Michael A. Sacchet

On June 15, 2020, Michael A. Sacchet of Ciresi Conlin in Minneapolis spent a full day arguing before U.S. District Judge M. Casey Rodgers that the Army had never told Aearo Technologies how to build the Combat Arms earplug or what to tell the soldiers who wore it. Under Boyle v. United Technologies Corp., state law cannot impose liability for design defects in military equipment on a federal contractor 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.” 3M and Aearo, the company that designed the earplug and that 3M bought in 2008, invoked that rule against the service members and veterans who alleged that the CAEv2 caused their hearing loss and tinnitus. Rodgers decided the question once for the whole multidistrict litigation in Pensacola, on cross-motions for summary judgment. Summary judgment for 3M would have ended the design and warning claims in more than 200,000 cases.

3M argued that the Army had shaped the earplug. The CAEv2, it maintained, “was designed according to the military’s specifications.” When Aearo handed the Army production samples, it contended, the Army received something “far better” than design drawings, and Aearo had left instructions out of the earplug boxes because it was following the military’s “directive not to provide instructions.” Sacchet answered for every plaintiff in the litigation. Rodgers had appointed him in May 2019, after interviewing applicants for the plaintiffs’ leadership over a two-day hearing, to the plaintiffs’ steering committee and to chair its law, briefing, and legal drafting subcommittee.

Rodgers ruled for the plaintiffs. Sacchet and his Ciresi Conlin colleague Megan Odom went on to work five of the bellwether trials Rodgers used to test the claims. Two produced the largest verdicts of the litigation: $110 million in January 2022 for Ronald Sloan and William Wayman, Army veterans of more than two decades each, and $77.5 million that May for James Beal, also an Army veteran. On August 29, 2023, 3M agreed to pay $6 billion to resolve the nearly 250,000 lawsuits in the MDL. Sacchet attributes the settlement to two things: the size of the verdicts and 3M’s pending appeal of the government-contractor ruling.

The Rubber-Stamped Sample

Rodgers issued her 56-page order on July 24, 2020, granting the plaintiffs’ motion and denying 3M’s. Dr. Doug Ohlin, the civilian who managed the Army’s hearing-conservation program, had written in a March 14, 2006 email: “There is no DOD specification for the [C]ombat [A]rms [E]arplug.” Neither Ohlin nor the Army, Rodgers found, “ever issued any specifications for the earplug.” There was, she wrote, “no evidence that the Army ever issued or received ‘detailed, quantitative’ descriptions or drawings of the individual component parts of the CAEv2, or of how those parts should or would be integrated together into a finished product.” Aearo had detailed design drawings, but “none of these design details were ever shared with Army officials.”

3M’s argument about the production samples failed too. “The government contractor defense requires more than the government’s acceptance of a contractor’s product,” Rodgers wrote. Ohlin made clear that Aearo’s production sample would not meet the Army’s needs, but his statements “did not direct Aearo to do anything,” and the two short emails that recorded his concerns described them “in the most general of terms.” At most, Ohlin had “rubber stamped” the second production sample, and “Boyle clearly indicates that such ‘approval’ would be insufficient.” Rodgers found that “[t]he Army did not participate in any way in Aearo’s decision on how to position the CAEv2’s flanges or how to shorten the plug to fit the Army’s carrying case.”

On the warning claims, the defense failed under a separate rule. Under the Eleventh Circuit’s decision in Dorse v. Eagle-Picher Industries, the government-contractor defense displaces a state-law duty to warn only where a federal contract affirmatively prohibits the warning or contains warning requirements that significantly conflict with state law. To 3M’s claim that Aearo had obeyed a military directive, Rodgers answered: “This argument fails. There is no evidence—none—that the Army prohibited Aearo from warning of alleged dangers inherent in the use of the CAEv2.” The record held only the recollection of two Aearo employees that Ohlin had told the company not to put instructions inside boxes of earplugs shipped in bulk, because military audiologists would train each service member in person; nothing kept Aearo from printing a warning on the outside of those boxes or on the individual blister packs. 3M had “identified no contract, formal specification, or incorporated government publication in which the Army forbade Aearo from fulfilling any state law duty to warn or instruct of these alleged risks or dangers inherent in the use of the CAEv2.” The defense failed as to every plaintiff’s claims, and the cases moved toward juries.

Folding Back the Flanges

The CAEv2 was, in Rodgers’s description, “a dual-ended, triple-flanged earplug designed to provide two different options for hearing protection, depending on which end was worn.” Dr. Elliott Berger, who invented it and worked for Aearo and 3M for decades, also drafted the Flange Report. That report recorded that “the current length of the [green] end of the [CAEv2]” was “too short for proper insertion, [especially in subjects with medium and large ear canals],” and it described the procedure that Berger and Aearo’s Ronald Kieper had used to reach acceptable test results: “folding back the opposing flanges before inserting the earplug into a test subject’s ear.” Rodgers found that “[t]his alternative procedure was not how the CAEv2 was originally designed to be worn.” Berger reported that the earplug “ha[d] problems unless the user instructions [were] revised.” The report “was never shared with the Army and, in fact, it was not made available to anyone outside of Aearo until it was produced by 3M in a lawsuit.”

The plaintiffs alleged that 3M failed to warn that the CAEv2 “loosens imperceptibly in a user’s ears, thereby allowing damaging sounds to bypass the earplug and enter the ear,” and that Aearo’s “testing subjects did not follow standard fitting instructions, but rather used a reconfigured method of folding back the opposing flanges before inserting the device into their ears.” The veterans allege that they did not know of the defect until a whistleblower suit by Moldex-Metric, a rival earplug maker, exposed it; 3M settled that suit in 2018 without admitting liability. That same year an Army report concluded that had the government known about the tests Aearo ran in 2000, it might not have bought the earplugs. “The documents are so bad,” Sacchet said in 2023 of what discovery had turned up.

The Army as Superseding Cause

The first bellwether trial, for three Army veterans—Estes, Hacker, and Keefer—ran five weeks. Sacchet handled all of the plaintiffs’ argument at trial, including the directed-verdict motions and the charge conference at which the jury instructions were settled. He argued and won several motions for judgment as a matter of law and opposed 3M’s bid for a directed verdict on all of the plaintiffs’ claims, and he and Odom led the effort to defeat 3M’s sophisticated-intermediary and superseding-cause defenses, which pointed to the Army as the party responsible for warning and training the soldiers. The jury found that the CAEv2 was defectively designed, that 3M had failed to warn the military and the soldiers of its dangers, and that 3M had intentionally misrepresented its safety features. The trial ended in April 2021 with verdicts of $2.45 million, $2.26 million, and $2.42 million, $7.1 million in all, more than $6 million of it in punitive damages.

Sacchet and Odom worked that trial, Lloyd Baker’s trial that June, and Brandon Adkins’s that fall. At Baker’s trial Sacchet examined a key witness and again handled all of the argument. Adkins, 35, had served in the Army from 2004 to 2009, including two tours in Afghanistan, and had hearing loss and tinnitus. His trial took two weeks; Sacchet, as co-lead trial counsel, examined key witnesses on both sides, and Odom defeated 3M’s motion for judgment as a matter of law. On October 1, 2021, his jury found for him on all five of his claims, rejected every one of 3M’s affirmative defenses, and awarded $8.2 million in compensatory damages, which Sacchet called the largest verdict of any earplug trial to that point.

Kentucky Law, Colorado Law, One Jury

On July 2, 2021, over 3M’s objection, Rodgers consolidated Ronald Sloan’s case, governed by Kentucky law, and William Wayman’s, governed by Colorado law, for a single trial in January 2022. 3M argued that weeks of cumulative testimony would delay its own case and that the states differed on fault apportionment, negligence per se, warranty privity, the standard for punitive damages, and whether jurors could hear evidence of 3M’s finances. Rodgers found that “[t]he vast majority of the parties’ trial presentations overwhelmingly feature liability evidence common to all plaintiffs in the litigation,” that “differences in causation are not enough, standing alone, to bar consolidation,” and that “[t]he jury may be clearly instructed on any differences in the applicable legal standard for punitive damages.” After the three 2021 verdicts, Sacchet was appointed one of the co-lead trial counsel for Sloan/Wayman v. 3M Co.; another, David Buchanan of Seeger Weiss, was lead counsel for Wayman.

Wayman was an Army Ranger and a Black Hawk medevac pilot; Sloan was a master sergeant and tank commander. Each had served in the Army for more than twenty years, with deployments to Iraq and Afghanistan, and each had bilateral tinnitus and noise-induced hearing damage that they attributed to the CAEv2. Wayman came from Colorado; Sloan, who served twenty-one years, lived in Tennessee. “Will and Ron each served their country with distinction for 20 years,” Buchanan said after the trial; their hearing damage, he said, “has separated them from their families and lives far more than any deployment ever did.”

Before trial, 3M tried to move the blame to the Army. It asserted that the Army’s failure to fit Sloan with the CAEv2 and train him on its use was a superseding cause of his injuries, and it pleaded the learned-intermediary, sophisticated-intermediary, and bulk-supplier defenses, which shift the duty to warn to a third party standing between maker and user. On December 4, 2021, Rodgers granted Sloan summary judgment on those defenses. Kentucky confines the learned-intermediary doctrine to prescription products—“no Kentucky court has ever applied the doctrine ‘outside of prescription products’”—and the CAEv2 was “a consumer good that was sold to the general public.” As for the Army, “the Army’s conduct in failing to fit and train soldiers was foreseeable to the Defendants, meaning the Army’s conduct could not be a superseding cause as a matter of law.” On December 10 she granted Wayman summary judgment on the intermediary defenses under Colorado law for the same reason: the earplug was a consumer product sold directly to the public.

The veterans’ lawyers also pursued Berger himself. Berger had retired but kept consulting for 3M’s lawyers, and the plaintiffs subpoenaed his documents for an evidentiary hearing on his availability to testify and his independence from 3M. Berger and 3M moved to quash. On December 28, 2021, Magistrate Judge Gary R. Jones denied their motions and granted the plaintiffs’ emergency motion to compel. Documents about the retention of Berger’s counsel and payment for his services were “highly relevant,” he wrote, and privilege did not cover “[c]ommunications concerning the fact that 3M’s counsel prepared Berger’s trial testimony.” The question was whether Berger “continues to participate with 3M in the presentation of his testimony,” and the hearing was set for the next day, December 29, twelve days before trial.

Trial opened on January 10, 2022, and ran three weeks. Sacchet conducted key direct and cross-examinations for the plaintiffs, and Odom handled the legal argument. Late on Thursday, January 27, the jury awarded each veteran $15 million in compensatory damages and $40 million in punitive damages, $110 million in all. Sacchet said that a “jury of eight people held 3M liable for its conduct” and that “[m]uch of the jury’s verdict was to punish 3M for its conduct and concealing its knowledge of a defective earplug for 15 years.” 3M said it would appeal, arguing that trying two veterans’ cases together “can confuse jurors,” and maintained that in some situations, combat among them, even robust hearing protection cannot prevent some hearing loss.

Fair Game

Berger had testified by remote transmission in ten bellwether trials, in at least some of them voluntarily, as part of 3M’s own case. On February 18, 2022, Magistrate Judge Jones authorized the plaintiffs to subpoena him to testify live, by contemporaneous transmission, in the five bellwether trials still to come, James Beal’s among them, reasoning that live testimony “offers the jury better quality evidence than a videotaped deposition.” Berger, Jones wrote, “drafted the Flange report, invented the CAEv2 and has been one of the key witnesses defending the CAEv2,” and he had been “paid approximately $600,000 thus far for consulting with 3M’s counsel, including the preparation of his trial testimony.” He had ended his consulting agreement with 3M itself in early October 2021 but still had “an ongoing consulting agreement with 3M’s counsel.” 3M wanted to limit the presentation of his testimony to “sanitized and brief snippets of videotape deposition testimony,” and it resisted the request, in Jones’s account, “so that Berger will not be further subjected to the crucible of cross-examination by Plaintiffs.”

James Beal had been an Army combat engineer. He served from 2005 to 2009, and in the Army Reserve until 2011, and spent most of his deployment in Iraq finding and detonating improvised explosive devices. He wore the CAEv2 on firing ranges, in training, and in combat, and he has tinnitus in both ears and noise-induced hearing loss.

Rodgers’s pretrial rulings in Beal’s case took up the argument 3M had made about individual veterans in every trial. “In every bellwether trial to date,” she wrote on April 20, 2022, “Defendants have made some variation of an argument that the absence of reports of auditory symptoms in a plaintiff’s military and/or medical records demonstrates that the plaintiff does not, or did not, actually experience auditory symptoms.” If 3M did the same with Beal, “then it is fair game for Plaintiffs to explore the reasons why he did not complain.” Beal could “explain why he delayed reporting auditory symptoms to health care providers or superiors,” and experts “may testify—based on personal knowledge, clinical experience, and/or the scientific literature—about veterans’ hesitancy to report injuries during and after their military careers.”

Rodgers also kept 3M from measuring Beal’s hearing against Army averages. Evidence of military rates of hearing loss and of the average hearing thresholds of Army veterans, and testimony comparing Beal’s hearing to “average Army data,” was, she ruled, “irrelevant, unhelpful, misleading, and substantially more prejudicial than probative.” Todd McGuire, Beal’s former squad leader, could tell the jury about the noise at the places where the two men had been stationed together, in Hawaii and in Iraq.

Sacchet again conducted key direct and cross-examinations, with Odom handling the legal argument. Over two weeks the jurors heard from witnesses who included Beal’s squad leader, a retired rear admiral, and a retired brigadier general. On May 20, 2022, in the last of the bellwether trials, the jury awarded Beal, who had tinnitus and hearing loss, $5 million in compensatory damages and $72.5 million in punitive damages, $77.5 million in all, the largest single-plaintiff verdict of the litigation. The verdict was unanimous. 3M said it would appeal.

“As in previous bellwether trials, we were prevented from presenting crucial evidence to the jury,” 3M said. Sacchet has called the Pensacola trials for Sloan, Wayman, and Beal intense. Florida jurors, he has said, often treat hearing loss as an expected cost of military service, and these juries ruled for the soldiers. “I’m so happy we were able to get those kinds of results for them,” he said.

3M’s Pivotal Defense

3M appealed the verdicts, and its appeals challenged Rodgers’s government-contractor ruling. In February 2022, in 3M Co. v. Estes and 3M Co. v. Baker, the appeals from the first trial and from Baker’s, 3M asked the Eleventh Circuit to reverse the ruling, arguing that Aearo had been a government contractor that co-created the earplug with the military. The Military Order of the Purple Heart Service Foundation filed a brief supporting the veterans. To 3M’s argument that the Army probably had enough information to find the problem on its own, the foundation answered: “That is not the law.”

Sacchet had represented those veterans at trial and represented them on appeal, and he was the main appellate lawyer on the Eleventh Circuit appeals of the bellwether verdicts. He was lead appellate counsel defending the Adkins verdict and the Wilkerson verdict, appellate counsel defending the Vilsmeyer verdict, and lead counsel for the MDL plaintiffs in a global interlocutory appeal over successor liability. In March 2023 a brief defending one of those verdicts, an $8 million award, told the Eleventh Circuit that 3M’s appeal was “yet another desperate attempt” to “subvert yet another unanimous jury verdict.” That spring the court heard argument in the Estes and Baker appeals, where 3M’s lawyers contended that Rodgers’s pretrial rulings had kept 3M from presenting a “pivotal defense” to the jurors. In June 2023, 3M said the appeals “have the potential to fundamentally change the trajectory of this litigation.”

The government-contractor appeal was still pending on August 29, 2023, when 3M agreed to pay $6 billion to resolve the nearly 250,000 lawsuits brought in the MDL by service members, veterans, and commercial users.

The verdicts were one reason 3M settled, in Sacchet’s account; the pending appeal was the other. “In my opinion, we would have won that appeal, and had 3M lost the appeal, they would have been in even more serious trouble moving forward and they didn’t want that to happen, either,” he said in September 2023. “The settlement was the better course.” That June he had said, “We’ve never lost an ear plug trial.” Of the settlement he said, “Representing our country’s servicemembers through all phases of this hard-fought litigation against 3M was the highest honor.” He then urged the lawyers representing individual veterans to meet the deadlines and submit the forms so that every eligible claimant would take part.

Nearly Four Times More Likely

In the same years Sacchet argued an appeal against 3M over a different product. 3M’s Bair Hugger keeps surgical patients warm by heating air and blowing it through a hose into a perforated blanket laid over them. Patients who had joint-replacement surgery allege that it carries bacteria into the sterile operating field and causes periprosthetic joint infections, or PJIs, around the new joint: its waste heat, they contend, sets up convection currents that carry bacteria from nonsterile parts of the room to the surgical site, and the machine itself is contaminated inside. Such an infection, the patients later told the Supreme Court, “can be caused by very few microbes, possibly even a single bacterium,” and can lead to “additional surgeries, amputation, and even death.”

Three medical experts were prepared to testify that the device could cause those infections: Dr. Jonathan M. Samet, an epidemiologist; Dr. William Jarvis, an infectious-disease specialist; and Dr. Michael J. Stonnington, an orthopedic surgeon. All three relied on a 2011 study, “Forced-Air Warming and Ultra-Clean Ventilation Do Not Mix,” which found that patients “warmed convectively were nearly four times more likely to contract a PJI than patients warmed conductively,” though its authors said it did “not establish a causal basis.” U.S. District Judge Joan Ericksen first denied 3M’s motion to exclude the plaintiffs’ medical experts, then reconsidered, excluded the general-causation experts in July 2019, and granted 3M summary judgment in nearly 6,000 cases.

Sacchet briefed and argued the appeal, with Odom one of the lead drafters of the briefs. On August 16, 2021, the Eighth Circuit, in an opinion by Judge Gruender joined by Judges Kelly and Grasz, reversed the exclusion of the general-causation medical experts and the grant of summary judgment, observing that “cases are legion that, correctly, under Daubert, call for the liberal admission of expert testimony.” The MDL court, the panel wrote, had “committed a clear error of judgment on the basis of the record before it,” and “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.” “Thousands of individuals who were injured by this defective and hazardous device will now have their day in court,” Sacchet said. 3M asked the Supreme Court to step in, arguing that the Eighth Circuit had applied “an erroneously permissive standard.” The patients’ brief in opposition, on which Sacchet was one of the lawyers, answered that “Nothing about that case-specific, factbound holding cries out for this Court’s review.” On May 16, 2022, the Court denied 3M’s petition.

From East Palo Alto to the Eighth Circuit

Sacchet graduated first in his class at Northwestern University and spent the next two years as a Teach for America corps member in East Palo Alto, California, teaching middle-school science and math. “I loved being a teacher and connecting with the kids,” he has said. “But it was hard to create the change that I wanted to at a macro level.” He decided that law would let him “represent people who need it and deserve the best and to try to create positive social change.” At Harvard Law School, where he graduated with honors and was an editor of the Harvard Civil Rights-Civil Liberties Law Review, he tired of black-letter courses in his third year and enrolled in classes at the Divinity School, including a course on Gandhi, and read all of Gandhi’s seminal works. Gandhi, he points out, started his working life as a lawyer. Sacchet clerked for Judge Diana E. Murphy of the U.S. Court of Appeals for the Eighth Circuit and for Judge Philip S. Gutierrez of the U.S. District Court for the Central District of California, and he now chairs the mass-tort practice at Ciresi Conlin.

In 2019, early in the earplug litigation, he said he liked such cases because they “level the playing field to enable individuals to hold powerful corporations responsible for their actions.” People assume that a plaintiff-side mass-tort lawyer’s first interest is money, he has said, but “I choose to do mass tort work because I believe it’s a way in which through one litigation, I can represent the most amount of people at one time, like in 3M, where I had the honor and privilege of sometimes arguing a motion on behalf of over 200,000 plaintiff service members.” Asked for his pet peeve, he answered: “False facts or lies, especially in the courtroom.” He meditates daily, has kept a commitment made when he finished law school to attend at least one intensive meditation retreat a year, and is a certified mindfulness meditation teacher who leads practice groups for lawyers and the public.

A Catheter Fragment in the Right Atrium

On September 19, 2023, the U.S. District Court for the District of Arizona appointed Sacchet one of three plaintiffs’ co-lead counsel in In re Bard Implanted Port Catheter Products Liability Litigation, MDL No. 3081, with Adam M. Evans of Dickerson Oxton in Kansas City and Rebecca Phillips of the Lanier Law Firm in Houston. The order charged the co-leads to “[i]nitiate, coordinate, and conduct all pretrial discovery on behalf of plaintiffs in all actions consolidated in this MDL” and to “[a]ct as spokespersons for all plaintiffs at pretrial proceedings,” working with a plaintiffs’ executive committee and a steering committee. A month earlier the MDL had held 41 cases. Sacchet remains co-lead counsel and sits on the plaintiffs’ law and briefing, science and expert, common benefit, trial, and settlement committees.

An implanted port catheter, in the Arizona court’s words, is “a medical device surgically implanted under the skin to provide repeated access to a patient’s vascular system without the need for multiple needlesticks into peripheral veins.” The plaintiffs allege three defects in Bard’s ports: barium sulfate that degrades the catheter and creates “surface irregularities that cause catheter fracture, infection, and blood clots”; polyoxymethylene components without adequate oxidative stabilization, which develop “cracks, fissures, and other physical defects”; and palpation bumps that place “undue compression stress on the tissue surrounding the port, leading to ulceration and tissue necrosis.” On January 9, 2026, the court granted in part the plaintiffs’ motion to limit the testimony of Bard’s nursing expert Keilye R. Pampillonia, excluding her opinions that the ports improve life expectancy, treatment compliance, or contrast imaging, her opinion that patients who suffered complications would still recommend them, and her opinions on complication rates and the comparative risks of other devices.

By 2026 the MDL held more than 3,000 cases, and U.S. District Judge David G. Campbell was trying bellwether cases in Phoenix. Kimberly Divelbliss, a New Mexico woman, had received a Bard port in 2017 for recurring intravenous treatment of an autoimmune condition. “A catheter fragment had embolized to the right atrium of Plaintiff’s heart and was removed on December 19, 2019,” the court recounted. On July 22, 2026, it denied Bard’s motion for summary judgment on her claims under New Mexico law: Bard had not shown that the port was “unavoidably unsafe” as a matter of law, and whether its benefits outweighed its risks was a question for the jury. Her trial opened on August 18. On September 4, 2026, the jury found Bard liable for negligent design and failure to warn and awarded Divelbliss $40 million in compensatory damages. Bard said it would pursue post-trial and appellate options. More bellwether trials were set to begin on October 13 and December 1, 2026, and on February 2, 2027.

Since March 2025 Sacchet has also served on the plaintiffs’ executive committee, and as co-chair of the law and briefing committee, in the MDL over Pfizer’s contraceptive Depo-Provera, where the plaintiffs link the drug to brain tumors. That MDL sits in Pensacola, before Judge Rodgers.