MCCOMBS

v.

3M COMPANY

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 Feres 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.”).

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 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

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

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. 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

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