3M earplug suits have all the hallmarks of U.S. tort law – Twin Cities

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Liability lawsuits against 3M Co. shine a light on US tort law, shedding light on features of case law and economics. Our law differs significantly from the rest of the world and thus poses illuminating comparisons. However, both the law and economics are complicated, so they need to be reviewed over two weeks.

Start with these cases themselves. A company called Aearo Technologies has developed a high-tech double-ended earplug. The one-way insertion blocked out loud and damaging noises from muzzle blasts of weapons or explosives. The other way attenuates these noises but allows soldiers to hear lower pitched sounds, including speech. In 2003, Aearo began selling these “Combat Arms Earplug version 2” or “CAEv2” to the US armed forces, primarily the military.

3M purchased Aearo in 2008 and, until 2015, continued to sell to the Department of Defense hundreds of thousands of CAEv2 plugs used in training and by all serving in Iraq, Afghanistan or other combat zones. . 3M continues to produce and DOD continues to purchase several thousand of an improved version, “CAEv4”.

Ed Lotteman

However, in 2016 Moldex-Metric, a competing manufacturer of hearing protection, filed a complaint against 3M claiming that the CAEv2 was faulty and had been deformed. This led to a settlement with the United States Department of Justice in June 2018, in which 3M paid $ 9.1 million to settle a lawsuit under the whistleblower misrepresentation law that it claimed. knowingly sold defective earplugs. 3M says it settled only to avoid costly litigation, that there were no faults in the sockets and that they fully met all contract specifications.

Nonetheless, many people have now joined groups suing 3M for hearing damage caused by a defective product. Most of them are grouped together in a Florida federal district court. Some have been tried with mixed results. The majority voted against 3M and ordered multi-million dollar damages.

Now a little right. The idea that if one person injures another, unintentionally as well as intentionally, such damage must be made good, is fundamental fairness. It dates back to Old Testament scriptures as well as the 4000-year-old Code of Hammurabi.

The legal systems of every country in the world, whether based on common jurisprudence as in most English-speaking countries or on codified law of Roman tradition, have procedures for determining whether harm has occurred and how it should be. compensated. These are “misdemeanors”, an obstacle for any novice law student.

However, although the basics of determination and compensation cross all countries, US law exhibits unusual and highly controversial features.

The first concerns contingency fees for lawyers representing plaintiffs. Lawyers cannot charge any fees for accepting cases. None is due unless the case is won. Then they get a percentage, often very substantial, of the damages awarded. If they are lost, they get nothing.

Contingency fees are illegal in Europe and most other countries. However, some allow “contingent” damages in which an additional amount, based on accrued costs rather than earned damages, can be added to the hourly charge if successful.

The second feature of US law is the “punitive damages”. “Punitive” means “to punish”. In United States tort law, these are amounts assessed that exceed the “actual damages” judged to be suffered by the plaintiff. Punitive damages can only be awarded in cases of overt dishonesty, bad faith, prejudicial intent or continued action even after the harm has become apparent. Such bad faith does not need to reach the level where criminal laws have been violated to an extent that could be proven in a criminal trial.

The third distinctive aspect of US tort law is the “class-action suit”. A mid-20th century development, it allows a group or “class” of people who have suffered prejudice to sue as a group represented by a group of lawyers examining a common set of witnesses and evidence in a trial. . If damages are awarded, they are distributed among all the members of the group according to a certain formula.

Strictly speaking, “class action” refers to a case in which a court decides that all injured parties will be class members. The train leaves the station. Once the case is settled, additional lawsuits filed, perhaps by recalcitrant ones, are not accepted.

However, without seeking to form a “class,” people can sue in groups which can obtain damages. But such decisions do not impose settlements on any other group of pending plaintiffs.

So far, four CAEv2 cases have been decided. 3M lost three, but damages varied in both the actual and punitive categories. Many other files are in preparation. Law firms specializing in these collective or collective liability cases are feverishly recruiting veterans. Search for “3M Earplug Trial” to sample the hubbub for yourself.

In recent years, these first cases with subsets of plaintiffs from a much larger group can be seen as “landmark” cases that will guide future litigation, especially in terms of damage amounts. A “bellwether” is a castrated male sheep with a bell around its neck which leads a much larger herd to forage and water.

These early cases covered only a small fraction of the hundreds of thousands of earplug users. Yet how the trials have unfolded on both sides, the findings of the juries and the decisions of the judges will influence all future litigation. This can lead to a negotiated out-of-court settlement.

Understand that these cases are highly unusual as military training and warfare have caused hearing loss for centuries, especially since the invention of gunpowder. Aircraft engines, piston and turbine, accentuated the dangers. Hearing damage is the most common injury related to service in the United States Army. As someone with 32 years of active and reserve service in the United States Army, comprising both infantry and artillery units, and with a good friend who flew in the 1950s, B- bombers 36 to 10 “six turning and four burning” engines, I am personally well informed!

It has long been recognized that the armed forces are responsible for damage to health caused by the service, regardless of the defects of a particular device purchased by the Department of Defense. Individual vets have not sued the manufacturers. People injured by defective earplugs will remain eligible for the same hearing aids and services, albeit often imperfect, of the Veterans Administration. Most deaf veterans have no one to sue.

All of this is in the background. How this intersects with the economy is to be left until next week.

St. Paul’s economist and writer Edward Lotterman can be contacted at stpaul@edlotterman.com.

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