1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF 

FLORIDA PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION

This Document Relates to:

Charles Rataj v. 3M Company

Case No. 7:20-cv-64733-MCR-GRJ

Case No. 3:19-md-2885

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones

PLAINTIFF’S BRIEF IN SUPPORT OF VERMONT AS CHOICE OF LAW

Plaintiff, Charles Rataj, submits the following Brief in support of Vermont as 

the choice of law for his claims.

BACKGROUND

Under Vermont’s most significant relationship test, Vermont law applies to 

Plaintiff’s claims. Plaintiff first suffered permanent tinnitus and hearing loss from 

the CAEv2 in Iraq, but Plaintiff lived in Vermont throughout his military service, 

and in Vermont his injuries “continued to worsen,” MDL-Dkt. 1615 at 2

(McCombs), and he received the CAEv2 and used the CAEV2 for the longest time 

domestically there. Despite previously conceding that Camp Shelby is not a federal 

enclave, Wilkerson, 7:20-cv-35, Dkt. 37 at 9-10 & n.2, Defendants reverse course 

and now argue that Mississippi law should apply because Plaintiff received his first 

pair of CAEv2 and “first noticed” his hearing loss and tinnitus at Camp Shelby. Dkt. 
2 

17 at 1. On balance, Vermont clearly has the most significant relationship to this 

case and not Mississippi, where Plaintiff spent a few months prior to his deployment.

ARGUMENT

I. Vermont choice-of-law rules apply to Plaintiff’s claims. 

“Generally, a federal court sitting in diversity applies the conflict of law rules 

of the forum state to determine which state’s substantive laws govern a plaintiff’s 

state law claims.” MDL-Dkt. 1599 at 2. The District of Vermont is the proper forum 

for Plaintiff’s case. Dkt. 14. If the plaintiff was injured on a federal enclave, federal 

statute supplants the traditional choice-of-law analysis. Id. at 3 (citing 28 U.S.C. § 

5001(b)). Otherwise, the forum’s choice-of-law rules apply. MDL-Dkt. 1615 at 2.

Because Plaintiff was not injured on a federal enclave,1 Vermont’s choice-of-law 

rules apply.2

Vermont applies the “most significant relationship test” under the 

Restatement (Second) Conflict of Laws. McKinnon v. F.H. Morgan & Co., 170 Vt. 

422, 424, 750 A.2d 1026, 1028 (2000). Courts consider “(a) the place where the 

1 http://www.militarybases.us/army/camp-shelby/ (state owned); 

https://www.acq.osd.mil/eie/Downloads/BSI/Base%20Structure%20Report%20FY

18.pdf at 53.

2 Vermont first considers whether the states’ laws conflict. In re Ambassador Ins. 

Co., 2022 VT 11, ¶ 16, 275 A.3d 122, 126 (Vt. 2022). Here, Vermont clearly 

recognizes the “discovery rule” to determine when a cause of action accrues, see 12 

V.S.A. § 512(4), and it is less clear whether Mississippi applies such a rule. Donald 

v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss. 1999) 
3

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

domicil, residence, nationality, place of incorporation and place of business of the 

parties, and (d) the place where the relationship, if any, between the parties is 

centered.’” Id. The Court can resolve choice of law factual issues by a preponderance 

of evidence standard. MDL-Dkt. 3300. 

II. Vermont has the most significant relationship with Plaintiff’s claims.

The most significant relationship test compels application of Vermont law. 

A. The place where the injury occurred

Plaintiff was in Iraq and Vermont when his permanent hearing injuries 

manifested. The first time Plaintiff used the CAEv2 (at Camp Shelby), he 

experienced temporary hearing loss and tinnitus, but the hearing loss “dissipated and 

went away,” PX1 (Rataj-Depo. 214:19-23), and the tinnitus subsided after forty-five 

minutes or an hour, PX1 (Rataj-Depo. 221:3-222:14). It was not until Iraq that 

Plaintiff experienced persistent and permanent tinnitus, PX2 (Chaudhary Report 19); 

PX1 (Rataj-Depo. 222:15-223:1), the “severity” of which he felt only once he 

returned to Vermont in late 2005, PX3 (Chaudhary Depo. 114:3-16); PX4 (ORB)

(12/11/2005 stationed in Rutland, Vermont). Similarly, Plaintiff noticed persistent 

hearing loss when he returned to Vermont. PX1 (Rataj-Depo. 215:16); PX4 (ORB). 

Plaintiff’s June 12, 2009 audiogram (in Vermont) showed hearing loss in his left ear 

and constitutes the first “objective” measurement of Plaintiff’s injury. PX2 
4

(Chaudhary Report at 11); PX3 (Chaudhary Depo: 95:5-22); PX5 (audiogram). 

B. The place where the conduct causing the injury occurred

This factor is neutral.

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

place of business of the parties

This factor favors Vermont. Plaintiff was a member of the Vermont National 

Guard from 1992-2015 and was a resident of Vermont throughout his military 

career. See PX6 (2000 DD-214); PX7 (2010 DD-214). Defendants’ principal place 

of businesses and headquarters are in Minnesota, Delaware, and Indiana, none of 

which are at issue here. This does not render the factor “neutral,” as Defendants 

argue. Dkt. 17 at 4. Because Plaintiff’s residence during the relevant time was 

Vermont, this factor favors Vermont. See Price v. Litton Sys., Inc., 784 F.2d 600, 

604 (5th Cir. 1986) (applying most significant relationship test and finding residence 

factor favors Alabama because it was the party’s temporary residence at time of 

accident).

D. The place where the relationship between the parties is centered 

This factor implicates both Mississippi and Vermont, but Vermont is 

ultimately favored. Plaintiff received his first pair of CAEv2 at Camp Shelby, 

Mississippi during pre-deployment training a couple of months prior to his Iraq

deployment. PX8 (Rataj-Rog-3, 4); PX1 (Rataj-Depo. 170:14-18; 174:22-175:12).

Plaintiff used the CAEv2 at Camp Shelby for two to three months. PX8 (Rataj-Rog-
5 

5); PX1 (Rataj-Depo. 85:12-23).

Plaintiff received his second pair of CAEv2 in Rutland, Vermont in 2008 or 

2009. PX8 (Rataj-Rog-3); PX1 (Rataj-Depo. 171:19-23). Plaintiff received a written 

label or instructions with his second pair of CAEv2 in Vermont but did not receive 

any written instructions at Camp Shelby. PX1 (Rataj-Depo. 182:17-21; 183:3-

184:14). Contrary to Defendants’ argument, Dkt. 17 at 5, Vermont has the power 

and interest to regulate military equipment soldiers receive and use within its 

borders. This factor therefore favors Vermont.

Conclusion 

Application of these facts compels Vermont law because Plaintiff suffered his 

injuries, received the CAEv2 with written instructions, and resided while serving in 

the Vermont National Guard (and wearing the CAEv2) in Vermont. Although 

Plaintiff received his first pair of CAEv2 and was stationed in Mississippi on a twoor-three-month detour to Camp Shelby, Plaintiff has no other connection to 

Mississippi. On balance, Vermont has the stronger ties and Vermont law applies. 
6 

Dated: July 20, 2022 Respectfully submitted, 

/s/ Nicole C. Berg

Nicole C. Berg (IL Bar #6305464)*

ncb@kellerpostman.com

KELLER POSTMAN LLC

150 N. Riverside Plaza, Suite 4100

Chicago, Illinois 60606 

(312) 741-5220

*Admitted Pro Hac Vice

Attorney for Plaintiff
7 

CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(F) AND 56.1(E)

I hereby certify that this motion complies with the word limit of Local Rules 

7.1(F) and 56.1(E) and contains 977 words.

/s/ Nicole C. Berg 

Nicole C. Berg
8 

CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(B) AND 7.1(B), (C)

Pursuant to Local Rule 7.1(B), counsel for Plaintiffs and Defendants Remand 

Leadership and Special Master Adriane Theis conferred on July 12, 2022, regarding 

the foregoing motion but were unable to resolve issue with Defendants. 

/s/ Nicole C. Berg 

 Nicole C. Berg
9 

CERTIFICATE OF SERVICE

The undersigned, an attorney, certifies that the foregoing was filed 

electronically with the Clerk of the Court using the CM/ECF system on July 20, 

2022. 

/s/ Nicole C. Berg 

 Nicole C. Berg