UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

Case No. 3:19md2885

LIABILITY LITIGATION

This Document Relates to: 

Baker, 7:20cv39

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

The Court has previously determined that Georgia law applies to the Estes and 

Keefer cases, and Kentucky law applies to Hacker’s case. See Order, Case No. 

3:19md2885, ECF No. 1599.1 The remaining choice of law question before the 

Court pertains to the Group A cases of Baker and McCombs. This Order decides 

the question for Baker.2 A separate order will follow for McCombs. Baker argues 

for application of Washington law. Defendants argue for Indiana law.

As with the other three Group A cases, the question of where a plaintiff was 

injured is central to the choice of law decision. To the extent a plaintiff “sustained” 

his alleged injuries at a place “subject to the exclusive jurisdiction of the United 

States within a State,” such as military installations within the United States, the 

Court must apply the substantive law of the state surrounding the military 

1

 The Court incorporates by reference the general law section of that Order.

2 The parties’ joint stipulation applies to this decision. See Joint Stipulation, Case No. 

319md2885, ECF No. 1597.

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installation. See Order, Case No. 319md2885, ECF No. 1599 at 3 (citing authority). 

Notably, under the statute, the term “State” is narrowly construed and does not 

include a foreign country. See Harris v. Kellogg, Brown & Root Servs., Inc., 796 F. 

Supp. 2d 642, 655 (W.D. Pa. 2011). Thus, where a plaintiff’s injuries were sustained 

overseas, the Court must apply the choice of law rules of the plaintiff’s designated 

forum. See id. at 655-56 (applying the choice of law rules of the forum after 

concluding that 28 U.S.C. § 5001’s predecessor, 16 U.S.C. § 457, did not provide 

the controlling choice of law rule because the alleged injury occurred on a base in 

Iraq). 

Baker claims he suffered hearing-related injuries related to his use of the 

Combat Arms Earplug version 2 (“CAEv2”) during his military service, both 

domestically and abroad. The question here is whether he sustained any hearingrelated injury while stationed stateside. Based on a preponderance of the evidence, 

the Court finds that Baker sustained at least one of his claimed injuries, tinnitus, at 

Fort Lewis in Washington state. 

Baker was an infantryman when he entered the military and was specifically 

assigned to operate the M240 machine gun. While stationed at Fort Lewis between 

December 2005 and August 2006, Baker participated in urban warfare training 

exercises designed to prepare soldiers for deployment to the Middle East. These 

exercises were conducted in a mock city environment and involved room clearing 

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using flash bang grenades and machine gunfire inside of enclosed concrete 

structures. Baker described the noise conditions as “extremely loud” and “very 

concussive.” It is undisputed that Baker wore the CAEv2 (yellow end inserted) for 

hearing protection during this training. Baker testified, both at the evidentiary 

hearing and in one of his two depositions,that during one urban warfare exercise just 

before Christmas in 2005, he experienced muffled hearing and ringing in his ears. 3

 

According to Baker, although the muffled hearing subsided shortly thereafter, he 

noticed about a week later while sleeping over at a friend’s apartment that the ringing 

in his ears was still present. Baker explained that the ringing was noticeable because 

his friend’s apartment was very quiet, unlike his living quarters on base. Baker 

testified without hesitation that his hearing was “definitely different” in Fort Lewis, 

after his training there.

Despite Baker’s testimony, it is undisputed that he did not complain to anyone 

about his hearing issues before August 2006, when he left Fort Lewis, and in fact 

there is no evidence of Baker having a hearing problem until his diagnosis of 

bilateral hearing loss and tinnitus in October 2009 by the VA. It is also undisputed 

that when asked about his noise exposure and hearing injuries while serving in the 

3 Baker did not specifically reference the urban warfare training at his first deposition, but 

he did discuss field training exercises generally. Additionally, at his first deposition, he was not 

asked many questions specific to his military training generally or his experience at Fort Lewis 

specifically.

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military—long after he left Fort Lewis, including in connection with this case—

Baker did not mention the urban warfare training exercise or Fort Lewis, identifying 

Iraq instead as the location of his noise exposure and hearing injury onset. 

Defendants ask the Court to discredit Baker’s claim of experiencing symptoms 

consistent with temporary hearing loss and tinnitus while at Fort Lewis and find 

instead that his injuries, if any, occurred following his deployment to Germany and 

later Iraq. The Court declines to do so and instead accepts Baker’s explanation of 

why there is no evidence of a hearing problem prior to his 2009 diagnosis and also 

no mention of the urban warfare training incident prior to his second deposition in 

this case.

4

First, Baker credibly explained that he did not complain about his tinnitus 

before he left Fort Lewis because of the high pace of the training and out of concern 

for how those complaints would be viewed coming from a newly enlisted combat 

infantryman. According to Baker, “there is a bit of the military culture, especially 

in combat arms, is that, if you’re injured or something but it’s not serious, it’s not 

life, limb, or eyesight, you just suck it up and keep going, because you can’t call 

timeout just because your hearing is muffled or you have tinnitus.” Second, although 

his medical record from an examination at the Charleston, South Carolina VA 

4 The Court notes that even before his first deposition, in his Third Supplemental 

Interrogatory Responses, Baker stated that he used the CAEv2 during “while conducting combat 

training” generally in the Army from 2005-2009.

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Medical Center in October 2009 does not specifically identify Baker’s urban warfare 

training at Fort Lewis when listing his history of military noise exposure, it does 

generally list his time “in the infantry for 4 years,” which includes his time at Fort 

Lewis, and also lists his exposure to machine gunfire and explosions, consistent with 

Baker’s description of the urban warfare training at Fort Lewis. Although the record 

refers to noise exposure in Iraq and references Baker’s “onset of tinnitus following 

[his] return from Iraq,” the record does not exclude other locations of noise exposure,

and Baker explained in his testimony that he did not really know what “onset” meant 

and just assumed that “onset” and “diagnosis” were the same thing. Next, although 

other documents, including his Initial Census Form in this case, state that Baker’s 

tinnitus began in approximately 2007, which was after he left Fort Lewis, Baker 

explained that his first couple of years in the military training as a combat 

infantryman were stressful, and he did not have a clear recollection of the timeline 

of where he was stationed and when until he recently discovered and reviewed some 

of his old military paperwork regarding his change of duty stations. Defendants also 

point to Baker’s Third Supplemental Interrogatory Responses, specifically, 

Interrogatory No. 23, which asked Baker to describe “[a]ll injuries . . . including the 

date that You sustained the injuries” and in response Baker listed “2009 or 2010” as 

the date of his hearing loss and tinnitus. The Court notes, however, that the 

preceding interrogatory asked for “the date of diagnosis” of any medical condition

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and Baker also listed 2009 or 2010.

5 Finally, Defendants rely on Baker’s 

employment paperwork with a military contractor, Triple Canopy, which states that 

Baker suffered noise exposure in the military and more specifically in Iraq during 

2007-2008. However, the paperwork does reference all of his years in the military. 

Moreover, as explained below, given the amount of noise exposure Baker 

experienced overseas as compared to Fort Lewis, it is not surprising that he would 

focus on Iraq in this response.

Perhaps most convincing is the undisputed fact that during his time at Fort 

Lewis, Baker was a new soldier participating in intense combat training exercises 

designed to prepare soldiers for overseas warfare. It is reasonable to conclude that 

the urban warfare training exercise he described was a part of that training. 

Moreover, Baker’s expert, Dr. Mark Packer, testified that Baker’s recollection of his 

tinnitus beginning at Fort Lewis is consistent with the level of noise exposure to be 

expected during urban warfare training exercises. According to Dr. Packer, Baker’s

urban warfare training involved soldiers clearing out fully enclosed concrete 

structures with gunfire, which created “very reverberant conditions” that

significantly amplified the gunfire noise. Dr. Baker also said that the M240 machine 

gun that Baker fired during these exercises was very loud at 160 decibels. It is also

5 Baker made the correct distinction between the date of onset and the date of diagnosis in 

his Fourth Supplemental Interrogatory Responses.

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worth noting that Baker’s recollection of the urban warfare training incident was as 

a result of his interview by Dr. Packer, who would have asked Baker very specific 

questions about his noise exposure in the military based on Dr. Packer’s personal 

experience over two decades in the military as a otolaryngologist treating 

servicemembers’ hearing-related injuries, and his extensive experience with the 

Department of Defense (DoD) Hearing Center of Excellence.

6

 It is not surprising 

that Baker would recall the urban warfare training incident with Dr. Packer, but not 

before when filling out paperwork or responding to general questions, particularly 

given that the urban warfare training incident was a limited noise exposure that was 

followed by three and half years of infantry service in Germany and Iraq, including 

15 months of combat in Iraq, where Baker was regularly exposed to loud noise from 

weapons fire, explosives, and vehicle engines. Dr. Packer also testified that, in his 

experience, military medical records may not always document the complete picture 

behind a condition, either because the physicians are busy and not focused on 

obtaining a clear medical history for the precise time when a medical condition may 

have begun, and/or the patient reports only the most recent episode related to a 

condition, which is not at all uncommon. 

Although Defendants will have the opportunity to attempt to discredit Baker 

at trial regarding his injury at Fort Lewis, the Court accepts his testimony and that 

6 Dr. Packer was the founding director of the Hearing Center of Excellence.

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of his expert, Dr. Packer for purposes of choice of law. Accordingly, by a

preponderance of the evidence, the Court finds that Baker suffered tinnitus while 

stationed at Fort Lewis, and as a result, the substantive law of Washington applies 

to his case pursuant to 28 U.S.C. § 5001(b).7

SO ORDERED, on this 17th day of January, 2021.

M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

7 This finding satisfies due process, see Order, ECF No. 1599 at 9 n. 8, and applies to all 

of Baker’s claims. In light of the Court’s findings, the Court has no occasion to consider whether 

the law of Indiana should apply to Baker’s claims.

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