Bischoff v. 3M Company <font color="red">DO NOT DOCKET. CASE HAS BEEN…

Background

The opinion addresses four related Minnesota state-court actions: Bischoff, No. 20-1984; Anderson, No. 20-2010; Briones, No. 20-2042; and Akin, No. 20-2125. Together, the actions involved 66 plaintiffs. Each plaintiff alleged a single product-liability claim asserting that 3M Company and Aearo Technologies LLC failed to adequately instruct or warn users about how to fit and wear Combat Arms Earplugs, Version 2 (CAEv2). The plaintiffs alleged that they later suffered hearing loss and/or tinnitus.

The plaintiffs alleged that they wore the earplugs during military service while exposed to loud and damaging sounds. The Bischoff, Anderson, and Briones plaintiffs alleged that they did not wear the earplugs on stateside military bases and first suffered injury overseas. The Akin plaintiffs alleged that they wore the earplugs stateside but also alleged that they first suffered injury during combat overseas.

3M removed the actions from Minnesota state court to federal court. The plaintiffs moved to remand, meaning they asked the federal court to return the cases to state court because federal subject-matter jurisdiction was lacking.

Federal Officer Removal and Government Contractor Defense

The court explained that the federal officer removal statute allows a defendant to remove a state-law case when the defendant plausibly shows, among other things, that it acted under a federal officer’s direction and has a colorable federal defense. A colorable defense is one that is legally plausible at the removal stage.

The court held that 3M had not shown a colorable government contractor defense. That defense required 3M to show a significant conflict between its federal obligations and Minnesota’s state-law duty to warn. The court applied three criteria: whether the military exercised discretion and approved particular warnings; whether 3M provided the warnings required by the military; and whether 3M warned the military about dangers known to 3M but not to the military.

The court found that 3M failed to satisfy all three criteria. First, the evidence indicated that the military relied on information from 3M rather than independently determining the warnings and instructions. The court concluded that 3M could have provided additional warnings about the risk that the earplugs could loosen without the user noticing, regardless of ear-canal size. Second, the military had not imposed reasonably precise specifications concerning the content or type of warnings that 3M had to provide. Third, the evidence showed that 3M did not communicate all risks revealed by its testing, including the risk that the earplugs could imperceptibly loosen and the need for revised instructions.

Because 3M had not shown a significant conflict between federal interests and Minnesota law, the court held that the government contractor defense did not provide federal jurisdiction.

Combatant Activities Exception

3M also relied on the combatant activities exception, which can preempt tort claims arising from a private contractor’s integration into combat activities controlled by the military. The court held that merely supplying CAEv2 earplugs to the military did not show that 3M itself was integrated into combatant activities over which the military retained command authority. The court therefore found that 3M had not raised a colorable combatant-activities defense and that this ground did not support federal jurisdiction.

Federal Enclave Jurisdiction

3M asserted that the cases arose on federal enclaves, such as military bases, which can support federal jurisdiction for injuries occurring there. The court held that the location where the tort claim arose was the location where the injury occurred, because the claims accrued when the alleged failure to warn resulted in damage.

The court found that the Bischoff, Anderson, and Briones plaintiffs alleged injury only overseas, not on federal enclaves. Although most Akin plaintiffs alleged that they acquired the earplugs on stateside military bases or installations, they also alleged that they first suffered injury during overseas combat. The court therefore held that the claims in all four actions did not arise on federal enclaves and that federal-enclave jurisdiction was lacking.

Article IV and Admiralty Jurisdiction

The court also rejected 3M’s reliance on Article IV of the Constitution and admiralty jurisdiction. Based on the court’s earlier ruling in a related proceeding, the court held that 3M was precluded from asserting those grounds again because 3M had been a party to that earlier proceeding and the same jurisdictional issues had been essential to its final judgment.

Disposition

The court concluded that it lacked subject-matter jurisdiction over the plaintiffs’ actions. Chief Judge John R. Tunheim granted the plaintiffs’ motions to remand in all four actions and ordered that judgment be entered accordingly. The opinion did not decide whether the plaintiffs would ultimately prevail on their product-liability claims.