UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION 

This Document Relates to: 

Luke E. Estes, 7:20-cv-137 

Stephen Hacker, 7:20-cv-131 

Lewis Keefer, 7:20-cv-104

Case No. 3:19-MD-2885-MCR-GRJ 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones

DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW 

Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, Defendants 

3M Company and Aearo respectfully move (1) to reduce the punitive damages 

awards as they are unconstitutionally high and (2) to limit the punitive damages to a 

single award for the Estes and Keefer cases under Georgia law and to amend the 

judgment so that 75 percent is paid to the State of Georgia, consistent with Georgia 

law. Defendants further renew the issues raised in the motion for judgment as a 

matter of law made at the conclusion of Plaintiffs’ case-in-chief. In support of this 

motion, Defendants submit the following memorandum of law. 

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TABLE OF CONTENTS 

Page 

I. THE PUNITIVE DAMAGES AWARDS ARE 

UNCONSTITUTIONAL ................................................................................. 1

A. Introduction ........................................................................................... 1

B. Legal Standard ....................................................................................... 2

C. Argument ............................................................................................... 6

1. Defendants’ Conduct Was Not Reprehensible ................................... 6

2. The Ratio of Compensatory to Punitive Damages is 

“Out of Whack” ................................................................................ 14

II. GEORGIA PERMITS ONLY ONE PUNITIVE DAMAGES 

AWARD ........................................................................................................ 16

III. DEFENDANTS RENEW AND PRESERVE THE RULE 50 

MOTIONS MADE AT THE CONCLUSION OF 

PLAINTIFFS’ CASE-IN-CHIEF .................................................................. 19

A. Causation ............................................................................................. 19

B. Plaintiffs’ Negligent Misrepresentation, Fraudulent 

Misrepresentation, and Fraud and Deceit Claims Fail as a 

Matter of Law. ..................................................................................... 21

C. Plaintiff’s Fraud by Concealment Claims Fail as a Matter 

of Law. ................................................................................................. 25

D. Estes’ and Keefer’s Warranty Claims Fail as a Matter of 

Law. ..................................................................................................... 26

E. Negligence per se ................................................................................ 28

F. Statute of repose—Keefer ................................................................... 29

G. Statute of limitations—Estes ............................................................... 30

CONCLUSION ........................................................................................................ 31 

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TABLE OF AUTHORITIES 

Page 

Cases 

Action Marine, Inc. v. Continental Carbon Inc., 

481 F.3d 1302 ..................................................................................................... 13 

BMW of N. Am., Inc. v. Gore, 

517 U.S. 559 (1996) .................................................................................. 2, 3, 5, 6 

Bogle v. McClure, 

332 F.3d 1347 (11th Cir. 2003) ...................................................................... 3, 13 

Carr v. American Universal Ins. Co., 

341 F.2d 220 (6th Cir. 1965) .............................................................................. 17 

Cisson v. C.R. Bard, Inc., 

2015 WL 251437 (S.D. W.Va. Jan. 20, 2015) ................................................... 19 

CMI, Inc. v. Intoximeters, Inc., 

918 F. Supp. 1068 (W.D. Ky. 1995) ................................................................... 23 

Cont’l Trend Res., Inc. v. OXY USA, Inc., 

101 F.3d 634, 641 (10th Cir. 1996) ...................................................................... 6 

Cote v. Philip Morris USA, Inc., 

985 F.3d 840 (11th Cir. 2021) .......................................................................... 3, 5 

Daniel v. Am. Optical Corp., 

304 S.E.2d 383 (Ga. 1983) ................................................................................. 31 

EEOC v. W&O, Inc., 

213 F.3d 600 (11th Cir. 2000) .................................................................. 4, 14, 15 

Ford v. Uniroyal Goodrich Tire Co., 

476 S.E.2d 565 (Gla. 1996) ................................................................................ 19 

Frey v. Bayer Corp., 

2020 WL 5995587 (M.D. Ga. Oct. 9, 2020) ...................................................... 27 

Giddings & Lewis, Inc. v. Indus. Risk Insurers, 

348 S.W.3d 729 (Ky. 2011) .......................................................................... 21, 26 

Case 7:20-cv-00137-MCR-GRJ Document 191 Filed 06/01/21 Page 3 of 40
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Goldsmith v. Bagby Elevator Co., 

513 F.3d 1261 (11th Cir. 2008) ................................................................ 4, 13, 14 

In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., 

2018 WL 2765961 (N.D. Ga. June 8, 2018) ................................................. 24, 25 

In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 

MDL No. 4:08-MD-2004 (CDL), 2010 WL 1998166 (M.D. Ga. 

May 10, 2010) ..................................................................................................... 18 

In re Mentor Corp. Obtape Transobturator Sling Products Liab. 

Litig., 

MDL No. 4:08-MD-2004 (CDL), 2016 WL 6393589 (M.D. Ga. 

Oct. 25, 2016) ..................................................................................................... 18 

Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc., 

181 F.3d 446 (3rd Cir. 1999) ................................................................................ 6 

Johansen v. Combustion Eng’g, Inc., 

170 F.3d 1320 (11th Cir. 1999) ............................................................................ 2 

Kemp v. Am. Tel. & Tel. Co., 

393 F.3d 1354 (11th Cir. 2004) .................................................................. 4, 5, 15 

Kerrivan v. R.J. Reynolds Tobacco Co., 

953 F.3d 1196 (11th Cir. 2020) .................................................................... 3, 5, 6 

Ky. Laborers Dist. Council Health & Welfare Trust Fund v. Hill & 

Knowlton, Inc., 

24 F. Supp. 2d 755 (W.D. Ky. 1998) .................................................................. 23 

Liberty Nat’l Life Ins. Co. v. Beasley, 

466 So. 2d 935 (Ala. 1985) ................................................................................. 17 

M.H.D. v. Westminster Schs., 

172 F.3d 797 (11th Cir. 1999) ............................................................................ 31 

Mack Trucks, Inc. v. Conkle, 

436 S.E.2d 635 (Ga. 1993) ................................................................................. 19 

McBride v. Gen. Motors Corp., 

737 F. Supp. 1563 (M.D. Ga. 1990) ................................................................... 19 

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McCabe v. Daimler AG, 

160 F. Supp. 3d 1337 (N.D. Ga. 2015) ............................................................... 26 

Morales-Arcadio v. Shannon Produce Farms, Inc., 

2017 WL 2106188 (S.D. Ga. July 18, 2007) ...................................................... 22 

Next Century Commc’ns Corp. v. Ellis, 

318 F.3d 1023 (11th Cir. 2003) .................................................................... 21, 24 

Paws Holdings LLC v. Daikin Indus. Ltd., 

2017 WL 706624 (S.D. Ga. Feb. 22, 2017) .................................................. 28, 29 

Sheffield v. Darby, 

535 S.E.2d 776 (Ga. Ct. App. 2000) ................................................................... 27 

Simmons v. Sonyika, 

614 S.E.2d 27 (Ga. 2005) ................................................................................... 30 

State Farm Mut. Auto Ins. Co. v. Campbell, 

538 U.S. 408 (2003) .......................................................................................... 3, 5 

State v. Moseley, 

436 S.E.2d 632 (Ga. 1993) ................................................................................. 19 

Telecom Acquisition Corp., I, LLC v. Int’l Housing Dev. Grp., Corp., 

2008 WL 11452482 (D. Nev. Aug. 4, 2008) ...................................................... 18 

Todd v. Martinez Paint & Body, Inc., 

517 S.E.2d 844 (Ga. 1999) ................................................................................. 23 

Wheeler v. Novartis Pharm. Corp., 

944 F. Supp. 2d 1344 (S.D. Ga. 2013) ............................................................... 27 

Williams v. Dresser Indus., Inc., 

120 F.3d 1163 (11th Cir. 1997) .................................................................... 26, 27 

Williams v. First Advantage LNS Screening Solutions, Inc., 

947 F.3d 735 (11th Cir. 2020) ................................................1, 3, 5, 6, 14, 15, 16 

Statutes 

Fla. Stat. § 627.428 .................................................................................................. 17 

Fla. Stat. § 768.79 .................................................................................................... 17 

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Ga. Code Ann. § 9-3-33 ........................................................................................... 30 

Ga. Code Ann. § 11-2-313(2) .................................................................................. 27 

Ga. Code Ann. § 23-2-53 ......................................................................................... 26 

Ga. Code. Ann § 51-1-11(b)(2) ................................................................................ 29 

Ga. Code Ann. § 51-1-11(c) .................................................................................... 30 

Ga. Code. Ann. § 51-12-5.1(e)(1) ............................................................................ 16 

Ga. Code. Ann. § 51-12-5.1(e)(2) ............................................................................ 19 

RICO .......................................................................................................................... 4 

Servicemembers’ Civil Relief Act, 50 U.S.C. § 3936(a) ......................................... 30 

Rules 

Rule 50 ................................................................................................................. 2, 19

Rule 59 ....................................................................................................................... 2 

Rule 59(e) ................................................................................................................. 19

Other Authorities 

Fourteenth Amendment ....................................................................................... 2, 32 

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I. THE PUNITIVE DAMAGES AWARDS ARE UNCONSTITUTIONAL 

A. Introduction 

In the first consolidated bellwether trial, the jury awarded compensatory and 

punitive damages to all three plaintiffs. For Mr. Estes, the jury awarded $350,500 

in compensatory damages and $2,100,000 in punitive damages. 4/30/2021 Trial Tr. 

at 13:3-12. Mr. Hacker was awarded $160,000 in compensatory damages and 

$2,100,000 in punitive damages. Id. at 15:24-16:4. Finally, the jury awarded Mr. 

Keefer $320,000 in compensatory damages and (yet again) $2,100,000 in punitive 

damages. Id. at 14:17-15:1. These punitive damage awards are unconstitutionally 

excessive, especially when considering Defendants’ conduct and the ratio between 

compensatory and punitive damages. “As the Supreme Court has noted, a punitive 

damages award can be so out of whack that it screams a violation of due process[.]” 

Williams v. First Advantage LNS Screening Solutions, Inc., 947 F.3d 735, 762 (11th 

Cir. 2020). So is the case here; thus, reductions are necessary. Given the sizeable 

compensatory award damages, Defendants argue that a ratio of 1:1 is warranted. 

However, at a minimum, the Court should reduce each punitive damages award to 

no more than four times the respective compensatory damages award.1

 

 

1

 Defendants also move to limit Mr. Estes and Mr. Keefer to a single punitive 

damages award under Georgia law. See infra Section II. Should the Court hold 

otherwise, both punitive damages awards should still be reduced for the foregoing 

reasons. 

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The Eleventh Circuit has made clear that a district court’s reduction of 

excessive punitive damages is “not a remittitur at all.” See Johansen v. Combustion 

Eng’g, Inc., 170 F.3d 1320, 1331 (11th Cir. 1999). “Unlike a remittitur, which is 

discretionary with the court and which we review for an abuse of discretion, a court 

has a mandatory duty to correct an unconstitutionally excessive verdict so that it 

conforms to the requirements of the due process clause.” Id. (internal citations 

omitted). The court need not obtain the consent of the plaintiff in reducing an award 

of punitive damages. Id. (“Plaintiff’s consent is irrelevant if the Constitution 

requires the reduction.”). Thus, the court’s power to reduce a punitive damages 

award is rooted in Rule 50, not Rule 59, of the Federal Rules of Civil Procedure. Id.

B. Legal Standard 

“The Due Process Clause of the Fourteenth Amendment prohibits a State from 

imposing a ‘grossly excessive’ punishment on a tortfeasor.” BMW of N. Am., Inc. v. 

Gore, 517 U.S. 559, 562 (1996). To assist courts in evaluating the constitutionality 

of punitive damages awards, the Supreme Court has proffered a number of 

“guideposts.” The first and most important is the “degree of reprehensibility of the 

defendant’s conduct.” Id. at 575. The Court has further elucidated five factors that 

may be considered when assessing reprehensibility: (1) whether the harm was 

physical rather than economic; (2) whether the conduct showed a reckless disregard 

of health and safety; (3) whether the target of the conduct was financially vulnerable; 

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(4) whether the conduct was repeated or was an isolated incident; and (5) whether 

the harm was accidental or the result of intentional malice. State Farm Mut. Auto 

Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). 

The second guidepost is the ratio between the amount of compensatory 

damages to punitive damages. Gore, 517 U.S. at 581. While the Supreme Court has 

refused to adopt a bright-line ratio at which point punitive damages are excessive, it 

has offered some suggestions. Campbell, 538 U.S. at 425. Specifically, it has held 

that “few awards exceeding a single-digit ratio...will satisfy due process,” and that 

“an award of more than four times that amount of compensatory damages might be 

close to the line of constitutional impropriety.” Id. The Eleventh Circuit has held 

similarly based on its interpretation of the jurisprudence of the Supreme Court and 

other Circuit Courts of Appeals. Just last year, it explained, “[W]e will operate under 

the assumption that a 4:1 ratio is the Court’s suggested default guideline[.]” 

Williams, 947 F.3d at 755. Numerous opinions from the Eleventh Circuit reflect this 

conclusion. See, e.g., Cote v. Philip Morris USA, Inc., 985 F.3d 840, 849 (11th Cir. 

2021) (finding ratio of 3.3:1 to be constitutional); Kerrivan v. R.J. Reynolds Tobacco 

Co., 953 F.3d 1196, 1210 (11th Cir. 2020) (holding ratio of 1.6:1 to be permissible); 

Williams, 947 F.3d at 765-66 (reducing punitive damages from ratio of 13:1 to 4:1); 

Bogle v. McClure, 332 F.3d 1347, 1361-62 (11th Cir. 2003) (finding ratio of 

approximately 4:1 to be reasonable). 

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In those instances in which the Eleventh Circuit has allowed a ratio to exceed 

4:1, it is because the compensatory damages were very low and/or the defendant’s 

conduct was discriminatory, harassing, or persisted even in the face of litigation. For 

example, the court upheld an aggregate ratio of 8.3:1 in a case in which the 

compensatory damages among three plaintiffs totaled just over $36,000 and where 

the plaintiffs, all pregnant women, were subjected to a discriminatory employment 

policy and disparaging comments from their supervisors. See EEOC v. W&O, Inc., 

213 F.3d 600, 612, 616-17 (11th Cir. 2000). Similarly, the Eleventh Circuit found 

that a ratio of 9.2:1 was constitutional where the compensatory damages were only 

$54,231 and the defendants were recklessly indifferent to the plaintiff’s federal civil 

rights and subjected him to a pattern of racially motivated discrimination. See 

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1282-83 (11th Cir. 2008). 

However, limitations still exist. Thus, in a case in which AT&T was found to have 

violated both state and federal RICO statutes and where compensatory damages 

were only $115, the Eleventh Circuit reduced the punitive damages from $1 million 

to $250,000 as to prevent “an unconstitutional windfall.” Kemp v. Am. Tel. & Tel. 

Co., 393 F.3d 1354, 1365 (11th Cir. 2004). 

Where compensatory damages are large, both the Supreme Court and the 

Eleventh Circuit have found that a ratio closer to 1:1 may be necessary. See 

Campbell, 538 U.S. at 425 (“When compensatory damages are substantial, then a 

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lesser ratio, perhaps only equal to compensatory damages, can reach the outermost 

limit of the due process guarantee.”); Williams, 947 F.3d at 754-55 (“If...the 

plaintiff has received a substantial compensatory damages award, then a lesser ratio 

as low as 1:1 may reach the outer limits of the due process guarantee and punitive 

damages award that exceeds that ratio will be suspect.”). For example, the court 

upheld a ratio of 1.6:1 in a tobacco case in which the compensatory damages were 

$15.8 million. Kerrivan, 953 F.3d at 1209-10. 

The last indicium is a comparison between punitive damages and civil or 

criminal penalties that could be imposed for similar conduct. Gore, 517 U.S. at 583. 

However, in many cases since Gore, the Eleventh Circuit has noted that this 

guidepost carries less weight than reprehensibility and the ratio of compensatory to 

punitive damages. See Cote, 985 F.3d at 850; Kemp, 393 F.3d at 1364-65. 

As the term “guideposts” would suggest, any evaluation of the reasonableness 

of a punitive damages award will necessarily be factually intensive. Williams, 947 

F.3d at 762. While this analysis can at times lack precision, the case law offer some 

guardrails, especially compared to “juries [who] are often left to pick a number out 

of the sky, tethered to nothing more than than the jury’s emotional reaction to the 

misdeed of a corporation with deep pockets.” Id. 

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C. Argument 

Applying Gore, Campbell and case law of the Eleventh Circuit to the facts of 

this case demonstrates why the Court should reduce the three present punitive 

damages awards. Defendants focus on the first two Gore guideposts 

(reprehensibility and ratio) as the third (civil penalties authorized or imposed in 

similar cases) is inapplicable given Plaintiffs’ particular claims. As at least two 

Courts of Appeals have noted, “a violation of common law torts duties may not lend 

itself to a comparison with statutory penalties.” Inter Med. Supplies, Ltd. v. EBI 

Med. Sys., Inc., 181 F.3d 446, 468 (3rd Cir. 1999) (citing Cont’l Trend Res., Inc. v. 

OXY USA, Inc., 101 F.3d 634, 641 (10th Cir. 1996) (internal quotations omitted). 

The Eleventh Circuit has followed suit in at least one products liability case 

involving punitive damages, wherein the court only discussed statutory penalties for 

a claim of unfair trade practices but disregarded this factor for the common law tort 

claims. See Kerrivan, 953 F.3d at 1210-11. 

1. Defendants’ Conduct Was Not Reprehensible 

Without question, the most important guidepost in evaluating the 

reasonableness of a punitive damages award is the reprehensibility of the 

defendant’s conduct. Gore, 517 U.S. at 575-75; Williams, 947 F.3d at 750-51. 

While Defendants contest the verdicts on numerous grounds, uncontroverted 

evidence presented at trial demonstrates that even if the CAEv2 was defective 

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Defendants’ conduct was not so reprehensible as to justify these substantial punitive 

damages awards. 

Aearo developed the CAEv2 to help solve a unique military problem. See 

4/20/2021 Trial Tr. at 202:21-203:12. Servicemembers historically have suffered 

from high rates of hearing loss given their tendency not to wear hearing protection 

for fear of not being able to hear commands or the enemy. See id; see also 4/28/2021 

Trial Tr. at 112:13-25. Thus, Aearo developed the dual-ended CAEv2 to allow 

soldiers to hear in quiet environments but provide protection for sudden impulse 

sounds while using the nonlinear plug, as well as provide traditional steady-state 

noise protection with the linear end. See 4/20/2021 Trial Tr. at 202:21-203:12, 

207:20-210:11. This was a major improvement over the status quo. As one of the 

Army researchers involved in the early development of a nonlinear earplug noted, 

the “alternative” at the time of the CAEv2’s introduction was for soldiers “not to 

wear hearing protection.” S-Gen-101 at 10. 

The military was involved in the development of the CAEv2. In late 1997, 

after independently researching the performance of a nonlinear filter designed by the 

French-German Research Institute of Saint-Louis (“ISL”), the Army asked Aearo to 

develop a dual-ended earplug containing the ISL filter. S-Gen-0108. Months later, 

Aearo provided samples. See S-Gen-103. Approximately a year thereafter, Doug 

Ohlin, then Chairman of the Department of Defense Hearing Conservation Working 

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Group, requested that the earplugs be shortened by approximately 1/4” so that they 

could fit the military’s standard earplug case and to ensure there would be no 

interference with a soldier’s helmet chinstrap. See D-Gen-1806; P-Gen-311. Aearo 

then shortened the plug as requested, to ensure that the CAEv2 met the military’s 

operational needs. 4/20/2021 Trial Tr. at 287:7-16. 

Aearo thereafter received a stream of positive feedback about the CAEv2 from 

the military. For example, in February 2000, very soon after the first sales of the 

product, Robert Bosanko of the Army sent Brian Myers the results of a survey of 

soldiers who had used the product. See P-Gen-782 at 1. He reported that “the unit 

was very happy with how they worked.” Id. Similarly, in 2004, LTC Lorraine 

Babeu conducted another field study of the CAEv2. See S-Gen-109. She reported 

no issues with the product, and shared her results with Elliott Berger at Aearo. See 

P-Gen-0683. Other operational feedback was similarly positive. In July 2004, 

Brigadier General William Cato of the Marines wrote to a supplier of the CAEv2, 

“The swift delivery of your combat arms earplugs has greatly enhanced Marines’ 

comfort and survivability in combat zones.” See P-Gen-593 (emphasis added). A 

soldier deployed to Iraq also noted, “Combat Arms earplugs work great in this 

environment. They probably made the difference between hearing damage and not. 

They definitely allow you to mentally recover very quickly so you are able to deal 

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with your situation versus standing around like a stunned mullet.” P-Gen-2962 at 

29. 

Similar positive feedback is reflected in official military documents related to 

the Army Hearing Program. For example, the 2008 Special Text describes that 

“[w]ith the influx of Soldiers experiencing hearing loss in Iraq, once reluctant 

Soldiers began seeing the need for hearing protection while dismounted.” S-Keefer39 at 9. Discussing the use of the CAEv2 in particular, the Special Text states that 

“[a]s reported by audiologists who served in Iraq, no Soldier seen at the CSH that 

reported wearing the CAE when exposed to an explosion had ruptured eardrums.” 

Id. at 37; see also 4/28/21 Trial Tr. at 58:15-61:1 (LTC Fallon testimony re same). 

 Additionally, military audiologists testified about the effectiveness of the 

CAEv2 based on their personal and professional experiences. For example, LTC 

Battler testified that of the thousands of soldiers she fit and trained the plug with, 

“not one” complained that the CAEv2 did not provide adequate protection. 

4/22/2021 Trial Tr. at 172:23-173:2. Contrary to this positive feedback from 

military records, military audiologists, and frontline soldiers, Plaintiffs presented no 

evidence that the plugs did not protect individuals whom the product properly fit. 

Military REAT testing also found that the CAEv2 provided “very good 

attenuation,” see D-Gen-628 at 30, and that the CAEv2 outperformed earplugs that 

Plaintiffs now claim are superior products. See P-Gen-5843. In 2005, in response 

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to an inquiry from Brian Myers, Dr. Ohlin stated in an email, “Yes, I think you can 

say the combat arms earplug has be (sic) ‘evaluated and specified by the U.S. Armed 

Forces.’” D-Gen-272 at 1. It was entirely reasonable (and not reprehensible) for 

Defendants to rely on this positive feedback from the military, which had at least as 

much capacity to test the CAEv2 as Defendants, and a much greater ability to 

observe its real-world performance. 

Plaintiffs repeatedly referred to the “secret” Flange Memo, but the flange-fold 

fitting technique was no secret at all. First, Aearo placed the tip on the consumer 

packaging of the product and provided this packaging to the military. See S-Gen-83 

(consumer packaging with flange fold instructions); see also S-Gen-85 (letter from 

Elliott Berger to Major Mark Little). Second, numerous military audiologists 

testified at trial that they were aware of the flange-fold technique. See 4/20/2021 

Trial Tr. at 140:6-142:2 (LTC Merkley); 4/27/2021 Trial Tr. at 305:1-10 (LTC 

Fallon). LTC Fallon, the former Program Manager of the Army Hearing 

Conversation Program, testified that not only was he aware of the flange fold, he 

taught numerous Army hearing technicians about it annually over his seven years at 

CHPPM. See 4/27/2021 Trial Tr. at 325:2-22. Third, Aearo provided the military 

with the reports from the 016 and 017 labeling tests. See S-Gen-0008 (letter from 

Mr. Berger to Major Little); see also S-Gen-17 (213017 test results); P-Gen-384 

(213016 test results). The 017 test results stated that “[t]he yellow flanges were 

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folded outward to allow a deeper insertion of the green plug.” S-Gen-17 at 3. 

Finally, the instructions for the CAEv2 drafted by CHPPM (the wallet card) contain 

a picture of the CAEv2 with the opposite-end flanges folded back. S-Gen-71. 

Relatedly, despite Plaintiffs’ assertions to the contrary, there was nothing 

improper about stopping the 015 test. Doing so did not violate any applicable 

standards or regulations, and indeed was warranted given the unexpected variability 

in the results. See 4/20/2021 Trial Tr. at 174:18-22, 275:12-24, 276:25-277:9; see 

also 4/27/2021 Trial Tr. at 123:5-124:18 (“There is no prohibition in the standard 

or, for that matter, anywhere else that I know of about stopping a test.”); see also id.

at 214:3-18 (“...it’s common to do partial studies, especially when you’re learning 

something about earplugs...”). 

Plaintiffs also attempted to malign Defendants for not providing instructions 

with each CAEv2 sold to the military. However, Defendants’ conduct on this point 

was entirely reasonable. First, the military informed Aearo that it did not want 

instructions because it wanted to keep costs down and intended to train soldiers in 

person. See S-Gen-1; 4/28/2021 Trial Tr. at 122:23-123:5. Second, as noted above, 

Aearo provided the instructions on its consumer packaging to the military. See SGen-85. Defendants also sold commercial packages of the CAEv2, complete with 

instructions, in retail stores on Army bases—indeed, Mr. Hacker purchased one of 

these commercial packages—so Aearo was clearly willing to provide soldiers with 

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individual instructions to soldiers when the method of packaging allowed for it. 

Third, the military drafted its own instructions on the product in the form of a wallet 

card. See S-Gen-71 (wallet card); S-Gen-24 (CHPPM emails regarding draft of the 

wallet card). LTC Fallon testified that he provided these cards to hearing technicians 

during training sessions, see 4/28/2021 Trial Tr. at 44:16-45:3, and LTC Battler 

testified that she made the cards available to soldiers after fitting them with the plug. 

See 4/22/2021 Trial Tr. at 184:19-185:8. Defendants did not behave reprehensibly 

by deciding not to duplicate written instructions, which the military did not want or 

need, in its bulk shipments of the CAEv2. Fourth, it was reasonable for Defendants 

to rely on the military to adequately train and fit servicemembers with the earplugs. 

Department of Defense policy mandated that medically trained personnel fit all 

preformed earplugs and that servicemembers’ fits be checked annually, and the 

Army had its own policy mandating the same. See S-Gen-3 at 8 (DoD Instruction 

6055.1); S-Gen-69 at 6 (DA PAM 40-501). 

Turning to the factors of reprehensibility proffered in Campbell, Defendants 

acknowledge that Plaintiffs have alleged harm that is physical and not economic. 

However, the remaining four factors lie in Defendants’ favor. First, Defendants did 

not show a reckless disregard for the health and safety of others. Quite the 

opposite—Defendants were working with the military to protect the hearing of 

servicemembers, and a large body of testing and military feedback supported 

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Defendants’ view that the CAEv2 was doing just that. Second, the United States 

government is the least “financially vulnerable” entity in the world. Third, 

Defendants’ conduct cannot be seen as “repeated actions,” but instead reflects an arc 

from the military’s initial desire for the product, to the CAEv2’s design, testing, and 

sales, and ultimately its eclipse by superior products. And finally, Defendants did 

not act with “intentional malice, trickery, or deceit.” They disclosed the findings 

recorded in the Flange Memo—that some users would benefit from folding back the 

opposing flanges before insertion—and years’ worth of military testing and 

testimonials confirmed to Defendants that the product was working as intended. 

Viewed in totality, the evidence demonstrates that Defendants’ conduct here 

was reasonable and is nowhere near the degree of reprehensibility seen in other 

punitive damages cases in the Eleventh Circuit. See, e.g., Goldsmith, 513 F.3d at 

1283-84 (intentional racial discrimination, including racial slurs); Action Marine, 

Inc. v. Continental Carbon Inc., 481 F.3d 1302, 1319 (defendant “continued its 

course of action and inaction undeterred by both the prospect and reality of 

litigation”); Bogle, 332 F.3d at 1361-62 (intentional racial discrimination and 

attempt to cover it up); W&O, 213 F.3d at 607-09, 614-15 (intentional 

discrimination, including disparaging comments, against pregnant women). 

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2. The Ratio of Compensatory to Punitive Damages is “Out of 

Whack” 

The jury awarded each plaintiff $2.1 million in punitive damages. 4/30/2021 

Trial Tr. at 13:11-12, 14:25-15:1, 16:3-4. In comparing these to their respective 

compensatory damages awards, Mr. Estes’ punitive to compensatory damages ratio 

was 5.99:1, Mr. Hacker was 13.13:1 and Mr. Keefer was 6.56:1. While Mr. 

Hacker’s ratio readily stands out as more than double that of the other two plaintiffs, 

and well over the single-digit marker laid by the Supreme Court in Campbell, all 

three ratios are impermissibly high. 

The Eleventh Circuit looks to a ratio of 4:1 as a baseline. See Williams, 947 

F.3d at 755. Thus, out of the gate, all three awards are excessive. Thereafter, the 

Eleventh Circuit has instructed courts look to the amount of the compensatory 

damages award, as “a higher ratio is supportable if the amount of compensatory 

damages is low.” Id. at 755-56. Here, the compensatory awards were substantial. 

See, e.g., id. at 755 (“[H]ere the compensatory damages award of $250,000 was 

clearly not a small amount of money[.]”). This becomes more apparent when 

comparing the compensatory damages awards here to cases in which the Eleventh 

Circuit deemed a ratio of greater than 4:1 to be constitutional. See Goldsmith, 513 

F.3d at 1283-85 (9:1 ratio constitutional where compensatory damages were 

$54,000); Kemp, 393 F.3d at 1363-65 ($250,000 punitive damages award reasonable 

where compensatory damages were only $115); W&O, 213 F.3d at 616-617 (8.3:1 

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permissible where total compensatory damages for three plaintiffs was less than 

$40,000). In those cases where compensatory damages were near $250,000, as in 

Williams and as here, the Eleventh Circuit has approved of “ratios that were within 

or close to the 4:1 ratio[.]” Id. at 758. 

Other circuits have held similarly. As noted in a survey of cases in Williams, 

in 17 cases from other circuits in which the damages ratio exceeded 10:1, judgments 

were affirmed only 8 times, all in cases where the compensatory damages award 

were smaller than Williams or here. Id. at 759-60. Of the nine cases in which the 

appellate court deemed the punitive damages award to be excessive, seven were 

“remanded for remittitur to a ratio of 4:1 or less.” Id. at 760. Looking specifically 

at the amount of compensatory damages in Williams (which is similar to the present 

awards) as compared to cases from other circuits, the Eleventh Circuit found that of 

15 cases where compensatory damages ranged from $200,000-$300,000, the 

punitive awards were upheld in nine cases and vacated in six. Id. at 760. Of the 

nine upheld, only two had a ratio greater than 2:1. Id. at 761. 

Thus, in reviewing the case law of the Eleventh Circuit and other Courts of 

Appeals, it is readily apparent that the current ratios cannot stand. The compensatory 

damages awards here were substantial and Defendants’ conduct was nowhere near 

as reprehensible as those cases in which a ratio of greater than 4:1 was justified. In 

nearly every similar case, Courts of Appeals across the country have demanded 

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ratios no greater than 4:1, and often time something closer 2:1. So too here should 

the Court reduce the punitive damages awards to no greater than four times 

compensatory damages. The present awards are “out of whack” and are “tethered 

to nothing more than the jury’s emotional reaction to the misdeed of a corporation 

with deep pockets.” See id. at 762. 

II. GEORGIA PERMITS ONLY ONE PUNITIVE DAMAGES AWARD 

At the charge conference, over Defendants’ objection, the Court agreed to 

allow both Mr. Estes and Mr. Keefer to pursue claims for punitive damages against 

Defendants, and the jury issued awards in favor of both. Yet, Georgia law provides 

that, “[o]nly one award of punitive damages may be recovered in a court in this state 

from a defendant for any act or omission if the cause of action arises from product 

liability, regardless of the number of causes of action which may arise from such act 

or omission.” Ga. Code. Ann. § 51-12-5.1(e)(1). Thus, Georgia law—which 

Plaintiffs advocated to apply to this case—precludes both from recovering punitive 

damages. 

At the charge conference, Plaintiffs’ counsel seized upon the language “in a 

court in this state” and argued that this portion of the statute did not apply here. 

4/27/2021 Tr. at 386-87. Defendants have not located a case outside of Georgia 

applying (or declining to apply) this precise provision. Still, the provision sets forth 

an unequivocal Georgia legislative policy to eliminate repetitive punitive damages 

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claims based upon defects in the same product. It would thwart the obvious purpose 

of the policy—and would make little sense—for application of this public policy to 

depend upon where a lawsuit is filed. Indeed, it would encourage forum-shopping. 

Further, while there are no out-of-state cases addressing this particular 

Georgia statute, there are cases applying analogous Florida statutes containing 

similar language outside of Florida. For example, at least two non-Florida courts 

have held that attorney’s fees can be awarded under § 627.428, Fla. Stat., even 

though it applies only to judgments rendered “by any of the courts of this state.” See 

Carr v. American Universal Ins. Co., 341 F.2d 220, 224-225 (6th Cir. 1965) (holding 

that Tennessee district court should have awarded fees under the Florida statute since 

the substantive law of Florida applied to a case transferred from Florida); Liberty 

Nat’l Life Ins. Co. v. Beasley, 466 So. 2d 935, 937 (Ala. 1985) (rejecting argument 

that the term “courts of this state” precluded an Alabama court from awarding fees 

under the statute). Similarly, at least two non-Florida federal district courts have 

awarded attorney’s fees under § 768.79, Fla. Stat.—including one MDL court—

despite language in that statute purportedly limiting its application to “any civil 

action for damages filed in the courts of this state.” See In re Mentor Corp. Obtape 

Transobturator Sling Products Liab. Litig., MDL No. 4:08-MD-2004 (CDL), 2016 

WL 6393589 (M.D. Ga. Oct. 25, 2016) (awarding attorney’s fees); Telecom 

Acquisition Corp., I, LLC v. Int’l Housing Dev. Grp., Corp., 2008 WL 11452482, at 

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*2 (D. Nev. Aug. 4, 2008) (awarding attorney’s fees under the statute since Florida 

substantive law applied to the case). 

In short, because Plaintiffs asked the Court to apply Georgia’s substantive 

laws to their claims, they should not be allowed to escape the limitations imposed 

by that same law on the recovery of punitive damages. For that reason, Mr. Estes 

and Mr. Keefer may not both retain their awards of punitive damages in this case. 

Instead, they are entitled (at most) to “a single award of punitive damages . . . to 

share jointly.” See In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. 

Litig., MDL No. 4:08-MD-2004 (CDL), 2010 WL 1998166 (M.D. Ga. May 10, 

2010) (emphasis added) (permitting multiple plaintiffs in consolidated trial to 

recover and share a single award of punitive damages). Thus, Plaintiffs Estes and 

Keefer should be required to share the single award of $2.1 million for punitive 

damages if the award itself is upheld in its current amount; if the awards are 

reduced—as they should be—they would be entitled to share the single reduced 

award. 

Finally, in addition to sharing a single award, the judgments, at a minimum, 

should be amended under Rule 59(e). Under the same punitive damages statute, the 

Georgia legislature decreed that “[s]eventy-five percent of any amounts awarded 

under this subsection as punitive damages, less a proportionate part of the costs of 

litigation, including reasonable attorney’s fees, all as determined by the trial judge, 

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shall be paid into the treasury of the state through the Office of the State Treasurer.” 

Ga. Code. Ann. § 51-12-5.1(e)(2). This subsection does not contain the phrase “a 

court in this state,” and has expressly been applied by courts outside of Georgia. See 

Cisson v. C.R. Bard, Inc., 2015 WL 251437, at *2-5 (S.D. W.Va. Jan. 20, 2015).2

 

Thus, the judgments should be amended to reflect that the majority of any award 

must be paid to the State of Georgia and not to the individual Plaintiffs. 

III. DEFENDANTS RENEW AND PRESERVE THE RULE 50 MOTIONS 

MADE AT THE CONCLUSION OF PLAINTIFFS’ CASE-IN-CHIEF 

Defendants raised a number of motions for judgment as a matter of law during 

trial following the conclusion of Plaintiff’s case. 4/26/2021 Tr. at 347-95. The Court 

issued an order denying all of these motions. See, e.g., Estes, Case No. 7:20-cv-137, 

Dtk. 175. Instead of rearguing these motions in full, Defendants renew the motions 

in summary form as follows:

A. Causation 

As a threshold matter, to recover on any of their claims, Plaintiffs must 

establish that the CAEv2 was a legal cause of their alleged hearing or tinnitus 

 

2

 As the district court noted in Cisson, a Georgia federal district court ruled that this 

portion of the statute was unconstitutional in McBride v. Gen. Motors Corp., 737 F. 

Supp. 1563 (M.D. Ga. 1990), but no other court has followed the holding in McBride 

in the three decades since it was decided. Instead, three later Georgia cases found 

the statute to be constitutional, as did the Cisson court just six years ago. See Mack 

Trucks, Inc. v. Conkle, 436 S.E.2d 635 (Ga. 1993); State v. Moseley, 436 S.E.2d 632 

(Ga. 1993); Ford v. Uniroyal Goodrich Tire Co., 476 S.E.2d 565 (Gla. 1996). 

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difficulties. Yet, even assuming Plaintiffs presented sufficient evidence of defects 

in the CAEv2, they failed to offer expert testimony that these alleged defects affected 

their own use of the product so that it could have caused their own alleged injuries. 

Plaintiffs’ theory is that the CAEv2 was designed in a manner that “prevented 

Plaintiffs from obtaining a proper fit and seal when inserting the device into their ear 

canals.” Master Long Form Complaint, MDL Dkt. 704 ¶ 6. Yet no one—expert or 

otherwise—testified that the CAEv2 did not fit these three Plaintiffs, much less that 

the alleged defects in the earplug prevented the Plaintiffs from getting a good fit. 

The undisputed evidence at trial demonstrated that (a) the CAEv2 fit and 

worked for many or most users, see 4/22/2021 Trial Tr. at 182:8-12, and (b) all preformed earplugs can become loose over time from routine jaw movements. See 

4/27/2021 Trial Tr. at 325:11-22. So, to establish that a defect in the CAEv2 caused 

injuries to these three Plaintiffs, they would have to establish that the CAEv2 did not 

fit them specifically. But none of their experts attempted to professionally fit or test 

how the CAEv2 fit these three Plaintiffs. 

Instead of trying to fit these Plaintiffs, their experts simply assumed that the 

CAEv2 did not fit them properly because they allegedly suffer today from hearing 

loss or tinnitus. This is classic circular reasoning: the CAEv2 must have caused 

their injuries because it did not fit them, and it must not have fit them because it 

caused their injuries. But a Plaintiff cannot establish causation with assumptions or 

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circular reasoning. Because Plaintiffs did not meet their burden of proving that 

defects in the CAEv2 actually caused their alleged injuries, Defendants are entitled 

to judgment as a matter of law. 

B. Plaintiffs’ Negligent Misrepresentation, Fraudulent 

Misrepresentation, and Fraud and Deceit Claims Fail 

as a Matter of Law. 

Defendants are entitled to judgment as a matter of law on Plaintiffs’ claims 

for negligent misrepresentation (Count VII), fraudulent misrepresentation (Count 

VIII) and fraud and deceit (Count X) because Plaintiffs presented no evidence that 

they justifiably or reasonably relied on any affirmative misrepresentations by the 

Defendants. See Next Century Commc’ns Corp. v. Ellis, 318 F.3d 1023, 1030 (11th 

Cir. 2003) (per curiam) (noting that reasonable reliance is an essential element of 

claims for fraudulent and negligent misrepresentation under Georgia law); Giddings 

& Lewis, Inc. v. Indus. Risk Insurers, 348 S.W.3d 729, 747 (Ky. 2011) (holding that 

fraud through misrepresentation requires proving that the defendant made a material 

misrepresentation and that “the plaintiff reasonably relied upon the 

misrepresentation”). 

Plaintiffs cannot satisfy their burden by asserting that they relied on the 

military’s decision to purchase the CAEv2, and the misrepresentations from the 

Defendants caused the military to believe the CAEv2 were safe. “[T]o show a thirdparty fraud claim in Georgia, the plaintiff must provide record evidence that ... the 

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defendant’s objective was to defraud the plaintiff.” Morales-Arcadio v. Shannon 

Produce Farms, Inc., 2017 WL 2106188, at *26 (S.D. Ga. July 18, 2007) (citing Fla. 

Rock & Tank Lines, Inc., v. Moore, 365 S.E.2d 836, 837 (Ga. 1988)). Plaintiffs 

presented no evidence that, when Aearo or 3M made alleged misrepresentations to 

the military, they had the objective of defrauding individual soldiers. At most, 

Plaintiffs presented evidence that Defendants intended to defraud the military itself, 

which actually purchased the earplugs. That does not suffice to state a third-party 

fraud claim. See id. (granting summary judgment because “[t]he evidence proffered 

by the [plaintiffs] shows at most that [the defendant] intended to defraud the 

Government” and plaintiffs “present no evidence that [the defendant’s] purpose was 

to defraud [the plaintiffs]”). Because Plaintiffs cannot show that the Defendants 

intended to defraud individual soldiers when they made alleged misrepresentations 

to the military, they must identify misrepresentations Defendants made to soldiers, 

and on which Plaintiffs relied, to make out a fraud or misrepresentation claim under 

Georgia law. 

Mr. Hacker’s allegation that he relied on the military’s purchasing decision 

also will not salvage his fraud and misrepresentation claims under Kentucky law. In 

Kentucky, a plaintiff whom the defendant did not intend to defraud cannot bring a 

fraud or misrepresentation claim unless he actually received and relied on the alleged 

misrepresentation. See Ky. Laborers Dist. Council Health & Welfare Trust Fund v. 

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Hill & Knowlton, Inc., 24 F. Supp. 2d 755, 771 (W.D. Ky. 1998) (“Kentucky courts 

have long held that a third party not the target of an alleged tortfeasor's deceptions 

may state a claim for deceit so long as it was reasonably foreseeable that he would 

receive and potentially act on them.”) (emphasis added). Where there is an “utter 

lack of allegations or proof that the statements upon which [the plaintiff] bases its 

claim were made to it, and/or its reliance upon said misrepresentations,” as here, a 

fraud or misrepresentation claim fails as a matter of law. CMI, Inc. v. Intoximeters, 

Inc., 918 F. Supp. 1068, 1090 (W.D. Ky. 1995). 

Critically, not every statement or assertion—even if false—will support a 

claim for fraud or misrepresentation. Instead, “a party is not justified in relying on 

and assuming to be true representations consisting of mere expressions of opinion, 

hope, expectation, puffing, and the like; rather, representations of this nature must 

be inquired into and examined to ascertain the truth.” Todd v. Martinez Paint & 

Body, Inc., 517 S.E.2d 844, 846 (Ga. 1999); accord Next Century, 318 F.3d at 1028. 

Here, Plaintiffs have failed to introduce any evidence of justifiable reliance to 

support their fraud and misrepresentation claims. 

1. Mr. Estes Did Not Establish Justifiable Reliance. 

During his trial testimony, Mr. Estes could only point to a single affirmative 

statement from Defendants that he allegedly relied upon in deciding to wear the 

CAEv2: a poster in his barracks with the words “You Protect Us, We Protect You.” 

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4/5/2021 Tr. at 105:7-106:20. That statement is a textbook example of “puffery” 

that cannot support his fraud or misrepresentation claims. See Next Century, 318 

F.3d . at 1027-28 (holding that CEO’s statement touting company’s “strong 

performance” constituted puffery that would not support fraud claim); In re Atlas 

Roofing Corp. Chalet Shingle Prods. Liab. Litig., 2018 WL 2765961, at *8 (N.D. 

Ga. June 8, 2018) (statement in “brochure describing Shingles as ‘quality’ shingles 

that would hold up well” was puffery that could not support fraud claim). 

2. Mr. Keefer Did Not Establish Justifiable Reliance. 

Mr. Keefer’s fraud and misrepresentation claims fare no better. In fact, the 

only statement Mr. Keefer claims to have relied upon was a statement made by an 

unidentified civilian Department of Defense employee regarding the CAEv2: “Wear 

them or go deaf.” 4/7/2021 Tr. at 77:5-19. Not only is there no evidence that the 

source of that statement was one of the Defendants, but the statement itself is classic 

hyperbole and puffery. See Atlas Roofing, 2018 WL 2765961, at *8. Further, Mr. 

Keefer is not deaf and does not claim to be, so there is no link between that statement 

and his current complaints. 

3. Mr. Hacker Did Not Establish Justifiable Reliance. 

Mr. Hacker’s fraud and misrepresentation claims fail for the same reason. Mr. 

Hacker testified that he received written information about the CAEv2 when he 

purchased his own pair on an army base in 2006. 4/14/2021 Tr. at 104:9-105:11. 

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While Mr. Hacker no longer possesses the package or materials that came with his 

CAEv2, he testified that he “would have read over it[.]” Id. at 105:10. During cross 

examination, he identified a 2007 package insert as containing the same type of 

information that he “would have read” with his own purchase. Id. at 156:24-164:4. 

Critically, at no point did Mr. Hacker state or imply that he relied upon this material 

in his decision to purchase or to wear the CAEv2—likely because he testified that 

he was already using the CAEv2 before he purchased his own pair. Further, he did 

not identify a single statement in that written material that he contends was false, 

and to the extent he suggests that the NRR on the packaging was false, he testified 

at trial that he did not know what an NRR was when he was serving in the military, 

id. at 159:21-160:2, so he could not have “reasonably relied” upon the NRR rating 

on the label in his decision to use the CAEv2. Thus, Mr. Hacker failed to establish 

an essential element of his misrepresentation claims as a matter of law. 

C. Plaintiff’s Fraud by Concealment Claims Fail as a Matter of Law. 

Plaintiffs’ fraudulent concealment claims (Count IX) also fail as a matter of 

law. Under Georgia law, “in a fraudulent concealment action, there must first exist 

a duty to communicate the omitted or concealed material fact to the defrauded 

party.” McCabe v. Daimler AG, 160 F. Supp. 3d 1337, 1350 (N.D. Ga. 2015). This 

requirement is statutory. Ga. Code Ann. §23-2-53 (“[s]uppression of a material fact 

which a party is under an obligation to communicate constitutes fraud”) (emphasis 

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added). Section 23-2-53 further provides that “[t]he obligation to communicate may 

arise from the confidential relations of the parties or from the particular 

circumstances of the case.” Id. Kentucky law also requires a “duty to disclose the 

material fact” before liability can be imposed for a fraudulent omission. Giddings, 

348 S.W.3d at 747. As the Eleventh Circuit has observed, “[g]enerally, business 

relationships are not confidential relationships” that would give rise to a duty to 

disclose. Williams v. Dresser Indus., Inc., 120 F.3d 1163, 1168 (11th Cir. 1997). 

Here, none of the Plaintiffs can point to any legal duty Defendants owed to disclose 

any material facts to Plaintiffs, with whom they had no relationship at all. At most, 

Plaintiffs might contend that Defendants had a duty to disclose information to its 

customer, the military. But none of the evidence adduced at trial would support the 

conclusion that Defendats owed a duty to disclose to individual soldiers like the 

Plaintiffs, with whom they did not even directly communicate. See id. (reversing 

denial of motion for judgment as a matter of law where plaintiffs had not introduced 

evidence to suppor the existence of a duty to disclose). 

D. Estes’ and Keefer’s Warranty Claims Fail as a Matter of Law. 

Under Georgia law, a party must show privity with the manufacturer of a 

product to recover on any express or implied warranty claim. See Wheeler v. 

Novartis Pharm. Corp., 944 F. Supp. 2d 1344, 1351 (S.D. Ga. 2013). However, an 

exception to this requirement exists where a manufacturer extends an express 

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warranty directly to the ultimate consumer. Frey v. Bayer Corp., 2020 WL 5995587, 

at *6 (M.D. Ga. Oct. 9, 2020). While express warranties can be created without the 

use of “formal words such as ‘warrant’ or ‘guarantee[,]’” an “affirmation merely of 

the value of the goods or a statement purporting to be merely the seller’s opinion or 

commendation of the goods does not create a warranty.” Ga. Code Ann. §11-2-

313(2). Thus, Georgia courts have consistently held that “mere expressions of 

opinion, hope, expectation, puffing, and the like” are non-actionable. See Sheffield 

v. Darby, 535 S.E.2d 776, 779 (Ga. Ct. App. 2000). Federal courts applying Georgia 

law have held similarly. See, e.g., Paws Holdings LLC v. Daikin Indus. Ltd., 2017 

WL 706624, at *15 (S.D. Ga. Feb. 22, 2017) (holding that statements like “reliable 

operation” and “low cost maintenance and service” were “mere non-actionable 

puffery”). 

Mr. Keefer’s warranty claims fail for three independent reasons. The sole 

express warranty to which Mr. Keefer testified was a single statement by “[a] DoD 

civilian” instructing him and other soldiers during basic training to “[w]ear them or 

go deaf.” See 4/7/2021 Tr. at 76:21-77:19. First, this statement cannot satisfy the 

exception to the privity requirement for the simple fact that it was not made by an 

agent of Aearo or 3M, and Mr. Keefer presented no other evidence of any warranty 

or guarantee from Defendants. Second, even if the “wear them or go deaf” statement 

had been relayed to him by an agent of one of the Defendants, the information in 

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that statement is puffery. Third, Mr. Keefer is not deaf, so he cannot prove that 

Defendants breached the alleged warranty. Thus, his warranty claims fail as a matter 

of law. 

While Mr. Estes claims to have viewed a statement from 3M, that statement 

is also nothing more than puffery. Specifically, Mr. Estes testified that he saw a 3M 

poster that stated, “You Protect Us, We Protect You.” 4/5/2021 Tr. at 105:7-20. 

This single statement is fundamentally “vague and indefinite...and/or mere nonactionable puffery.” See Paws Holdings, 2017 WL 706624 at *15. As Mr. Estes 

failed to point to any other statements by 3M or Aearo that could constitute a 

warranty, his warranty claims fail as a matter of law. 

E. Negligence per se 

Defendants renew their argument that the EPA regulations do not apply to 

hearing devices sold to the military. See 4/27/2021 Trial Tr. at 363:4-24 (objecting 

to jury instructions). But even if they do apply, Plaintiffs failed to establish that any 

violation of these regulations impacted the decisions by Mr. Estes and Mr. Keefer to 

use the CAEv2, much less that it caused their alleged injuries. Both testified that 

they received proper instructions on the CAEv2 from the military, see 4/6/2021 Trial 

Tr. at 72:12-17, 4/7/2021 Trial Tr. at 31:22-32:2, and Mr. Estes confirmed that he 

had no knowledge of what an NRR meant. See 4/6/2021 Trial Tr. at 74:15-24. So 

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even if Defendants had followed the EPA regulations to the letter, that would not 

have affected their use of the CAEv2. 

F. Statute of repose—Keefer 

It is undisputed that Georgia has a strict 10-year statute of repose for products 

liability actions. See Ga. Code. Ann § 51-1-11(b)(2) (“[n]o action shall be 

commenced pursuant to this subsection with respect to an injury after ten years from 

the date of the first sale for use or consumption of the personal property causing or 

otherwise bringing about the injury”) (emphasis added). The statute of repose bars 

all claims of any type filed beyond the repose except claims for failure to warn and 

any claim for negligence “which manifests a willful, reckless, or wanton disregard 

for life or property.” G.A. Code Ann. § 51-1-11(c). It is equally undisputed that 

Mr. Keefer received his first pair of CAEv2 more than 10 years before filing his 

claim here. See 4/6/2021 Trial Tr. at 188:2-4. 

The Court concluded pretrial that the Servicemembers’ Civil Relief Act, 50 

U.S.C. § 3936(a), barred application of the statute of repose to Mr. Keefer’s claims 

because the time he served in the military could not be counted towards the 10-year 

repose period. That statute excludes military service time from “any period limited 

by law, regulation, or order for the bringing of any action or proceeding in court.” 

Id. Respectully, a statute of repose is not a limitation period “for the bringing of any 

action.” Id. Instead, a statute of repose “delineates a time period in which a right 

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may accrue,” so that it “stands as an unyielding barrier to a plaintiff’s right of 

action...so that, on the expiration of the statutory period, the cause of action no 

longer exists.” Simmons v. Sonyika, 614 S.E.2d 27, 29 (Ga. 2005) (citations 

omitted). As such, the Servicemembers’ Act does not apply to a statute of repose. 

Thus, Defendants are entitled to judgment as a matter of law on all of Mr. Keefer’s 

claims except failure to warn and gross negligence. 

G. Statute of limitations—Estes 

Georgia has a two-year statute of limitions period for all personal injury 

claims. See Ga. Code Ann. § 9-3-33 (“Except as otherwise provided in this article, 

actions for injuries to the person shall be brought within two years after the right of 

action accrues”). The two-year limitations period applies to all claims for injuries 

to the person regardless of the legal theory or cause of action asserted. See Daniel 

v. Am. Optical Corp., 304 S.E.2d 383, 385 (Ga. 1983) (holding that “[b]y its very 

language, the scope of application of this statute of limitations is determined by the 

nature of the injury sustained rather than the legal theory underlying the claim for 

relief”). Other than cases in which the bodily injury develops only over a long period 

of time, the cause of action accrues at the time of injury, even if the Plaintiff does 

not know the cause. M.H.D. v. Westminster Schs., 172 F.3d 797, 804 (11th Cir. 

1999). 

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In its order denying Defendants’ motion for summary judgment, the Court 

concluded that Mr. Estes’ injuries developed over a period of time, thus triggering 

the “discovery rule.” Yet the testimony at trial confirmed that Mr. Estes began to 

experience significant tinnitus on a specific date in 2014. See 4/5/2021 Trial Tr. at 

73:1-74:6. And tinnitus, as a subjective complaint, cannot be a latent injury that 

would trigger the discovery rule. Because Mr. Estes could pinpoint the exact time 

that he was injured—and because that time was more than two years before he filed 

his claims—all of his claims are time-barred. 

CONCLUSION 

The Court should enter judgment as a matter of law for Defendants on all or 

some of Plaintiffs’ claims. In the alternative, the punitive damages awards for all 

three plainitffs should be reduced so as to not violate Defendants’ constitutional 

rights under the Fourteenth Amendment. Finally, under Georgia law, there should 

only be one punitive damages award in the Estes and Keefer cases. 

Dated: June 1, 2021 

/s/ Charles F. Beall, Jr. 

Larry Hill 

Florida Bar No. 173908 

lhill@mhw-law.com 

Charles F. Beall, Jr. 

Florida Bar No. 66494 

cbeall@mhw-law.com 

Haley J. VanFleteren 

Florida Bar No. 1003674 

Respectfully submitted: 

/s/ Robert C. “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 

Mark J. Nomellini 

Case 7:20-cv-00137-MCR-GRJ Document 191 Filed 06/01/21 Page 37 of 40
32 

hvanfleteren@mhw-law.com 

MOORE, HILL & WESTMORELAND, P.A. 

350 West Cedar Street 

Maritime Place, Suite 100 

Pensacola FL 32502 

Telephone: (850) 434-3541 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

Chicago, Illinois 60654 

Telephone: (312) 862-3254 

mnomellini@kirkland.com 

Kimberly Branscome 

DECHERT LLP 

633 W. 5th St., Suite 4900 

Los Angeles, CA 90071 

Telephone: (213) 808-5762 

kimberly.branscome@dechert.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo, LLC 

Case 7:20-cv-00137-MCR-GRJ Document 191 Filed 06/01/21 Page 38 of 40
33 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

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

memorandum contains 7,647 words. 

Dated: June 1, 2021 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 

 

Case 7:20-cv-00137-MCR-GRJ Document 191 Filed 06/01/21 Page 39 of 40
34 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on June 1, 2021, a copy of the foregoing 

was filed on the Court’s CM/ECF system, which will serve all counsel of record. 

Dated: June 1, 2021 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 

Case 7:20-cv-00137-MCR-GRJ Document 191 Filed 06/01/21 Page 40 of 40