UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS ) Case No. 3:19-md-2885-MCR-GRJ

EARPLUG PRODUCTS LIABILITY )

LITIGATION ) Judge M. Casey Rodgers

) Magistrate Judge Gary R. Jones

This Document Relates: )

)

Lloyd Baker )

Case No. 7:20-cv-0039 )

)

DEFENDANTS’ PROPOSED VERDICT FORM

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VERDICT FORM

I. Tort Claims

I.A. Design Defect 

1. Do you find, by a preponderance of the evidence, that Defendants supplieda 

product that was not reasonably safe as designed at the time the product left 

Defendants’ control?

YES NO 

If you answered NO to question 1, you should skip to Section I.B. If you 

answered YES to question 1, please proceed to question 2.

2. Was the unsafe condition of the product a proximate cause of injury or 

damage to the Plaintiff?

YES NO 

If you answered NO to question 2, your verdict on the issue of design 

defect is for Defendants. If you answered YES to question 2, your verdict on 

the issue of design defect is for Plaintiff. Please proceed to Section I.B.

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I.B. Failure to Warn

1. Do you find, by a preponderance of the evidence, that Defendants supplieda 

product that was not reasonably safe because adequate warnings or 

instructions were not provided with the product?

YES NO 

If you answered NO to question 1, your verdict on the issue of failure to 

warn is for Defendants, and you should skip to Section II. If you answered 

YES, please proceed to question 2.

2. Do you find, by a preponderance of the evidence, that Defendants 

negligently failed to provide adequate warnings regarding the CAEv2, and 

that negligence was a cause which directly produced Plaintiff’s alleged 

injuries and without which such injury would not have happened?

YES NO 

If you answered NO to both questions 1 and 2, your verdict on the issue 

of failure to warn is for Defendants, and you should skip to Section II. If you 

answered YES to question 1 but not question 2, please proceed to question 3.

If you answered YES to both questions 1 and 2, please proceed to question 3.

3. Was the unsafe condition of the product a proximate cause of injury or 

damage to the Plaintiff?

YES NO 

If you answered NO to question 3, your verdict on the issue of failure to 

warn is for Defendants, and you should skip to Section II. If you answered 

YES to question 3, please proceed to question 4.

4. Do you find, by a preponderance of the evidence:

(i) That Defendants conveyed to the military, or knew the military was 

aware of, the information in the warning that you found to be lacking 

in your answers to questions 1 or 2; and

(i) Defendants reasonably relied on the military to provide that warning 

to soldiers such as Plaintiff?

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YES NO 

If you answered YES to question 4, your verdict on the issue of failure 

to warn is for Defendants. If you answered NO to question 4, your verdict on 

the issue of failure to warn is for Plaintiff. Please proceed to Section II.

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II. Fraudulent Misrepresentation and Concealment Claims

1. Do you find, by a clear, cogent, and convincing evidence:

(i) That Defendants made a false representation regarding the CAEv2 to 

Plaintiff;

(ii) That Defendants knew the representation was false;

(iii) That Defendants intended Plaintiffto rely on the misrepresentation;

(iv) That Plaintiff relied on the misrepresentation; and

(v) That Plaintiff’sreliance on the misrepresentation was a proximate 

cause of injury or damage to the Plaintiff?

YES NO 

Please proceed to question 2. 

2. Do you find, by a clear, cogent, and convincing evidence:

(i) That Plaintiff and Defendants were in a fiduciary relationship;

(ii) That Defendants intentionally failed to disclose a material fact to 

Plaintiff;

(iii) That Plaintiff exercised due diligence in trying to uncover the facts;

(iv) That Defendants engaged in affirmative conduct that would lead a 

reasonable person to believe that no claim of fraudulent concealment 

existed;

(v) That had the concealed information been disclosed, Plaintiff would 

have behaved differently; and

(vi) That Defendants’ concealment was a proximate cause of injury or 

damage to the plaintiff?

YES NO 

If you answered NO to both questions 1 and 2, then your verdict on the 

misrepresentation and concealment claims are for Defendants. If you 

answered YES to either questions 1 or 2, your verdict on one of the 

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misrepresentation and concealment claims is for Plaintiff. If you answered 

YES to both questions 1 and 2, your verdict on the misrepresentation and 

concealment claims is for Plaintiff. Please proceed to Section III.

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III. Warranty Claims

1. Do you find, by a preponderance of the evidence, that Defendants supplied a 

product that was not reasonably safe because it did not conform to the 

manufacturer's express warranty?

YES NO 

If you answered NO to question 1, your verdict on the warranty claims 

is for Defendants. If ALL of your verdicts on Section IA, IB, II are for 

Defendants, your verdict on ALL of Plaintiff’s claims is for Defendants. Please 

skip to the last page (page (9)), sign and date the verdict form. If you 

answered YES to question 1, please proceed to question 2.

2. Was the unsafe condition of the product a proximate cause of injury or 

damage to the Plaintiff?

YES NO 

If you answered NO to both questions 1 and 2, your verdict on the 

warranty claims is for Defendants. If you answered YES to questions 1 and 2,

your verdict on one of the warranty claims is for Plaintiff. If ALL of your 

verdicts on Section IA, IB, II, and III is for Defendants, your verdict on ALL 

of Plaintiff’s claims is for Defendants. Please skip to the last page (page (9), 

sign and date the verdict form. If your verdict on Section IA, IB, II, or III is 

for Plaintiff, please proceed to Section IV.

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IV. Superseding Cause 

1. Do you find, by a preponderance of the evidence:

(i) That an act or omission of the United States military was sufficient of 

itself to cause Plaintiff’s alleged injuries; and

(ii) That the act or omission of the United States was not foreseeable to 

Defendants?

YES NO 

If you answered YES to question 1, your verdict on ALL of Plaintiff’s 

claims is for Defendants. Please skip to the last page (page 7), sign and date 

the verdict form. If you answered NO to question 1, please proceed to Section 

V.

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V. Damages

If you entered a verdict for Plaintiff in any of the above sections, please 

answer the following questions. If you entered a verdict for Defendants on all 

of Plaintiff’s claims, please skip the following questions, and sign and date the 

verdict form below.

1. If you find that any of the individuals or organizations listed below was 

negligent, and thereby caused or contributed to Plaintiff’s alleged injuries 

and damages, then it is necessary for you to determine the percentage of 

fault for each. If you find no fault, then you should place a “0” by that 

name. Your allocation of fault must add up to 100%.

Defendants __________%

United States military __________%

Plaintiff __________%

2. What damages, if any, do you find for Plaintiff for: 

Future medical expenses: $____________

Loss of future earning capacity: $____________

Non-economic damages, to include pain and suffering, 

loss of enjoyment of life, disfigurement, and physical 

impairment: $____________ 

Please sign and date the verdict form below.

__________________ _____________________________ 

DATE FOREPERSON 

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CERTIFICATE OF SERVICE

I, Kimberly Branscome, hereby certify that on April 16, 2021, I caused a copy 

of the foregoing to be filed through the Court’s CM/ECF system, which will serve 

all counsel of record. 

DATED: April 16, 2021 /s/ Kimberly Branscome

Kimberly Branscome

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