberdeen, Maryland (hereinafter "Aberdeen Meeting"). See Aearo Aberdeen Meeting Notes, D2, ECF No. 1071-3 at 3.10 At the Aberdeen Meeting, the attendees discussed ISL's recent field tests of the non-linear, single-ended Ultrafit earplug with the ISL filter, and ISL noted that the French Army preferred the UltraFit as the "best vehicle" for ISL's non-linear filter. See id. at 3-4. The attendees also discussed ISL's three proposed configuration options: (1) a single openable/closeable non-linear earplug; (2) two separate earplugs, one non-linear and one traditional; and (3) a dual-ended or "reversible" earplug with a non-linear end and a traditional end. See id. at 4. According to Dr. Berger's meeting notes, Dr. Ohlin said the United States Army would only be "interested in [the] 2-ended plug" because it was "easier to dispense" and "less-labor intensive" to use. See id. The notes reflect that ISL had already applied for a patent on a two-ended earplug with ISL's non-linear filter on one end.11 See id. at 4.

The record contains no evidence of further communication between Aearo and the Army following the Aberdeen Meeting until March 1998. Aearo independently created design drawings for the first version of the CAEv2 and assembled the parts—the Ultrafit ends, the ISL filter, and the stem—"in a way [it] thought could work for the military." See Berger Deposition dated December 12, 2019, D56, ECF No. 1072-57 at 21. The company then manufactured 25 production samples, which it sent to Dr. Ohlin.12 There is no evidence that Dr. Ohlin, or any other Army official, requested the production samples. Significantly, none of the detailed design descriptions or drawings for the CAE were discussed with or sent to the Army.

During the next year, there were no...

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    • U.S. District Court — Southern District of Alabama
    • July 24, 2020
  • In re 3M Combat Arms Earplug Prods. Liab. Litig.
    • United States
    • U.S. District Court — Northern District of Florida
    • March 24, 2021
    ...for any aspect of the design of the CAEv2, or for the content of instructions or warnings. See In re 3M Prods. Liab. Litig., 474 F. Supp. 3d 1231, 1251-52 (N.D. Fla. 2020) (design); see id. at 1257-59 (warnings). They may not argue that either the CAEv2's design or its label were the result......

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