3M, Earplug Users Spar in Appeal Over Returning to State Court

June 15, 2021, 7:41 PM

3M Co.'s argument that civilian workers’ earplug cases belong in federal court because of the U.S. Army’s development role met some skepticism Tuesday at the Eighth Circuit, as did its similar argument over hearing-loss cases brought by military contractors.

The two sets of cases could have different outcomes, with the civilians returning to Minnesota state court but the military contractors joining federal consolidated litigation over the combat earplugs, one of the judges on the appeals court panel suggested.

3M and its Aearo Technologies LLC subsidiary are appealing decisions of a federal district court that it lacks subject matter jurisdiction and that the cases should therefore go back to state court. Although the plaintiffs and 3M come from different states, diversity jurisdiction isn’t in play because 3M is headquartered in Minnesota.

Instead, 3M and Aearo argue that the U.S. military played such a role in the development of the earplugs, and in their use in combat and on stateside bases, that these federal defenses give the federal district court subject matter jurisdiction.

The civilians and military contractors, like current and former members of the military suing the companies in consolidated federal litigation in Florida, allege Aearo Combat Arms version 2 earplugs failed to protect their hearing.

3M Challenged

The federal district court made “fundamental legal errors” when it ruled that 3M lacked a viable federal contractor defense to a failure-to-warn claim in a case brought by police officer Christopher Graves and in other civilian cases, attorney Benjamin Hulse of Blackwell & Burke argued on behalf of 3M.

Besides, the civilians pleaded “design defect claims in all but name,” Hulse told the panel of the U.S. Court of Appeals for the Eighth Circuit. Design defect cases have stayed in federal court, he noted.

But Judge James B. Loken immediately asked whether 3M or Aearo was acting as a government contractor. What contract documents supported that conclusion, and “how did the warnings help the government carry out its military purchasing contracts?” Loken asked.

Loken also challenged the idea that the warnings claims were nearly identical to design defect claims. He didn’t see how the companies were “acting under” the direction of a federal officer with respect to the warnings, he said.

Judges Jane L. Kelly and Ralph R. Erickson both pushed back on Hulse’s argument that the warnings claims were design claims in disguise.

Daniel E. Gustafson, who represents Graves and the other plaintiffs, argued 3M has no colorable government contractor defense. “There is no contract here, there is no obligation here with respect to 3M’s sales of these earplugs into the commercial market, there is nothing that invokes a federal interest,” he said. He’s with Gustafson & Gluek PLLC.

The second case was brought by police officer Casey Copeland, another police officer, and two military contractors who worked in Iraq and Afghanistan as a driver and a canine handler. The federal district court said it must be heard in state court because the claims didn’t arise from combatant activities or in federal enclaves, as 3M argued.

Hulse told the Eighth Circuit judges that the contractors got their earplugs through the military. Earplugs in blister packs were meant for sale at military PX stores and labeled for sale to the military, he said.

The district court added extra requirements for the combat activities exception to the Federal Tort Claims Act, he said.

But Loken said the case 3M relied on was dissimilar, and Gustafson argued there’s no basis for the combatant activities exception, which he said is for battlefield conduct and decisionmaking.

3M raised the government contractor immunity defense substantively in the federal multidistrict litigation, but the judge there rejected its use at trial and didn’t allow an immediate appeal.

Schwebel Goetz & Sieben PA and Bondurant Mixson & Elmore LLP also represent the plaintiffs. Kirkland & Ellis LLP also represents 3M and Aearo.

The lead cases are Graves v. 3M Co., 8th Cir., No. 20-01635, oral argument 6/15/21, and Copeland v. 3M Co., 8th Cir., No. 20-03108, oral argument 6/15/21.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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