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:

Wilkerson, 7:20-cv-035

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Defendants’ Motion for Summary 

Judgment under Federal Rule of Civil Procedure 56. ECF No. 63. Having now fully 

considered the parties’ arguments and applicable Wisconsin law, the Court 

concludes that Defendants’ motion is due to be GRANTED in part and DENIED 

in part.

Summary judgment is appropriate where there are no genuine disputes of 

material fact and the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 

A fact is “material” if, under the applicable substantive law, it might affect the 

outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 

(11th Cir. 2004). A dispute of fact is “genuine” if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986).

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The burden of demonstrating the absence of a genuine dispute of material fact 

rests with the moving party. Celotex, 477 U.S. at 323. In determining whether the

moving party has carried its burden, a court must view the evidence and factual 

inferences drawn therefrom in the light most favorable to the non-moving party. 

Liberty Lobby, 477 U.S. at 255; Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 

1997).

The Court assumes the parties’ familiarity with the general factual allegations 

and nature of this multidistrict litigation. Wilkerson has brought fifteen claims 

against Defendants under Wisconsin law1 arising from injuries he alleges were 

caused by his use of the Combat Arms Earplug version 2 (“CAEv2”) during his 

military service. See Master Form Compl., ECF No. 1.

2 Defendants move for 

summary judgment on all of Wilkerson’s claims on grounds that he should be 

judicially estopped from bringing his claims for failing to list them in bankruptcy 

and that he otherwise lacks standing to bring this suit. ECF No. 63 at 2–12.

Defendants also move for summary judgment on Wilkerson’s claims for express and 

1

 The parties agree Wisconsin law applies to Wilkerson’s claims. See ECF No. 48.

2 Specifically, Wilkerson raises claims for Design Defect – Negligence (Count I), Design 

Defect – Strict Liability (Count II), Failure to Warn – Negligence (Count III), Failure to Warn –

Strict Liability (Count IV), Breach of Express Warranty (Count V), Breach of Implied Warranty 

(Count VI), Negligent Misrepresentation (Count VII), Fraudulent Misrepresentation (Count VIII), 

Fraudulent Concealment (Count IX), Fraud and Deceit (Count X), Gross Negligence (Count XI), 

Negligence Per Se (Count XII), Consumer Fraud and/or Unfair Trade (Count XIII), Unjust 

Enrichment (Count XV), and Punitive Damages (Count XVI). ECF No. 1 at 4.

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implied warranty (Counts V and VI), negligent misrepresentation (Count VII), 

fraudulent misrepresentation (Count VIII), fraudulent concealment (Count IX), 

fraud and deceit (Count X), gross negligence (Count XI), consumer protection/unfair 

trade practices (Count XIII), unjust enrichment (Count XV), and punitive damages 

(Count XVI). ECF No. 63. In response, Wilkerson withdraws his claims for express 

and implied warranties (Counts V and VI), gross negligence (Count XI), consumer 

protection/unfair trade practices (Count XIII), unjust enrichment (Count XV), and 

punitive damages (Count XVI).

3 ECF No. 104. 

I. Judicial Estoppel

Defendants argue that judicial estoppel applies because Wilkerson failed to 

amend his Chapter 13 bankruptcy schedules to include his claims against 

Defendants. ECF No. 63 at 2–9. The Court disagrees.

“Because this is a diversity case, the application of the doctrine of judicial 

estoppel is governed by state law.” Original Appalachian Artworks, Inc. v. S. 

Diamond Assocs., Inc., 44 F.3d 925, 930 (11th Cir. 1995) (citations omitted). Under 

Wisconsin law, judicial estoppel is an equitable doctrine “aimed at preventing a 

party from manipulating the judiciary as an institution by asserting a position in a 

3 Wilkerson withdraws his gross negligence and punitive damages claims because these 

claims are not independent claims under Wisconsin law. See ECF No. 104 at 23–24. However,

Wilkerson still intends to pursue punitive damages as a remedy based on Defendants’ alleged 

conduct. Id. (citing Wangen v. Ford Motor Co., 294 N.W.2d 437, 442 (Wis. 1980) (explaining that 

gross negligence is an appropriate standard to assess whether punitive damages are available)). 

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legal proceeding and then taking an inconsistent position” in another legal 

proceeding. State v. Miller, 683 N.W.2d 485, 496 (Wis. App. 2004) (citing Salveson 

v. Douglas Cnty., 630 N.W.2d 182, 193 (Wis. 2001)). In order for judicial estoppel 

to apply: “(1) the latter position must be clearly inconsistent with the earlier position; 

(2) the facts at issue should be the same in both cases; and (3) the party to be estopped 

must have convinced the first court to adopt its position.” State v. Ryan, 809 N.W.2d 

37, 43 (Wis. 2012) (citing State v. Petty, 548 N.W.2d 817, 820 (Wis. 1996)). 

Another “fundamental requirement” of judicial estoppel is that the party must take 

the inconsistent position intentionally to manipulate the judiciary. Wagner v. Allstate 

Prop. and Cas. Ins. Co., 930 N.W.2d 277, 2019 WL 2034886 at *3 (Wis. App. 2019) 

(citing Petty, 548 N.W.2d at 820 (“Because the rule looks toward cold manipulation 

and not unthinking or confused blunder, it has never been applied where plaintiff’s 

assertions were based on . . . mistake)). Determining whether the requirements have 

been met is a question of law. Petty, 548 N.W.2d at 820 (citing Harrison v. LIRC, 

523 N.W.2d 138 (Wis. App. 1994)). Once the requirements have been met, “it is 

within the discretion of the trial court whether to invoke the doctrine.” Olson v. 

Darlington Mut. Ins. Co., 723 N.W.2d 713, 716 (Wis. App. 2006) (citing Salveson, 

630 N.W.2d at 194).

The Wisconsin Court of Appeal’s decision in Wagner provides an instructive 

example of how to analyze these requirements in the bankruptcy context. See 

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Wagner, 2019 WL 2034886 at **3–6. In that case, the plaintiff sustained severe 

injuries in a car accident caused by another driver. Id. at *1. After the car accident 

but before filing a lawsuit, the plaintiff filed a Chapter 7 bankruptcy petition but 

failed to disclose the potential lawsuit as an asset. Id. The bankruptcy court granted 

a discharge of the plaintiff’s debts even though the trustee had very limited 

knowledge of the personal injury cause of action. See id. at *2. Thereafter, the 

plaintiff filed the personal injury lawsuit against the driver’s insurance company 

seeking $100,000 in compensation. Id. The trial court granted the insurance 

company’s motion for summary judgment on the basis of judicial estoppel because 

the plaintiff failed to disclose the potential cause of action as an asset in the 

bankruptcy proceeding. Id. On appeal, the Wisconsin Court of Appeals reversed

because there was insufficient evidence to rule as a matter of law that the plaintiff 

intentionally failed to disclose the personal injury claim to manipulate the 

bankruptcy court. See id. at *5. The court reasoned that even though the first three 

requirements of judicial estoppel were clearly met, the doctrine still did not apply as 

a matter of law because the “record [was] devoid of information about why” the 

plaintiff failed to disclose the claim. See id. Absent this critical evidence the court 

could not determine whether the plaintiff’s actions were a “cold manipulation” or a 

“confused blunder,” rendering summary judgment for the insurance company 

inappropriate. See id. at **4–5 (quoting Petty, 548 N.W.2d at 820).

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Here, Defendants have presented evidence that Wilkerson failed to amend his 

bankruptcy schedules to add his claims against Defendants as an asset prior to filing 

suit; the schedules were amended only after Defendants filed their summary 

judgment motion. ECF No. 63 at 2; see Initial Bankruptcy Schedule, ECF No. 63-1 

(not listing Wilkerson’s claims against Defendant on initial bankruptcy schedules, 

which were filed on February 27, 2018); Amended Bankruptcy Schedule, ECF No. 

104-4 (listing Wilkerson’s claims against Defendant as an asset on amended 

bankruptcy schedules, which were filed on February 16, 2022). The record, 

however, is “devoid of information about why” Wilkerson omitted these claims from 

his bankruptcy schedules. Defendants argue that Wilkerson’s omission was not a 

mistake because Wilkerson was in contact with his bankruptcy attorney after 

Wilkerson filed his claims against Defendants. ECF No. 63 at 7 (citing Wilkerson 

Dep., ECF No. 63-3, at 402, 428–29). The Court rejects this argument because there 

is no evidence that Wilkerson knew about his duty to amend his bankruptcy 

schedules when he contacted his attorney about a completely unrelated matter, see 

Wilkerson Dep., ECF No. 63-3 at 428–29 (testifying that he spoke with his 

bankruptcy attorney about lowering his monthly payment), and it is entirely 

reasonable to assume that Wilkerson, a high school graduate with limited knowledge 

regarding the bankruptcy process, did not know about the need to disclose this 

subsequent litigation to his bankruptcy attorney or the bankruptcy court, especially 

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since Wilkerson’s claims against Defendants involve uncertain unliquidated 

damages. Furthermore, and importantly, Defendants do not present any evidence 

that Wilkerson had a motive to conceal his claims because Wilkerson filed a Chapter 

13 bankruptcy plan requiring his creditors to be fully repaid by April 2023, meaning 

the concealment of his claims against Defendants would have little, if any, effect on 

his bankruptcy plan because his creditors will be repaid regardless of the outcome 

of this litigation. Because Defendants have presented no evidence that Wilkerson 

intentionally concealed his claims as a “cold manipulation” of the bankruptcy court, 

they have not satisfied the requirements for judicial estoppel under Wisconsin law. 

See Petty, 548 N.W.2d at 820.

II. Standing

Notwithstanding their argument on judicial estoppel, Defendants argue that 

Wilkerson’s claims are the property of the bankruptcy estate and that the bankruptcy 

trustee is the only party with standing to pursue Wilkerson’s claims against 

Defendants. ECF No. 63 at 10–11. The Court disagrees and concludes that

Wilkerson has standing to pursue his claims on behalf of the bankruptcy estate. 

Legal claims filed after a Chapter 13 bankruptcy petition are included in the 

bankruptcy estate as long as the bankruptcy case has not been “closed, dismissed, or 

converted to a case under Chapter 7.” See 11 U.S.C. §§ 541(a), 1306; see also In re 

Waldron, 536 F.3d 1239, 1241–42 (11th Cir. 2008). The trustee has the power to 

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use, sell, or lease property of the estate. 11 U.S.C. § 363. Under a Chapter 13 

bankruptcy case, “the debtor shall have . . . the rights and powers of the trustee,” 11 

U.S.C. § 1303, including the right to sue on behalf of the estate. Fed. R. Bank. P. 

6009 (“With or without court approval, the trustee or debtor in possession may . . . 

prosecute any action or proceeding on behalf of the estate before any tribunal.”); see 

Crosby v. Monroe Cnty., 394 F.3d 1328, 1331 n.2 (11th Cir. 2004) (“Because 

[Plaintiff] filed under Chapter 13 of the Bankruptcy Code, he retains standing to 

pursue legal claims on behalf of the estate.”) (citations omitted); In re McConnell, 

390 B.R. 170, 177 (W.D. Pa. 2008) (“The only way to ‘use’ a cause of action is to 

bring suit upon it or settle it. Therefore, it follows that a Chapter 13 debtor has 

standing to prosecute . . . causes of action that constitute property of the estate.”).

Wilkerson filed a Chapter 13 bankruptcy petition on February 27, 2018. ECF 

No. 63-1. Wilkerson’s Chapter 13 bankruptcy plan, which was confirmed on May 

11, 2018, allows Wilkerson to make monthly payments over an extended period of 

time to resolve his debts. ECF No. 63-10. Wilkerson’s bankruptcy case will remain 

open until his final payments are made, which is scheduled for April 2023. ECF No. 

104 at 5 (citing Wilkerson’s revised payment schedule). On January 17, 2020, 

Wilkerson filed his claims against Defendants. ECF No. 1. Since Wilkerson filed a 

Chapter 13 petition and the bankruptcy case is still ongoing, Wilkerson’s claims 

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against Defendants are property of the bankruptcy estate. Thus, Wilkerson, as a 

Chapter 13 debtor, has standing to sue on behalf of the bankruptcy estate. 

Defendants argue that Wilkerson’s specific bankruptcy plan forecloses his 

right to sue because the plan declares that “[a]ll property shall remain property of 

the estate and shall vest in the Debtor only upon entry of discharge.” ECF No. 63 at 

10 (citing Wilkerson’s Chapter 13 Bankruptcy Plan, ECF No. 63-10 at 1). 

Defendants believe this provision means that only the trustee has the power to sue 

Defendants because Wilkerson’s claims against them remain property of the estate 

and do not vest in Wilkerson until discharge of his debts. Id. This argument is 

misplaced in the Chapter 13 bankruptcy context where the debtor has the same rights 

as the trustee to control estate property and sue on behalf of the estate. See Crosby, 

394 F.3d at n.2. The language in Wilkerson’s bankruptcy plan only “means that all 

of the legal and equitable interests of the debtor remain property of the bankruptcy 

estate (as opposed to merely property of the debtor) until his bankruptcy case has 

been administered,” and in no way forecloses Wilkerson’s right to sue on behalf of 

the estate as Chapter 13 debtor. See In re McConnell, 390 B.R. at 177 (ruling that a

nearly identical Chapter 13 bankruptcy plan provision did not change the debtor’s 

right to sue on behalf of the estate). Defendants’ arguments completely ignore the 

nature of Wilkerson’s bankruptcy. Accordingly, Wilkerson has standing to sue 

Defendants on behalf of his estate.

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III. Misrepresentation Claims

Defendants also move for summary judgment on Wilkerson’s claims for 

negligent and fraudulent misrepresentation, arguing that these claims fail as a matter 

of law because Wilkerson never relied on statements made by Defendants. ECF No. 

63 at 19. The Court disagrees. 

Under Wisconsin law, “[a]ll misrepresentation claims” require that the 

“plaintiff must have believed and relied on the misrepresentation to his detriment or 

damage.” Tietsworth v. Harley-Davidson, Inc., 677 N.W.2d 233, 239 (Wis. 2004) 

(citing Ollerman v. O’Rourke Co., Inc., 288 N.W.2d 95, 100 (Wis. 1980)). 

Wisconsin courts allow plaintiffs to recover for damages resulting from 

misrepresentations made to third parties on which the plaintiff reasonably and 

foreseeably relied. See, e.g. Pagoudis v. Keidl, 963 N.W.2d 803, 812 (Wis. App. 

2021) (citing Restatement (Second) of Torts § 533 Am. L. Inst. (1977)) (explaining 

that “a seller may be liable to a third party for indirect misrepresentations”); see also 

Forst v. SmithKline Beecham Corp., 602 F. Supp. 2d 960, 971 (E.D. Wis. 2009) 

(citing State v. Timblin, 657 N.W.2d 89, 97 (Wis. App. 2002)) (denying a drug 

manufacturer’s motion for summary judgment on a patient’s misrepresentation 

claims because it was “wholly foreseeable” that a patient will rely on information 

that the drug manufacturer provided to the patient’s doctor). Generally, reliance 

presents a question of fact for the jury. See, e.g., Henning v. Ahearn, 601 N.W.2d 

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14, 24 (Wis. App. 1999) (citing Williams v. Rank & Son Buick, Inc., 170 N.W.2d 

807, 810–11 (Wis. 1969)). 

Here, Wilkerson has presented a sufficient evidentiary basis for a reasonable 

jury to conclude that Defendants made affirmative misrepresentations to the United 

States military regarding the CAEv2, see ECF No. 104-7 (brochure stating that the 

CAEv2 “fits most ear canals” and is “protective up to approximately 190 dBP for 

outdoor exposures (sufficient to cover most of the weapons in the military inventory, 

including shoulder-fired rockets)”); ECF No. 104-8 (marketing material explaining 

that the CAEv2’s “patented Hear-Through design allows wearers to hear low-level 

sounds critical to mission safety” and “reacts to provide instant protection from highlevel noises”), and that Wilkerson reasonably and foreseeably relied on the 

Defendants’ misrepresentations in choosing to use the CAEv2 during his military 

service. Wilkerson Dep., ECF No. 104-3 at 364 (testifying that he relied on the 

military’s representation that the CAEv2 “were good earplugs that would protect 

[his] hearing”); Wilkerson Responses to Interrogatories, ECF No. 104-6 at 31–32 

(stating that he believed the green end protected him from constant noise and that 

the yellow end protected him during patrols where there was not constant noise). 

Additionally, when the facts are viewed in the light most favorable to Wilkerson,

there is a sufficient evidentiary basis for a reasonable jury to conclude that 

Defendants made affirmative misrepresentations directly to Wilkerson. See 

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Wilkerson Depo. ECF No. 104-3 at 259–62, 272–74 (testifying that a civilian at Fort 

McCoy made misrepresentations to Wilkerson and other soldiers about the CAEv2’s 

effectiveness and proper use). This is especially true considering the evidence that 

Defendants’ sale managers visited military bases and trained military members on 

the CAEv2. See Blum Trial Tr. 10/18/21 at 127–128 (Tim McNamara testifying that 

he has visited many U.S. military bases and has trained military members on the 

CAEv2 during those visits). Accordingly, Wilkerson’s misrepresentation claims do 

not fail as a matter of law.

IV. Fraudulent Concealment Claim

Defendants also move for summary judgment on Wilkerson’s fraudulent 

concealment claim, arguing they had no duty to disclose problems with the CAEv2 

because Wilkerson was never involved in a business transaction with Defendants. 

ECF No. 63 at 22. The Court disagrees.

Under Wisconsin law, fraudulent concealment is an actionable intentional 

misrepresentation when there is a duty to disclose. See Tietsworth v. HarleyDavidson, Inc., 677 N.W.2d 233, 238 (Wis. 2004) (“It is well-established that a 

nondisclosure is not actionable as a misrepresentation tort unless there is a duty to 

disclose.”); Ollerman v. O’Rourke Co., Inc., 288 N.W.2d 95, 99–100 (Wis. 1980) 

(“If there is a duty to disclose a fact, failure to disclose that fact is treated in the law 

as equivalent to a misrepresentation of the nonexistence of the fact.”). “The existence 

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and scope of a duty to disclose are questions of law for the court.” Tietsworth, 677 

N.W.2d at 239 (citing Ollerman, 288 N.W.2d at 100). The Wisconsin Supreme Court 

has explained that a duty to disclose arises where (1) the defendant “actively 

conceals a defect” or prevents an investigation, (2) the defendant has made partial

ambiguous statements that “create a false impression,” (3) “a fiduciary relationship

between the parties” exists, or (4) “the facts are peculiarly and exclusively within 

the knowledge” of the defendant and “the other party is not in a position to discover 

the facts for himself.” Ollerman, 288 N.W.2d at 102 (citations omitted). 

Contrary to Defendants’ assertions, the Wisconsin Supreme Court in 

Ollerman never stated that a duty to disclose can only arise between parties in a 

business transaction. See id. Instead, the Court explained that the modern trend has 

been to construe the duty to disclose requirement more broadly, especially when 

holding otherwise would create an “injustice.” See id. (recognizing a shift in modern 

jurisprudence that has “departed from or relaxed the ‘no duty to disclose’ rule by 

carving out exceptions to the rule and by refusing to adhere to the rule when it works 

an injustice”). Furthermore, the Defendants have not cited, and the Court has not 

found, a Wisconsin case ruling that a duty to disclose can only arise between parties 

to a business transaction. Therefore, the Court, sitting in diversity, will not recognize

such a limitation. 

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Here, the CAEv2 is allegedly defective, in part, because it imperceptibly

loosens in the user’s ear. Nothing about the CAEv2 put soldiers like Wilkerson on 

notice of the possibility that the earplug was defective. However, the information 

regarding the CAEv2’s alleged issues were well documented in Defendants’ internal 

documents. See, e.g., ECF 54-9 (memo detailing the fitting issues associated with 

the CAEv2). Thus, the facts associated with the CAEv2’s alleged defects were 

“peculiarly and exclusively within the knowledge” of Defendants, while soldiers like 

Wilkerson were “not in a position to discover” those defects given their nature. See 

Ollerman, 288 N.W.2d at 102. Accordingly, Defendants had a duty to disclose 

information regarding the CAEv2’s alleged defects to soldiers like Wilkerson,

4 and 

Wilkerson’s fraudulent concealment claim does not fail as a matter of law. 

V. Fraud and Deceit Claim

Last, Defendants move for summary judgment on Wilkerson’s fraud and 

deceit claim, arguing that Wisconsin law no longer recognizes a fraud and deceit 

claim distinct from a fraudulent misrepresentation claim. ECF No. 63 at 18. 

Wilkerson failed to respond to this argument, see ECF No. 104, and has not listed 

this claim in his pre-trial stipulation. ECF No. 94 (listing Wilkerson’s claims against 

4 The Court acknowledges that the Wisconsin Supreme Court in Tietsworth declined to rule 

on whether Ollerman applies to all consumer transactions. See Tietsworth, 677 N.W.2d at 239. 

This Court’s ruling does not answer this open question either. Instead, the Court’s ruling simply 

applies a well-recognized basis for a duty to disclose under Wisconsin law. See Ollerman, 288 

N.W.2d at 102.

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Defendants and omitting a claim for fraud and deceit). Accordingly, the Court finds 

that Wilkerson has abandoned this claim. 

Accordingly, Defendants’ Motion for Summary Judgment, ECF No. 63, is 

GRANTED as to Wilkerson’s claim for fraud and deceit and DENIED as to

Defendants’ standing and judicial estoppel arguments and as to Wilkerson’s claims 

for negligent misrepresentation, fraudulent misrepresentation, and fraudulent 

concealment. 

DONE AND ORDERED this 12th day of March 2022.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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