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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE 3M COMBAT ARMS ) Case No. 3:19-md-02885-MCR-GRJ

EARPLUG PRODUCTS ) 

LIABILITY LITIGATION ) 

) Judge M. Casey Rodgers 

) Magistrate Judge Gary R. Jones

This Document Relates to: ) 

Charles D. Rataj ) 

) 

Civil Case No. 7:20-cv-64733 ) 

DEFENDANTS’ BRIEF REGARDING CHOICE OF LAW 

Plaintiff’s claims are governed by Mississippi’s substantive law. Plaintiff first 

was issued the Dual-Ended Combat Arms Earplug (“the CAEv2”) in September or 

October 2004 at Camp Shelby, Mississippi, just prior to his deployment to Iraq from 

2004-2005. See Ex. 1, Rataj 2/18/2022 Dep. 122:06-14, 170:14-171:18, 174:22-

175:16; see also Ex. 2, Plaintiff’s Resp. to Defendant’s First Interrogatories at No. 

3. Plaintiff first used the CAEv2 at Camp Shelby at the M4 rifle range in the Fall of 

2004. Ex. 1 Rataj 2/18/2022 Dep. 174:22-175:12, 193:15-20; Ex. 2 at No. 5. Though 

Plaintiff later used the CAEv2 while deployed to both Iraq and Afghanistan, he first 

noticed the hearing loss and tinnitus he associates with his use of the CAEv2 in 

October 2004 at Camp Shelby and testified that he believes these injuries were 

caused by his use of the CAEv2 based on his “experience with them in 2004 and 

2005.” Ex. 1, Rataj 2/18/2022 Dep. 174:22-175:12, 213:17-214:18, 221:3-12, 
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225:1-10; see also Ex. 2, Plaintiff’s Resp. to Defendant’s First Interrogatories at No. 

2. Similarly, Plaintiff’s case-specific expert, Dr. Hamad Chaudhary, notes that 

Plaintiff’s first hearing loss and tinnitus occurred during pre-deployment training at 

Camp Shelby in 2004. Ex. 3, Chaudhary Report at 12. 

Under these facts, the applicable provisions of 28 U.S.C. § 5001(b), and 

traditional choice-of-law rules, Plaintiff’s claims are governed by Mississippi’s 

substantive law. 

ARGUMENT 

I. Federal statute dictates that Mississippi law applies to an action where 

the claimed injury happened at Camp Shelby.

If Plaintiff’s alleged injury occurred on a domestic military installation, choice 

of law is controlled by federal statute. See 28 U.S.C. § 5001(b). The crucial question 

of where each plaintiff sustained her alleged injuries is a fact question, but it is 

appropriate for a judge, and not a jury, to resolve fact questions that bear on the 

choice-of-law analysis. See In re Facebook Biometric Info. Privacy Litig., 185 F. 

Supp. 3d 1155, 1160–61 (N.D. Cal. 2016) (collecting authority). 

“Relevant to this litigation, . . . the traditional choice of law analysis may be 

supplanted by a federal statute in the event a plaintiff’s injury was sustained in a 

place subject to the exclusive jurisdiction of the United States.” In re: 3M Combat 

Arms Earplug Prods. Liab. Litig., No. 3:19-md-02885, ECF No. 1599 (citing 28 

U.S.C. § 5001(b)). “[T]he statute provides the applicable choice of law rule and 
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instructs that if ‘a civil action [is] brought to recover on account of an injury 

sustained in a place described in subsection (a)’ of the statute, i.e. a place ‘subject to 

the exclusive jurisdiction of the United States within a State,’ then ‘the rights of the 

parties shall be governed by the law of the State in which the place is located.’” Id. 

Military bases and properties located in the United States are subject to Section 5001 

or its predecessor, 16 U.S.C. § 457. Id. (citations omitted). Accordingly, the law of 

the State of Mississippi—where Camp Shelby is located—applies. 

II. Traditional choice-of-law principles also call for application of 

Mississippi law.

Even assuming the provisions of § 5001(b) do not apply (i.e., if Plaintiff’s 

alleged injuries occurred overseas), it would not affect choice of law. Where the 

plaintiff sustained injuries overseas, the Court should apply the choice-of-law rules 

of the court where the plaintiff would have brought his case if not for inclusion in 

this multidistrict litigation proceeding. See Wahl v. Gen. Elec. Co., 786 F.3d 491, 

496 (6th Cir. 2015). Here, the parties have agreed that an appropriate venue for this 

case is the District of Vermont. See ECF No. 12. Vermont applies the “most 

significant relationship” test when considering disputes over choice of law. Miller v. 

White, 167 Vt. 45, 47, 702 A.2d 392, 393 (1997). 

The factors to be considered when applying this test include “(a) the place 

where the injury occurred, (b) the place where the conduct causing the injury 

occurred, (c) the domicile, residence, nationality, place of incorporation and place 
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of business of the parties, and (d) the place where the relationship, if any, between 

the parties in centered.” Restatement (Second) Conflicts of Laws § 145(2); 

McKinnon v. F.H. Morgan & Co., Inc., 170 Vt. 422, 425, 750 A.2d 1026, 1029 

(2000). Applying those factors here, Mississippi law should apply. 

A. The place where the injury occurred. 

Here, neither party advocates for the application of foreign law. Accordingly, 

this factor is neutral. 

B. The place where the conduct causing the injury occurred. 

This case concerns allegedly negligent design and labeling decisions made by 

Aearo in 1999 and 2000, all of which took place at the company’s headquarters in 

Indiana. However, neither Plaintiff nor Defendant advocate for the application of 

Indiana law. This factor is therefore neutral. 

C. The domicile, residence, nationality, place of incorporation and 

place of business of the parties.

Plaintiff’s domicile is Vermont. See Crouch v. Gen. Elec. Co., 699 F. Supp. 

585, 590 (S.D. Miss. 1988) (considering state where army personnel stationed as the 

state of residence). Aearo is a Delaware corporation with its headquarters and 

principal place of business in Indiana. 3M Company is incorporated in the state of 

Delaware with its principal place of business in Minnesota. This factor is therefore 

neutral. 
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D. The place where the relationship, if any, between the parties is 

centered. 

Plaintiff was issued the CAEv2 at Camp Shelby in Mississippi, first used the 

CAEv2 at Camp Shelby in Mississippi, and noticed his alleged injuries at Camp 

Shelby in Mississippi and then in Iraq. Vermont has no power to regulate the military 

equipment that soldiers use in Mississippi or Iraq, nor does it have any interest in 

doing so. See Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1237 (10th Cir. 

2012). To the extent the relationship is centered in any state, it is centered in 

Mississippi. Linfoot v. McDonnell Douglas Helicopter Co., 2015 WL 1190171, at 

*5 (M.D. Tenn. Mar. 16, 2015). 

CONCLUSION 

For these reasons, Mississippi law should govern. 

DATED: July 18, 2022 

Respectfully submitted, 

GORDON REES SCULLY MANSUKHANI 

/s/ Leslie A. Benitez 

Leslie A. Benitez, Admitted Pro Hac Vice

Texas State Bar No. 2134300 

901 South Mopac Expressway 

Building 1, Suite 480 

Austin, Texas 78746 

Telephone (512) 582-6471 

lbenitez@grsm.com 
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Nancy M. Erfle, Admitted Pro Hac Vice

Oregon Bar No. 902570 

1300 SW Fifth Ave., Suite 2000 

Portland, OR 97201 

Telephone: (503) 382-3852 

nerfle@grsm.com 

Counsel for Defendants 3M Company, 3M 

Occupational Safety LLC, Aearo Technologies 

LLC, Aearo Holding, LLC, Aearo Intermediate, 

LLC and Aearo, LLC 
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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

Pursuant to Local Rule 7.1(F), counsel for Defendants certify that this 

memorandum contains 995 words, excluding the case style, signature block, and 

certificates of compliance with the Local Rules. 

/s/ Leslie A. Benitez 

Leslie A. Benitez, Admitted Pro Hac Vice
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CERTIFICATE OF ATTORNEY CONFERENCE 

Counsel for Defendants certify that they have complied with the attorneyconference requirement of Local Rule 7.1(B), and the parties cannot agree as to the 

choice of law. 

/s/ Leslie A. Benitez 

Leslie A. Benitez, Admitted Pro Hac Vice
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CERTIFICATE OF SERVICE 

I do hereby certify that on this 18th day of July, 2022, a true and correct copy 

of the foregoing was electronically filed with the Clerk of the United States District 

Court for the Northern District of Florida using the electronic case filing system of 

the Court, which will send electronic service to all registered counsel of record. 

/s/ Leslie A. Benitez 

Leslie A. Benitez, Admitted Pro Hac Vice