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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION 

This Document Relates to: 

Luke Vilsmeyer 

Case No. 7:20-cv-00113 

Case No.: 3:19-md-2885 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW 

Defendants are entitled to judgment as a matter of law on all three claims the 

jury found in favor of Vilsmeyer—strict liability design defect, strict liability failure 

to warn, and negligent failure to warn, see Dkt. 139—because Vilsmeyer failed to 

establish that the CAEv2 caused his injuries. All of Vilsmeyer’s claims require 

causation, i.e., that the CAEv2’s alleged defects caused him to develop hearing loss 

and tinnitus. But Vilsmeyer offered no evidence that an alleged CAEv2 defect 

prevented him personally from getting a good fit or caused the earplug to loosen in 

his ears. His claims thus fail as a matter of law, requiring judgment for Defendants. 

LEGAL STANDARD 

 Judgment as a matter of law is appropriate when “a party has been fully heard 

on an issue” and there is “a legally sufficient evidentiary basis to find for the party 

on that issue[.]” Fed. R. Civ. P. 50(a)(1); see also Bogle v. Orange Cnty. Bd. of 

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Cnty. Comm’rs, 162 F.3d 653, 659 (11th Cir. 1998) (“[I]n order to survive a 

defendant’s motion for judgment as a matter of law, offered at the conclusion of the 

plaintiff’s case, the plaintiff must present evidence that would permit a reasonable 

jury to find in the plaintiff’s favor on each and every element of the claim.”) (internal 

quotation and citations omitted). A party may renew a Rule 50(a) motion for 

judgment as a matter of law after the entry of judgment. Fed. R. Civ. P. 50(b). 

ARGUMENT 

I. VILSMEYER’S FAILURE TO PROVE CAUSATION REQUIRES 

JUDGMENT AS A MATTER OF LAW ON ALL CLAIMS. 

Vilsmeyer failed to introduce evidence from which a reasonable jury could 

conclude that an alleged defect in the CAEv2 caused his injuries. Vilsmeyer argued 

at trial that the CAEv2 was capable of loosening, and thus of injuring him, because: 

(1) the opposing flanges could interfere with the outer ear; and (2) the plastic stem 

was too hard and too wide. To prevail on any of his claims under that theory of 

causation, Vilsmeyer had to show that the CAEv2 was the “but for” cause of his 

injuries, which required him to show that the opposing flanges of the CAEv2 or the 

width and rigidity of its stem prevented caused loosening in his ear. See Schooley v. 

Pinch’s Deli Market, Inc., 951 P.2d 749, 754 (Wash. 1998) (en banc). 

Under Washington law, “expert testimony is always required except in those 

few situations where understanding causation ‘does not require technical medical 

expertise.’” Frausto v. Yakima HMA, LLC, 393 P.3d 776, 779 (Wash. 2017) (quoting 

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Young v. Key Pharms., Inc., 770 P.2d 182, 189 (Wash. 1989)) (en banc). Consistent 

with that legal requirement, which is common to many states, the MDL court has 

already ruled that plaintiffs must produce expert evidence that, considered together 

with non-expert evidence, would allow a reasonable jury to find, to a reasonable 

degree of medical probability or certainty, “both that (1) the CAEv2 had defects that 

could have caused his injuries, and (2) that one or more of those defects did in fact 

cause his injuries.” Baker v. 3M, et al., Case No. 7:20-cv-39 (N.D. Fla.), Dkt. 87 at 

7. 

 Vilsmeyer failed to establish the first element of causation—that “the 

CAEv2 had defects that could have caused his injuries”—because he provided no 

expert testimony that the CAEv2 did not fit him or loosened in his ears because of 

its alleged design defects. Under settled law, Vilsmeyer cannot rest on a general 

assertion that the CAEv2 does not fit anyone or will loosen in anyone’s ears.1

 None 

of the experts who testified at trial offered the opinion that the alleged defects would 

affect everyone who used the CAEv2. On the contrary, Vilsmeyer’s expert Richard 

 

1

 This Court previously held that evidence of lack of fit in an individual plaintiff was 

not required, but that was based on the report of plaintiffs’ expert Dr. David Eddins, 

who “offer[ed] the opinion that the [CAEv2] ... will not properly fit anyone.” See

Baker Dkt. 87 at 7 n.3. But Eddins did not testify at this trial, and as explained 

below, none of the experts who did testify offered the unsupportable opinion that the 

CAEv2 will not fit a single person. 

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McKinley admitted “some people are going to get good attenuation; some people 

are going to get bad attenuation.” 3/21/22 Tr. at 78:17-19. 

The alleged defects that McKinley identified—“the opposing flange and the 

hard, stiff adaptor piece”—could not possibly affect every individual, regardless of 

ear canal size and shape. Id. at 60:16-17. The width and rigidity of the stem can 

affect fit or cause loosening only if the individual’s ear canal is too narrow or curvy 

to accommodate the stem. Similarly, even crediting plaintiffs’ reading of the flange 

report, the opposing flanges cause loosening only if any contact with the outer ear is 

sufficiently material to create a force capable of pulling the inserted end of the 

earplug out of a particular user’s ear canal. The report stated that “the geometry of 

the earcanal opening sometimes prevented the deep plug insertion required for 

maximum attenuation values.” S-Gen-6 at 2. Specifically, the opposing flanges 

sometimes “pressed against the subject’s earcanal opening and folded up” and then, 

when “the inward pressure on the plug was released,” the opposing flanges “tended 

to return to their original shape and this sometimes loosened the plug.” Id. Whether 

“the geometry” of a particular “earcanal opening” would give rise to this fitting issue 

is an individualized inquiry that depends on, among other things, the size and shape 

of the user’s ear canal, and the strength of the seal achieved when that user inserts 

the CAEv2. 

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The key point is that the effect of these alleged defects depends on the 

characteristics of each individual’s ear canal and outer ear. But none of Vilsmeyer’s 

testifying experts analyzed Vilsmeyer’s ear canals or outer ear and explained why 

either of the CAEv2’s alleged defects would prevent him, specifically, from getting 

a secure fit. 

First, there was no expert testimony that the width of the CAEv2’s hard 

plastic stem affected Vilsmeyer. No one measured Vilsmeyer’s ear canals and 

testified that they were too narrow or curvy to accommodate the CAEv2’s stem. 

Vilsmeyer’s failure to offer any competent evidence to support one of his two 

theories of defect requires a new trial on all claims, even if the Court were to 

determine that expert testimony supported Vilsmeyer’s separate theory of opposingflange interference. See Richards v. Michelin Tire Corp., 21 F.3d 1048, 1055 (11th 

Cir. 1994) (“Where, as here, two or more claims are submitted to the jury in a single 

interrogatory, a new trial may be required if either of the claims was erroneously 

submitted, as there is no way to be sure that the jury’s verdict was not predicated 

solely on the invalid claim.”); Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 31 

(1st Cir. 2004) (remanding for new trial because one of two defect theories “was 

inadequate on causation grounds” and “the verdict may have rested solely on [that] 

theory”). 

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Second, with regard to the theory of opposing-flange interference, the only 

relevant testimony came from Dr. Arriaga, who simply observed that the opposing 

flanges of the CAEv2 came into contact with Vilsmeyer’s tragus. See 3/17/22 Tr. at 

276:2-14. But Dr. Arriaga did not attempt to investigate whether the degree of 

opposing-flange contact he observed in Vilsmeyer’s ears was, in fact, sufficient to 

cause loosening. The mere “possibility” that the opposing flanges might have 

caused loosening, based solely on the fact of tragus contact and Dr. Arriaga’s reading 

of the flange report, is not sufficient support for the element of causation. See Potter 

v. Dep’t of Labor & Indus., 289 P.3d 727, 732 (Wash. App. 2012) (“[I]f there is no 

evidence of causation beyond a possibility, it is error to submit the case to the 

jury.”). 

Because Vilsmeyer offered no expert testimony that could have established to 

a reasonable degree of medical certainty or probability that the allegedly defective 

features of the CAEv2 caused him to obtain an inadequate fit with the product, or 

caused the product to loosen in his ears, all of his claims fail as a matter of law. 2 

 

2

 Vilsmeyer may respond that his allegations regarding the limitations of the 

CAEv2’s nonlinear filter when used at outdoor gun ranges do not depend on 

individual fit. But, as discussed above, the failure to provide causation evidence to 

support any one of his theories of injury requires a new trial, without any evidence 

related to that unsupported theory. See Richards v. Michelin Tire Corp., 21 F.3d 

1048, 1055 (11th Cir. 1994); Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 31 (1st 

Cir. 2004). Because Vilsmeyer did not provide adequate evidence of causation for 

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CONCLUSION 

For these reasons, Defendants are entitled to judgment as a matter of law on 

all claims. 

Dated: May 31, 2022 Respectfully submitted, 

/s/ Robert C. Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Tel.: (202) 389-5991 

mike.brock@kirkland.com 

Mark J. Nomellini 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

Chicago, Illinois 60654 

Tel.: (312) 862-2000 

mnomellini@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo, LLC 

 

either of his inadequate-fit theories, Defendants would be entitled to a new trial 

limited to the gun-range issue, if those allegations survived. 

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

Pursuant to Local Rule 7.1(F), counsel for Defendants certify that this 

motion contains 1,494 words, excluding the case style, signature block, and 

certificates of compliance with the Local Rules. 

Dated: May 31, 2022 Respectfully submitted, 

/s/ Robert C. Brock 

 Robert C. “Mike” Brock 

 

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CERTIFICATE OF SERVICE 

 I hereby certify that on May 31, 2022, 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/ Robert C. Brock 

Robert C. “Mike” Brock 

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