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:

Brandon Adkins, 7:20cv012

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Defendants’ Motion for Judgment as a 

Matter of Law (“JMOL”) under Federal Rule of Civil Procedure 50(a) on all of 

Plaintiff Brandon Adkins’ claims on statute of limitations grounds. Additionally, 

Defendants argue that the evidence is insufficient for a reasonable jury to find for 

Adkins on his fraud claims.1

 On consideration, the motion is denied.

I. Legal Standard

JMOL is appropriate where a party has been fully heard on an issue and there 

is no legally sufficient evidentiary basis for a reasonable jury to find for the party on 

that issue. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 421 F.3d 1169, 1177 

(11th Cir. 2005) (citing Fed. R. Civ. P. 50(a)). When considering such a motion, a 

court must “review the entire record, examining all the evidence, by whomever 

1 The Court has already found, on the record during oral argument, there was a sufficient 

evidentiary basis for a jury to find for Adkins on the elements of his failure to warn claims. 

Defendants did not challenge the evidentiary basis for Adkins’ design defect claim.

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presented, in the light most favorable to the nonmoving party, and drawing all 

reasonable inferences in the nonmovant’s favor.” Id. In doing so, the court may not 

make credibility determinations or weigh the evidence, as those are solely functions 

of the jury. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 

A motion for JMOL should be granted “only if the facts and inferences point so 

overwhelmingly in favor of the [moving party] that [a] reasonable [jury] could not 

arrive at a contrary verdict.” Bogle v. Orange Cty. Bd. of Cty. Comm’rs, 162 F.3d 

653, 656 (11th Cir. 1998). 

II. Statute of Limitations

Defendants argue that all of Adkins’ claims are barred by the statute of 

limitations. Under Washington law, both products liability and fraud actions are 

subject to a three-year statute of limitations. See Wash. Rev. Code Ann. §§ 7.72.060

(product liability), 4.16.080 (fraud). The limitations period begins to run when the 

plaintiff’s cause of action accrues, which typically occurs when the plaintiff suffers 

injury or damage. See Giraud v. Quincy Farm & Chem., 6 P.3d 104, 109 (Wash. 

App. 2000). However, in cases like this one, where a plaintiff “could not [have]

immediately know[n] [] the cause [his] injuries,” courts may apply a discovery rule 

that tolls the date of accrual until the date the plaintiff discovered, or in the exercise 

of due diligence should have discovered, all of the facts constituting the essential 

elements of his claim. See In re Estates of Hibbard, 826 P.2d 690, 750 (Wash. 1992); 

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see also Goad v. S.A. Woods Mach. Co., 77 F.3d 488, 1996 WL 65273, at *2 (9th 

Cir. 1996) (applying Washington product liability law); Young v. Savidge, 230 P.3d 

222, 230 (Wash. App. 2010) (fraud). Whether the plaintiff knew or should have 

known the facts constituting his claims within the applicable limitations period 

normally is an issue of material fact to be resolved by a jury. Clare v. Saberhagen 

Holdings, 123 P.3d 465, 467 (Wash. App. 2005). However, the question may be 

decided by a court as a matter of law where “reasonable minds can reach but one 

conclusion” from the facts. See Allen v. State, 826 P.2d 200, 204 (Wash. 1992); 

Giraud, 6 P.3d at 109. 

Here, the parties agree that Defendants prevail on the statute of limitations 

defense if Adkins discovered, or should have been able to discover, the factual basis 

for his claims before June 16, 2016. Defendants argue that Adkins should have 

discovered it—and would have, with the exercise of due diligence—by 2009, at the 

latest. By that time, they maintain, Adkins admittedly knew he was experiencing 

tinnitus and hearing loss, and that the CAEv2 had previously fallen out of his ears. 

In their view, those facts put Adkins on notice of his injury and that he had “been 

harmed,” triggering the statute of limitations and/or a “duty to investigate” the cause 

of his injury, which he did not do.

The problem with Defendants’ argument is that it ignores two critical 

components of Washington’s discovery rule: (1) a plaintiff can only be charged with 

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notice of facts that “a reasonable or diligent inquiry would have discovered at the 

time,” see Saberhagen, 123 P.3d at 467-68 (emphasis added); and (2) facts causally 

connecting a product to an injury are an essential element of the factual basis for a 

product liability claim for statute of limitations purposes, see N. Coast Air Servs., 

Ltd. v. Grumman Corp., 759 P.2d 405, 411 (Wash. 1988) (holding that a product 

liability action does not accrue until the plaintiff discovers, or in the exercise of due 

diligence should have discovered, a “causal relationship [between] the product [and]

the harm”). 

To begin with, a reasonable jury could readily conclude there were no 

available facts causally connecting the CAEv2 with hearing injuries in 2009. Indeed, 

Dr. Marc Bennett testified that the earliest year that Adkins “could have possibly 

discovered” this information was 2018, when the relevant records became public. 

See Adkins Trial Transcript dated Sept. 24, 2021 at 61-62. Viewing the evidence in 

the light most favorable to Adkins, which the Court must do at this stage, Ledbetter, 

421 F.3d at 1177, even the most diligent of inquiries could only have revealed the 

fact of his hearing injuries before that time. And according to Adkins, he did discuss 

those injuries with a doctor. But there is no evidence that any doctor, much less 

Adkins, did or could have causally connected his hearing injuries with an 

imperceptible loosening defect in the CAEv2. Consequently, a jury could 

reasonably conclude that Adkins exercised diligence that was reasonable under the 

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circumstances in 2009, and that no diligent inquiry would have uncovered the 

possibility that the CAEv2 caused his alleged injuries until 2018.

The same is true for Adkins’ fraud claims. “A fraud action accrues when the 

aggrieved party discovers, or in the exercise of due diligence should have 

discovered, the fact of fraud, and sustains some damage as a result.” Savidge, 230 

P.3d at 230. On this record, a jury could reasonably conclude there is no evidence 

that Adkins—or anyone else outside of 3M, for that matter—could have discovered 

with due diligence the alleged facts constituting fraud before June 16, 2016.

Based on the foregoing, the Court finds cannot find as a matter of law that 

Adkins, in the exercise of due diligence, could have discovered the facts constituting 

the essential elements of his products liability and fraud claims before June 16, 2016. 

Therefore, Defendants’ JMOL on statute of limitations grounds is denied.

III. Fraud Claims

Defendants argue that Adkins’ fraud claims fail because he has not shown that 

he reasonably relied on any of Defendants’ affirmative misrepresentations

(fraudulent misrepresentation; fraud and deceit) and because there was no special 

relationship between Defendants and Adkins giving rise to a duty to disclose

(fraudulent concealment). This is incorrect.

As the Court explained in denying Defendants’ motion forsummary judgment

on Adkins’ fraud claims, Adkins has raised a triable issue of fact as to whether he 

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reasonably relied on Defendants’ affirmative representations regarding the CAEv2. 

See ECF No. 58 at 4. Under Washington law, one who makes a fraudulent 

misrepresentation is subject to liability to the “persons or class of persons whom he 

intends or has reason to expect to act . . . upon the misrepresentation,” including 

when “the misrepresentation, although not made directly to the other, is made to a 

third person and the maker intends or has reason to expect that its terms will be 

repeated or its substance communicated to the other, and that it will influence his 

conduct in the transaction or type of transaction involved.” Haberman v. Wash. 

Pub. Power Supply Sys., 744 P.2d 1032, 1070 (Wash. 1987) (en banc) (quoting 

Restatement (Second) of Torts §§ 531, 533 (Am. L. Inst. 1977)). There is ample 

record evidence from which a reasonable jury could find that Defendants 

affirmatively misrepresented information regarding the CAEv2 to the military and 

that the military repeated those misrepresentations or communicated their substance 

to Adkins. In particular, Adkins testified that he received written instructions from 

the military when he was issued the CAEv2 before deploying to Afghanistan in 2005 

or 2006. See Adkins Trial Transcript at 134, 137. Although Adkins does not recall 

the precise language of those written instructions, he understood that the yellow end 

of the CAEv2 was safe to use at the gun range and would “block out dangerous 

sounds while being able to hear others around [him],” and the green end was for 

“constant dangerous sounds.” See id. at 135. He testified that he “wore [his] CAEv2 

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all the time,” but was never told to roll back its flanges, never did so, and never saw 

anyone else do so. Id. at 136. Given the record evidence of what the military knew 

and was communicating to soldiers about the CAEv2 at that time (via written and 

oral instructions, for example), a jury could reasonably infer that Adkins received 

and reasonably relied on the affirmative misrepresentations that Defendants made to 

the military. Therefore, JMOL on the fraudulent misrepresentation and fraud and 

deceit claims is denied.

There is also a triable issue of fact as to whether Defendants satisfied the duty 

to close they owed to. “[U]nder Washington law, when a ‘manufacturer has superior 

information regarding defects that are not readily ascertainable to customers, it has 

a duty to disclose that information.” Short v. Hyundai Motor Co., 444 F. Supp. 3d 

1267, 1280 (W.D. Wash. 2020); see also Zwicker v. Gen. Motors Corp., No. C07-

0291, 2007 WL 5309204, at *2 (W.D. Wash. July 26, 2007) (“Such a duty exists 

‘where a seller has knowledge of a material fact not easily discoverable by the 

buyer.’”) (quoting Colonial Imports, Inc. v. Carlton Nw., Inc., 853 P.2d 913, 917 

(Wash. 1993)). Just as the Court found at summary judgment, see ECF No. 58 at 6-

7, a reasonable jury could find that Defendants failed in their duty to disclose to 

Adkins based on the record evidence of (1) the intrinsic quality of the alleged defects 

in the CAEv2 (as reflected in Defendants’ own internal documents) and (2) 

Defendants’ alleged intentional concealment of those defects from members of the 

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military, including Adkins. See Short, 444 F. Supp. 3d at 1280. Moreover, whether 

Adkins relied on Defendants’ silence to his detriment is also a question. See 

Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 799 P.2d 

250, 262 (Wash. 1990). Therefore, JMOL on the fraudulent concealment claim is 

denied. 

Based on the foregoing, Defendants’ motion for judgment as a matter of law 

is DENIED as to all of Adkins’ claims.

SO ORDERED, on this 30th day of September, 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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