UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

LIABILITY LITIGATION

Case No. 3:19md2885

This Document Relates to:

Blum, 7:20-cv-122

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 Michelle Blum’s claims on statute of limitations grounds as well as on her 

claims for fraudulent misrepresentation, negligent misrepresentation, breach of 

express or implied warranty and statutory consumer protection.

1 On consideration, 

the motion is DENIED.

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 

1 The Court has already found, on the record during oral argument, that a reasonable jury 

could find that Defendants owed Blum a duty to disclose on her fraudulent concealment claim. 

Additional discussion on this issue can be found in Court’s summary judgement order, ECF No. 

53. 

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 1 of 8
Page 2 of 8

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

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).

Defendants first argue that all of Blum’s claims are barred by the statute of 

limitations. The Court disagrees because there is a triable issue of fact as to whether 

the doctrine of equitable estoppel applies to Ms. Blum’s claims.

2

Under New York law, “[e]quitable estoppel sufficient to bar the interposition 

of the statute of limitations results from representations or conduct which have 

induced a party to postpone bringing suit on a known cause of action, or from 

fraudulent concealment of an action which is unknown to a party.” Knaysi v. A.H. 

Robins Co., 679 F.2d 1366, 1368 (11th Cir. 1982), reh’g denied, 688 F.2d 852 (11th 

2 Previously, Defendant seemingly conceded that Blum’s “claims for fraud and 

misrepresentation arguably survive the various statute of limitations under New York law.” ECF 

No. 34 at 9 n.5. Now, however, Defendants have argued that Blum’s fraud claims are time-barred 

based on New York case law. The Court finds that the triable issues of fact as to equitable estoppel 

make a decision on this issue unnecessary. 

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 2 of 8
Page 3 of 8

Cir. 1982) (quoting Parsons v. Dep’t of Transp., 344 N.Y.S.2d 19, 24 (N.Y. Sup. Ct. 

1973)). Thus, “equitable estoppel will preclude a defendant from using the statute 

of limitations as a defense where it is the defendant’s affirmative wrongdoing . . . 

which produced the long delay between the accrual of the cause of action and the 

institution of the legal proceeding.” Nuance Commc’ns, Inc. v. Int’l Bus. Machs. 

Corp., --- F. Supp. 3d ---, 2021 WL 2535575, at *22 (S.D.N.Y. June 21, 2021) 

(quoting Putter v. N. Shore Univ. Hosp., 858 N.E.2d 1140, 1142 (N.Y. 2006)). 

Equitable estoppel is an “extraordinary remedy,” and it is therefore a plaintiff’s 

burden to establish both that (1) she relied on “subsequent and specific actions” of 

“deception, fraud, or misrepresentation” by defendants which “somehow kept [her] 

from timely bringing suit” and (2) the plaintiff “lack[ed] knowledge of the true 

facts.” See Pulver v. Dougherty, 871 N.Y.S.2d 495, 496–97 (N.Y. App. Div. 2009) 

(citations omitted). A defendant’s representations rise to the level of deception, 

fraud, or misrepresentation if the plaintiff shows the defendant made the 

representations “with intent to defraud, knowledge of their falsity, or disregard for 

their truth.” See Nuance Commc’ns, Inc., 2021 WL 2535575, at *23 n.30.

Previously, the Court denied Defendants’ motion for summary judgment on

this issue because the Court determined there were “triable issues of fact . . . as to 

whether equitable estoppel applies to bar Defendants’ statute-of-limitations 

defense.” Blum, ECF No. 53, at 8. Now, Defendants argue that the Court’s reliance 

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 3 of 8
Page 4 of 8

on the Eleventh Circuit’s interpretation of New York law in Knaysi was misplaced 

due to more recent New York Court of Appeals decisions. The Court disagrees. 

Each of the cases cited by the Defendants is distinguishable from the facts in 

Blum’s case and not inconsistent with Knaysi. First, Defendants cite Zumpano v. 

Quinn for the proposition that when concealment occurs without actual 

misrepresentation, and the plaintiff cannot demonstrate that a fiduciary relationship 

created an obligation for defendant to inform plaintiff of their rights, equitable 

estoppel does not apply. See Blum Trial Tr. 10/27/2021, at 15. Defendants’ 

argument misses the mark. The Court considered Zumpano in deciding Defendants’ 

summary judgement motion and found the facts of that case distinguishable from 

Blum’s because 3M’s actions cannot be characterized as “mere silence,” see Blum, 

ECF No. 53 at 8, n.6, and the facts presented at trial confirm this finding. For 

example, Blum has presented evidence at trial showing that Defendants were aware 

that the CAEv2 had design defects as identified in the Flange Report and that the 

initial testing did not support the advertised NRR, which Defendants continued to 

market and sell the product with for 15 years. Further, Blum presented evidence that 

this knowledge was also concealed from the military. See Blum Trial Tr. 

10/27/2021, at 268-271. 

Additionally, Defendants cite Ross v. Louise Wise Services, Inc. and Tenamee 

v. Schmuckler, which are distinguishable from Blum’s case as well. Both Ross and 

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 4 of 8
Page 5 of 8

Tenamee decided that claims cannot be protected by the doctrine of equitable 

estoppel when there was no evidence of a separate fraudulent act that concealed the 

existence of the cause of action. See Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 

491–492 (2007) (determining that the doctrine of equitable estoppel did not apply 

because plaintiff did not provide evidence that the defendant took actions to conceal 

the original tort); and Tenamee v. Schmukler, 438 F.Supp.2d 438, 445 (S.D. N.Y. 

2006) (determining that the doctrine of equitable estoppel did not apply because the 

concealment of a conflict of interest was both the basis for the cause of action and 

the basis for equitable tolling). In other words, under New York law, “[f]or the 

doctrine to apply, a plaintiff may not rely on the same act that forms the basis for the 

claim — the later fraudulent misrepresentation must be for the purpose of concealing 

the former tort.” Ross, 8 N.Y.3d at 491 (citing Zumpano, 6 N.Y.3d at 674).

Here, Blum has provided evidence of subsequent fraudulent acts by 

Defendants that do not form the basis of her fraud causes of action. Blum provided 

evidence that Defendants’ representation that the CAEv2 had an NRR of 22 was 

false. Additionally, Blum provided evidence that Defendants’ representation that

the CAEv2 open end was safe to use at gun ranges was false and misleading. These 

acts are separate and distinct from the concealment of the Flange Report, which 

arguably concealed the existence of Blum’s claims. As such, Blum presented enough 

evidence at trial for a reasonable jury to conclude that Defendants made fraudulent 

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 5 of 8
Page 6 of 8

misrepresentations which resulted in Blum’s failure to institute a timely action. See 

Knaysi, 679 F.2d at 1370; Local No. 4, Int’l Ass’n of Heat & Frost & Asbestos 

Workers v. Buffalo Wholesale Supply Co., Inc., 854 N.Y.S.2d 610, 612 (N.Y. App. 

Div. 2008) (“Although there are exceptions, ‘the question of whether a defendant 

should be equitably estopped is generally a question of fact.’”) (quoting Putter v. N. 

Shore Univ. Hosp., 858 N.E.2d 1140, 1142 (N.Y. 2006)). 

Defendants also move for JMOL on grounds that Blum’s claims for fraudulent 

misrepresentation, negligent misrepresentation, breach of express or implied 

warranty and statutory consumer protection fail as a matter of law because Blum has 

not relied on any statement of the Defendants. Specifically, Defendants argue that 

Blum’s testimony that the CAEv2 was “better than foamies” is not an actionable 

misrepresentation because there is no evidence that Defendants ever made such a 

representation to military. 

“Under New York law, a plaintiff may state a claim for fraudulent 

misrepresentation made to a third party if he alleges that he relied to his detriment 

on the defendant’s misrepresentation and that the defendant intended the 

misrepresentation to be conveyed to him.” Sec. Inv. Prot. Corp. v. BDO Seidman, 

LLP, 222 F.3d 63, 71 (2d Cir. 2000). “In other words, ‘if A. makes the statement to 

B. for the purpose of being communicated to C. or intending that it shall reach and 

influence him, he can be . . . held [liable].’” Fin. Guar. Ins. Co. v. Putnam Advisory 

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 6 of 8
Page 7 of 8

Co., LLC, 12-cv-7372, WL 5518146, at *84 (S.D.N.Y. Sept. 14, 2020) (quoting 

Eaton, Cole & Burnham Co. v. Avery, 83 N.Y. 31, 34–35 (1880)). 

Defendants’ argument that Blum’s claims fail as a matter of law because 

Defendants never represented that the CAEv2 would perform “better than foamies” 

ignores key pieces of evidence admitted during trial. Blum’s testimony is clear, in 

that she understood when she should wear the green end of the plug and when she 

should wear the yellow end of the plug, and her understanding was consistent with 

how the plug was marketed by Defendants to the United States Army. Clearly, 

Defendants knew that the Army was going to provide the plug to soldiers for use on

gun ranges. Indeed, Blum’s use of the CAEv2 on the gun range is completely

consistent with Defendants’ representations to the Army on the efficacy of the 

earplug for use on gun ranges. Further, Defendants represented to the Army that the 

green end of the combat arms had an NRR of 22, which the Army relied on in 

supplying the CAEv2 to its soldiers, as shown by the Medical Procurement Item 

Description (MPID). See Blum Trial Tr. 10/22/2021, at 319 (discussing 

requirements of the MPID). As such, Blum has provided sufficient evidence to 

create a triable issue of fact on whether she reasonably relied on Defendants’ 

misrepresentations.

Based on the forgoing, Defendants’ Motion for Judgment as a Matter of Law

as to Blum’s claims is DENIED.

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 7 of 8
Page 8 of 8

DONE AND ORDERED this 28th day of October 2021.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case 7:20-cv-00122-MCR-GRJ Document 110 Filed 10/28/21 Page 8 of 8