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Judge John Tunheim
Judge John Tunheim at the State Capitol for former Gov. Mark Dayton’s protrait unveiling on Oct. 17, 2019. (File photo: Kevin Featherly)

Bar Buzz: ‘Feds made me do it’ won’t fly

How did Bob Dylan put it? “You’re in the wrong place, my friend: You’d better leave.”

That’s pretty close to what U.S. District Court Chief Judge John Tunheim told the 3M Company and its subsidiary, Aearo Technologies, L.L.C., when they tried to transplant a product liability claim to his court from state District Court.

As he did with a nearly identical case in March, Tunheim remanded the case.

It involves six plaintiffs who used 3M’s Combat Arms earplugs on the job. They all worked in loud environments—one was a firefighter, another a helicopter mechanic, a third a heavy machinery mechanic.

The six men—Steven Trail, Kevin Kane, Robert Taylor, Jeff Hall, Vincent Gonzales and Anthony Skaalerud—claimed that because they were improperly instructed on use of the earplugs, they suffered hearing loss. Each filed a single state court claim of product liability for failure to warn.

3M tried to remove the case to federal court, asserting a federal government-contractor defense; plaintiffs moved to remand. All parties agreed that the federal court’s recent ruling in Graves v. 3M Co. would be controlling.

“The question before the Court is whether the factual allegations in these complaints materially differ from the allegations in Graves so as to compel a different result,” Tunheim wrote in his July 22 order.

That would be a no.

The Graves case, which involved the same ear plugs, was decided on March 23. In it, the court ruled that 3M failed to show it could not comply with both federal governmental requirements—if  there  were  any—and  Minnesota  state  law. Voluntarily seeking advice from the government on a commercial product, as 3M did in that case, “does not give rise to the federal contractor defense,” that ruling states.

The six men’s combined suit was not materially different from Christopher Graves’ case, Tunheim ruled. And the same reasoning applies, he wrote. Just because the six plaintiffs’ allegations involve a defective design, they “do not transform a failure-to-warn claim into a defective-design claim.”

“Nor is there any reason why issue preclusion is inappropriate here,” Tunheim writes in his July 22 order. Accordingly, he found that 3M is precluded from asserting jurisdiction, and granted the plaintiffs’ motion to remand for the same reasons outlined in Graves.

“Namely,” Tunheim concludes, “that 3M cannot show that ‘the government made me do it.’”

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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