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 Plaintiff Steven Wilkerson’s Motions for 

Summary Judgment on several of Defendants’ affirmative defenses under Federal 

Rule of Civil Procedure 56. ECF Nos. 54 & 96. Having now fully considered the 

parties’ arguments and applicable Wisconsin law, the Court concludes that 

Wilkerson’s motions should 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 Short Form Compl., ECF No. 1.

2 Defendants raise 

several affirmative defenses, including that Wilkerson’s failure to warn claims are 

barred by various intermediary defenses, that the United States military’s actions are 

a superseding cause of Wilkerson’s injuries, that Wilkerson failed to mitigate his 

damages, that Wilkerson’s claims are untimely under the applicable Wisconsin 

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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Statute of Limitations and Statute of Repose, and that Wilkerson assumed the risk 

of an open and obvious danger. Defendants’ Amended Answer, ECF No. 87. 

Wilkerson has moved for summary judgment on each of these affirmative defenses.

ECF Nos. 54 & 96. In response, Defendants have withdrawn their bulk supplier and 

statute of repose defenses. ECF No. 106 at 1. 

I. Defendants’ Intermediary Defenses

Wilkerson has moved for summary judgment on Defendants’ learned 

intermediary and sophisticated intermediary affirmative defenses, arguing that these 

defenses do not apply to a manufacturer of a product marketed and sold directly to 

the general public. ECF No. 54 at 3–6. The Court agrees. 

Wisconsin state courts have not adopted the learned intermediary or 

sophisticated intermediary defenses. See In re Zimmer, NextGen Knee Implant 

Prods. Liab. Litig., 884 F.3d 746, 750–51 (7th Cir. 2018) (explaining that “neither 

the Wisconsin Supreme Court nor the state’s intermediate appellate courts have 

addressed” the learned intermediary defense). However, even if these defenses were 

adopted under Wisconsin law, neither of them would apply. The Defendants’ 

sophisticated intermediary and learned intermediary defenses would not apply 

“because these defenses do not apply to a product like the CAEv2, which was 

marketed and sold both to the military and directly to the general public.” In re 3M 

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Combat Arms Earplug Prods. Liab. Litig., 7:20cv012, ECF No. 57 at 4 (N.D. Fla. 

Aug. 23, 2021) (internal citations and quotations omitted). 

Additionally, Defendants’ reliance on Wisconsin’s sophisticated user defense 

is also misplaced. Under this defense, a manufacturer has no duty to warn a 

sophisticated user or its employees of the risks that the sophisticated user knew or 

should have known. Haase v. Badger Mining Corp., 669 N.W.2d 737, 743 (Wis.

App. 2003) (citing Bergeld, 319 F.3d 350, 353 (8th Cir. 2003)). The rationale for

applying this defense in the employment setting is that the duty to warn the ultimate 

user falls on the sophisticated employer rather than the manufacturer because the 

employer is in a better position to warn its own employees about workplace safety 

matters and is in a better position to understand how the product will be used in the 

workplace. Id. at 743–44. For example, in Haase v. Badger Mining Corp., a foundry 

worker sued a supplier for failing to warn the foundry and its employees that silica 

sand causes respiratory illness. Id. at 740. The silica sand was provided in bulk and 

was not dangerous until it was used in the foundry. Id. at 741. The foundry had 

extensive knowledge of the risks associated with silica sand, and these risks were 

well known throughout the metal working industry for many years. Id. at 744–45. 

The appellate court affirmed a directed verdict for the silica sand supplier because 

the foundry was a sophisticated user of silica sand, and it was “entirely reasonable 

for [the supplier] to expect that [the foundry] would institute necessary safety 

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precautions based on its own specific use” of the bulk supply of silica sand. Id. at 

745. 

Unlike the risk of respiratory illness when using silica sand, the CAEv2’s 

risks, including imperceptible loosening due to the dual sided nature of the plug,

were not widely known throughout the hearing conservation industry for many 

years. Instead, the CAEv2 was the first dual ended earplug ever made, and the risks 

associated with the plug were almost exclusively in the possession of the 

Defendants. There is no documentary evidence that these risks, in particular the risk 

of using the CAEv2’s yellow end on the gun range, were evershared with the hearing 

conservation industry or the military. Additionally, the CAEv2 was provided to all 

deploying soldiers at a time when the military had an audiologist shortage, meaning 

the military could not be reasonably relied upon to provide warnings to all individual 

soldiers. See ECF No. 54-3 (emails between Elliott Berger, Marc Santoro, and Brian 

Myers regarding an article describing the military’s shortage of audiologists); ECF 

No. 54-4 at 38 (explaining that “the CAE began to be issued to all deploying Soldiers 

in 2004”). Taken together, the military was not a sophisticated user in a better 

position to warn soldiers about the risks of the CAEv2.3 See, e.g., 3M Combat Arms 

3 Defendants’ argument that they acted reasonably in failing to provide warnings with the 

CAEv2 based on their belief that the military would handle training and instruction misses the 

mark. While there is evidence that the military asked Defendants not to include instructions in the 

CAEv2’s bulk packaging, there is no evidence that the military instructed Defendants not to 

include warnings in the CAEv2’s bulk packaging. See In re 3M Combat Arms Earplug Prods. 

Liab. Litig., No. 3:19md2885, 2021 WL 1131523, at *1 n.3 (N.D. Fla. Mar. 24, 2021) (“[T]he 

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Earplug Prods. Liab. Litig., No. 7:20cv98, ECF No. 83, at 6–7 (N.D. Fla. Oct. 22, 

2021) (ruling that the Defendants’ sophisticated user defense fails as a matter of 

Texas law). Instead, Defendants had superior knowledge about the risks associated 

with the CAEv2 and had the means to warn individual users through its packaging, 

unlike bulk suppliers of silica sand whose product could not be easily packaged. See

P-GEN-1063 (packaging of the consumer version of the CAEv2). As such, the 

Defendants’ intermediary defenses, including the sophisticated user defense, fail as 

a matter of law.

II. Defendants’ Superseding Cause Defense

Wilkerson moves for summary judgment on Defendants’ superseding cause 

defense, arguing that the United States military’s alleged conduct in failing to 

properly fit Wilkerson and train him on its use is not a superseding cause as a matter 

of law. ECF No. 54 at 7–8. The Court agrees. 

A superseding cause is an intervening act that cuts off the defendant’s liability. 

Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1322 (7th Cir. 1983) (citing 

Diener v. Heritage Mut. Ins. Co., 155 N.W.2d 37, 41 (Wis. 1967)). Under Wisconsin 

law, not all intervening acts become superseding causes because Wisconsin courts 

Court views the adequacy of instructions and the adequacy of warnings as distinct legal concepts.” 

(collecting cases)); MDL Dkt. No. 1725 at 9 (finding Dr. Doug Ohlin’s hearsay statements 

admissible “to show that [Defendants] understood that Dr. Ohlin did not want Defendants to 

include instructions—as distinct from warnings—in the CAEv2’s bulk packaging”). 

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use the substantial factor test for causation, meaning the defendant can be liable even 

if the defendant’s conduct was not the sole cause of the plaintiff’s injury. See Merco 

Distrib. Corp. v. Com. Police Alarm Co., Inc., 267 N.W.2d 652, 655 (Wis. 1978) 

(citing Hart v. State, 249 N.W.2d 810, 822 (Wis. 1977)). Thus, an intervening act 

will not become a superseding cause “unless the court determines as a matter of law 

that there are [public] policy factors which should relieve” the defendant of liability. 

Stewart v. Wulf, 271 N.W.2d 79, 86 (Wis. 1978) (quoting Ryan v. Cameron, 71 

N.W.2d 408, 411 (Wis. 1955)). This determination can be made before trial where, 

as here, “the facts are simple to ascertain and the public policy questions have been 

fully presented.” Kidd v. Allaway, 807 N.W.2d 700, 704 (Wis. App. 2011) (citing 

Alvarado v. Sersch, 662 N.W.2d 350, 355 (Wis. 2003)) (upholding a trial court’s 

public policy ruling at the motion to dismiss stage).

Wisconsin courts utilize public policy factors to cut off liability in extremely 

rare cases where “the conscience of the court would be shocked if the” defendant 

was held liable. Merlino v. Mut. Serv. Cas. Ins. Co., 127 N.W.2d 741, 581 (Wis.

1964); see also Stewart, 271 N.W.2d at 86 (“The cases in which a casually negligent 

tort-feasor has been relieved of liability are infrequent and present unusual and 

extreme circumstances.”). “[W]hether the injury is too remote from the [defendant’s] 

negligence” is the main public policy factor in determining whether an intervening 

act is a superseding cause. Faundrey ex rel. Connell v. Am. Family Mut. Ins. Co., 

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680 N.W.2d 345, 348, n.1, n.12 (Wis. 2004) (explaining that the remoteness factor 

“revive[d] the intervening or superseding cause doctrine”); see also Allen v. Am. 

Cyanamid, 527 F. Supp. 3d 982, 986 (E.D. Wis. 2021) (“In Wisconsin, the 

intervening or superseding cause defense is subsumed within the first of the six 

‘public policy’ factors . . . .”). An injury becomes too remote if an intervening act 

breaks the chain of causation between the injury and the defendant’s original 

negligence. Kidd, 807 N.W.2d at 705 (quoting Beacon Bowl, Inc. v. Wis. Elec. Power 

Co., 501 N.W.2d 788, 796 (Wis. 1993)). An intervening act does not break the chain 

of causation and cannot be a superseding cause when it creates the same risk of injury 

as the defendant’s original negligence. See Farr v. Evenflo Co., 705 N.W.2d 905, 

2005 WL 1830908, at *7 (Wis. App. Aug. 5, 2005) (unpublished decision cited for 

persuasive value). 

In Farr, an injured child’s parents sued their child’s car seat manufacturer, 

alleging that the car seat was defectively designed and caused the child’s injury. Id. 

at *1. In response, the manufacturer argued that the father’s negligence in failing to 

use a safety harness was the sole cause of the child’s injury. Id. At trial, the jury 

apportioned fault to both the manufacturer and the father. Id. at *2. On appeal, the 

manufacturer argued that the father’s negligence was a superseding cause, cutting 

off the manufacturer’s liability. Id. In analyzing whether the child’s injury was too 

remote from the manufacturer’s negligence, the appellate court ruled that the father’s 

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negligence did not break the chain of causation because the father’s negligence in 

not securing the child and the manufacturer’s negligent design of the car seat both 

created the same risk of injury to the child. Id. at *7. Thus, the court explained that 

“it was completely appropriate to permit the jury to apportion” fault to both parties 

because the father’s actions were not a superseding cause. Id. 

As in Farr, the military’s alleged actions in failing to fit and train Wilkerson 

and the Defendants’ alleged actions in designing a defective earplug created the 

same risk that Wilkerson’s hearing would be damaged by injurious noise. 

Accordingly, the military’s alleged negligence could not break the chain of causation 

between the Defendants’ alleged negligence and Wilkerson’s hearing injuries, and 

thus the military’s alleged negligence cannot be a superseding cause as a matter of 

law. 

III. Defendants’ Failure to Mitigate Defense

Wilkerson moves for summary judgment on Defendants’ failure to mitigate 

defense because there is insufficient evidence that Wilkerson failed to mitigate his 

damages. ECF No. 54 at 10. The Court agrees. 

Under Wisconsin law, an injured party is under a duty to mitigate his damages. 

See Lobermeier v. Gen. Tel. Co. of Wis., 349 N.W.2d 466, 475–76 (Wis. 1984). 

Thus, an injured party must use ordinary care “to seek medical or surgical treatment” 

and “to submit to and undergo recommended surgical or medical treatment within a 

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reasonable time.” Id. at 475 (“summariz[ing] Wisconsin law on mitigation of 

damages in tort actions”); See Wis. JI-Civ. 1730, Duty to Mitigate: Physical Injuries. 

Since the failure to mitigate damages is an affirmative defense, the party asserting 

the defense has the burden of proof. Id. (citing Kuhlman, Inc. v. G. Heileman 

Brewing Co., Inc., 266 N.W.2d 382 (1978)). Generally, whether the injured party’s 

actions were reasonable is a question of fact for the jury. See id. at 474.

Defendants first argue that Wilkerson failed to mitigate his damages by not

wearing hearing aids prior to 2017, citing Wilkerson’s deposition testimony and Dr.

Derek Jones’ and Dr. Jennifer Laborde’s expert report. ECF No. 106 at 13 (citing 

Wilkerson Dep., ECF No. 106-7 at 367–68; Dr. Jones and Dr. Laborde Expert 

Report, ECF No. 106-8 at 15). At his deposition, Wilkerson testified that he was 

prescribed hearing aids in 2017, he regularly wears his hearing aids, and he has seen

an audiologist to repair his hearing aids on multiple occasions. Wilkerson Dep., ECF 

No. 106-7 at 367. In their report, Dr. Jones and Dr. Laborde state that Wilkerson 

wears hearing aids and has good functional ability because “his tinnitus and hearing 

loss can be effectively treated with hearing aids.” Dr. Jones and Dr. Laborde Expert 

Report, ECF No. 54-6 at 21. This evidence cited by Defendants does not show that 

Wilkerson failed “to seek medical or surgical treatment” or that Wilkerson failed “to 

submit to recommended surgical or medical treatment.” See Lobermeier, 349 

N.W.2d at 475. Instead, the evidence shows that Wilkerson sought medical treatment 

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for his hearing loss, followed the recommended treatment by wearing hearing aids, 

and made sure his hearing aids continued to work properly. Defendants do not 

provide evidence that Wilkerson was ever prescribed hearing aids prior to 2017, nor 

do Defendants’ experts opine that Wilkerson should have worn hearing aids prior to 

2017. As such, there is insufficient evidence for a reasonable jury to conclude that 

Wilkerson failed to mitigate his damages by failing to wear hearing aids prior to 

2017. 

Next, Defendants argue that Wilkerson failed to mitigate his damages by not 

attending cognitive behavioral therapy. ECF No. 106 at 13. Defendants only support 

for this argument is one line in Dr. Jones’ and Dr. Laborde’s expert report which 

states, “[s]hould Mr. Wilkerson’s tinnitus rise to the level that he feels more 

handicapped, cognitive behavioral therapy and/or counseling has been shown to be 

effective in tinnitus management . . . .” Dr. Jones and Dr. Laborde Expert Report, 

ECF No. 54-6 at 19. First and foremost, Defendants’ experts do not even believe 

Wilkerson needs this treatment with his current symptoms nor do they provide 

evidence that it would definitively decrease Wilkerson’s future damages. Moreover, 

there is no evidence that Wilkerson’s own physicians recommended cognitive 

behavioral therapy as a treatment for Wilkerson’s tinnitus. As such, there is 

insufficient evidence for a reasonable jury to conclude that Wilkerson failed to 

mitigate his damages by not attending cognitive behavioral therapy. 

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Lastly, Defendants argue that Wilkerson failed to mitigate his damages by not 

decreasing his caffeine consumption, citing Wilkerson’s deposition testimony and 

Dr. Douglas Jacob’s expert report. ECF No. 106 at 13–14. According to his 

deposition, Wilkerson sought medical treatment for sleep loss, and his physician 

recommended a decrease in caffeine consumption at night. ECF No. 54-6 at 376, 

379. Since his doctor’s recommendation Wilkerson has only partially decreased his 

caffeine consumption at night. ECF No. 54-6 at 379. In his report, Dr. Jacobs 

suggests that Wilkerson’s sleep loss could be caused by Wilkerson’s continued 

caffeine consumption rather than hearing loss or tinnitus. Dr. Jacobs Expert Report, 

ECF No. 54-6 at 3. This evidence may be relevant to show that Wilkerson’s sleep 

issues are not caused by his hearing loss or tinnitus, but this evidence is not relevant 

to show that Wilkerson failed to mitigate his damages associated with hearing loss 

and tinnitus. Defendants do not cite to any evidence showing that Wilkerson 

received medical advice that his hearing loss or tinnitus would improve if his 

caffeine consumption decreased, and Dr. Jacobs similarly does not provide an 

opinion that decreasing caffeine consumption could treat Wilkerson’s hearing loss 

or tinnitus. Therefore, there is insufficient evidence for a reasonable jury to conclude 

that Wilkerson failed to mitigate his damages by not decreasing his caffeine 

consumption. 

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IV. Defendants’ Statute of Limitations Defense

Wilkerson moves for summary judgment on Defendants’ statute of limitations 

defense regarding Wilkerson’s personal injury and fraud claims, arguing that these

claims are timely as a matter of law because he could not have discovered the cause 

of his injuries until 2018. ECF No. 54 at 11. Under Wisconsin law, Wilkerson’s 

personal injury and fraud claims are subject to a three year statute of limitations. 

Wis. Stat. § 893.54(1m)(a) (stating the statute of limitations for personal injury 

claims); Wis. Stat. § 893.93(1m)(b) (stating the statute of limitations for fraud 

claims). Wilkerson filed his claims on January 17, 2020. ECF No. 1. Thus, his claims

are timely if they accrued on or before January 17, 2017. 

Wisconsin courts apply the discovery rule as the general accrual rule for all 

tort and fraud claims. See Wis. Stat. § 893.93 (1m)(b) (codifying the discovery for 

fraud claims); Hansen v. A.H. Robins Co., Inc., 335 N.W.2d 578, 583 (Wis. 1983) 

(“[W]e adopt the discovery rule for all tort actions . . . .”). Under Wisconsin’s 

discovery rule, a tort claim accrues when “the plaintiff discovers, or in the exercise 

of reasonable diligence should have discovered, not only the fact of injury but also 

that the injury was probably caused by the defendant’s conduct or product,” Borello 

v. U.S. Oil Co., 388 N.W.2d 140, 146 (Wis. 1986), and a fraud claim accrues when 

the plaintiff discovers “the facts constituting the fraud.” Wis. Stat. § 893.93 (1m)(b). 

Statute of limitations defenses under the discovery rule require fact intensive 

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inquiries, normally presenting issues of fact. See Gumz v. N. States Power Co., 742 

N.W.2d 271, 280 (Wis. 2007) (“Statute of limitations defenses based on failure to 

exercise reasonable diligence will often present questions of fact . . . .”). Thus, 

determining the timeliness of Wilkerson’s claims is more appropriately considered 

once the relevant facts have been presented at trial. Accordingly, the Court defers 

ruling on Defendants’ statute of limitations defense to trial. 

V. Defendants’ Open and Obvious Danger Defense

Wilkerson argues that Defendants’ open and obvious danger defense fails as 

a matter of law because the danger associated with the CAEv2 is not open and 

obvious as a matter of law. The open and obvious danger doctrine is relevant to 

whether Wilkerson was contributorily negligent, see Wagner v. Wis. Mun. Mut. Ins. 

Co., 601 N.W.2d 856, 859 (Wis. App. 1999), whether Defendants had a duty to warn 

Wilkerson of the dangers associated with the CAEv2, see Pagel v. Marcus Corp., 

756 N.W.2d 447, 452 (Wis. App. 2008), and whether the CAEv2’s defects made the 

earplugs unreasonably dangerous. See Tanner v. Shoupe, 596 N.W.2d 805, 812 (Wis. 

App. 1999). The Court agrees with Wilkerson that this defense is inapplicable as a 

matter of law in all three contexts.

The open and obvious danger defense is relevant to whether a plaintiff is 

contributorily negligent as a matter of law. See Wagner, 601 N.W.2d at 859. 

“[W]here a plaintiff voluntarily confronts an open and obvious danger, his 

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negligence, as a matter of law, exceeds any negligence attributable to the defendant,” 

barring “the plaintiff’s recovery under the contributory negligence statute.” Kloes v. 

Eau Claire Cavalier Baseball Ass’n, Inc., 487 N.W.2d 77, 81 (Wis. App. 1992) 

(citing Wisnicky v. Fox Hills Inn & Country Club, 473 N.W.2d 523, 524 (Wis. App. 

1991)). Because apportioning fault under the contributory negligence statute is 

usually a question of fact for the jury, see id. (citing Schuh v. Fox River Tractor Co., 

218 N.W.2d 279, 287 (Wis. 1974), the open and obvious danger defense should only 

bar plaintiff’s recovery as a matter of law in the rare cases where it is undisputed 

that “there is a high degree of probability that the condition or danger will result in 

harm,” see id. (citing Scheeler v. Bahr, 164 N.W.2d 310, 313 (Wis. 1969)), and that 

“no reasonable jury could reach a conclusion to the contrary.” Hansen v. Holland N. 

Am., 574 N.W.2d 250, 255 (Wis. App. 1997) (citation omitted). For example, this 

defense barred a plaintiff’s recovery when the plaintiff dove headfirst into water with 

an unknown depth, see Scheeler, 164 N.W.2d at 313, and when a plaintiff carelessly 

misused a loaded gun. See Schilling v. Blount Inc., 449 N.W.2d 56, 60–61 (Wis. 

App. 1989).

Here, Defendants argue that Wilkerson confronted an open obvious risk of 

hearing injury by re-inserting his CAEv2 on the gun range after the CAEv2 had 

fallen out of his ear on multiple occasions. ECF No. 122 at 6–7. Defendants’ 

argument misses the mark. Re-inserting an earplug is not similar to diving headfirst 

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into shallow water or carelessly misusing a loaded gun. The CAEv2 is a hearing 

protection device. When a soldier like Wilkerson inserts the earplug, he should 

reasonably expect the CAEv2 to protect him from injurious noise even if it has fallen 

out on prior occasions, especially considering the undisputed fact that all earplugs

loosen. Thus, it would be nonsensical to find Wilkerson more negligent than 

Defendants as a matter of law when Defendants designed and sold the allegedly 

defective earplug in the first place. Also, there is zero evidence that Wilkerson knew 

of the risk of using the CAEv2’s yellow end on the gun range, which is an entirely 

separate risk from the CAEv2’s alleged loosening issues. Accordingly, the open and 

obvious danger defense does not completely bar Wilkerson’s claims as a matter of 

law, and the jury will resolve whether Wilkerson should be apportioned fault for his 

injuries.

The open and obvious danger defense is also relevant to whether a 

manufacturer has a duty to warn users about the dangers associated with the 

manufacturer’s product. See Wis. Stat. § 895.047(3)(d) (codifying the open and 

obvious danger doctrine as a defense for strict liability failure to warn claims); Pagel, 

756 N.W.2d at 451–53 (Wis. App. 2008) (explaining that the open and obvious 

danger doctrine is a defense to negligent failure to warn claims). In general, a 

manufacturer has a duty to warn users of dangers that the manufacturer knew or 

reasonably should have known about. See Strasser v. Transtech Mobile Fleet Serv., 

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Inc., 613 N.W.2d 142, 154 (quoting Wis. JI – Civil 3242, Negligence: Duty of 

Manufacturer to Warn) (explaining that Wisconsin courts have adopted Restatement 

(Second) of Torts § 388 for negligent failure to warn claims). However, a 

manufacturer does not have a duty to warn users of open and obvious dangers 

inherent in the product that the user either knows or should have known of based on 

a “casual inspection” of the product. Pagel, 756 N.W.2d at 452–54 (ruling that a 

manufacturer of a water park attraction had no duty to warn users of the risk of 

falling off the attraction because a casual inspection would have uncovered that the 

attraction was built to throw users off the attraction and into the water); see also 

Restatement (Second) of Torts § 388, comment k. For example, this defense has 

been available to a manufacturer of a hot water dispenser because the manufacturer 

should not have to warn users of the risk of getting burned when a casual inspection 

would have uncovered steam coming from the water and the inherent danger of

getting burned. See Kessel ex rel. Swenson v. Stansfield Vending, Inc., 714 N.W. 

206, 216 (Wis. App. 2006).

The CAEv2 is completely distinguishable from a hot water dispenser. A hot 

water dispenser is designed with a certain amount of risk to accomplish the intended 

purpose of the product; hot water inherently involves a risk of getting burned. In 

contrast, the CAEv2 is a hearing protection device designed to protect users from 

hearing injuries and was in no way designed to create hearing injuries. Thus, soldiers 

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like Wilkerson should be able to insert the CAEv2 and assume that it protects from 

injurious levels of noise. Moreover, a “casual inspection” of the CAEv2 would tell

soldiers nothing about the CAEv2’s alleged fitting issues nor would it tell soldiers 

not to use the CAEv2’s yellow end on a gun range. See Pagel, 756 N.W.2d at 453. 

Therefore, no reasonable jury could conclude that the alleged dangers associated 

with the CAEv2 were open and obvious. As such, Defendants had a duty to warn 

Wilkerson of these alleged dangers associated with the CAEv2, and the open and 

obvious danger defense does not bar Wilkerson’s strict liability failure to warn claim

as a matter of law. 

Lastly, the open and obvious danger defense is relevant to whether a 

manufacturer can be held strictly liable for design defects. See Tanner, 596 N.W.2d 

at 812 (citing Kozlowski v. John E. Smith’s Sons Co., 275 N.W.2d 915, 920 (Wis. 

1979)). To be held strictly liable for a design defect, “the defect must be hidden from 

the ordinary consumer, that is, not an open and obvious defect.” Id. (citing 

Kozlowski, 275 N.W.2d at 920). The Wisconsin Supreme Court has explained that 

the open and obvious danger defense has been applied in the design defect context

“when a knife cuts flesh, when an alcoholic beverage leads to intoxication, or when 

the flame on a gas stove burns the chef.” Godoy ex rel. Gramling v. E.I. du Pont de 

Nemours and Co., 768 N.W.2d 674, 685 (Wis. 2009) (citing Dippel v. Sciano, 155 

N.W.2d 55 (Wis. 1967)). Generally, whether a defect “is an open and obvious danger 

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CASE NO. 7:20cv035-MCR-GRJ

is a question of fact for the jury to determine,” Tanner, 596 N.W.2d at 812 (citing 

Hansen v. New Holland N. Am., Inc., 574 N.W.2d 250, 254 (Wis. App. 1997). 

However, a court may rule on this issue as a matter of law if there is insufficient 

evidence to create a genuine issue of fact as to whether the defect was open and 

obvious to the ordinary consumer. See Stupak v. Hoffman-La Roche, Inc., 326 Fed. 

App’x 553, 560 (11th Cir. 2009) (applying Wisconsin law and affirming summary 

judgment because the pharmaceutical manufacturer did not provide sufficient 

evidence to create a genuine issue of fact as to whether an ordinary consumer would 

have known of the drug’s alleged defects).

Here, Defendants argue that a reasonable jury could find that the CAEv2’s 

alleged design defects were open and obvious to the ordinary consumer, barring 

Wilkerson’s strict liability design defect claim. ECF No. 122 at 6. In support of this 

argument, Defendants point out that “the length of the plug, the stiffness of the stem, 

whether a deep fit would be obtained, and whether the opposing flange contacted the 

tragus are all observable features of the CAEv2.” Id. This argument also misses the 

mark because the CAEv2 is inherently distinguishable from the products that this 

defense has applied to in the past. For example, the purpose of a gas stove is to create 

a flame that inevitably creates a risk of getting burned. The stove’s flame cannot be 

an actionable defect because the flame creates an open and obvious danger that an 

ordinary consumer should expect when using the stove. Again, the CAEv2 is a 

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CASE NO. 7:20cv035-MCR-GRJ

hearing protection device in which the ordinary consumer assumes the product 

protects hearing rather than creates hearing injuries. Moreover, highly trained 

experts with years of experience in the hearing conservation industry observe the 

CAEv2’s physical characteristics and come to different conclusions as to whether 

the CAEv2 is defective. See, e.g., Richard McKinley Expert Report, MDL Dkt. ECF 

No. 1630-18; Dr. John Casali Expert Report, MDL Dkt. ECF No. 1595-3. Thus, a 

reasonable jury could not conclude that the CAEv2’s defects were open and obvious

to the ordinary consumer, and the open and obvious danger defense does not bar 

Wilkerson’s strict liability design defect claim as a matter of law. 

Accordingly, Wilkerson’s Motions for Summary Judgment, ECF Nos. 54 & 

96, are GRANTED as to Defendants’ intermediary defenses, superseding cause 

defense, failure to mitigate defense, and open and obvious danger defense and 

DENIED as to Defendants’ statute of limitations defense. 

DONE AND ORDERED this 8th day of March 2022.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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