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: 

Estes, 7:20cv137

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Plaintiffs’ motion for summary judgment, 

ECF No. 23. On full consideration, the motion is GRANTED in part and DENIED 

in part.

I. Legal Standard

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).

II. Background

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

and nature of this multidistrict litigation. Plaintiffs, Luke Estes and his wife, Jennifer 

Estes, raise sixteen claims under Georgia law1 against Defendants arising from 

injuries the Estes allege were caused by Mr. Estes’ use of 3M’s Combat Arms 

Earplug (“CAEv2”) during his military service. See Am. Master Short Form Compl., 

ECF No. 12-1.2 Defendants raise several affirmative defenses, including that the

actions of a nonparty, the United States, are the actual, contributing, intervening, or 

superseding cause of the Estes’ injuries, See ECF No. 14 at pp. 3–9, ¶¶ 4, 14, 16–17.

1 The parties agree that Georgia law governs the Estes’ claims.

2 Specifically, Mr. Estes 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). Mrs. Estes raises a claim for Loss 

of Consortium (Count XIV). 

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III. Discussion

The Estes move for summary judgment on Defendants’ affirmative defenses

relating to the alleged fault of the United States military in causing Mr. Estes’ 

injuries. The Estes argue that the Defendants’ apportionment defense fails as a 

matter of law because Defendants did not provide notice as required under Georgia’s 

apportionment statute. The Estes further argue that the Defendants’ affirmative

defenses relating to the United States’ role in causing Mr. Estes injuries fail as a 

matter of law for the additional reason that Defendants have not provided sufficient 

evidence to show that the United States proximately caused any portion of Mr. Estes’ 

injuries. In response, Defendants argue that (1) the requirements imposed by 

Georgia’s apportionment statute conflict with the Federal Rules of Civil Procedure 

and therefore do not apply in this federal case under the Supreme Court’s decision 

in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 

(2010); (2) even if Georgia’s apportionment statute were applicable, Defendants 

complied with its requirements; and (3) they have provided sufficient record 

evidence to raise a triable issue of fact as to their government-fault defenses. For the 

following reasons, the Court agrees with Defendants and denies the Estes’ motion.

First, the Court need not decide whether Georgia’s apportionment statute 

applies in this case because, assuming it does, Defendants complied with its 

requirements. Under Georgia’s apportionment statute, “[n]egligence or fault of a 

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nonparty shall be considered . . . if a defending party gives notice not later than 120 

days prior to the date of trial that a nonparty was wholly or partially at fault.” 

O.C.G.A. § 51-12-33(d)(1). The statute requires that the notice “be given by filing a 

pleading in the action” that “(1) designat[es] the nonparty; (2) “set[s] forth the 

nonparty’s name and last known address, or the best identification of the nonparty 

which is possible under the circumstances;” and (3) provides “a brief statement of 

the basis for believing the nonparty to be at fault.” O.C.G.A. § 51-12-33(d)(2). 

“[T]he plain and unambiguous meaning of [§ 51-12-33(d)(1)’s] text mandates strict 

compliance. Accordingly, failure to give proper timely notice precludes 

apportionment between a nonparty and a party.” Trabue v. Atlanta Women’s 

Specialists, LLC, 835 S.E.2d 586, 593 (Ga. Ct. App. 2019), aff’d sub nom. Atlanta 

Women’s Specialists, LLC v. Trabue, 850 S.E.2d 748 (Ga. 2020). 

Trial in this case is set for March 29, 2021. Therefore, if § 51-12-33(d) applies, 

Defendants were required to file a proper notice on or before November 29, 2020. 

The Court finds Defendants gave proper and timely notice. Specifically, on July 13, 

2020, Defendants identified the United States as a nonparty at fault in their answer 

to the Estes’ short-form complaint. See ECF No. 14 at p. 6, ¶¶ 14, 16 (“The injuries 

and damages allegedly sustained by Plaintiff may have been caused, in whole or in 

part, by the negligence acts or omissions of . . . the nonparty the United States.”). In 

their answer, Defendants further stated that they “instructed the United States 

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military in the proper fitting of the CAEv2,” “relied on the United States military to 

convey those instructions to the users of the CAEv2,” and that “[t]he United States 

military trained users to fit the CAEv2 and created written instructions that advised 

some users to roll back the opposing flanges to attain the best fit.” Id. ¶ 15.3

Defendants’ answer satisfies Georgia’s apportionment statute because it is a 

“pleading” that (1) was filed more than 120 days before trial, (2) designates the 

United States as the nonparty at fault, (3) sets forth the best identification of the 

United States “which is possible under the circumstances,” see O.C.G.A. 

§ 51-12-33(d)(2), and (4) provides a brief statement of the basis for believing the 

United States to be at fault—that is, that the United States military did not provide 

appropriate fitting instructions for the CAEv2 to soldiers like Mr. Estes. See

O.C.G.A. § 51-12-33(d)(2). Accordingly, the Estes’ motion for summary judgment 

on Defendants’ apportionment defense is denied on this basis.

Second, the Court finds that Defendants have offered sufficient evidence to 

create a fact dispute as to whether the United States military proximately caused Mr. 

Estes’ injuries. The Estes argue that Defendants’ government-fault affirmative 

3 Defendants’ February 3, 2020, Amended Answer to Plaintiffs’ Master Long Form 

Complaint also states that “Plaintiffs’ alleged injuries may have been caused by the intervening or 

superseding acts of negligence by . . . the United States” and that Defendants” relied on the United 

States military to convey these instructions to the users of the [CAEv2].” See MDL Dkt. No. 959 

at pp. 99–100, ¶¶ 18–19. The amended answer further states “that representatives of the military 

informed defendants that the military would provide instructions concerning the use of earplugs.” 

Id. at p. 36, ¶ 173. 

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defenses fail because Defendants have failed to offer expert medical testimony

establishing a causal link between the United States military’s conduct and Mr. 

Estes’ injuries. The Estes further argue that even if expert testimony were not 

required, Defendants have failed to introduce sufficient non-expert evidence to 

create a triable issue of fact on proximate causation. It is Defendants’ burden to 

demonstrate proximate cause. See Suzuki Motor of Am., Inc. v. Johns, 830 S.E.2d 

186, 192 (Ga. Ct. App. 2019), aff’d, 850 S.E.2d 59 (Ga. 2020); Brown v. Tucker, 

S.E.2d 810, 820 (Ga. Ct. App. 2016). For the following reasons, the Court finds that 

the Estes’ motion is due to be granted, in part, and denied, in part.

As a preliminary matter, the Court must determine whether Defendants’ 

government-fault defenses involve a “specialized medical question” requiring 

medical expert testimony. See Cowart v. Widener, 697 S.E.2d 77, 786 (Ga. 2010). 

This inquiry turns on the theory of injury alleged. See Pierzchala v. Olds, No. 1:15-

CV-260, 2017 WL 3498706, at *7–9 (N.D. Ga. Feb. 14, 2017). Defendants identify 

three alleged omissions by United States military as potential alternative causes of 

Mr. Estes’ injuries: (1) its failure to ensure Mr. Estes was fit with the CAEv2 by 

medically trained personnel, (2) its failure to conduct an annual audiogram for Mr. 

Estes in 2014, and (3) its failure to inform him of the flange-fold fitting technique.

The Court finds that Defendants’ second theory of injury—that a failure to conduct 

an audiogram in 2014 contributed to Mr. Estes’ injuries—is a medical question about 

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causation that lay jurors could not answer based on experience and common sense. 

See Sanders v. United States, No. CV 109-164, 2012 WL 12891443, at *4 (S.D. Ga. 

June 28, 2012) (holding that expert medical testimony was necessary to establish 

that a nurse’s delay in providing treatment worsened a patient’s injuries). Defendants 

do not present expert medical testimony that the military’s alleged failure to conduct 

an audiogram in 2014 contributed in any way to Mr. Estes’ injuries. Accordingly, 

the Estes’ motion is granted as to this theory of causation.

Defendants’ first and third theories of injury, however, do not present a 

specialized medical question requiring expert medical testimony. While medical 

expert testimony is necessary to establish a causal connection between Mr. Estes’ 

injuries and his exposure to noises during his military service, cf. Mathison v. United 

States, 619 F. App’x 691, 694 (10th Cir. 2015) (applying Colorado law, and stating 

that “identify[ing] the source of [plaintiff’s] sensorineural hearing loss [is] a 

complex medical question outside lay competence”), the record contains sufficient 

medical expert testimony to support a jury finding that Mr. Estes’ military noise 

exposure caused his hearing injuries. However, the next link in these two theories of 

causation—that Mr. Estes was exposed to injurious noises because the United States 

military did not ensure his CAEv2 earplugs were properly fitted or provide him with 

adequate instruction in proper use of the CAEv2—is not the type of “medical 

question” that requires medical expert testimony under Georgia law. Cf. Self v. Exec. 

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Comm. of Ga. Baptist Convention of Ga., Inc., 266 S.E.2d 168, 169 (Ga. 1980) 

(concluding the plaintiffs were not required to introduce expert testimony on 

causation where a patient died from a subdural hematoma after falling, even though 

the defendant submitted expert testimony that the hematoma was caused instead by 

leukemia). 

There is sufficient record evidence to create a triable issue of fact on these 

theories of causation. First, the regulation governing the Army Hearing Program 

required, among other things, “that medically trained personnel fit individuals with 

preformed earplugs.” See Tuten Report at 9 (quoting DA Pamphlet 40-501). Further, 

based on Mr. Estes’ deposition testimony and interrogatory responses, there is 

evidence that the United States military did not fit Mr. Estes with the CAEv2 or 

provide him instructions or training in using the CAEv2. See Response to 

Interrogatory No. 28 (“I do not specifically recall being fitted for the CAEv2”); Luke 

Estes Depo. Tr. at 140:24–141:3 (testifying that he did not “recall” receiving 

“instructions, training, or familiarity” with the CAEv2), 183:9–11 (“I don’t recollect 

. . . any specific training”), 185:16–25 (testifying that he did not receive written 

instructions about the CAEv2). Thus, based on the evidence, a lay jury could 

conclude from common knowledge that Mr. Estes’s hearing-related injuries

occurred when he was exposed to loud noise due to inadequate fitting of his CAEv2 

or instruction on the proper use of his CAEv2. See Bruce v. Classic Carrier, Inc., 

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No. 1:11-cv-1472, 2014 WL 1230231, at *8 (N.D. Ga. May 24, 2014) (Carnes, C.J.) 

(“[W]here the symptoms complained of emerge immediately or soon after the event 

alleged to have caused them, and it is common knowledge that such an event is one 

that could cause that kind of injury, a reasonable jury could draw conclusions about 

proximate cause.”).

Accordingly,

1. The Estes’ motion for summary judgment, ECF No. 23, is GRANTED in 

part and DENIED in part.

2. The motion is GRANTED as to Defendants’ government-fault 

affirmative defenses to the extent those defenses are based on the United 

States military’s alleged failure to conduct annual audiograms for Mr. 

Estes.

3. The motion is otherwise DENIED.

DONE AND ORDERED this 10th day of February 2021.

M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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