Case Information
*1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
CHRISTOPHER GRAVES,
Civil No. 19-3094 (JRT/KMM) Plaintiff,
v.
MEMORANDUM OPINION AND ORDER 3M COMPANY and AEARO
TECHNOLOGIES LLC,
Defendants. Daniel E. Gustafson, GUSTAFSON GLUEK PLLC , 120 South Sixth Street, Suite 2600, Minneapolis, MN 55402; William R Sieben, SCHWEBEL GOETZ & SIEBEN , P.A. 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402; David Brackett and Matthew Sellers, BONDURANT, MIXSON & ELMORE , 1201 West Peachtree Street, Suite 3900, Atlanta, GA 30309; and for plaintiff.
Benjamin W. Hulse, BLACKWELL BURKE PA, 431 South Seventh Street, Suite 2500, Minneapolis, MN 55415; and Simon Gottlieb , KIRKLAND & ELLIS LLP , 300 N. LaSalle, Chicago, IL 60654, for defendant 3M.
Plaintiff Christopher Graves purchased several pairs of Combat Arms™ Earplugs, Version 2 (“CAEv2”), designed and manufactured by 3M, to wear at a gun range. Graves alleges that he did not receive instructions on how to properly wear the earplugs and, as a result, that he suffered hearing loss and developed tinnitus.
Graves filed this action in Hennepin County District Court on December 3, 2019, alleging a single claim of product liability: failure to warn. 3M removed the case to federal *2 court, asserting the federal government contractor defense, and Graves moved to remand.
Because 3M cannot demonstrate any governmental control over the product’s warning, and cannot demonstrate any conflict with Minnesota law, 3M cannot demonstrate a “colorable” federal contractor defense, even under a liberal construction of that defense. Accordingly, the Court will grant Graves’s Motion to Remand.
BACKGROUND
I. FACTUAL BACKGROUND
On December 3, 2019, Plaintiff Christopher Graves filed a lawsuit against 3M Company and Aearo Technologies LLC alleging a single claim under Minnesota product liability law: failure to warn. (Notice of Removal, Ex. 1 (“Complaint”) ¶¶ 42–56, Dec. 16, 2019, Docket No. 1.) Graves, a civilian police officer, alleged that he had purchased 3M’s Combat Arms™ Earplugs, Version 2 to wear on the gun range. ( Id . ¶¶ 8, 10.) Graves alleged that he did not receive instructions to fold back the third flange on the opposite side of the use-end of the earplugs, or a warning that the earplug would not be effective without folding back this flange. ( Id . ¶ 12.) Graves further alleged that 3M knew the *3 earplugs required special instructions for use as early as 2000, ( id. ¶ 17), yet 3M sold and marketed the earplugs without warning of the need for modified fitting instructions until they discontinued their sale in 2016 ( id . at ¶¶ 35, 37). Graves alleged that he suffered injury and damage as a direct and proximate result of 3M’s failure to warn and/or provide adequate instructions regarding the dangerous condition of the earplugs. (Id. at ¶ 56.)
3M filed a Notice of Removal on December 16, 2019, asserting the federal government contractor defense. (Notice at 2.) Graves filed a Motion to Remand, claiming that 3M failed to demonstrate a federal cause of action. (Dec. 18, 2019, Docket No. 11.)
In support of its claimed federal contractor defense, 3M provided evidence demonstrating the government’s involvement in the design of the earplugs, as well as the warnings and instructions which accompanied the product. (Decl. of Benjamin Hulse (“Hulse Decl.”), Ex. 1-13, Feb. 4, 2020, Docket No. 47.) In particular, 3M provided evidence that the government was involved, at least to some degree, in the development of the warnings for its commercial earplugs. In December 2005, an Aearo employee named Brian Myers wrote to a US Army audiologist and program manager who was involved in the development of the military version of the product. (Ex. 14 to Hulse Decl. at 2-3, Feb. 4, 2020, Docket No. 60.) Myers explained that 3M was in the process of preparing its commercial packaging “insert,” which included an explanation of the product and instructions for use and insertion. ( Id. ) Douglas Ohlin, the audiologist, responded and said that the insert “Looks great.” ( Id. at 2.) Ohlin additionally noted that the insert did *4 not “mention any potential sizing issues for the smaller ear canals and the single-sided version as an alternative.” ( Id. ) He asked whether 3M was “abandoning that concept.” ( Id. ) Myers responded, saying “No, we should probably include that. Thanks for pointing that out.” (Ex. 13 to Hulse Decl. at 2, Feb. 4, 2020, Docket No. 59.) Myers then forwarded his email with Ohlin to another Aearo employee. (Ex. 14 to Hulse Decl. at 2.)
The email was then forwarded to a third Aearo employee, with the note: Just got feedback from the US Army on the instruction guide for the CAE Blister Pack. Please add a line sentence at the end of the ‘Fitting Tips’ that says [] ‘Some individuals with smaller ear canals may experience discomfort with the dual-ended Combat Arms Earplug due to their restricted canal opening. A single-sided version of the Combat Arms Earplug is also available and will often times provide greater comfort for smaller ear canals. Single- Sided Combat Arms Earplug – NSN # 6515-01-512-6072.’ ( Id. ) The email closes by saying “Once you’ve made this change and the formatting changes we discussed, please send back to me for final review and then we’ll roll!” ( Id. ) 3M additionally provided evidence that this language was included in the instructions that accompanied the commercial product. (Ex. 12 to Hulse Decl. at 4, Feb. 4, 2020, Docket No. 47-1.)
At oral argument, 3M also argued that the Department of Defense has many documents relevant to the CAEv2 earplugs, and that production of these documents has been delayed. 3M argued that it may well have additional evidence of government involvement once all the documents are released.
II. MULTI-DISTRICT LITIGATION
This case is one of hundreds of lawsuits against 3M, alleging injury caused by the
CAEv2 earplugs.
See In re 3M Combat Arms Earplug Prod. Liab. Litig
., No. 3:19-md-2885,
The MDL Court has denied hundreds of remand motions by plaintiffs who initially brought claims in Minnesota state court. In re 3M Combat Arms Earplug Prod. Liab. Litig ., 2020 WL 365617, at *6. All of these complaints, however, involve only design defect claims, or failure-to-warn claims paired with design defect claims. Id. at *2. It does not appear that the MDL court has considered any cases alleging only a failure-to-warn claim.
DISCUSSION
I. REMAND AND THE FEDERAL OFFICERS REMOVAL STATUTE
Typically, a defendant may remove a civil action to federal court only if the action
could have been filed originally in federal court.
See
28 U.S.C. § 1441(a);
Gore v. Trans
World Airlines
,
To satisfy the Federal Office Removal Statute, the removing defendant must
plausibly allege that (1) the defendant is a “person” under the statute; (2) the defendant
was “acting under” the direction of a federal officer when it engaged in the allegedly
tortious conduct; (3) there is a causal connection between the defendant’s actions and
the official authority; and (4) the defendant raises a “colorable” federal defense
. See
Jacks v. Meridian Res. Co.
,
The parties dispute whether 3M has demonstrated a causal connection and
colorable federal defense. The party seeking removal to federal court bears the burden
*7
of demonstrating that removal was proper, even under the Federal Officer Removal
Statute.
Bor-Son Bldg. Corp. v. Heller,
A. CAUSAL CONNECTION
Graves disputes whether 3M has demonstrated a causal connection between its
actions and the official authority. Historically, courts have considered causal connection
to be a low hurdle.
See, e.g., Isaacson v. Dow Chem. Co.
,
In 2011, Congress amended the statute to encompass suits “for or
relating to
any
act under color of [federal] office.” 28 U.S.C. § 1442(a)(1) (2011) (emphasis added);
see
also In re Commonwealth's Motion to Appoint Counsel Against or Directed to Def. Ass'n of
Philadelphia
,
3M provided several pieces of evidence demonstrating that the warnings and instructions for its earplugs plausibly have some connection to, or association with, governmental actions. As such, the Court finds that 3M has met this initial low hurdle. B. COLORABLE DEFENSE UNDER THE FEDERAL CONTRACTOR DEFENSE Graves also argues that 3M has not demonstrated a colorable defense under the federal government contractor defense.
1. Federal Contractor Defense Requirements
On the whole, the contractor defense shields federal contractors by preempting
state tort liability for “design defects
[3]
in military equipment . . . when (1) the United States
approved reasonably precise specifications; (2) the equipment conformed to those
*9
specifications; and (3) the supplier warned the United States about the dangers in the use
of the equipment that were known to the supplier but not to the United States.”
Boyle v.
United Technologies Corp.
487 U.S. 500, 512 (1988). “Stripped to its essentials, the
military contractor’s defense under
Boyle
is to claim, ‘The Government made me do it.’”
In re Joint E. & S. Dist. New York Asbestos Litig.
,
In interpreting Boyle , courts have been somewhat opaque in determining what is required to find that the United States approved reasonably precise specifications, and the Eighth Circuit has not reached this issue. The courts that have considered the topic appear to fall into several different camps.
On the more demanding end, the Second, Ninth, and Eleventh Circuits generally
require that courts must find “both (a) a conflict between the requirements of state tort
law and those of the Government contract and (b) an exercise of Government discretion
in considering the design feature in question.”
Lewis v. Babcock Indus., Inc.
,
On the more relaxed end, the Sixth and Seventh Circuits do not require an explicit
“conflict” analysis, but instead appear to find that mere government involvement is
sufficient.
See Tate v. Boeing Helicopters
,
If, for example, the United States contracts for the purchase and installation of an air conditioning-unit, specifying the cooling capacity but not the precise manner of construction, a state law imposing upon the manufacturer of such units a duty of care to include a certain safety feature would not be a duty identical to anything promised the Government, but neither would it be contrary. The contractor could comply with both its contractual obligations and the state-prescribed duty of care. No one suggests that state law would generally be pre-empted in this context.
Boyle
,
It is possible that in formulating their interpretations of Boyle , the Sixth and Seventh Circuits assumed a prerequisite of governmental control over a contractor when the government “substantively approved” certain warnings. If the government had full control, a contractor would have no ability to alter warnings to match the requirements of state law. In those cases, the governmental interest in having its specified warnings would inherently conflict with any contrary state requirements. On the other hand, if the government merely suggested or considered certain warnings, then the contractor might well retain full ability to comply with state requirements. In those cases, a court would need to consider the nature of the government’s requirements and their conflict with state law.
2. Application to the Present Case Having reviewed and analyzed these cases, the Court will first look to see if the government exercised such control that a conflict with state law would be implied. If not, the Court will then consider whether 3M could have complied with its governmental requirements as well as state law.
3M has presented evidence that the government was involved, at least to some degree, in the development of the warnings for its commercial earplugs. In developing the instructions for the commercially available earplugs, 3M sought input from the US Army audiologist who had been working on the military product. The audiologist agreed that the instructions “looked good,” and asked whether 3M intended to abandon differential sizing. 3M, realizing it had forgotten something useful, incorporated the feedback into the instructions in the final product.
However, 3M has not demonstrated that the government had any control over the
instructions or warnings. 3M has not shown that they were obligated to seek government
review, or that governmental approval of the commercial product’s warnings was
*13
necessary or required. Instead, in the Court’s view, it appears that 3M voluntarily
approached Ohlin for his advice, and that he gave advice 3M found useful. Given these
facts, the Court would be hard-pressed to find that 3M could reasonably say “the
Government made me do it” as to the instructions on the commercially available
earplugs.
New York Asbestos Litig.
,
Nor has 3M made any showing that it could not comply with both its governmental requirements (if there were any at all) and Minnesota state law. Voluntarily seeking advice from the government on a commercial product does not give rise to the federal contractor defense.
The Court finds therefore that 3M has failed to show government control or a conflict with state law and has thus failed to show it plausibly has a colorable claim under the federal contractor defense.
Accordingly, the Court will grant Graves’s Motion to Remand.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
Plaintiff’s Motion to Remand [Docket No. 11] is GRANTED.
*14 LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 23, 2020 _______ ______ at Minneapolis, Minnesota. JOHN R. TUNHEIM
Chief Judge United States District Court
Notes
[1] The Complaint refers to Aearo Technologies LLC and notes that “[b]ecause 3M acquired both the assets and liabilities of Aearo, Aearo and 3M are used interchangeably, and all allegations against Aearo are directed as a matter of law against 3M.” (Complaint ¶ 14.) It appears that 3M acquired a different, but similarly named company, Aearo Technologies, Inc. in 2008. (Notice of Removal at 1 n.1.) Nonetheless, Aearo Technologies LLC, consented to 3M’s removal of the case.
[2]
See also Latiolais v. Huntington Ingalls, Inc.
,
[3] Although Boyle sets out the defense in terms of design defect claims, 3M seeks to expand the defense to cover failure-to-warn claims like Graves’s. Boyle v. United Technologies Corp. 487 U.S. 500, 512 (1988). While the Eighth Circuit has not considered the issue, it is a logical expansion, and one supported by the great majority of courts. See Ripley v. Foster Wheeler LLC , 841 F.3d 207, 210–11 (4 Cir. 2016) (noting that the Second, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits have approved the defense for failure-to-warn cases and “join[ing] the chorus” to add the Fourth Circuit.). The Court also finds that the federal contractor defense applies to failure- to-warn claims.
[4] 3M argues that the MDL court in Florida has considered this issue, but in fact, that court focused
on the “acting under” element not at issue here. When that court considered the “colorable
defense” element, it appears to have considered only the defective design claims, and not any
failure-to warn-issues.
See In re 3M Combat Arms
,
[5]
See, e.g., Butler v. Ingalls Shipbuilding, Inc.,
[6]
See also Oliver v. Oshkosh Truck Corp.,
[7] 3M also spends a significant portion of its briefing arguing that the government was involved in
the design of the product. Whether the government was involved in the product design is not a
relevant consideration in a pure failure-to-warn case, because these are two separate claims.
See, e.g., Tate
, 55 F.3d 11 at 1156 (“Simply because the government exercises discretion in
approving a design does not mean that the government considered the appropriate warnings
that ought to accompany the product.”) The MDL court has established that the government
was sufficiently involved in the design of the earplugs for the government contractor defense to
apply to defective design claims, but those claims are not made here.
In re 3M Combat Arms
Earplug Prod. Liab. Litig
.,
[8] To the extent that 3M suggests that the government may eventually provide additional documentation, which would further support its claim, this argument fails. 3M has the burden to demonstrate a colorable federal defense now, and it may not rely on the mere possibility of some future evidence as the basis for removal.