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3M earplug cases sent to state court as federal bellwether dropped

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The 3M logo is seen at its global headquarters in Maplewood, Minnesota, U.S. on March 4, 2020. REUTERS/Nicholas Pfosi

  • Judge rejects government contractor, combatant activities, other defenses
  • Scheduled federal bellwether case dismissed with prejudice

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(Reuters) - 3M Co has lost the latest in a series of bids to move lawsuits alleging that its combat earplugs caused hearing damages from Minnesota state court to federal court, which would have cleared the way for them to be sent to a multidistrict litigation in Florida.

U.S. District Judge John Tunheim in Minneapolis on Thursday ruled that he lacked jurisdiction over eight lawsuits, including dozens of plaintiffs, rejecting 3M's arguments that its status as a U.S. military contractor allowed it to raise federal law defenses.

3M spokesperson Fanna Haile-Selassie said the company is confident in its defenses whether they are in state or federal court. Daniel Gustafson of Gustafson Gluek, a lawyer for the state court plaintiffs, could not be reached for comment.

The ruling came a day after a case that was scheduled to go to trial in September as a bellwether in the MDL was voluntarily dropped. A stipulation of dismissal filed Wednesday in Pensacola, Florida, federal court did not give a reason, and Adam Wolfson of Quinn Emanuel Urquhart & Sullivan, a lawyer for plaintiff Joseph Taylor, could not immediately be reached for comment Thursday evening.

Another bellwether plaintiff will now go to trial in September instead of Taylor, according to Haile-Selassie.

3M is facing more than 240,000 claims by veterans and service members over the earplugs, known as Combat Arms Earplugs Version 2. The vast majority of those are consolidated before U.S. District Judge M. Casey Rogers in the Northern District of Florida, in the largest multidistrict litigation in history.

However, about a thousand cases are also pending in Minnesota state court. 3M has tried to remove many of those cases to federal court.

In the cases at issue in Thursday's ruling, 3M argued that the federal court had jurisdiction because it had defenses under federal law - specifically, the federal contractor defense, which bars state law claims against government contractors for work done under the control of the government, and the combatant activities exception, which may shield contractors from state law claims over battlefield activities.

Tunheim noted that he had rejected both of those arguments in similar cases before, in which he found that the government had little control over the earplugs and 3M did not act similarly to a combatant.

3M raised additional grounds for federal jurisdiction as to one of the plaintiffs who said he suffered hearing damage from the earplugs while working for a military contractor in Japan. The company cited a bilateral agreement between the United States and Japan under which the United States exercised jurisdiction over its base there.

Tunheim, however, said the agreement only extended federal criminal laws to the contractor in Japan, which he said was "obviously of no relevance to a products liability action."

Three bellwether cases have gone to trial in the MDL, one of which resulted in a $7.1 million verdict for three plaintiffs and another in a $1.7 million verdict for a single plaintiff. 3M won one of the trials.

The case is Adams v. 3M Co et al, U.S. District Court, District of Minnesota, No. 21-cv-00910, and related cases.

For plaintiffs: Daniel Gustafson of Gustafson Gluek

For 3M: Benjamin Hulse of Blackwell Burke

(NOTE: This story has been updated to include the dismissal of a bellwether case and a comment from 3M.)

Read more:

3M loses third trial in huge military earplug mass tort

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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