UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION 

 

This Document Relates to: 

Baker v. 3M Company 

Case No. 7:20-cv-00039 

 Case No. 3:19-md-2885 

 

 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

 

PLAINTIFF’S TRIAL BRIEF ON 3M’S INTERMEDIARY DEFENSES 

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INTRODUCTION 

No court applying Washington law has ever recognized 3M’s intermediary 

defenses in a suit involving an off-the-shelf product. This Court should not be the 

first. Washington’s learned-intermediary defense is limited to the pharmaceutical 

context. Washington has never adopted the sophisticated-intermediary defense, nor 

applied the sophisticated-purchaser defense outside of toxic-tort suits. There is no 

basis to mint new defenses or refashion old ones in this case involving an ordinary 

consumer good. 

ARGUMENT

I. Washington limits the learned-intermediary defense to prescriptiondrug and medical-device cases. 

Washington recognizes a learned-intermediary defense only in failure-to-warn 

suits against manufacturers of pharmaceutical drugs and medical devices. See 

LaMontagne v. Bristol-Myers Squibb, 111 P.3d 857, 862 (Wash. App. 2005). The 

Washington Supreme Court has “expressly declined to adopt the learned 

intermediary doctrine in other contexts, particularly where workers are injured 

using products purchased by their employer.” Rublee v. Carrier Corp., 428 P.3d 

1207, 1216-17 (Wash. 2018) (emphasis added). Indeed, the high court declined to 

extend the defense in a product-liability case against a pesticide manufacturer—

where a commercial grower purchased the dangerous pesticides that injured its 

workers—because the commercial grower was not an analogous intermediary to a 

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physician. Ruiz-Guzman v. Amvac Chem. Corp., 7 P.3d 795, 803 (Wash. 2000). 

Washington would not expand this narrow defense to a suit involving an offthe-shelf product. Even in the pharmaceutical context, the defense is limited: it does 

not apply to excuse the manufacturer’s duty to warn other entities, including a 

hospital, “to ensure the safety of persons its product will be used on.” Taylor v. 

Intuitive Surgical, 389 P.3d 517, 526 (Wash. 2017). “The doctrine arises from the 

recognition that once a physician is aware of the risks associated with a new or 

dangerous medical treatment, the physician stands in the best position to provide an 

‘independent judgment, taking into account [the physician’s] knowledge as well as 

the product.’” Kaspers v. Howmedica, 2015 WL 12085853, at *7 (W.D. Wash. Oct. 

23, 2015) (quoting Terhune v. A.H. Robins, 577 P.2d 975, 978 (Wash. 1978)). “It 

has also been suggested that the rule is made necessary by the fact that it is ordinarily 

difficult for the manufacturer to communicate directly with the consumer.” Terhune, 

577 P.2d at 978; see Rublee, 428 P.3d at 1217 (“[D]rawing a line between an 

‘ordinary user’ and ‘industrial purchasers’ . . . inches toward expanding the learnedintermediary doctrine without a public policy necessity.”). No justification exists for 

expanding the learned-intermediary defense where, as here, end users like Baker 

could choose which earplugs to use and 3M could have communicated with him—

and in fact did so. See Dkt. 66 at 23, 26-27 & n.8; see also, e.g., 40 C.F.R. § 211.204-

4 (“The following minimum supporting information must accompany the device in 

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a manner that insures its availability to the prospective user.”). 

II. Washington does not recognize the sophisticated-intermediary 

defense under Restatement (Second) of Torts § 388, comment n. 

Washington has not adopted the sophisticated-intermediary defense. 

Defendants conceded this fact when they omitted Washington from their list of states 

that recognize the defense. Estes, Dkt. 100 at 7. Although Washington has adopted 

Section 388 of the Restatement (Second) of Torts, Fleming v. Stoddard Wendle 

Motor, 423 P.2d 926, 928 (Wash. 1967), Washington has not adopted comment n. 

Lunt v. Mount Spokane Skiing Corp., 814 P.2d 1189 (Wash. App. 1991), is 

not to the contrary. There, the Washington Court of Appeals concluded that a 

manufacturer of rental ski bindings had adequately warned a ski rental company who 

had rented skis to the plaintiff. Lunt cited a California case applying comment n, id. 

at 361, but then concluded that a warning to the end user would not have avoided 

the harm, id. at 362. Lunt also mentioned the learned-intermediary doctrine, but only 

because the manufacturer made the ski bindings for rental use and thus had “limited 

opportunities to communicate directly with the consumer.” Id. Here, in contrast, 3M 

could readily communicate with soldiers and civilians about its earplug. Regardless, 

no court has cited Lunt for the proposition that it adopted comment n. 

The Washington Supreme Court has never adopted comment n, and there is 

no reason to think it would. See, e.g., Molinos v. Lama, 633 F.3d 1330, 1348 (11th 

Cir. 2011) (federal court sitting in diversity may “disregard” the decisions of state 

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intermediate courts “if persuasive evidence demonstrates that the highest court 

would conclude otherwise”). Washington has “long recognized that consumer 

protection is the touchstone of Washington’s product liability law,” so it is unlikely 

Washington would limit a manufacturer’s duty to warn through the sophisticatedintermediary defense. Rublee, 428 P.3d at 1216. That it has not done so in the many 

years since comment n was published is a compelling reason to think it would not.1

III. If Washington recognizes the sophisticated-purchaser defense, it does 

not apply to the manufacture of consumer goods. 

Washington does not recognize a bulk-supplier or sophisticated-purchaser 

defense for manufacturers of over-the-counter consumer goods. The Washington 

Supreme Court rejected the “‘sophisticated purchaser’ approach’ . . . as inconsistent 

with Washington law.” Rublee, 428 P.3d at 1216. “The only scenario in which 

[courts] differentiate between types of users or consumers is in the pharmaceutical 

or medical device context, where the ‘learned intermediary’ doctrine applies.” Id. 

At most, Washington may recognize “a variant of the sophisticated purchaser 

doctrine in toxic tort claims, where a manufacturer or supplier of the products alleged 

to have caused the plaintiff’s injuries warns the plaintiff’s intermediary or employer 

of the products’ dangerous propensities.” Jack v. Borg-Warner Morse Tec, 2018 WL 

4409800, at *27 (W.D. Wash. Sept. 17, 2018). Whether Washington recognizes the 

1

 What’s more, the Legislature did not include such a defense in the Washington 

Products Liability Act (WPLA). See R.C.W.A. § 7.72.010 et seq.

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sophisticated-purchaser defense in this narrow set of circumstances remains 

unsettled; regardless, that application is limited to toxic torts. See id. 

Cases that seemingly apply a sophisticated-purchaser variant do not extend 

the defense to over-the-counter goods like the CAEv2. For example, Zamora v. 

Mobil Corp. held that a propane reseller—who never possessed or controlled the gas 

or had notice of its dangerous defect—had no duty to warn the ultimate consumer 

when the retailer that purchased and sold the odorless gas to the consumer was an 

established distributor aware of the risks. 704 P.2d at 587-88. And in Reed v. 

Pennwalt Corp., the court held a caustic soda manufacturer was not required to warn 

the plant’s employees when it warned the plant of the product’s hazards. 591 P.2d 

478, 481-82 (Wash. App. 1979). The court emphasized the manufacturer had no 

effective means of communicating a warning to the ultimate user because the 

product was a liquid and not delivered to the employee in an “original can, box, or 

form.” Id. Moreover, the manufacturer had no “specific knowledge” concerning how 

the employees would handle the caustic soda. Id. at 479. Those factors do not apply 

to over-the-counter goods like the CAEv2, for which 3M knew the intended use and 

could have easily warned consumers. 

CONCLUSION 

For these reasons, 3M seeks to apply intermediary defenses not recognized by 

Washington law. 

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Date: April 16, 2021 

/s/ Sean Patrick Tracey 

Sean P. Tracey (Admitted Pro Hac Vice) 

Texas Bar No. 20176500 

Shawn P. Fox (Admitted Pro Hac Vice 

Texas Bar No. 24040926

TRACEY FOX KING & WALTERS

440 Louisiana St., Suite 1901 

Houston, TX 77002 

713-495-2333 Tel. 

866-709-2333 Facsimile 

stracey@traceylawfirm.com

sfox@traceylawfirm.com 

 

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CERTIFICATE OF COMPLIANCE 

 I hereby certify that this memorandum conforms to the formatting 

requirements of the Local Rules and complies with the Court’s directive that Baker 

file a trial brief not to exceed 5 pages. 

 s/ Sean Patrick Tracey 

 

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CERTIFICATE OF SERVICE 

 I 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. 

 s/ Sean Patrick Tracey 

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