447 F.Supp.3d 908
D. Minnesota2020Background:
- Plaintiff Christopher Graves (civilian police officer) purchased 3M Combat Arms Earplugs, Version 2 (CAEv2) and alleges hearing loss and tinnitus from improper fit and inadequate warnings about folding back a third flange.
- Graves sued in Hennepin County (Minnesota) on a single state-law failure-to-warn claim; 3M removed under the Federal Officer Removal Statute asserting the federal government contractor defense.
- 3M submitted evidence showing the U.S. Army audiologist reviewed and commented on the commercial product’s instruction insert; 3M incorporated a suggested line about a single-sided version into its commercial packaging.
- 3M argued broader DoD involvement and pending document production that might further support federal involvement; Graves moved to remand for lack of a federal cause of action.
- The court found 3M met the low threshold for a causal connection between its actions and government action but rejected 3M’s showing of government control over warnings or a conflict with Minnesota law.
- The court granted remand, holding 3M failed to demonstrate a colorable federal contractor defense and could not rely on speculative future documents to justify removal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causal connection under 28 U.S.C. § 1442 | Graves: 3M has not shown its actions were taken under or because of federal direction | 3M: Government involvement in development/review of warnings creates a sufficient connection | Court: Low "connection/association" standard satisfied — 3M met the causal-connection element |
| Colorable federal-contractor defense (Boyle applied to failure-to-warn) | Graves: 3M failed to show government control or that compliance with state law would conflict with federal requirements | 3M: Government review/approval of warnings supports preemption of state-law failure-to-warn claim | Court: 3M did not show government control or an unavoidable conflict with Minnesota law; defense not colorable |
| Reliance on future DoD documents | Graves: 3M must show a colorable defense now | 3M: Additional government documents (not yet produced) may substantiate its defense | Court: 3M cannot rely on speculative future evidence; burden to demonstrate a colorable defense at removal remains with 3M |
Key Cases Cited
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (establishes federal contractor defense elements)
- Jefferson Cnty. v. Acker, 527 U.S. 423 (1999) (federal-officer removal can depend on federal-law defenses)
- Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (federal defenses generally do not create federal jurisdiction over state-law claims)
- Jacks v. Meridian Res. Co., 701 F.3d 1224 (8th Cir. 2012) (elements required for removal under § 1442)
- In re KBR, Inc., Burn Pit Litig., 744 F.3d 326 (4th Cir. 2014) (requiring governmental control for preemption in certain contractor-defense contexts)