8th Circ. Sends Civilians’ 3M Earplug Suits To State Court

The Eighth Circuit sent to state court civilians’ claims that they were not warned about the alleged dangers of earplugs originally designed for the military by a company now owned by 3M Co., saying the military’s specifications did not constrain what warnings the company put in the commercially sold models.

The three-judge panel affirmed the remand of claims by several plaintiffs who had brought claims in Minnesota state court, but found that those plaintiffs who bought the earplugs through the military must stay in federal court.

The opinion consolidated appeals in 14 actions, which alleged that the users of the Combat Arms Earplugs Version 2, or CAEv2, made by Aearo Technologies and sold by 3M suffered hearing damage or tinnitus as a result of 3M’s failure to provide adequate instructions and warnings on how to use the earplugs.

The cases led by Christopher Graves all contain civilian purchasers, while the cases consolidated under the one led by Casey Copeland include an unknown number of military contractor plaintiffs.

Aearo, which was bought by 3M in 2008, made the earplugs to the specifications of the U.S. Army, and on the Army’s request, shipped the earplugs to the military in bulk, without instructions, because the military intended to provide its own training and instructions.

When Aearo decided to sell a version for commercial use, it drafted instructions and sent them to the Army’s program manager of hearing conservation — who had originally commissioned the earplugs for the military — for feedback. Aearo then incorporated the feedback into the packaging.

After the Graves and Copeland suits were filed, 3M removed the cases to federal court, saying that the earplugs had been designed in conjunction with the military for military purposes, which allows it to take the federal contractor defense. But the district court later granted the plaintiffs’ motion to remand, saying the company failed to demonstrate a conflict between its obligation to design the product to the military’s specifications and its state law duty to warn civilian purchasers, and 3M appealed.

Eventually, the panel agreed that the civilian purchasers who bought the product commercially could keep their claims in state court, noting that they are not making design defect claims, but only failure to warn ones. Voluntarily soliciting feedback from the military about the proposed instructions for a commercial product does not show that 3M was carrying out or assisting in the government’s duties, so it cannot be said to have been “acting under” an officer or agency of the U.S. in that capacity.

However, an “uncertain number” of plaintiffs in the consolidated appeals worked for defense contractors and received the earplugs from the military, and in those cases, 3M has shown that its warnings were the result of military specifications, so it has a reasonable federal defense in the government contractor defense that must go before the federal court.

As such, the panel reversed the remand order as to those plaintiffs, and noted that the courts must sort out which of them worked for defense contractors.

LAW360: https://www.law360.com/articles/1432882/8th-circ-sends-civilians-3m-earplug-suits-to-state-court

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