1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS LIABILITY 

LITIGATION 

This Document Relates to: 

Wayman, 7:20cv149 

Case No. 3:19-md-02885-MCR-GRJ 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

DEFENDANTS’ POST-TRIAL BRIEF ON COLORADO’S STATUTORY 

CAPS AND THE IMPACT OF TREBLE DAMAGES ON THE JUDGMENT 

 The Court asked the parties to brief the impact of Colorado’s statutory caps 

on noneconomic and punitive damages and the interplay between punitive damages 

and treble damages under the Colorado Consumer Protection Act (“CCPA”), Colo. 

Rev. Stat. § 6-1-113. Given the jury’s verdict, the total amount of the judgment 

should be $16,404,030.1

I. Colorado law caps the award of compensatory damages at $5,468,101. 

 By statute, Colorado limits awards “in civil actions for noneconomic losses or 

injuries” other than awards for “physical impairment or disfigurement.” Colo. Rev. 

Stat. § 13-21-102.5. The limit has been found constitutional under Colorado law. 

 

1

 For the limited purposes of this brief only, Defendants do not address—and intend 

to preserve—any arguments relating to the jury’s findings and damages awards, as 

well as all post-judgment arguments. Defendants will address the propriety of the 

jury’s verdict following entry of the judgment. 
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See Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 95-96 (Colo. Ct. App. 1997). 

Under the statute, the cap is periodically adjusted for inflation by the Secretary of 

State. See Colo. Rev. Stat. § 13-21-102.5(3)(c)(I). The current damages cap for 

causes of action accruing between 2008 and 2019 is $468,010.00. See Pisano v. 

Manning, 2022 WL 480895, at *3 n.2 (Colo. Ct. App. Feb. 17, 2022); see also

https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf. 

Here, the jury awarded Mr. Wayman $5 million for “physical impairment,” 

which is not subject to the statutory cap, but $10 million for all other noneconomic 

damages—“physical and mental pain and suffering, inconvenience, emotional 

stress, and impairment of the quality of life”—an award that is subject to the cap. 

Dkt. 185. So, the total award of compensatory damages after applying the cap is 

$5,468,010.2 

 

2

 While the Court did not request briefing on the issue at this stage, Plaintiff may 

argue that Colorado law permits an award of prejudgment interest on this amount. 

See Colo. Rev. Stat. § 13-21-101. The award of prejudgment interest generally runs 

from the date the action accrued. See id.; see also Jones v. Cox, 828 P.2d 218, 223 

(Colo. 1992) (“a cause of action accrues on the date that both the physical injury and 

its cause were known or should have been known”). Mr. Wayman did not ask the 

jury to determine the date the cause of action accrued. Regardless, Mr. Wayman’s 

counsel successfully argued in defeating Defendants’ statute of limitations defense 

that his cause of action accrued “no earlier” than 2019, so he cannot now claim an 

earlier date. See Trial Tr. 1/26/2002 at p. 443; see also Trial Tr. 1/19/2022 at 249:4-

6 (“Q. Sir, did you make your connection between the Combat Arms and hearing 

loss and tinnitus in 2019? A. Yes, thereabouts.”). Without further evidence 

documenting a specific date that his cause of action accrued, the best evidence is the 

census form he submitted on October 30, 2019. Trial Exhibit D-WAYMAN-226 

(not admitted). 
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Mr. Wayman may argue that this Court should apply an exception that permits 

an award for noneconomic damages not related to physical impairment or disability 

of up to $936,030.00—double the capped amount—if “the court finds justification 

by clear and convincing evidence therefor,” § 13-21-102.5(3)(a); see also 

https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf. Mr. Wayman 

may argue that the cap should be doubled because the size of the jury’s award for 

these other noneconomic damages, compared to the current cap, provides “clear and 

convincing evidence” for doubling it or that the jury’s award itself was supported by 

“clear and convincing evidence.” Not so. 

A Colorado appellate court addressed a very similar issue just yesterday. See 

Pisano, 2022 WL 480895. In Pisano, the court affirmed a trial court order denying 

a request to exceed the statutory cap, agreeing with the defendant that “an award in 

excess of the statutory cap necessarily represents an exception to the standard limit” 

that would be available in a “typical” case. Id. at *4. 

First, the Pisano court rejected the suggestion that the trial court’s focus 

should be on the size of the jury’s award. See id. at *6 (“we are not aware of any 

case that stands for the proposition that a trial court must exceed the statutory cap if 

it determines that the jury’s noneconomic damages award was supported by clear 

and convincing evidence”). To the contrary, the Pisano court noted that “to grant 

an exception to the cap merely because the jury awarded noneconomic damages, 
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even on strong evidence, ‘would essentially circumvent the basic intent of’ section 

13-21-102.5(3)(a).” Id. (quoting Wallbank v. Rothenberg, 140 P.3d 177, 181 (Colo. 

Ct. App. 2006)). Thus, to justify exceeding the cap, “[i]t is not sufficient that the 

jury valued Pisano’s noneconomic injuries at more than three times the statutory 

limit” because “[i]n every case where the court must decide whether to apply a 

statutory cap, the jury’s verdict has exceeded the limit.” Id. at *7. 

Second, the Pisano court agreed that the trial court properly considered 

whether “exceptional circumstances” existed that would justify exceeding the cap. 

Id. at *5. As the court of appeals noted, Colorado “courts have consistently relied 

on a case’s exceptional circumstances to justify the decision to exceed the cap.” Id. 

at *5. The Pisano court cited Mower v. Century I Chevrolet, Inc. for the proposition 

that “case law interpreting section 13-21-102.5(3)(a) ‘appears to merely examine the 

nature and extent of the non-economic injuries.’” Pisano, 2022 WL 480895, at *5

(quoting Mower, 2006 WL 2729265, at *22 (D. Colo. June 16, 2006) (unpublished 

opinion)). 

The Pisano court also assembled for comparison a host of Colorado cases in 

which courts found clear and convincing support for exceeding the cap, all of which 

involved catastrophic injuries. See Id. (Citing cases in which, among other things, 

“the teenaged plaintiff was rendered a tetraplegic,” a case involving “profound, 
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severe, and life-altering” injuries, and one where the plaintiff “was likely going to 

end up in a wheelchair”). 

Whatever can be said of Mr. Wayman’s claims of tinnitus, his “physical and 

mental pain and suffering, inconvenience, emotional stress, and impairment of the 

quality of life” do not fall in the same categories as those cases. Dkt. 185. As with 

the plaintiff’s injuries in Pisano—which the trial court there held did not qualify as 

“exceptional circumstances” to depart from the legislatively-imposed cap—Mr. 

Wayman “continued to excel at a high-level job,” he has not been placed by his 

doctors on any “physical restrictions” and he is “able to take care of [himself] and 

[his] family.” Pisano, 2022 WL 480895 at *7. See also Watson v. Dillon Cos., 2013 

U.S. Dist. LEXIS 122595, at *14-15 (Dist. Colo. Aug. 28, 2013) (finding no 

“exceptional circumstances” that would warrant exceeding the cap because, while 

the court is “sympathetic” to the plaintiff, “the evidence indicates that he is able to 

function independently, exercise with moderation, and work part-time”). See Trial 

Tr. 1/26/2022 at 82:3-84:2 (Mr. Wayman’s boss explaining that he does not know 

of Mr. Wayman’s hearing loss because it does not affect Mr. Wayman’s job); Id. at 

88:25-89:11 (Mr. Wayman’s boss explaining that Mr. Wayman’s auditory injuries 

do not affect his job performance and that he is a “great employee”); Id. at 79:15-

80:6 (Mr. Wayman’s primary care physician stating that he has no record of Mr. 

Wayman complaining of tinnitus or hearing difficulty, and never referred him to an 
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ENT or audiologist); see also Trial Tr. 1/20/2022 at 233:16-25 (Dr. Lustig testifying 

that Mr. Wayman performed well on speech tests). 

Importantly, the jury also awarded him $5 million for “physical impairment,” 

which more than compensates him for any noneconomic losses caused by his 

tinnitus. In short, there is nothing in Mr. Wayman’s case that would justify making 

his case an “exception to the standard limit” for noneconomic damages under 

Colorado law—much less an exception proven by “clear and convincing evidence.” 

Pisano, 2022 WL 480895 at *4.3

II. Mr. Wayman’s punitive damages award is capped. 

 The Colorado legislature has also limited punitive (or “exemplary”) damages 

to “an amount which is equal to the amount of the actual damages awarded to the 

injured party.” Colo. Rev. Stat. § 13-21-102. This cap applies to the actual damages 

awarded after the imposition of the statutory cap on noneconomic damages. See 

Lira v. Davis, 832 P.2d 240, 245 (Colo. 1992) (holding that “exemplary damages are 

limited to damages recovered in accordance with an order for judgment, or to the 

reduced compensatory amount”) (emphasis added); see also Watson, 2013 U.S. Dist. 

LEXIS 122595, at *19 (applying cap on punitive damages after applying cap on 

 

3

 Even assuming arguendo that the Court found “clear and convincing evidence” to 

depart from the standard cap, his noneconomic damages would still be limited to 

$936,030.00, for a total compensatory damages award of $5,936,030.00. 
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noneconomic damages). The 1:1 ratio is determined after the imposition of 

prejudgment interest on the compensatory damages award. See Vickery v. Evans, 

266 P.3d 390 (Colo. 2011). So, the award of punitive damages here is limited to 

$5,468,010, plus any amount of prejudgment interest that is added to the 

compensatory damages award.4 

The only two exceptions to the cap on exemplary damages—which would 

allow for an award of up to three times the actual damages awarded—are plainly 

inapplicable here. Colo. Rev. Stat. § 13-21-102(3). Under those exceptions, the 

Court may increase the award if Mr. Wayman established that Defendants have 

either (1) “continued the behavior or repeated the action which is the subject of the 

claim against the defendant in a willful and wanton manner...during the pendency 

of the case” or (2) “acted in a willful and wanton manner during the pendency of the 

action in a manner which has further aggravated the damages of the plaintiff.” Id. 

(emphasis added). 

There is no evidence of either here. First, Mr. Wayman never alleged—much 

less proved—that Defendants engaged in any misconduct concerning the CAEv2 

during this litigation. Indeed, it is undisputed that the CAEv2 was discontinued and 

 

4

 Under Colorado law, prejudgment interest may not be added to an award of 

punitive damages. See Lira, 832 P.2d at 246. 
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no longer being sold long before Mr. Wayman filed his lawsuit. And there was no 

evidence whatsoever that anything Defendants have done during the lawsuit has 

“aggravated” his tinnitus or alleged hearing injuries. See Watson, 2013 U.S. Dist. 

LEXIS 122595, at *17-18 (declining to increase punitive damages because there was 

no evidence that the Defendants continued to use the chemical at issue in their 

popcorn during the pendency of the case). 

III. Mr. Wayman may seek treble damages 

but not prejudgment interest on his CCPA claim. 

Given the jury’s finding in Mr. Wayman’s favor on his CCPA claim—and its 

additional finding that Defendants engaged in “bad faith conduct”— Mr. Wayman 

may seek treble damages under the statute if the verdict stands. Thus, the treble 

damages award under the statute would be three times the reduced compensatory 

award, or $16,404,030. 

Still, because treble damages are the equivalent of punitive damages under 

Colorado law, Mr. Wayman is not entitled to prejudgment interest on the treble 

damages award. See Becker & Tenenbaum v. Eagle Rest. Co., Inc., 946 P.2d 600, 

602-03 (Colo. Ct. App. 1997); United States ex rel. JBlanco Enters. v. Abba 

Bonding, Inc., 2011 U.S. Dist. LEXIS 23702, at *4 (Dist. Colo. Feb. 22, 2011) 

(declining to award prejudgment interest on treble damages award under CCPA); 

see also Spokas v. Am. Family Mut. Ins. Co., 2015 U.S. Dist. LEXIS 83573, at *9-

12 (Dist. Colo. June 26, 2015) (declining to award prejudgment interest on award of 
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“two times the covered benefit” under insurance statute because award, like treble 

damages, was punitive in nature). 

IV. Under established Colorado law, Mr. Wayman may not recover 

both treble damages under the CCPA and punitive damages. 

Finally, the Colorado Supreme Court has expressly held that a plaintiff may 

not recover both treble damages under a statute and punitive damages for the same 

conduct. See Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 822-

23 (Colo. 1992). The court reasoned that “[g]enerally, a plaintiff may not recover 

both treble damages and punitive damages premised on the same facts because such 

damage awards serve similar purposes.” Id. at 822. As the court noted, both treble 

damages and punitive damages are designed to punish the defendant. See id. Thus, 

permitting a plaintiff to recover both types of damages for the same misconduct 

results in “a double recovery from the same act.” Id. at 823; see also Watson, 2013 

U.S. Dist. LEXIS 122595, at *19-20 (holding that plaintiff could not recover both 

treble damages under the CCPA and punitive damages for claims arising under the 

same conduct by the defendant in selling a product without proper warnings). 

Here, it is undisputed that all of Mr. Wayman’s claims arose out of the same 

allegations of misconduct by the Defendants. So, if he is entitled to a treble damages 

award of $16,404,030, he cannot recover an additional punitive damages award of 

$5,468,010. 
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Dated: February 18, 2022 Respectfully submitted, 

/s/ Mike Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo LLC 

 
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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 

memorandum contains 2,143 words. 

Dated: February 18, 2022 Respectfully submitted, 

/s/ Robert C. Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo LLC 

 
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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY this 18th day of February 2022, a true and correct 

copy of the foregoing was electronically filed via the Court’s CM/ECF system, 

which will automatically serve notice of this filing via e-mail to all registered 

counsel of record. 

Dated: February 18, 2022 Respectfully submitted, 

/s/ Mike Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo LLC