Alex Sarria discussed the 3M earplug litigation scheduled for oral argument at the U.S. Court of Appeals for the Eleventh Circuit. According to 3M, the company is entitled to immunity as a government contractor under a three-pronged test set out by the U.S. Supreme Court in Boyle v. United Techs. Corp. "If I'm one of the judges on the panel, I'll be keenly interested in the extent of the United States' knowledge of the alleged defect," Sarria said. He noted that the government's knowledge "is a fact that cuts across all three of the Boyle factors." Evidence of government knowledge is central to the third prong of the Boyle test, which looks to the relative knowledge of the supplier and the government of an alleged defect. But such evidence also informs the other two prongs of the Boyle test, which go to whether the government understood the design it was approving and how well the product conformed to its specifications, Sarria explained. The failure to warn claim in the 3M litigation presents a tricky fact pattern for the court of appeals because 3M claims it offered to train soldiers on the proper use and limitations of allegedly defective earplugs, but that the government said it would train its own soldiers, Sarria noted.