UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

Case No. 3:19md2885

LIABILITY LITIGATION

This Document Relates to:

McCombs, 7:20cv94

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

Defendants move for reconsideration of the Court’s Order granting summary 

judgment to Plaintiff, Dustin McCombs, on their apportionment defense. ECF No. 

70. The Court ruled, based in part on persuasive authority from Alaska federal 

district courts, that Defendants’ apportionment defense failed as a matter of law 

because Defendants could have brought a claim for equitable apportionment under 

Alaska law against the United States and therefore the United States could have been

added as a third-party defendant as required by Alaska’s “apportionment of 

damages” statute, Alaska Statute § 19.17.080. See In Re: 3M Combat Arms Earplug 

Prods. Liab. Litig., 7:20cv94, 2021 WL 1267984, at *2 (N.D. Fla. Apr. 6, 2021)

(quoting Stingley v. Raskey, No. A95-0242, 1995 WL 696591, at *7 (D. Alaska Nov. 

20, 1995) and citing Cabales v. Morgan, No. 3:14-CV-161, 2015 WL 999100, at *3 

(D. Alaska Mar. 6, 2015)). Defendants argue that the Court’s ruling is clear error 

because “the United States enjoys a complete immunity from . . . suit under the

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Feres[1] doctrine” and therefore “cannot be forced to litigate claims arising from 

military injuries, regardless of the form of relief sought.”2 Defendants further ague 

that Stingley and Cabales are distinguishable because the United States’ sovereign 

immunity from the plaintiffs’ claims in those cases resulted from the plaintiffs’ 

failure to timely bring their claims under the Federal Tort Claims Act (“FTCA”) and

that “Feres immunity,” unlike a defense to liability under the FTCA’s statute of 

limitations, is “a true immunity from suit.” The Court disagrees that Stingley and 

Cabales are materially distinguishable on this issue and ultimately concludes that 

Defendants could have joined the United States in this case under Alaska and federal 

law.

“The Feres doctrine is a judicially created exception to the federal 

government’s waiver of sovereign immunity for common law torts” and “operates 

to bar all service-related tort claims brought by soldiers against the government.” 

McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1341–43 (11th Cir. 2007); 

see Speigner v. Alexander, 248 F.3d 1292, 1298 (11th Cir. 2001) (“[C]ases brought 

by enlisted personnel against the military for injuries incident to service are 

nonjusticiable, whether the claims request monetary damages or injunctive relief.”).

1 Feres v. United States, 340 U.S. 135 (1950).

2 The Court previously denied Defendants’ motion for reconsideration to the extent it

argued that the Court’s ruling is manifestly unjust. See ECF No. 72.

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The doctrine rests on three policy grounds. First, because the relationship between 

the government and servicemembers “is distinctively federal in character[,] . . . the 

government’s liability to soldiers for service-related accidents must be governed by 

a uniform rule.” McMahon, 502 F.3d at 1342 (citation omitted). Second, because the 

statutory veterans’ benefits the government provides to injured servicemembers 

serve as a “congressional cap on the government’s liability for soldiers’ servicerelated injuries,” the uniform rule concerning the government’s liability for 

service-related injuries to soldiers “must be one of no liability.” Id. (citation 

omitted). Third, service-related tort claims “would involve the judiciary in sensitive 

military affairs at the expense of military discipline and effectiveness” and are 

therefore nonjusticiable. See id. at 1342–43 (“The third rationale represents a kind 

of justiciability constraint.”).

The Court finds that a claim for equitable apportionment under Alaska law 

by Defendants against the United States in McCombs’ case would not offend the 

policy rationales underlying the Feres doctrine. The first two rationales are not

offended because an equitable apportionment claim in this case would merely allow 

for the allocation of fault; it would not allow for the imposition of liability. See 

Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98, 106 n.46 (Alaska 2000) (noting that 

Alaska Civil Rule 14(c) permits a defendant to implead parties “who were not liable 

to the plaintiff because of the statute of limitations or some other immunity from 

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suit” (emphasis added));

3 Bethel Native Corp. v. Dep’t of Interior, 208 F.3d 1171, 

1174–75 (9th Cir. 2000) (applying Alaska law, and concluding that Eleventh 

Amendment immunity did not bar the United States from asserting a third-party 

claim for equitable apportionment against a state because “the main purpose of the 

United States’ third-party claim here was not to prosecute Plaintiff’s action, but 

rather was ‘to benefit itself by reducing any damages [Plaintiff] would otherwise 

recover from the United States”); Cabales, 2015 WL 999100, at *4 (“[I]t does not 

follow that a plaintiff must be able to collect on a judgment against a party 

responsible for the damages before that party can be allocated a portion of fault.”); 

Stingley, 1995 WL 696591, at *7 (“So long as no monetary judgment is entered 

against the United States as a consequence of effecting that determination [of 

apportionment of fault], the government’s sovereign immunity rights insofar as 

plaintiffs are concerned are observed and protected.”). Notably, an equitable 

apportionment claim also would not require the United States to participate in the 

suit. See Robinson v. U-Haul Co., 785 F. Supp. 1378, 1380 n.4, 1384 n.12 (D. Alaska 

1992) (explaining that a third-party defendant may “elect[] not to participate” in the 

3 “[T]he absence of a federal equivalent to Alaska Civil Rule 14(c) does not preclude a 

third-party practice of equitable apportionment claims in federal court.” See Stingley, 1995 WL 

696591, at *4.

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action due to “the absence of any right of recovery to accompany the right of 

[equitable apportionment]”).

The third policy also is not offended because McCombs does not challenge 

any order he was given during his military service or any other decision made by the 

military. Indeed, his product liability claims could stand alone without implicating 

any decision committed to the discretion of the military.

4 See McMahon, 502 F.3d 

at 1365 (“The evidence before us does not show a conflict between the allegations 

in the complaint and decisions made by the U.S. military. It would be inappropriate 

to dismiss the case on the mere chance that a political question may eventually 

present itself.”); McMahon v. Gen. Dynamics Corp., 933 F. Supp. 2d 682, 695 

(D.N.J. 2013) (rejecting military contractor defendant’s argument that plaintiff’s 

product liability claim presented a non-justiciable political question because

“[w]hether the manufacturing process was faulty is not a political question; it is a 

routine issue of civil, and civilian, tort law” that would not “inevitably” draw the 

4 Defendants long ago withdrew their affirmative defense based on the political question 

doctrine. See Letter from Kimberly M. Branscome, Counsel for Defendants, to the Hon. M. Casey 

Rodgers (Dec. 12, 2019) (“Defendants will not . . . argue that the political question doctrine applies 

to this case. Defendants have . . . concluded that the political question doctrine does not apply to 

this case. . . . Accordingly, Defendants will withdraw the affirmative defense based on the political 

question doctrine . . . .”) (on file with the Court). In any event, Defendants’ challenge to how the 

Army implemented its hearing conservation program is present in the case whether or not the 

United States is joined on an equitable apportionment claim or simply placed on the verdict form 

as a non-party. Moreover, the Department of Defense and Department of Justice have known about 

this litigation from its inception, including participating in numerous depositions; yet they have 

never made any effort to intervene to protect “sensitive military judgments.”

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court “into a reconsideration of military decisions”); see also Taylor v. John Crane, 

Inc., 6 Cal. Rptr. 3d 695, 699 (Cal. Ct. App. 2003) (in case brought by former 

servicemember against manufacturer of asbestos-containing products, affirming trial 

court's allocation of fault to the Navy for purposes of calculating defendant's 

proportionate share of non-economic damages despite the Navy's Feres immunity); 

cf. Loquasto v. Fluor Corp., Inc., --- F. Supp. 3d ----, 2021 WL 75550, at *5 (N.D. 

Tex. Jan. 8, 2021) (in personal-injury case arising from a suicide bombing 

committed by an Afghan national hired by defendants to work at a United States 

Military base in Afghanistan, finding that the political question doctrine precluded 

apportionment of fault to the military because “[s]uch a finding . . . would require 

the Court to inquire into the propriety of the military’s approval of [the suicide 

bomber] for base access and the soundness of the military’s security screenings at 

base entry points”). Moreover, unlike other third-party claims seeking equitable or 

injunctive relief, a claim for equitable apportionment would have no impact on the 

military’s operations or decision-making because it merely establishes the 

proportionate fault of adverse tortfeasors “without creating an ongoing legal duty 

between them.” See Bethel, 208 F.3d at 1176. Thus, Defendants could have asserted 

an equitable apportionment claim against the United States without “caus[ing] 

intolerable interference with . . . sensitive military judgments.” See McMahon, 502 

F.3d at 1340.

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The Court is not persuaded by Defendants’ attempt to distinguish Stingley and 

Cabales. In both cases, the defendants were permitted to bring equitable 

apportionment claims against the United States even though the United States 

enjoyed sovereign immunity as a result of the plaintiffs’ failure to timely bring 

actions within the FTCA’s statute of limitations period. See Stingley, 1995 WL 

696591, at *7; Cabales, 2015 WL 999100, at *3. Defendants argue that the United 

States’ sovereign immunity in Cabales and Stingley was only “a defense against 

liability” while its immunity under the Feres doctrine “is a true immunity from suit.”

While it is true that “sovereign immunity is a divisible concept” which “can include 

immunity from suit as well as immunity from liability,” see Stroud v. McIntosh, 722 

F.3d 1294, 1301 (11th Cir. 2013),

5 Defendants cite no authority for the proposition 

that the United States has waived its immunity from suit in cases where the FTCA’s 

statute of limitations has expired such that the “sovereign immunity” at issue in 

Cabales and Stingley is distinguishable from the “sovereign immunity” under the

5 See also CSX Transp., Inc. v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th Cir. 1998) 

(“Because Florida’s state sovereign immunity is only immunity from liability, it is analogous to 

federal sovereign immunity.” (citing Pullman Const. Indus., Inc. v. United States, 23 F.3d 1166 

(7th Cir. 1994) and Alaska v. United States, 64 F.3d 1352 (9th Cir. 1995))); but see In re World 

Trade Ctr. Disaster Site Litig., 521 F.3d 169, 191 (2d Cir. 2008) (“We are not convinced that 

Pullman or its progeny counsel us to disregard the statements of the Supreme Court that sovereign 

immunity encompasses a right not to be sued, even though those statements were not made in cases 

involving interlocutory appeals.” (internal citations omitted)).

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Feres doctrine.

6 Indeed, Defendants’ argument is contrary to the plain language of 

28 U.S.C. 2401(b): “A tort claim against the United States shall be forever barred

unless it is presented in writing to the appropriate Federal agency within two years 

after such claims accrues . . . .” (emphasis added). See Means v. United States, 176 

F.3d 1376, 1378 (11th Cir. 1999) ( “It is well settled that sovereign immunity bars 

suit against the United States except to the extent that it consents to be sued. It is 

equally settled that statutory waivers of sovereign immunity ‘are to be construed 

strictly in favor of the sovereign.’ ” (citations omitted and emphasis added)); Flohr 

v. Mackovjak, 84 F.3d 386, 392 n.8 (11th Cir. 1996) (“The Feres doctrine . . . 

concerns only an exception to the waiver of sovereign immunity contained in the 

Federal Tort Claims Act . . . .”).

In short, Defendants have shown no clear error of law. Accordingly, 

Defendants’ motion for reconsideration, ECF No. 70, is DENIED.

DONE AND ORDERED this 23rd day of April 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

6 Defendants cite Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1111 

(9th Cir. 2002) for the proposition that “[a] statute of limitations does not give rise to a right not 

to stand trial, but rather creates a safeguard against unfair verdicts from delinquent suits.” But 

Kennedy is inapposite because it did not involve the FTCA’s statute of limitations or sovereign 

immunity. See id. (finding that the General Aviation Revitalization Act’s eighteen-year statute of 

repose gives rise to “the right to be free from the burdens of trial”).

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