UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS

LIABILITY LITIGATION

This Document Relates to:

Roper v. 3M Company

Case No. 7:20-cv-02945-MCR-GRJ

Case No. 3:19-md-2885

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

PLAINTIFF’S RESPONSE TO DEFENDANTS’1 MOTION 

FOR SUMMARY JUDGMENT

Plaintiff files this Response to Defendants’ Motion for Summary 

Judgment and requests that the Court deny Defendants’ Motion for 

Summary Judgment in these respects: 

• Plaintiff provided ample testimony regarding her use of the 

CAEv2 (Subsection I);

• Plaintiff provided competent, admissible expert testimony 

from Dr. Richard Tyler on causation (Subsection I); 

• Plaintiff’s strict liability claims should not be dismissed but 

rather construed under the AEMLD (Subsection II.A);

1 After moving for summary judgment, Aearo and other 3M subsidiaries filed for chapter 11 

bankruptcy and are currently subject to an automatic stay. 3M, however, “is not a debtor” and thus 

not subject to the stay. MDL Dkt. 3329. For the purpose of Plaintiff’s Response, “Defendants” means 

only whichever Defendant(s) may properly be subject to an order of this Court when the motion is 

adjudicated.

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• Plaintiff has provided enough expert testimony of safer 

alternatives to withstand summary judgment (Subsection 

II.B.); 

• Plaintiff has produced substantial evidence from which a jury 

could find that Defendants’ failure to warn was the cause of 

Plaintiff’s injuries (Subsection II.C),

• Plaintiff’s fraud-based claims present fact issues on the 

element of justifiable reliance (Subsection II.E); and

• Whether Plaintiff is entitled to an award of punitive damages 

is not ripe until the time of trial (Subsection III).

In support, Plaintiff relies upon the pleadings and the following 

memorandum of law.

2

I. Argument

1. Plaintiff testified multiple times during her deposition that 

she used the CAEv2.

Contrary to Defendants’ assertion, Plaintiff testified numerous

times that she used the CAEv2. For example, Plaintiff stated that she 

wore the Combat Arms Earplugs as her hearing protection device every 

time she went to the gun range to fire her M16, which occurred twice a 

year. Ex. 1 (Plaintiff Deposition) at 51:16-52:3. Plaintiff similarly 

testified that when she would fire her 9mm pistol at the gun range, she 

2 In addition to the other arguments addressed herein, Defendants’ reservation of rights regarding the 

government contractor defense and Noise Control Act has no basis in law or fact. No issues currently 

on appeal in the Eleventh Circuit would warrant dismissal of all of Plaintiff’s claims. See, e.g., MDL 

Dkt. 1280 at 55 (“Defendants concede that the [government contractor] defense applies only to design 

defect and failure-to-warn claims.”); Estes, Dkt. 53 at 21-22 (adjudicating combat-use exception as to 

negligence-per-se claim only).

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was also wearing her Combat Arms Earplugs. Id. at 52:23-53:5. Plaintiff 

also responded affirmatively when she was asked whether she recalled 

having an earplug that had a yellow end and green end—a clear reference 

to the Combat Arms Earplugs. Id. at 63:6-9. Finally, when asked 

whether she recalled using any other hearing protection other than the 

green and yellow earplugs, Plaintiff testified that she did not. Id. at

67:20-24. This testimony is undisputed and, at worst, creates a fact-issue 

as to whether Plaintiff used the CAEv2 while in the military. Defendant’s 

motion for summary judgment on all of Plaintiff’s claims based on her 

alleged lack of evidence of use of the CAEv2’s should thus be denied.

2. Dr. Tyler has provided competent, admissible specific 

causation expert testimony establishing that the CAEv2 

caused Plaintiff’s injuries.

Defendants’ argument about expert testimony provided by Dr. 

Richard Tyler puts the cart before the horse: Defendants apparently

assume that this Court will exclude Dr. Tyler from providing expert 

testimony on Plaintiff’s behalf. Yet as explained in Plaintiff’s Response 

to Defendants’ Motion to Exclude Testimony From Plaintiff’s Expert 

Richard S. Tyler, Ph.D. (filed at the same time as this motion), Dr. Tyler 

has provided competent, admissible expert evidence relating to the issue 

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of specific causation. Plaintiff incorporates the arguments made in that 

response here and asks the Court to reject Defendants’ Motion to Exclude 

based on those arguments. Because Plaintiff has provided admissible 

expert testimony establishing her injuries were proximately caused by 

the CAEv2, Defendants argument fails as a matter of law. Defendants 

request for summary judgment based on the exclusion of Dr. Tyler as 

stated in Subsection I of their Motion for Summary Judgment should 

therefore be denied.

3. Plaintiff’s strict liability claims should be construed as 

claims under the Alabama Extended Manufacturer’s 

Liability Doctrine (AEMLD).

Plaintiff’s strict liability counts (II & IV) do not “fail,” but rather 

should be construed as AEMLD claims “[b]ecause Alabama’s analogous 

cause of action for strict product liability is an AEMLD claim [ . . . .]” 

Bodie v. Purdue Pharma Co., 236 Fed. App’x 511, 518 n.9. In Bodie, the 

Eleventh Circuit clarified that Alabama law follows “a modified version 

of strict liability” that “in practice [. . .] is similar to a traditional strict 

product liability claim.” Id. The court clarified the role that “fault” plays 

under the AEMLD:

Although AEMLD liability is described as a “fault-based” 

system, in actuality the defendant’s “fault” in an AEMLD 

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action—or the required scienter—“is supplied by [his] selling 

a product in a defective condition.” That is, “[t]he fault of the 

manufacturer [. . .] is that he has conducted himself 

unreasonably in placing a product on the market which will 

cause harm”; the existence of a “dangerously unsafe chattel is 

negligence within itself.”

Id. (citations omitted) (quoting Sears, Roebuck & Co., Inc. v. Haven Hills 

Farm, 395 So.2d 991, 994 (Ala. 1981) and Atkins v. Am. Motors Corp., 335 

So.2d 134, 140 (Ala. 1976)). Accordingly, Plaintiff’s strict liability counts 

should not be dismissed, but rather construed as AEMLD claims. 

4. Plaintiff has provided enough expert testimony of safer 

alternatives to withstand summary judgment.

Defendants ignore the totality of Plaintiff’s evidence to argue that 

Plaintiff has not satisfied his evidentiary burden at the summary 

judgment stage to show a safer alternative design. Plaintiff’s general 

experts, Dr. Mark Packer, Richard McKinley, Dr. Lawrence Lustig, and 

others opined there were safer alternative designs that were free from 

the CAEv2’s defects. See Ex. 4 (Plaintiff’s Rule 26 Expert Disclosures); 

Ex. 5 (Packer Report at 105-06); Ex. 6 (McKinley Report) at 90-109; Ex. 

7 (Lustig Report) at 54-55. These safer alternative designs include the 

CAEv1, Ex. 5 (Packer Report) at 105-06; CAE versions 3, 4, and 4.1, id. 

at 106; Surefire Sonic Defender, id., Moldex Battle Plugs, id., and custom 

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molded earplugs, id., all/many of which were available at the time that 

Plaintiff used the CAEv2. See generally Ex. 6 (McKinley Report) at 90-

109 (same products); Ex. 7 (Lustig Report) at 54-55. The Court has 

already found these experts are qualified to testify as to safer alternative 

designs. MDL Dkt. 1680 at 95-96 (Packer), 92-93 (McKinley).

At the outset of his report, Dr. Tyler states that based on his review 

of other expert reports already produced in the 3M litigation, “there were 

safer alternative hearing protection devices available during her military 

service.” Ex. 2 (Tyler Report) at 11-12. Dr. Tyler concluded to a 

reasonable degree of medical certainty that Plaintiff’s injuries could have 

been significantly reduced or prevented by using one or more of those 

available alternative products rather than the CAEv2. Id. Plaintiff has 

provided ample uncontroverted testimony (in the form of both casespecific and general expert opinions) on safer alternative design to 

withstand Defendants’ request for summary judgment on her design 

defect claims.

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5. Plaintiff has produced substantial evidence from which a 

jury could find that Defendants’ failure to warn was the 

cause of Plaintiff’s injuries.

Defendants argue that Plaintiff’s warnings claims should be dismissed 

because Plaintiff did not set forth sufficient evidence of causation. [Doc. 

16 at 9-11]. This argument is meritless.

Under the AEMLD, a manufacturer of goods has a duty to “exercise 

reasonable diligence” to warn “persons likely to be injured by the product” 

of imminent dangers arising from intended use. King v. S.R. Smith, Inc., 

578 So.2d 1285 (Ala. 1991) (collecting authorities). A supplier of a product 

also has an independent duty under Alabama’s common law to inform 

“those whom the supplier should expect to use the chattel [...] or to be 

endangered by its probable use.” Purvis v. PPG Indus., Inc., 502 So.2d 

714, 719 (Ala. 1987) (quoting Restatement (Second) of Torts § 388). In 

each case, the duty to warn applies to dangers “the defendant knows or 

should know.” See King, 578 So.2d at 1287; Purvis, 502 So.2d at 719.

Notably, Defendants’ causation arguments do not contest that the 

CAEv2 was dangerous, that they knew it was dangerous, or that they 

failed to communicate that danger to Plaintiff or the military—nor could 

they. Plaintiff has proffered unchallenged and previously admitted 

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expert testimony that the CAEv2 is unsafe due to a lack of warnings, 

including with regard to the CAEv2’s tendency to imperceptibly loosen; 

its high-variability, low attenuation, and true NRR; and the yellow-end’s 

inadequate protection from weapons fire. See Ex. 4 (Plaintiff’s expert 

disclosure listing inter alia Mr. McKinley, Dr. Packer, and Dr. Arriaga); 

e.g., Ex. 5 (general expert report of Dr. Packer) at 93-106. And 

Defendants’ own documents and employees show that the CAEv2 was 

unreasonably dangerous without warnings and additional instructions. 

See Ex. 8 (P-GEN-1); Ex. 9 (Hamer 2015 Tr.) at 87:5-24, 164:5-8, 165:12-

166:1; see also, e.g., Ex. 10 (P-GEN-122) (e-mail exchange explaining that 

the CAEv2 “will not reduce 190 db explosions to a safe level” and that

“the CAE is not the optimal choice for the gun range”); Ex. 11 (P-GEN2294) (email explaining that “[a] shooter should not go to the range and 

fire a box of shells with the yellow side”); Ex. 12 (Sloan/Wayman 1/12/22 

Trial Tr.) at 52:13-16 (“most variable earplug” Defendants ever tested). 

Further, none of these risks were ever communicated to Plaintiff or the 

military. See Ex. 12 (Sloan/Wayman 1/12/22 Trial Tr.) at 154:4-11 

(213015 and Flange Report never shared with military); Ex. 13 (P-GEN9). 

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Instead, Defendants argue that there is no evidence that end users 

like Plaintiff would have seen warnings. (See Mot. at 10 (“Roper did not 

read or rely on any instructions, warnings, [or] advertising when using 

the CAEv2”).) But there is ample evidence—and certainly more than “a 

scintilla,” which is all that’s required here—that a warning would have 

made a difference in this case. See E.R. Squibb & Sons, Inc. v. Cox, 477 

So.2d 963, 969 (Ala. 1985)

To make a prima facie showing of proximate causation on his 

failure-to-warn claim, Plaintiff must put forth “at least scintilla of 

evidence.” E.R. Squibb, 477 So.2d at 969. In light of the imperceptible 

nature of the CAEv2’s defects, at a bare minimum, there is sufficient 

evidence that had Defendants told Plaintiff about the need to fold back 

the flanges (and the risks of not doing so), and that the CAEv2 was 

inadequate for use around frequent gunfire, she would have either folded 

the flanges or used the safer quad flange earplugs. See Ex. 14 (S-GEN19) (“It looks like the existing product has problems unless the user 

instructions are revised.”). Furthermore, there is ample evidence that the 

military would have never purchased the CAEv2 at all had Defendants 

provided the adequate warnings and instructions the law requires. See, 

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e.g., Ex. 9 (Hamer 2015 Tr.) at 174:11-15; Ex. 15 (Warren Tr.) at 213:24-

214:17 (NRR of 11 would make it impossible to sell CAEv2); Ex. 13 (PGEN-9); Ex. 16 (MPID); Ex. 17 (P-GEN-2602) (orders to “verify . . . that 

any 3M dual-ended Combat Arms Earplugs are not being used for 

hearing protection purposes.”). 

“It is for the factfinder to determine if the content and the methods 

used to convey the warnings to [the employer] were adequate under the 

circumstances and in light of the danger.” Reynolds v. 

Bridgestone/Firestone, Inc., 989 F.2d 465, 471 (11th Cir. 1993) (citing 

Rhodes v. Interstate Battery Sys., Inc., 722 F.2d 1517, 1519 (11th Cir. 

1984), and Deere & Co. v. Grose, 586 So.2d 196, 199 (Ala. 1991)). 

Accordingly, Plaintiff has raised a triable issue of fact as to whether 

Defendants’ failure to warn proximately cause his injuries. 

6. Plaintiff’s fraud-base claims present fact issues on the 

element of justifiable reliance. 

Drawing all reasonable inferences in favor of Plaintiff—as the 

Court must do at this stage—Plaintiff has established justifiable reliance 

sufficient to avoid summary judgment on his fraud and 

misrepresentation claims. See Wolff v. Allstate Life Ins. Co., 985 F.2d 

1524, 1531 (11th Cir. 1993) (“The determination of whether the plaintiff’s 

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reliance was justifiable is generally a question of fact for the jury to 

decide.”) (citing AT&T Info. Sys., Inc. v. Cobb Pontiac-Cadillac, Inc., 553 

So.2d 529, 532 (Ala. 1989)). Under Alabama law, “a fraud claim may arise 

from a misrepresentation made to a third party,” so long as Plaintiff 

relied on it. Bush v. Tchrs. Ins. & Annuity Ass’n of Am., 2006 WL 

3075539, at *3 (M.D. Ala. Oct. 30, 2006).

Here, there is sufficient evidence to put the question of Plaintiff’s 

reliance to a jury. Defendants disseminated numerous false and 

misleading statements to the military that the CAEv2 would achieve 

specific NRRs and provide adequate protection if used as directed. The 

record establishes that Defendants misrepresented the safety of the 

CAEv2 directly to the military, contemplating that servicemembers such 

as Plaintiff would rely on these misrepresentations. See Ex. 18

(Moses30b6 Tr.) at 281:16-25, 285:18-286:3 (military relied on 

Defendants’ representations). Defendants represented, inter alia, that: 

(1) The CAEv2 would protect against impulse and steady-state noise, e.g., 

Ex. 19 (3M_MDL000400759) (brochure stating “protective up to 

approximately 190 dBP” and “sufficient to cover most of the weapons in 

the military inventory, including shoulder-fired rockets”); (2) The CAEv2 

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would fit most, if not all, users, e.g., Ex. 20 (3M_MDL000345403) (CAEv2 

advertisement promoting “Premolded triple-flange design fits most 

earcanals”); Ex. 21 (3M_MDL00011968 at 69) (3M PowerPoint 

highlighting the CAEv2’s “One-Size-Fits-All-Approach”); and (3) The 

CAEv2 would prevent permanent hearing damage, e.g., Ex. 22

(3M_MDL000281766) (CAEv2 poster stating “[h]ear the action now, hear 

life later”); Ex. 23 (3M_MDL000345403) (“The chance of permanent 

hearing damage . . . is greatly reduced or eliminated.”). And, as described 

above, Plaintiff received instructions on the CAEv2 and relied on what 

he learned in deciding to use the CAEv2 for protection for hazardous 

noise and for its hear-through capabilities.

Defendants challenge the claims—the making of a false 

statement—by criticizing Plaintiff’s memory. But the claims require only 

that a false representation be made, not that the plaintiff remember its 

substance word for word. See, e.g., Restatement (Second) of Torts § 552 

(referring only to the provision of “false information,” not a particular 

statement); see also id. § 533 (stating the maker of a fraudulent 

misrepresentation is liable for misstatements made through a third 

person when “its substance [is] communicated to the other”) (emphasis 

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added). As this Court has explained, what matters is the substance of 

the representations, not the “precise language.” Adkins, 7:20-cv-12, Dkt. 

110 at 6-7. Additionally, there is evidence that Plaintiff reasonably and 

foreseeably relied on Defendants’ misrepresentations in choosing to use 

the CAEv2 during his military service. See Part IV, supra. As in other 

cases where reliance can be indirect, Plaintiff 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 that Plaintiff relied on to his detriment. See Beal, 7:20-cv00006, Dkt. 113 at 4-5.3

7. Punitive damages are a question of fact and Plaintiff is 

entitled to pursue her punitive damages claim at trial.

In Hines v. Riverside Chevrolet-Olds, Inc., the Alabama Supreme 

Court noted that the question “whether there is clear and convincing 

evidence of wrongful conduct that will support an award of punitive 

damages does not arise until trial...” 655 So.2d 909, 926 (Ala. 1994), 

3 Defendants also move for summary judgment on the grounds that Plaintiff has not met Federal Rule 

of Civil Procedure 9(b)’s requirement that he plead facts of the alleged fraud with particularity. 

Although challenges to the sufficiency of pleadings are not prohibited at the summary judgment stage, 

that is not what Defendants attempt here. They instead argue that Plaintiff’s evidence fails to 

specifically identify the statements he will argue constitute fraud at trial. Because this is a challenge 

to the sufficiency of Plaintiff’s evidence—and not his pleadings—Defendants’ reliance on Rule 9 is 

misplaced, and his claims are instead evaluated under Rule 56’s standards, vis a vis Alabama 

substantive law. 

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overruled on other grounds, State Farm Fire & Cas. Co. v. Owen, 729 

So.2d 834 (Ala. 1998). This lawsuit is far from trial and thus the question 

of whether the evidence will support an award of punitive damages is not 

ripe. This Court should, therefore, deny Defendants’ request for summary 

judgment on Plaintiff’s punitive damages claim. 

II.Conclusion

Based on the foregoing, (1) Plaintiff provided sufficient evidence of 

her CAEv2 use to create a fact issue precluding summary judgment as 

requested in Subsection I of Defendants’ Motion; (2) Plaintiff provided 

competent, admissible expert testimony from Dr. Richard Tyler on 

causation and thus the remainder of Subsection I of Defendants’ Motion 

should be denied; (3) Plaintiff’s strict liability claims should not be 

dismissed but rather construed under the AEMLD and Subsection II.A

of Defendants’ Motion should therefore be dismissed; (4) Plaintiff 

provided enough expert testimony of a safer alternative design to 

withstand summary judgment, so Subsection II.B of Defendants’ Motion 

should be denied; (5) Plaintiff has produced substantial evidence from 

which a jury could find that Defendants’ failure to warn was the cause of 

Plaintiff’s injuries and Subsection II.C of Defendants’ Motion should 

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therefore be denied; (6) Plaintiff’s fraud-based claims present fact issues 

on the element of justifiable reliance and Subsection II.E of Defendants’ 

Motion should be denied; and (7) whether evidence of wrongful conduct 

will support an award of punitive damages does not arise until trial, so 

Subsection III of Defendants’ Motion is not ripe and should be denied.

4

DATED: August 9, 2022 Respectfully submitted,

By: /s/ Joshua H. Bauer

REICH & BINSTOCK LLP

Dennis C. Reich

Texas State Bar No. 16739600

Joshua H. Bauer

Texas State Bar No. 24084380

4265 San Felipe, Suite 1000

Houston, Texas 77027

Tel: (713) 622-7271

Fax: (713) 623-8724

dreich@reichandbinstock.com

jbauer@reichandbinstock.com

Attorney for Plaintiff

4 Plaintiff is not responding to Subsections II.D, II.F, II.G, II.H or II.I of Defendants’ Motion.

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CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(F)

I hereby certify that this motion complies with the word limit of 

Local Rules 7.1(F) and contains 2,878 words.

/s/ Joshua H. Bauer

CERTIFICATE OF SERVICE

I hereby certify that on August 9, 2022, I caused a copy of the 

foregoing to be served on all counsel of record via CM/ECF. 

/s/ Joshua H. Bauer

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