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:

Wayman, 7:20-cv-149

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Plaintiff William Wayman’s Motion for 

Summary Judgment on several of Defendants’ affirmative defenses under Federal 

Rule of Civil Procedure 56. ECF No. 32. Having now fully considered the parties’ 

arguments and applicable Colorado law, the Court concludes that Wayman’s motion 

should be GRANTED in part and DENIED in part.

Summary judgment is appropriate where there are no genuine disputes of 

material fact and the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 

A fact is “material” if, under the applicable substantive law, it might affect the 

outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 

(11th Cir. 2004). A dispute of fact is “genuine” if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986).

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The burden of demonstrating the absence of a genuine dispute of material fact 

rests with the moving party. Celotex, 477 U.S. at 323. In determining whether the

moving party has carried its burden, a court must view the evidence and factual 

inferences drawn therefrom in the light most favorable to the non-moving party. 

Liberty Lobby, 477 U.S. at 255; Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 

1997).

The Court assumes the parties’ familiarity with the general factual allegations 

and nature of this multidistrict litigation. Wayman has brought fifteen claims against 

Defendants under Colorado 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 Short Form Compl., ECF No. 8.

2 Defendants raise several 

affirmative defenses, including that Wayman’s failure to warn claims are barred by 

various intermediary defenses and that the United States should be apportioned fault 

for Wayman’s injuries. Defendants’ Answer, ECF No. 9. Wayman has moved for 

1 The parties agree Colorado law applies to Wayman’s claims. See ECF Nos. 32 & 54.

2 Specifically, Wayman 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).

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summary judgment on each of these affirmative defenses. ECF No. 32. Thus, the 

Court addresses Defendants’ intermediary and apportionment defenses. 

A. Defendants’ Intermediary Defenses

Wayman argues that under Colorado law Defendants’ learned intermediary, 

sophisticated intermediary, and bulk supplier affirmative defenses do not apply to a 

manufacturer whose product is marketed and sold directly to the general public. ECF 

No. 32-1 at 3–8. The Court agrees.

As Defendants essentially concede, their learned intermediary and bulk 

supplier defenses fail as a matter of law. See ECF No. 54 at 1 (arguing only that the 

sophisticated intermediary doctrine applies). Colorado courts have adopted the 

learned intermediary defense but only in the medical context. O’Connell v. Biomet, 

Inc., 250 P.3d 1278, 1281 (Colo. App. 2010) (adopting the learned intermediary 

defense and explaining that this defense applies to a medical device because “it is 

only available to physicians and obtained by prescription”). Thus, Defendants’ 

learned intermediary defense fails as a matter of law because the CAEv2 is a 

consumer good that can be obtained without a physician intermediary. 

Similarly, Colorado courts have adopted a version of the bulk supplier defense 

but only in the context of “component-part manufacturer[s] or raw-material 

supplier[s].” Bond v. E.I. DuPont De Nemours and Co., 868 P.2d 1114, 1118 (Colo. 

1993). Thus, Defendants’ bulk supplier defense fails as a matter of law because 

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Defendants are not component-part manufacturers or raw-material suppliers and 

instead designed, manufactured, marketed, and sold the final product. 

Lastly, Defendants’ sophisticated intermediary defense also fails as a matter 

of law. As Defendants concede, no Colorado court has ever adopted the sophisticated 

intermediary defense. ECF No. 54 at 3. Moreover, even if Colorado courts did adopt 

this defense, it would not apply to this case. As the Court has explained in a separate 

3M case, “[i]ntermediary defenses, such as the sophisticated intermediary doctrine, 

are inapplicable to consumer products that can be purchased over the counter 

because the underlying rationale for the intermediary defense is lost where users 

could purchase and use the product without an intermediary.” In re 3M Combat Arms 

Earplug Prods. Liab. Litg., Case No. 7:20cv143, ECF No. 66, at 3–4 (N.D. Fla. Oct. 

29, 2021) (citations omitted). As such, the Court finds that Colorado courts would 

not apply the sophisticated intermediary doctrine to this case, which involves a 

consumer good that can be purchased without an intermediary. 

B. Defendants’ Apportionment Defense

Wayman also moves for summary judgment on Defendants’ apportionment 

defense, arguing that Defendants did not provide a timely or adequate nonparty 

designation. ECF No. 32-1 at 8–16. The Court declines to enter summary judgment 

on this basis and concludes instead that Defendants should be allowed to amend their 

Answer to provide an adequate nonparty designation.

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This Court sitting in diversity must apply Colorado substantive law and 

federal procedural law. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Federal courts 

have consistently applied Colorado law in determining whether fault can be 

apportioned to a nonparty. See Blatchley v. St. Anthony Summit Med. Center, 822 

Fed. App’x 663, 666 (10th Cir. 2020); U.S. Welding, Inc. v. Tecsys, Inc., Case No. 

14-cv-778, 2015 WL 300419, at *3 (D. Colo. Jan. 22, 2015); Resolution Trust Corp. 

v. Deloitte & Touche, 818 F. Supp. 1406, 1407–08 (D. Colo. 1993). Under Colorado 

law, “negligence or fault of a nonparty may be considered . . . if the defending party 

gives notice that a nonparty was . . . at fault within ninety days of commencement of 

the action unless the court determines that a longer period is necessary.” Colo. Rev. 

Stat. § 13–21–111.5(3)(b) (emphasis added). Additionally, “[t]he notice shall be 

given by filing a pleading in the action designating such nonparty and setting forth 

such nonparty’s name . . . together with a brief statement of the basis” for the 

nonparty’s liability. Id. In a negligence action, the defendant’s brief statement cannot 

be a “bald allegation” and must connect actual facts to each element of negligence

alleged. Redden v. SCI Colorado Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001)

(en banc) (citing Sandoval v. Archdiocese of Denver, 8 P.3d 598, 606 (Colo. App. 

2000)). Thus, “[a] designation that alleges only causation is insufficient as a matter 

of law . . . .” Id. 

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Here, Defendants’ Answer provides the nonparty designation. See 

Defendants’ Answer, ECF No. 9. Specifically, the relevant portion of the Answer 

states that “[t]he injuries and damages allegedly sustained by Plaintiff may have been 

caused, in whole or in part, by the negligent acts or omissions of individuals or 

entities other than Defendants, including but not limited to Plaintiff and the nonparty 

the United States.” Id. at 6, ¶ 14. Under Colorado law, this nonparty designation is 

inadequate as a matter of law because it is a “bald allegation” that does not mention 

particular facts in Wayman’s case and only generally alleges causation. Redden, 38 

P.3d at 81.

Nonetheless, the Court has broad discretion to allow amendments to nonparty 

designations. See id. at 84. This discretion is guided by three criteria: “whether the

neglect was excusable; whether the moving party had alleged a meritorious defense

or claim; and whether [the] relief . . . would be consistent with equitable 

considerations.” Id. (citing Craig v. Rider, 651 P.2d 397, 402 (Colo. 1982) (en 

banc)). Here, Defendants’ neglect is clearly excusable because the Answer was filed

almost a year before the parties agreed Colorado law applies. Defendants’ Answer, 

ECF No. 9 (filed on July 31, 2020); Plaintiff’s Motion for Summary Judgment, ECF 

No. 32-1 at 3 (explaining that the parties agreed that Colorado law applies on June 

3, 2021). Additionally, Defendants’ apportionment defense arguably raises a 

meritorious defense, especially in light of the fact that Wayman never argued that 

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Defendants’ apportionment defense fails on its merits. See ECF No. 32-1 at 8–16

(arguing only that Defendants’ apportionment defense fails due to an inadequate 

nonparty designation). Finally, equitable factors weigh in favor of allowing an 

amendment. Specifically, Defendants’ current Answer provided Wayman notice that

Defendants were asserting an apportionment defense as to the United States. 

Moreover, trial is not scheduled to begin for another month, which provides adequate 

time for Defendants’ amendment while still giving Wayman sufficient time to 

prepare. The evidence related to this defense is no surprise to Wayman given the 

extensive discovery conducted in this MDL litigation as well as the existing records 

of previously tried cases, in which the defense has been asserted. Therefore, 

Wayman will not suffer undue prejudice by the late amendment. For these reasons, 

Defendants are entitled to amend their Answer to comply with the Colorado 

apportionment statute. 

Accordingly, Wayman’s Motion for Summary Judgment, ECF No. 32, is 

GRANTED as to Defendants’ intermediary defenses and DENIED as to 

Defendants’ apportionment defense. However, Defendants are instructed to file an 

Amended Answer within 7 days of the Courts’ ruling. 

DONE AND ORDERED this 10th day of December 2021.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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