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:

Wilkerson, 7:20-cv-035

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

Following a two-week trial in March 2022,1 a jury found in favor of Plaintiff 

Steven Wilkerson on his claims for fraudulent and negligent misrepresentation, 

awarding $8,000,000 in compensatory damages. ECF No. 201. Pending before the 

Court is Defendants’ Motion for Judgment as a Matter of Law (“JMOL”) under 

Federal Rule of Civil Procedure 50(b) or, in the alternative, for a New Trial under 

Federal Rule of Civil Procedure 59(a). ECF No. 213. After careful review, the Court 

concludes Defendants’ motion is due to be denied.

1 Although the undersigned did not preside over the trial, the undersigned has extensive 

knowledge of the record in this case, having ruled on all pre-trial motions and objections to 

deposition designations and priority exhibits, having observed the entire trial over Zoom, and 

having presided over six bellwether trials herself. Thus, the undersigned is uniquely qualified to 

rule on the parties’ post-trial motions.

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 1 of 11
Page 2 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

I. Standard of Review

Under Rule 50, JMOL is appropriate where a party has been fully heard on an 

issue and there is no legally sufficient evidentiary basis for a reasonable jury to find 

for the party on that issue. See Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1227 

(11th Cir. 2007); Ledbetter v. Goodyear Tire & Rubber Co., Inc., 421 F.3d 1169, 

1177 (11th Cir. 2005). When considering such a motion, a court must “review the 

entire record, examining all the evidence, by whomever presented, in the light most 

favorable to the nonmoving party, and drawing all reasonable inferences in the 

nonmovant’s favor.” Ledbetter, 421 F.3d at 1177. In doing so, the court may not 

make credibility determinations or weigh the evidence, as those are solely functions 

of the jury. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 

A motion for JMOL should be granted “only if the facts and inferences point so 

overwhelmingly in favor of the [moving party] that [a] reasonable [jury] could not 

arrive at a contrary verdict.” Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 

653, 656 (11th Cir. 1998); see Chaney, 483 F.3d at 1227 (“[A] court’s sole 

consideration of the jury verdict is to assess whether that verdict is supported by 

sufficient evidence.”).

Additionally, Rule 59 provides that, following a jury trial, a new trial may be 

granted for any of the reasons for which new trials have previously been granted in 

federal courts. Fed. R. Civ. P. 59(a)(1)(A). Recognized grounds for a new trial 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 2 of 11
Page 3 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

include circumstances in which the verdict is against the clear weight of the evidence 

or will result in a miscarriage of justice, the damages are excessive, there were 

substantial errors in the admission or rejection of evidence or the instructions to the 

jury, or the trial was otherwise not fair to the moving party. See McGinnis v. Am. 

Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016) (quoting 

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). When considering 

a motion for new trial, a district court is free to independently weigh both the 

evidence favoring the verdict and the evidence in favor of the moving party. See 

Williams v. City of Valdosta, Ga., 689 F.2d 964, 973 (11th Cir. 1982). The 

disposition of a motion for a new trial is a matter of judicial discretion, and a district 

court’s ruling will not be disturbed absent a clear abuse of that discretion. See 

Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1513 (11th Cir. 

1983).

II. Defendants’ Motion for JMOL

At the end of Wilkerson’s case, Defendants moved for JMOL under Rule 

50(a) on all of Wilkerson’s claims. The Court denied Defendants’ motions because 

“there [was] enough record evidence for the jury to find” in Wilkerson’s favor on all 

of his claims. Trial Tr. 03/24/22 at 2688; see ECF No. 194. Defendants now renew 

two of their motions for JMOL under Rule 50(b), arguing that Wilkerson did not 

provide adequate reliance evidence to sustain his claims for negligent and fraudulent 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 3 of 11
Page 4 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

misrepresentation. ECF No. 213 at 2–3. As stated in the prior ruling, the Court 

disagrees. See, e.g., Trial Tr. 3/18/22 at 1253 (Wilkerson testifying that a civilian 

instructor represented that the CAEv2’s yellow end would be protective on patrols 

and the green end would be protective on the gun range); id. at 1253, 1265–66 

(Wilkerson testifying that he used the CAEv2’s yellow end while on patrol and the 

green end on the gun range); id. at 1364 (Wilkerson testifying that he was led to 

believe the earplug provided adequate protection). Therefore, Defendants’ renewed 

motions are denied. 

Defendants further argue that they are entitled to JMOL on Wilkerson’s 

negligent misrepresentation claim because Defendants’ negligent 

misrepresentations were too remote from Wilkerson’s hearing injuries, cutting off 

Defendants’ liability under Wisconsin law. ECF No. 213 at 7–11. The Court again 

disagrees.

Wisconsin courts use the substantial factor test for causation, meaning the 

defendant can be liable even if the jury finds that defendant’s conduct was not the 

sole cause of the plaintiff’s injury. See Merco Distrib. Corp. v. Com. Police Alarm 

Co., Inc., 267 N.W.2d 652, 654 (Wis. 1978). In deciding this issue, the jury 

considers whether the defendant’s negligence created an “unbroken sequence of 

events . . . which produced the plaintiff’s injury.” Cefalu v. Cont’l W. Ins. Co., 703 

N.W.2d 743, 747 (Wis. App. 2005) (citing Fondell v. Lucky Stores, Inc., 270 N.W.2d 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 4 of 11
Page 5 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

205 (Wis. 1978)). After the jury determines causation, courts applying Wisconsin 

law “still may deny recovery after addressing public policy considerations.” Id.

(citing Morden v. Continental AG, 611 N.W.2d 659, 676 (Wis. 2000)). The relevant 

public policy consideration here is whether “the injury is too remote from the 

negligence,” which is essentially determining whether “a superseding cause should 

relieve the defendant of liability.” Id. at 750 (citation omitted). A superseding cause 

is an unforeseeable intervening act that breaks the chain of causation between the 

original act of negligence and the plaintiff’s injury. See id. (explaining that the 

remoteness and superseding cause analysis is “a restatement of the old chain of 

causation test”); Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1322 (7th 

Cir. 1983) (applying Wisconsin law and explaining that “a key inquiry in resolving 

the question of superseding cause is foreseeability”) (citation omitted). Since the 

jury already considers whether there was a continuous chain of events in determining 

causation, “there will be few cases in which it makes sense to say that a defendant’s 

negligence has been a substantial factor in the plaintiff’s injury but is too removed 

from that injury to allow recovery.” Cefalu, 703 N.W.2d at 750 (citation omitted); 

see also Merlino v. Mut. Serv. Cas. Ins. Co., 127 N.W.2d 741, 747 (Wis. 1964) 

(explaining that a court will cut off liability for a superseding cause in the rare case 

in which “the conscience of the court would be shocked if the first actor were not 

relieved from liability”). 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 5 of 11
Page 6 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

Here, Defendants first argue that their negligence is too remote from 

Wilkerson’s hearing injuries because his injuries occurred while on Army National 

Guard duty in Mississippi rather than on deployment with the United States Army 

in Afghanistan. ECF No. 213 at 9–10. This argument fails. Wilkerson served in the 

Army National Guard from 2005 to 2013. Trial Tr. 3/18/22 at 1242, 1276. The 

majority of Wilkerson’s time with the Army National Guard was spent in 

Mississippi. See id. at 1243, 1245, 1272–73. However, in 2009, his Army National 

Guard unit received deployment orders for Afghanistan. Id. at 1245. As part of his 

pre-deployment preparation, Wilkerson received the CAEv2, which he continuously 

used both during his deployment to Afghanistan and during the rest of his time with 

the Army National Guard in Mississippi. Id. at 1247–48, 1273, 1275–76. Wilkerson 

relied on the same misrepresentations when choosing to use the CAEv2 on patrols 

in Afghanistan as he did when choosing to use the CAEv2 during weapons training 

in Mississippi. As such, there was no unforeseeable intervening act to break the chain 

of causation because there was not an intervening act in the first place. Wilkerson’s 

reliance on Defendants’ misrepresentations was continuous throughout his military 

service. Accordingly, Wilkerson’s Army National Guard service does not make his 

hearing injuries too remote from Defendants’ negligent misrepresentations. 

Next, Defendants argue that their negligence is too remote from Wilkerson’s 

hearing injuries because alternate noise exposures, including motorcycle riding, 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 6 of 11
Page 7 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

civilian weapons training, and occupational noise from shipbuilding, are superseding 

causes that broke the chain of causation. ECF No. 213 at 10–11. Defendants’ coble 

together this argument entirely on disputed facts, failing to account for the jury’s 

verdict or the standard of review for a Rule 50(b) motion. At the Rule 50(b) stage, 

the Court must assess whether the jury’s verdict was reasonable after viewing the 

facts in Wilkerson’s favor. See Chaney, 483 F.3d at 1222–23. The jury was 

instructed to consider alternative causes as a consideration for causation, ECF No. 

199-2 at 12, yet the jury concluded that Defendants’ misrepresentations were a 

substantial factor in causing Wilkerson’s hearing injuries and that Defendants were 

100% at fault. ECF No. 201 at 2–3. Nothing about the verdict conveys that the jury

found the alternate noise exposure evidence persuasive. See ECF No. 201. Instead,

there is ample evidence for a reasonable jury to conclude that Wilkerson’s hearing 

injuries were not affected by these alternate noise exposures. See, e.g., Trial Tr. 

3/16/22 at 757, 829 (medical expert testimony concluding that the CAEv2 was the 

cause of Wilkerson’s hearing injuries and ruling out other alternative causes that 

happened after the CAEv2 related noise exposure). As such, the Court cannot 

conclude that these alternate exposures even caused Wilkerson’s hearing injuries, 

much less that they are superseding causes. Doing so would require the Court to 

weigh the facts in Defendants’ favor, which is the opposite of the Court’s role in 

reviewing Defendants’ motion. See Chaney, 483 F.3d at 1222–23. 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 7 of 11
Page 8 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

Even if the jury did conclude that these alternate exposures caused a portion 

of Wilkerson’s hearing injuries, these alternate causes would not be superseding 

causes. There is ample evidence for a reasonable jury to conclude that Defendants 

made negligent misrepresentations to the United States Army about the CAEv2’s 

efficacy. See, e.g., Trial Tr. at 1684 (Admiral Allie Leslie testifying that “3M misled 

the government, and they made misrepresentations to the government . . . in selling 

the Combat Arms Earplug”); P-GEN-107 (brochure stating that the CAEv2 “fits 

most ear canals” and is “protective up to approximately 190 dBP for outdoor 

exposures”). The foreseeable result from these misrepresentations is that soldiers, 

like Wilkerson, would rely on the misrepresentations and sustain hearing injuries 

from military noise. Thus, the chain between Defendants’ original act of negligence 

and Wilkerson’s hearing injuries remains intact because Wilkerson’s hearing 

injuries were a foreseeable consequence of Defendants’ negligence. As such, these 

alternate noise exposures cannot constitute superseding causes and cannot cut off

Defendants’ liability. See Cefalu, 703 N.W.2d at 747; Gracyalny, 723 F.3d at 1322. 

Accordingly, Defendants’ motions for JMOL are denied. 

III. Defendants’ Motion for New Trial 

Defendants argue they are entitled to a new trial because the jury’s verdict 

was inconsistent given that the jury found in Defendants’ favor on all of Wilkerson’s 

claims except for fraudulent and negligent misrepresentation. ECF No. 201; ECF 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 8 of 11
Page 9 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

No. 213 at 6–7. Defendants failed to raise this issue before the jury was dismissed, 

and thus they cannot raise it now. 

Federal law governs whether an inconsistency challenge is waived. See, e.g., 

Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d 185, 186 (11th Cir. 1996). A party waives 

an objection to an error on the verdict form by not raising the issue before the jury 

starts deliberating. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1331 (11th 

Cir. 1999) (citing Fed. R. Civ. P. 51) (“A party who fails to raise an objection to a 

verdict form interrogatory or jury instruction prior to jury deliberations waives its 

right to raise the issue. . . .”). Similarly, a party waives an objection to an inconsistent 

jury verdict by not raising the issue before the jury is discharged. See Coralluzzo, 86 

F.3d at 186 (quoting Skillin v. Kimball, 643 F.2d 19, 20 (1st Cir. 1981)) (“To allow 

a new trial after the objecting party failed to seek a proper remedy at the only time 

possible [i.e., before the jury is discharged] would undermine the incentives for 

efficient trial procedure . . . .”); 2 see also Mason v. Ford Motor Co., 307 F.3d 1271, 

2 The Court recognizes that there may be an inconsistency with the rule in Coralluzzo and 

older rules in binding Fifth Circuit decisions, which allow inconsistency challenges after the jury 

has been discharged. See Mason, 307 F.3d at 1274, n.4 (citing Coralluzzo, 86 F.3d at 186; Fuggitt 

v. Jones, 549 F.2d 1001 (5th Cir. 1977)) (identifying a possible inconsistency but declining to rule 

on the issue). However, the Court finds the newer rule in Coralluzzo more persuasive and 

consistent with the Eleventh Circuit’s subsequent decisions on this issue. See Reider v. Philip 

Morris USA, Inc., 793 F.3d 1254, 1259 (11h Cir. 2015) (citing Mason, 307 F.3d at 1274; 

Coralluzzo, 86 F.3d at 186) (ruling on whether the party made a timely objection to a special 

verdict and explaining that a party must make an inconsistency objection “before the jury has been 

dismissed”); Sands v. Kawasaki Motors Corp. U.S.A., 513 Fed. App’x 847, 857 (11th Cir. 2013) 

(citing Mason, 307 F.3d at 1274; Coralluzzo, 86 F.3d at 186) (explaining that the party objecting 

to an inconsistent verdict must make the objection before the jury is discharged for both general 

and specific verdicts).

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 9 of 11
Page 10 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

1275 (11th Cir. 2002) (ruling that the defendant waived an inconsistency objection 

to a general verdict by failing to raise the objection “before the jury was 

discharged”). These waiver rules ensure that the trial court has an opportunity to 

remedy errors before there is a risk of a new trial. See Coralluzzo, 86 F.3d at 186 

(citation omitted); Farley, 197 F.3d at 1329 (citation omitted). 

Here, the Court and the parties spent an extraordinary amount of time 

finalizing the jury instructions and verdict form. There were multiple drafts, ECF 

Nos. 93, 165, 175, 177, 181, 189, 199-2, multiple briefs on specific objections, ECF 

Nos. 187 & 191, documents memorializing preserved objections, ECF Nos. 184 & 

188, two separate Orders on the parties’ objections, ECF Nos. 153 & 164, and an 

extensive charge conference that went well into the night. Trial Tr. 3/24/22 at 2716–

75. However, Defendants do not cite and the Court has not found an instance where 

Defendants requested an instruction that Wilkerson’s misrepresentation claims were 

barred if the jury found in the Defendants’ favor on Wilkerson’s products liability 

claims. Furthermore, once the jury’s verdict was published and the jury had been 

polled, Defendants did not raise an inconsistency challenge. Trial Tr. 3/25/22 at 

2927–29. Once the jury left the courtroom, the Court explicitly gave Defendants an 

opportunity to raise any issues, and Defendants sat silent. Id. at 2932. Clearly, 

Defendants had several opportunities to raise this issue before the jury was 

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 10 of 11
Page 11 of 11

CASE NO. 7:20-cv-035-MCR-GRJ

discharged, but they chose not to. Therefore, Defendants waived this argument, and 

no further analysis is necessary. 

Accordingly, Defendants’ Motion for JMOL or in the Alternative for a New 

Trial, ECF No. 213, is DENIED.

DONE AND ORDERED this 16th day of July 2022.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case 7:20-cv-00035-MCR-GRJ Document 220 Filed 07/16/22 Page 11 of 11