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:

Vilsmeyer, 7:20-cv-113

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Defendants’ Motion for Summary 

Judgment under Federal Rule of Civil Procedure 56. ECF No. 44. The Court assumes 

the parties’ familiarity with the general factual allegations and nature of this 

multidistrict litigation. Luke Vilsmeyer has brought fifteen claims against 

Defendants under Washington law1 arising from injuries he alleges were caused by

his use of the Combat Arms Earplug version 2 (“CAEv2”) during his military 

service. See Amended Master Form Compl., ECF No. 11.

2 Luke Vilsmeyer’s wife, 

Christina Vilsmeyer, has filed a claim for loss of consortium. Id. Defendants move 

1

 The parties agree Washington law applies to the Vilsmeyers’ claims. See ECF No. 30.

2 Specifically, Luke Vilsmeyer 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. 11.

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CASE NO. 7:20cv113-MCR-GRJ

for summary judgment on Luke Vilsmeyer’s claims for negligent design defect

(Count I), breach of express warranty (Count V), breach of implied warranty (Count 

VI), negligent misrepresentation (Count VII), gross negligence (Count XI),

negligence per se (Count XII), consumer fraud/unfair trade practices (Count XIII),

unjust enrichment (Count XV), and punitive damages (Count XVI). ECF No. 44.3

Defendants also move for summary judgment on Christina Vilsmeyer’s loss of 

consortium claim (Count XIV). Id. at 7–8. In response, Luke Vilsmeyer voluntarily 

dismisses his claims for negligent design defect (Count I), breach of express 

warranty (Count V), breach of implied warranty (Count VI), negligent 

misrepresentation (Count VII), gross negligence (Count XI), negligence per se

(Count XII), consumer fraud/unfair trade practices (Count XIII), unjust enrichment

(Count XV), and punitive damages (Count XVI). ECF No. 87. Christina Vilsmeyer 

also withdraws her loss of consortium claim (Count XIV). Id.

Accordingly, Defendants’ Motion for Summary Judgment, ECF No. 44, is

MOOT.

DONE AND ORDERED this 2nd day of March 2022.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

3 Defendants do not move for summary judgment on Luke Vilsmeyer’s claims for design 

defect – strict liability (Count II), failure to warn – negligence (Count III), failure to warn – strict 

liability (Count IV), fraudulent misrepresentation (Count VIII), fraudulent concealment (Count 

IX), and fraud and deceit (Count X). ECF No. 44. 

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