Smith v. 3M Company

Background

The plaintiffs were private military contractors who wore Combat Arms Earplugs, Version 2 (CAEv2), while performing tasks as civilian employees working as military contractors. They alleged that 3M Company and Aearo Technologies LLC failed to provide adequate instructions and warnings about how to fit and safely wear the earplugs. Specifically, they alleged that they were not instructed to fold back the third flange and were not warned that the earplugs could be ineffective if they did not do so. They claimed that they suffered hearing loss and/or tinnitus.

The plaintiffs filed product-liability claims in Minnesota state court. 3M removed the cases to federal court and argued that federal jurisdiction existed under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), because of a government-contractor defense. The plaintiffs moved to remand, meaning they asked the federal court to return the cases to state court.

Legal standard

Ordinarily, a defendant cannot move a case to federal court based only on a federal defense when the complaint asserts state-law claims. The Federal Officer Removal Statute creates an exception. To use it, the removing defendant must plausibly allege that it is a covered person, acted under the direction of a federal officer, has a causal connection between its conduct and that official authority, and has a plausible, or “colorable,” federal defense.

The court discussed an earlier related proceeding involving CAEv2 claims. In that proceeding, the Eighth Circuit held that 3M had satisfied the requirements for federal-officer removal where the plaintiffs had received the earplugs through the military and with the warnings the military ordered to accompany them.

Analysis and ruling

The court found that the earlier Eighth Circuit decision turned on whether the plaintiffs received the CAEv2 earplugs through the military. 3M conceded that it lacked a sufficient basis to allege that the plaintiffs in these two cases received their earplugs through the military. The court therefore concluded that 3M had not established federal-question jurisdiction under the Federal Officer Removal Statute.

The court granted both plaintiffs’ motions to remand: the motion in Smith et al. v. 3M Company et al., Civil No. 21-1897, and the motion in Reezaye v. 3M Company et al., Civil No. 21-1905. The order returned both cases to Minnesota state court. It did not decide whether the plaintiffs’ failure-to-warn claims were legally valid or whether 3M’s defense would ultimately succeed.