Civilian contractor plaintiffs allege they suffered hearing loss while working in Iraq or Afghanistan
by Todd Nelson
BridgeTower Media Newswires
MINNEAPOLIS, MN — Hundreds of plaintiffs alleging that they suffered hearing loss because 3M didn’t instruct them on the proper way to wear the company’s earplugs have won a key victory with a federal judge’s order to remand their product liability cases to Minnesota state court.
Chief U.S. District Judge John Tunheim rejected the federal defenses that 3M asserted in a bid to have the cases heard in federal court in Florida, where a multi-district litigation involving hundreds of thousands of complaints is continuing.
The cases in the remand order Tunheim issued on Dec. 3 involve 16 civilian-contractor plaintiffs and consolidated actions involving more than 500 non-contractor civilian plaintiffs who wore Combat Arms or “CAEv2” earplugs — designed and manufactured by defendants 3M and Aearo Technologies — to protect against loud and damaging sounds. 3M acquired Aearo Technologies, which had been selling the earplugs to the military, in 2007, according to court documents.
Most of the civilian contractor plaintiffs allege in their state claims that they suffered hearing loss or tinnitus while working with various military branches in Iraq or Afghanistan. Sources of loud noises included car bombs, heavy machinery, rocket fire, mortar, gunfire, artillery, compressors, generators, helicopters and aircraft, and military vehicles.
The non-contractor civilian plaintiffs allege that their injuries occurred because they never received instructions to fold back a third flange on the earplugs or a warning that the earplugs would be ineffective if they did not do so. Those plaintiffs further allege that 3M failed to instruct or warn them regarding how to properly fit and safely wear the Combat Arms earplugs. The civilian-contractor plaintiffs made the similar allegations that 3M failed to instruct or warn them regarding proper fit and wear of the earplugs.
3M, in response, sought removal, arguing that federal court has jurisdiction because the company was asserting the government contractor defense, which can make contractors immune from state tort liability claims for products designed to meet military specifications. Tunheim, however, ruled — for a third time — that the government contractor defense was not available to 3M because the plaintiffs allege only failure-to-warn claims and did not make claims concerning the earplugs’ design.
That’s a point that distinguishes the state court claims from those in the multi-district litigation (MDL), where plaintiffs also are making defective product claims, according to attorney Amanda Williams.
Williams and Daniel Gustafson of Gustafson Gluek are representing plaintiffs in the state claims cases along with firms including Schwebel Goetz & Sieben and Paul LLP in Kansas City.
“It’s really important for the plaintiffs to be remanded, because we’re making essentially a state court claim,” Williams said in an interview. “We’re just making a failure-to-warn claim. That keeps us in state court and allows a case in Minnesota involving a Minnesota company to go forward on a state law claim. These plaintiffs would have to wait a long time in the federal MDL.”
Maplewood-based 3M said in a statement that it plans to appeal Tunheim’s order sending civilian cases to Minnesota state court.
“Those cases implicate federal legal theories that should be decided by the federal court in Florida handling the multi-district litigation,” 3M said in the statement. “Regardless of where the civilian cases are litigated, however, we will defend against the claims, which we believe are meritless.”
3M continues to assert “baseless federal defenses in the Minnesota action,” attorney Michael Sacchet, a member of the Plaintiffs’ Steering Committee and Chair of the Law, Briefing, and Legal Drafting Committee in MDL, said in an interview.
“At the end of the day it’s plaintiffs’ view that 3M can only blame itself for its own misconduct and it can’t point its finger at the government or any other entity.”
Sacchet briefed and argued cross-motions for summary judgment on 3M’s government contractor defense in the MDL. A federal judge in Florida rejected that defense in July in a key ruling allowing 200,000 cases to go to trial. In that respect, Sacchet said, two federal district court judges have reached the same conclusion.
“The MDL judge has considered all of the evidence involving all types of claims — not just failure-to-warn, not just civilian claims but every possible claim that the plaintiffs have alleged in the MDL which is around 15 to 20 different types of claims for both service members and civilians, so it’s a much greater scope, much more impactful — and said that that defense which really is 3M’s primary global defense — fails on the merits,” Sacchet said of 3M’s government contractor defense assertion.
The number of plaintiffs in state claims in Minnesota could range from up to 2,000 based on filing so far or rise into the tens of thousands as cases involving service members are filed, Williams said.
In his order remanding the case, Tunheim rejected 3M’s assertion of the federal combat activities exception defense. Tunheim cited Copeland v. 3M Co., in which the court found that defense was not a ground for removal, because the company had failed to demonstrate that the earplug was integrated into combat activities under military command or that the earplug was sophisticated military equipment only to be used in combat or that 3M’s alleged tortious conduct resulted from battlefield decisions or orders.
3M also asserted that the federal enclave doctrine, which gives federal district courts federal question jurisdiction over personal injury claims arising on federal enclaves, supported removal in the cases of two plaintiffs. Tunheim, however, found that 3M did not meet its burden to establish that one location in question in one plaintiff’s case, a nuclear reactor site in Ohio was a federal enclave. In the other case, Tunheim found that plaintiff’s injuries first occurred while using the earplug in Iraq, which is not a federal enclave and not subject to the doctrine.
3M cited the Property Clause of Article IV of the U.S. Constitution as another ground to establish removal jurisdiction. Tunheim ruled that the company failed to establish that the clause had any bearing on personal injury claims arising on military installations in Iraq.
As a final ground for removal, 3M asserted federal admiralty jurisdiction regarding a plaintiff who suffered his injuries while working on barges on the Hudson River. 3M, however, failed to demonstrate that its alleged activity of supplying earplugs without adequate warnings or instructions — showed a substantial relationship to traditional maritime activity, one of the conditions required to establish federal admiralty jurisdiction.
