Graves v. 3M Company

Background

Christopher Graves sued 3M Company and Aearo Technologies LLC in Hennepin County District Court. He asserted one Minnesota product-liability claim: that 3M failed to provide adequate warnings or instructions for its Combat Arms Earplugs, Version 2. Graves alleged that he was not told to fold back part of the earplug and that he suffered hearing loss and tinnitus as a result.

3M removed the case to federal court under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). That statute can allow a defendant to remove a state-law case when the defendant plausibly shows that it acted under federal authority and has a plausible defense based on federal law. Graves moved to remand, asking the court to return the case to state court.

The Court’s Analysis

The court held that 3M satisfied the statute’s relatively low requirement of showing a connection between its conduct and government action. 3M presented evidence that a United States Army audiologist reviewed proposed instructions for the commercial earplugs, commented on them, and influenced language that 3M included in the final instructions.

The court nevertheless held that 3M had not shown a colorable federal contractor defense. A colorable defense is one that is plausible, even if the court does not decide that it will ultimately succeed. The federal contractor defense can protect a contractor from state tort liability when the government approved reasonably precise specifications, the contractor followed those specifications, and the contractor warned the government about known dangers that the government did not know about. The court also held that the defense can apply to failure-to-warn claims.

The court concluded that 3M had not shown that the government controlled the instructions or warnings for the commercial earplugs. The evidence showed that 3M voluntarily sought advice from a government audiologist, rather than being required to obtain government review or approval. The court also found that 3M had not shown that it could not comply with both any government requirements and Minnesota law. The possibility that additional government documents might later support 3M’s position did not satisfy 3M’s present burden.

Disposition

The court granted Graves’s Motion to Remand. The opinion did not decide whether 3M was liable for failing to warn, and it did not resolve the ultimate merits of Graves’s product-liability claim. The case was therefore returned to the state court in which Graves originally filed it. Chief Judge John R. Tunheim entered judgment accordingly.