The industrial conglomerate 3M started life as Minnesota Mining and Manufacturing in 1902. Since that time, the company has grown into one of the largest corporations in the world, currently ranked at #103 on the Fortune 500. Makers of Scotch tape and other widely used products, the company also has a long history of fighting and settling litigation alleging mass tort malfeasance. The list extends well beyond just dual-ended combat earplugs, the subject of an explosive, well-publicized ongoing multidistrict litigation effort.
This article is the last in a series of five that will examine 3M’s recent history as a defendant, its legacy of settlements and the strategies and tactics they use to fight mass tort claims against the company.
“Here, our history inspires your future,” begins 3M’s self-released company history.
Like a lot of big-company defendants subject to mass tort litigation, the industrial manufacturer has probably done more good than harm over the course of its 119 years in business. 3M started out by mining for a mineral that is a main ingredient in sandpaper. The company takes visitors through a detailed timeline of how it developed from there.
Scotch tape was born in 1926. The tape’s well-known dispenser came in 1939. Surface protectant Scotchgard came in 1956. Those yellow sticky notes on your desktop screen? 3M’s version hit the market, and popularized it, in 1980.
The timeline mentions the issuance of more than 100,000 patents. Additionally, it highlights 3m’s consistent placement on the Down Jones Sustainability Index.
However, mass tort professionals working hard in 2021 may notice a few things missing from this timeline. There’s no mention of:
- Per- and polyfluoroalkyl substances (PFAS), the family of “forever chemicals” used to create Scotchgard, aqueous film-forming foam and host of other industrial products
- Adhesives, caulks or cements, many of which contained asbestos prior to their discontinuance
- Any specific products developed for the U.S. military.
- Masks used to protect users from pollutants and viruses, even though the company is a prominent maker of N95 masks
This series of articles has discussed litigation that relates to each missing product. These are all reserved for more specific, aggressive, and positive coverage elsewhere on the 3M website.
Offering Stewardship Over Problems the Company Helped Cause
3M serves as a case study of how big companies use their public affairs engine to position themselves against mass tort litigation. Here’s how.
Do not take The Mass Tort Institute’s word for it. Use 3M’s own words instead. 3M headlines its website section on PFAS this way: “3M’s Commitment to PFAS Stewardship.”
This section dedicated to the chemical compounds lets visitors know that the company has invested “more than $200 million” in PFAS-remediation efforts, including testing, capping and containment development at its factories and groundwater treatment.
The State of Minnesota reached an $850 million settlement in 2018 with 3M to resolve PFAS litigation brought by the state against the company years earlier.
Elsewhere on the 3M site, we find its grouped sustainability pages, including a link to its 2021 Sustainability Report. The report discusses how the company is “[g]rowing our business…” by combatting damage to the environment.
“Together with our employees, customers, partners, governments, and communities, 3M is committed to a science-based, collaborative approach to solving shared global challenges and improving lives,” the company offers in the sustainability section’s introduction.
Casting Doubt on the Available Science
3M also links to a health science page in its PFAS section. There, it explains how “the weight of scientific evidence does not show” that PFAS compounds did not cause long-term harm to people at past levels, and still does not at present levels.
The company cites several studies—including ones from a trade association, a science advisory panel in Michigan (home of Flint) and the Australian government—that claim to find no actual causation. It effectively split hairs: 3M distinguishes the cited studies from ones discussing “possible health outcomes.” It also says that PFAS has been detected at “extremely” low levels and that its “mere presence” does not necessarily harm people.
Early in 2021, 3M competitor and frequent co-defendant in PFAS cases DuPont established a $4 billion fund along with two per companies to help pay for future PFAS settlements.
Attacks on science at the heart of mass tort litigation have worked in the recent past for 3M, though. It defeated multidistrict litigation by summary judgment in 2019 related to one of its surgical warming blankets, the Bair Hugger. It convinced the judge in that MDL to throw out expert witness testimony for failure to use methods that demonstrated causation.
3M Promoting Products and Services that Implicitly Acknowledge Past Defect Claims
“Welcome to the 3M Center for Hearing Conservation.” Yes, that’s a headline published on 3M’s website. Despite battling the largest MDL in history, a plaintiff population comprised of military veterans claiming hearing loss related to a 3M combat earplug product, 3M is teaching people how to prevent hearing loss. The training page hooks back to a larger website section on hearing protection products and services, which is now the top organic search result on Google for “3M military.”
You will not just encounter this kind of tension with dual-ended combat earplugs. It comes up in the context of toxic airborne dust particles, too.
For example, a blog article from April 2021 discusses how to ensure masks and respirators fit a user’s face properly. Causes of action citing improper fit and failure are worn are found in asbestos-related products liability lawsuits claiming mask defects.
The article invites readers to link to a technical data sheet describing the Aura 9300+ series of respirators, which is available to customers in England and Ireland. Speaking of which…
Pointing to Product Sheets Based on Standards Set Outside of the U.S.
See the Aura 9300+ datasheet linked above.
Deflection of Responsibility
The PFAS Stewardship section includes four links to pages describing the benefits of PFAS-based products in specific industries. describe some PFAS applications. Three of these pages come up as “Not Found.” The one that does load ends with a section it dubs “Science-based PFAS management,” which features the following excerpt:
Because … broad definitions of PFAS encompass a range of materials, organizations including the Organization for Economic Co-operation and Development (OECD) have established distinct classes, such as high molecular weight fluoropolymers, for hazard assessments and regulatory purposes. Recognizing such distinct characteristics is vital to ensure sound management of all regulated materials, including PFAS.
Furthermore, because of important safety, health, and/or environmental considerations, it is important that the benefits of PFAS solutions are thoughtfully considered in crafting regulations that could impact their availability.
One reasonable interpretation of that statement: It’s on the regulators to get this right, not on us, because we’re making a public good here.
The deflection grows more pronounced when it involves the military.
“Noise-induced hearing loss and tinnitus have been widely acknowledged for decades as common injury risks in combat and off-duty situations. According to the Department of Veterans Affairs, today these conditions are by far the most prevalent service-connected injuries,” reads the introduction to 3M’s site that pushes back on the combat earplugs MDL (while you’ll find 3mearplugfacts.com as a paid search result on Google, you won’t find any related results through 3M’s own search engine).
The Earplug Facts site explains that the military “requested” design specifications for the earplugs and that “testing” by the military, predecessor company Aearo and 3M “confirmed” that the earplugs limited noise exposure at “every” level.
The MDL springs directly from a $9.1 million settlement the company made with the federal government to settle a False Claims Act. The whistleblower suit alleged it and Aearo knowingly hid findings of a design defect before striking a supplier deal with the military in 2003. On the website, though, 3M states it settled the suit to avoid the “time and expense” of litigation.
The judge in the earplugs MDL has denied a motion by the 3M to use the “government contractor defense,” which would shield it from liability and shift the blame for a failure to correct any defects into the military. U.S. District Court Judge M. Casey Rodgers ruled there was no actual contract in place to trigger the contract-inspired defense.
Despite the ruling, 3M has won one MDL bellwether trial so far, and the plaintiff was found 38 percent liable in another.
A Final Thought
Public affairs and safety mitigation efforts have equaled smart business for 3M over the decades. Business lines to counter fallout from earlier business lines is common practice that has been recognized as effective by business groups, analysts, and watchdog organizations.
Yet they also represent a defense strategy in the name of corporate citizenship. Mass tort law firms selecting 3M-related torts need to know it is coming their way, and that it has proven effective in the past.
Written by Christopher O’Connor
About the Author
Christopher O’Connor, Esq., is a licensed attorney (N.Y.) and a longtime journalist. His areas of focus include mass tort practice, employment law, enterprise technology, mental and spiritual health, and law practice management. He also possesses CIPP/US certification as a privacy professional.
O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting and cooking for his wife.