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:

Irizarry, 8:20cv22444

Judge M. Casey Rodgers

Magistrate Judge Hope T. Cannon

ORDER1

This matter is before the Court on Defendant 3M Company’s motion for 

summary judgment. See ECF No. 13. On full consideration, the motion is 

GRANTED IN PART and DENIED IN PART.

I. Legal Standard

Summary judgment is appropriate where the record reflects 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 

1 This Order assumes the parties’ familiarity with the general factual allegations and nature 

of this multidistrict litigation. 

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such that a reasonable jury could return a verdict for the nonmoving party.” 

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

The moving party bears the initial burden of “informing the court of the basis 

for its motion and of identifying those materials that demonstrate the absence of a 

genuine issue of material fact.” Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 

836, 840 (11th Cir. 2000) (citing Celotex, 477 U.S. at 323). Once that burden is met, 

the nonmoving party must “go beyond the pleadings” and present competent record 

evidence showing the existence of a genuine, material factual dispute for trial. 

Celotex, 477 U.S. at 324. In doing so, and to avoid summary judgment, the 

nonmoving party “must do more than simply show that there is some metaphysical 

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986). The “mere existence of a scintilla of evidence” supporting 

the nonmovant’s case is insufficient to defeat a motion for summary judgment. 

Liberty Lobby, 477 U.S. at 252. In assessing whether a movant is entitled to 

summary judgment, a court must view the evidence and factual inferences drawn 

therefrom in the light most favorable to the non-moving party. See id. at 255; Allen 

v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). Ultimately, summary judgment 

must be entered where “the nonmoving party has failed to make a sufficient showing 

on an essential element of [its] case with respect to which [it] has the burden of 

proof.” Celotex, 477 U.S. at 323.

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II. Discussion

Irizarry asserts fifteen claims against Defendant 3M Company under Alabama 

law arising from injuries he alleges were caused by his use of the Combat Arms 

Earplug version 2 (“CAEv2”) during his military service. See 1st Am. Compl., ECF 

No. 4.2

 Defendant moves for summary judgment on all fifteen claims. In response, 

Irizarry seeks voluntary dismissal of his express warranty (Count V), negligence per 

se (Count XII), and consumer protection claims (Count XIII).

3

 See Irizarry Resp., 

ECF No. 20 at 1. The Court addresses the remaining claims in turn.

A. Strict Liability Claims (Counts II and IV)

Irizarry alleges strict liability claims for design defect and failure to warn. 

Defendant argues that those claims are foreclosed by, or at a minimum must be 

construed under Alabama’s Extended Manufacturer’s Liability Doctrine 

(“AEMLD”). In response, Irizarry maintains that strict liability claims remain 

2 The parties agree that Alabama law applies to Irizarry’s claims. See ECF No. 11.

3 Irizarry’s response brief states that he “voluntarily dismisses his express warranty claim, 

his negligence per se claim, and his claim for violation of consumer protection laws.” See Pl. 

Resp., ECF No. 20 at 1. However, Rule 41(a)—which governs voluntary dismissals—only permits 

the dismissal of an entire action, not individual claims. Rosell v. VMSB, LLC, 67 F. 4th 1141 (11th 

Cir. 2023). Nevertheless, Irizarry’s express warranty, negligence per se, and consumer protection 

claims have clearly been abandoned; therefore, summary judgment is granted in favor of 

Defendant on those claims. See Am. S. Homes Holdings, LLC v. Erickson, No. 4:21cv95, 2023 

WL 4032657, at *2 n.1 (M.D. Ga. June 15, 2023) (granting summary judgment to plaintiff on 

counterclaim that had “clearly been abandoned” where parties had stipulated to its dismissal but 

other individual claims remained).

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cognizable under Alabama law but concedes that the claims are governed by the 

AEMLD. The Court agrees.

Alabama law does not adhere to traditional common law strict products 

liability principles, but instead follows a “hybrid form of strict liability” under the 

AEMLD that retains, among other things, various affirmative defenses, including 

contributory negligence, assumption of risk, and under certain circumstances, lack 

of a causal connection. See Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 

395 So. 2d 991, 994 (Ala. 1981); Bodie v. Purdue Pharma Co., 236 Fed. App’x 511, 

517 n.9 (11th Cir. 2007); Judson v. Nissan Motor Co., 52 F. Supp. 2d 1352 (M.D. 

Ala. 1999). “[I]n practice, [however,] an AEMLD claim is similar to a traditional 

strict product liability claim,” such that a claim pled as strict liability is properly 

construed as “being based upon the AEMLD.” See Bodie, 236 Fed. App’x at 571 

n.9 (construing strict liability claim as an AEMLD claim under Alabama law); 

Aldridge v. Ethicon, Inc., No. 1:20cv039, 2020 WL 1308335, at *3 (S.D. Ala. Mar. 

19, 2020) (same); Miller v. Pfizer Inc., No. 4:13cv1687, 2014 WL 2155020, at *2 

(N.D. Ala. May 22, 2014) (same). So too here. Irizarry’s strict liability claims are 

properly construed as AEMLD claims. Therefore, Defendant’s motion for summary 

judgment is denied as to the strict liability claims alleged in Counts II and IV; 

however, the claims will be governed by the AEMLD.

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B. Causation—Design Defect & Failure to Warn (Counts I-IV)

Defendant argues that Irizarry cannot establish proximate causation for his 

design defect and/or failure to warn claim because he has failed to show: (1) that the 

CAEv2 caused his alleged injuries; (2) that an alternative design existed at the 

relevant time that would have reduced or eliminated his injuries; and (3) that a 

different warning would have caused the government not to purchase the CAEv2, 

would have been seen by Irizarry, and prevented his injuries. These arguments fail.

First, the Court has already determined that Irizarry’s specific causation 

expert, Dr. Michael Armstrong, provided a scientifically reliable basis for his 

opinions that the CAEv2 caused Irizarry’s auditory injuries. See Daubert Order, 

ECF No. 23 at 1-4. Dr. Armstrong’s opinion is sufficient to raise a triable issue of 

fact as to whether the CAEv2 is the proximate cause of Irizarry’s injuries. 

Second, Irizarry has produced sufficient evidence that safer alternative 

designs existed when the CAEv2 was on the market, all of which were cost-effective 

and feasible, and none of which had the design flaws of the CAEv2. Briefly, 

Irizarry’s design defect claim requires evidence that “a safer, practical, alternative 

design” was available to Defendant at the time it manufactured the CAEv2. See 

Hosford v. BRK Brands, Inc., 223 So. 3d 199, 203 (Ala. 2016) (citing Gen. Motors 

Corp. v. Jernigan, 883 So. 2d 646, 665 (Ala. 2003)). To satisfy this requirement, 

Irizarry must show that: (1) the injuries caused by the CAEv2 would have been 

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“eliminated or in some way reduced” by use of the alternative design; and (2) the 

utility of the alternative design outweighed the utility of the CAEv2, considering the 

earplug’s intended use; its styling, cost, and desirability; its safety features; the 

foreseeability, likelihood, and seriousness of the harm that occurred; the obviousness 

of the defect; and the manufacturer’s ability to eliminate the defect. See id. 

Here, Irizarry has designated three experts—Dr. Mark Packer, Richard 

McKinley, and Dr. Lawrence Lustig—who have offered opinions that multiple safer 

alternative designs existed at the relevant time (e.g., CAEv1, Moldex Battleplug, 

Surefire Sonic Defender) which did not have the CAEv2’s design flaws and would 

have prevented or reduced the likelihood of noise-induced hearing injuries, like 

Irizarry’s. See Pl. R. 26 Expert Disclosure, ECF No. 20-1; McKinley Rep., ECF No. 

20-2 at 92-109; Packer Rep., ECF No. 20-4 at 107-08; Lustig Rep., ECF No. 20-5 at 

56-57. Those experts explain in detail how the feasibility, cost-effectiveness, and 

efficacy of the proposed alternatives outweighed that of the CAEv2. See id. 

Defendant has not challenged the reliability of those opinions in Irizarry’s case, and 

the Court has already found them scientifically reliable, admissible, and sufficient 

to establish triable issues of fact for purposes of summary judgment. See, e.g., In re 

3M, No. 3:19md2885, ECF No. 1680 (Packer, Spankovich, McKinley); Estes v. 3M, 

No. 7:20cv137, ECF No. 53 at 14. Irizarry’s specific causation expert, Dr. 

Armstrong, an otolaryngologist, also demonstrably considered those general 

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causation opinions and the actual designs on which the opinions were based in the 

context of his 30 years of experience with hearing protectors, and agreed, from a 

clinical perspective, that the alternative designs “could have been incorporated into 

the design of the CAEv2 earplugs without substantially changing the product and 

the feasible incorporation of those designs into the CAEv2 earplugs would have 

either eliminated the injuries suffered by...Irizarry or made those injuries less 

severe.” See Armstrong Rep., ECF No. 17-1 at 5-6, 61; see also In re Ethicon Inc. 

Pelvic Repair Sys. Prod. Liab. Litig., 2016 WL 8788207, at *4 (S.D. W. Va. Aug. 

26, 2016) (“A single expert need not provide all the pieces of the puzzle for their 

testimony to be useful to the jury in determining the ultimate issues in the case.”); 

In re Wright Med. Tech., Conserve Hip Implant Prods. Liab. Litig., 127 F. Supp. 3d 

1306, 1320 (N.D. Ga. 2015) (“The facts and data upon which an expert may rely in 

reaching an expert opinion includes the opinions and findings of other experts, if 

experts in their respective field would reasonably rely on other expert's opinions and 

findings.”); Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357, 1364 (S.D. Fla. 

2009) (“[A]n expert's testimony may be formulated by the use of the facts, data and 

conclusions of other experts, [but] such expert must make some findings and not 

merely regurgitate another expert's opinion.”). Taken together, this expert evidence 

raises genuine disputes of material fact regarding the existence of a safer alternative 

design. 

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Last, Irizarry has produced sufficient evidence that Defendant’s alleged 

failure to warn of the dangers of the CAEv2 proximately caused his injuries. To 

establish proximate cause for a failure-to-warn claim under Alabama law, the 

plaintiff must show that “an adequate warning would have been read and heeded and 

would have prevented the” injury. See Deere & Co. v. Grose, 586 So. 2d 196, 198 

(Ala. 1991); M.B.S. ex rel. Reed v. Dant Clayton Corp., No. 1:21cv553, 2023 WL 

3158945, at *5 (S.D. Ala. April 28, 2023) (quoting Deere, 586 So. 2d at 198). 

Irizarry has done so here.

As an initial matter, Irizarry has produced ample evidence that Defendant did 

not provide any warnings, must less adequate written warnings, to the Army or its 

soldiers about the dangers associated with use of the CAEv2—dangers about which 

Defendant was uniquely aware. Compare P-GEN-1 (Flange Rep. detailing alleged 

fit and variability problems with the CAEv2 that occur especially in “subjects with 

medium and large ear canal”) & Berger Tr. Wayman, ECF No. 20-10 at 4 (testifying 

that neither the Flange Rep. nor its results were “transmitted to the military”), with

P-GEN-68 (Wallet Card instructing only those with “very large ear canals” to fold 

back opposing flanges to get a better fit); Compare P-GEN-2294, ECF No. 20-9 at 

3 (internal email explaining that “[a] shooter should not go to the range and fire a 

box of shells with the yellow side”) & Internal Emails, ECF No. 20-8 at 6 (“If you 

are at the range shooting and the guns are going off a lot..., the open position of the 

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[CAEv2] is NOT going to provide protection.”), with P-GEN-1013 (marketing 

material explaining the CAEv2 will protect soldiers’ hearing from impulse noise 

such was weapons fire and explosives). Thus, the Court rejects Defendant’s attempt 

to frame the proximate cause argument in terms of whether the Army and/or Irizarry 

would have read and heeded a “different” or “additional” warning. See Def. Mot., 

ECF No. 13 at 8 (“No evidence shows a different warning to the government would 

have...caused the government not to purchase the CAEv2[, or that] an additional 

warning would have altered [Irizarry’s] particular outcome.”). On this record, the 

proper question is whether Irizarry has produced sufficient evidence that if a warning 

had ever been provided, it would have been read and heeded by both the Army and 

him, and prevented his auditory injuries. The Court finds that he has.

Irizarry has produced evidence that the Army would not have purchased the 

CAEv2 for use by its soldiers, including him, had Defendant adequately warned of 

the dangers associated with use of the CAEv2. See, e.g., P-GEN-9 (CID Report). 

Moreover, Irizarry testified that he was issued the CAEv2 in “a little package” with 

written instructions (accompanied by pictures), which he read, and was told not to 

try them on until his earplug “fitting,” which he did. See Irizarry Dep., ECF No. 20-

15 at 4-6. At the fitting, he was told that the CAEv2 was the correct size for his ear 

canal, and was taught how to insert the CAEv2 and when to use each side (e.g., green 

end for continuous noise, yellow end for “small arms fire” and situational 

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awareness). See id. at 6-9. Irizarry reportedly followed those instructions by 

wearing the green end “almost exclusively” during military noise exposures from 

November 2002 to 2006. See Armstrong Rep., ECF No. 17-1 at 40-43, 60. And, as 

the Court has already found, safer alternative designs existed that would have 

prevented Irizarry’s injuries. On this record, a reasonably jury could conclude that: 

(1) if the Army had been adequately warned of the CAEv2’s alleged dangers, it 

would have declined to purchase the CAEv2 and, instead, issued safer alternatives 

to soldiers; and (2) just as Irizarry read and followed the instructions actually given 

to him, he would have read and heeded adequate warnings, had they been provided, 

including by using a safer alternative hearing protector, which would have prevented 

his auditory injuries. This evidence is sufficient to raise a triable issue of fact under 

Alabama law regarding whether the CAEv2 proximately caused Irizarry’s injuries. 

In sum, the Court finds Irizarry has produced substantial evidence that the 

CAEv2 caused his alleged injuries; that an alternative design existed at the relevant 

time that would have reduced or eliminated his injuries; and that an adequate 

warning would have been read and heeded by the Army and Irizarry, and would have 

prevented Irizarry’s injuries. Because Irizarry has established a genuine dispute of 

material fact on proximate causation for his design defect and/or failure to warn 

claims, Defendant’s motion with respect to proximate cause for the design defect 

and failure to warn claims is denied.

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C. Implied Warranty of Merchantability4 (Count VI)

Defendant argues Irizarry’s implied warranty of merchantability claim fails

because it is displaced by the AEMLD and the record lacks evidence of pre-suit 

notice, privity, and proximate causation. The Court disagrees.

First, the AEMLD does not displace implied warranty of merchantability 

claims where there is evidence that the product was unfit for the ordinary purposes 

for which it is used.5

 See Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 

4 Alabama’s version of the Uniform Commercial Code provides for both an implied 

warranty of merchantability and an implied warranty of fitness for a particular purpose. See Ala. 

Code §§ 7-2-314 (merchantability), 7-2-315 (fitness for particular purpose). Irizarry’s complaint 

asserts a claim for “breach of implied warranty” without specifying which of Alabama’s implied 

warranties is the basis for that claim. See 1st Am. Compl., ECF No. 4 at 4. However, Irizarry’s 

response to Defendant’s motion for summary judgment on the implied warranty claim discusses 

only merchantability; it is devoid of argument—or even mention of—fitness for a particular 

purpose. See Pl.’s Resp., ECF No. 20 at 11-12. Accordingly, the Court deems any claim for 

implied warranty of fitness for a particular purpose abandoned, and grants summary judgment in 

Defendant’s favor on that claim. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995) (“[T]he onus is upon the parties to formulate arguments; grounds alleged in the 

complaint but not relied upon in summary judgment are deemed abandoned.”); see also Jones v. 

Bank of Am., N.A., 564 Fed. App’x 432, 434 (11th Cir. 2014) (stating that “when a party fails to 

respond to an argument or otherwise address a claim, the Court deems such argument or claim 

abandoned” and granting defendant’s motion for summary judgment because plaintiff failed to 

respond to certain arguments); GolTV, Inc. v. Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 

1311 n.7 (S.D. Fla. 2017) (“When a party fails to respond to an argument or address a claim in a 

responsive brief, such argument or claim can be deemed abandoned.”). 

5 This differs from implied warranty of merchantability claims where the product is fit for 

its intended use but allegedly presents other inherent dangers when used as intended; claims of 

that nature may be brought under the AEMLD but not in an action for breach of warranty. See 

Bodie, 236 Fed. App’x at 522-24 (collecting cases). So, for example, an implied warranty claim 

was not available in a case asserting dangerous addictions caused by OxyContin because the 

evidence showed that the drug was “fit for its intended pharmacological purpose of treating pain” 

but when used for that purpose it posed an inherent risk of addiction. See id.; see also In re Trasylol 

Prod. Liab. Litig., No. 1:08md1928, 2010 WL 5140439, at *13 (S.D. Fla. Feb. 16, 2010) (granting 

summary judgment on implied warranty claim where the “[p]laintiff [did] not argue that Trasylol 

was not fit for its intended use in reducing perioperative bleeding in patients undergoing cardiac 

surgery [and] provide[d] no evidence suggesting Trasylol did not successfully reduce perioperative 

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101, 106-11 (Ala. 2003); see also Bodie, 236 Fed. App’x at 523-24. In those 

circumstances “a claim alleging breach of an implied warranty of merchantability is 

separate and distinct from an AEMLD claim.” See Spain, So. 2d at 111. Here, there 

is no dispute that the ordinary and intended purpose of the CAEv2 was to protect 

wearers’ hearing by attenuating hazardous noise levels. Irizarry has produced 

substantial evidence that the CAEv2’s alleged fit and seal inadequacies (stem is too 

short, wide, and stiff; opposing flange contacts tragus causing imperceptible 

loosening) were such that, when worn as intended, the device itself created a risk of 

auditory injury rather than protecting the wearer’s hearing from hazardous noise. 

See Pl. R. 26 Expert Disclosure, ECF No. 20-1 (designating Packer, McKinley, and 

Lustig as general causation experts); Armstrong Rep., ECF No. 17-1 at 32-39 

(discussing CAEv2 fit and seal problems and consequences). This evidence is 

sufficient to establish a triable issue of material fact on whether the CAEv2 was unfit 

for its intended use as a hearing protector.6

 

bleeding,” and instead argued “that Trasylol was commercially unfit because it was unreasonably 

dangerous (in causing renal failure, etc.)”). However, an implied warranty of merchantability 

claim is cognizable under Alabama law where there is evidence that the product is unfit for its 

ordinary purposes. See, e.g., Ex parte Gen. Motors Corp., 769 So. 2d 903, 905-06 (Ala. 1999).

6 See id., 769 So. 2d at 905-06 (reversing summary judgment on implied warranty of 

merchantability claim where car buyer alleged car was not fit for ordinary purposes and produced 

evidence that the car constantly stalled—resulting in loss of power steering and brakes—while 

driving).

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Second, as already discussed, Irizarry’s specific causation expert, Dr. Michael 

Armstrong, provided a scientifically reliable basis for his opinions that the alleged 

fit and seal inadequacies of the CAEv2 caused Irizarry’s auditory injuries. See

Daubert Order, ECF No. 23 at 1-4. Because those same alleged fit and seal 

inadequacies are the basis for Irizarry’s implied warranty of merchantability claim, 

Dr. Armstrong’s opinion is sufficient to raise a triable issue of fact as to whether 

Defendant’s alleged breach of the implied warranty (i.e., by selling an earplug that 

was unfit to protect hearing) proximately caused Irizarry’s injuries. 

Third, Irizarry’s claim does not fail for lack of privity. In Alabama, there is 

no privity requirement in a personal injury claim for a seller’s breach of the implied 

warranty of merchantability.

7

 See Ala. Code § 7-2-318; Bishop v. Faroy Sales, 336 

So. 2d 1340, 1341 (Ala. 1976). Instead, a seller’s implied warranty “extends to any 

natural person if it is reasonable to expect that such person may use, consume or be 

affected by the goods and who is injured in person by breach of the warranty.” See

Ala. Code § 7-2-318. Here, Defendant was a seller and merchant of the CAEv2 for 

implied warranty purposes in that it sold millions of pairs of CAEv2 to the Army, 

including those issued to Irizarry, and sold millions more directly to the general 

public in retail stores, and generally dealt in goods of that kind (i.e., advertised and 

7 The rule is different for implied warranty claims alleging only property damage or direct 

economic loss, where privity of contract is required. See Rhodes v. Gen. Motors Corp., Chevrolet 

Div., 621 So. 2d 945, 947 (Ala. 1993). 

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sold hearing protection devices), among a myriad of other products.

8 The fact that 

it was reasonable to expect soldiers, like Irizarry, may use and be affected by the 

CAEv2s sold to the Army is not disputed by Defendant. See Def. Mot., ECF No. 13 

at 9. And again, the Court has already found the evidence sufficient to show Irizarry 

suffered personal injuries as a result of Defendant’s alleged breach of the warranty. 

Thus, the implied warranty of merchantability with respect to the CAEv2 extends to 

Irizarry under Alabama law.

Last, Irizarry’s implied warranty of merchantability claim does not fail for 

lack of pre-suit notice. The “express language” of Alabama’s Uniform Commercial 

Code “requires only buyers to give notice” of a breach as a condition precedent to 

bringing a breach of warranty claim. See Simmons v. Clemco Indus., 368 So. 2d 

509, 513 (Ala. 1979) (interpreting pre-suit notice statute, Ala. Code § 7-2-607); see

also Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468, 1474 (11th Cir. 1986)

(applying Alabama law); Lowery v. Sanofi-Aventis LLC, 535 F. Supp. 3d 1157, 

1174-75 (N.D. Ala. 2021) (same). Warranty beneficiaries under Ala. Code § 7-2-

8 “[I]mplied warranties are applicable only to sellers.” See Ex parte Gen. Motors Corp., 

769 So. 2d at 910. However, “a seller is anyone who sells, including a manufacturer or distributor.” 

Bishop v. Faroy Sales, 336 So. 2d 1340, 1343 (Ala. 1976) (discussing Ala. Code § 7-2-103(1)(d)); 

Avery v. Cobra Enter. of Utah, Inc., 2013 WL 2352320, at *3 (N.D. Ala. May 23, 2013); see also 

Ala. Code § 7-2-314(1) (warranty of merchantability “is implied in a contract for sale if the seller 

is a merchant with respect to goods of that kind”); id. at § 7-2-103(1)(d) (“‘Seller’ means a person 

who sells or contracts to sell goods.”); id. at § 7-2-104(1) “‘Merchant’ means a person who deals 

in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill 

peculiar to the practices or goods involved in the transaction”).

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318, like Irizarry, are not required to give pre-suit notice.9 See Simmons, 368 So. 2d 

at 513 (“Since the express language of the [Alabama] Code requires only buyers to 

give notice and a warranty beneficiary is not within the definition of buyer, notice is 

not required of such beneficiaries.”). 

In sum, the Court finds Irizarry’s implied warranty of merchantability claim 

is not displaced by the AEMLD, does not require pre-suit notice or contractual 

privity, and is supported by sufficient evidence of proximate causation. 

Consequently, Defendant’s motion for summary judgment on this claim is denied.

D. Fraud-Based Claims (Counts VII-X)

Defendant argues that all of Irizarry’s fraud-based claims—which Defendant 

defines to include the claims for negligent misrepresentation, fraudulent 

misrepresentation, fraudulent concealment, and fraud and deceit—fail for lack 

evidence of reasonable reliance.

10 The Court disagrees.

9 Again, a warranty beneficiary includes “any natural person if it is reasonable to expect 

that such person may use, consume or be affected by the goods and who is injured in person by 

breach of the warranty.” See Ala. Code § 7-2-318. 

10 Defendant’s motion also cursorily states that Irizarry did not “plead with particularity 

the facts as to time, place, and substance of the defendant’s fraud” as required by Federal Rule of 

Civil Procedure 9(b). See Def. Mot., ECF No. 11-12. This argument is both untimely and fails on 

the merits. As to the merits, Irizarry’s complaint adopts and incorporates by reference the MDL 

Master Long Form Complaint, which describes the alleged fraud in great detail. See Irizarry 1st 

Am. Compl., ECF No. 4 at 1; In re 3M, No. 3:19md2885, Master Long Form Compl., ECF No. 

704. In any event, the Court has already found the evidence sufficient to establish the only disputed 

element of Irizarry’s fraud-based claims (reasonable reliance), and the Court finds no basis to 

evaluate whether the conduct was pled with sufficient particularity—years ago, at this point—

when the evidence itself is sufficiently particular. See Firstar Bank, N.A. v. Faul Chevrolet, Inc., 

249 F. Supp. 2d 1029, 1043 (N.D. Ill. 2003) (same). Regarding timeliness, Rule 9(b) particularity 

arguments typically should be addressed through a motion filed pursuant to Rule 12(e), not on 

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Under Alabama law, “reasonable reliance” is an essential element of any fraud 

or negligent misrepresentation claim. See Foremost Ins. Co. v. Parham, 693 So. 2d 

409, 421 (Ala. 1997) (fraud); Bryant Bank v. Talmage Kirkland & Co., Inc., 155 So. 

3d 231, 238 (Ala. 2014) (negligent misrepresentation). However, “it is not always 

necessary to prove that a misrepresentation was made directly to the person who 

claims to have been injured.” Thomas v. Halstead, 605 So. 2d 1184 (Ala. 1992). 

Instead, reasonable reliance may be shown by evidence that: (1) defendant made 

misrepresentations to third-parties intending that other persons also would rely and 

act on them; (2) the plaintiff is in the class of persons so contemplated; and (3) the 

plaintiff reasonably and foreseeably relied and acted on the misrepresentations. See

Delta Health Grp., Inc. v. Stafford, 887 So. 2d 887, 898-99 (Ala. 2004) (quoting

Thomas v. Halstead, 605 So. 2d 1181, 1184-85 (Ala. 1992)); see also Sims v. Tigrett, 

158 So. 326, 330 (Ala. 1934); Bush v. Tchrs. Ins. & Annuity Ass’n of Am., No. 

1:05cv378, 2006 WL 3075539, at n.9 (M.D. Ala. Oct. 30, 2006) (quoting Seward v. 

Dickerson, 844 So. 2d 1207, 1212 (Ala. 2002)). “Whether a plaintiff has reasonably 

summary judgment. See McCarthy v. Ameritech Pub., Inc., 763 F.3d 469, 478 n.2 (6th Cir. 2014); 

Bank of Mongolia v. M&P Glob. Fin. Serv., No. 0:08cv60623, 2010 WL 115497111, at *5 (S.D. 

Fla. Sept. 3, 2010); Puckett v. McPhillips Shinbaum, No. 2:06cv1148, 2008 WL 906569, at *24 

(M.D. Ala. Mar. 31, 2008). For these reasons, the Court declines to grant summary judgment in 

favor of Defendant based on any argument that the fraud-based claims fail to comply with Rule 

9(b).

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relied on a defendant’s misrepresentation is usually a question of fact.” Sampson v. 

HeartWise Health Sys. Corp., --- So. 3d ---, 2023 WL 3668558, at *13 (Ala. 2023). 

Here, there is ample record evidence to raise a triable question of fact as to 

whether Irizarry reasonably relied on Defendant’s alleged misrepresentations. More 

specifically, there is evidence that Defendant affirmatively misrepresented material 

information regarding the safety and efficacy of the CAEv2, including the use of its 

yellow end on a gun range, and concealed known dangers associated with the 

CAEv2, from both the Army and soldiers, like Irizarry. See, e.g., CAEv2 Mil. 

Advert., ECF No. 20-19 at 10 (representing the CAEv2 as “protective up to 

approximately 190 dBP” and “sufficient to cover most of the weapons in the military 

inventory, including shoulder-fired rockets”); CAEv2 Mil. Advert., ECF No. 20-20 

at 4 (stating that the CAEv2 “fits most ear canals” and representing yellow end of 

CAEv2 as protective against “weapons fire and explosions”); id. at 5 (representing 

that “[t]he chance of permanent hearing damage or disorientation from explosion is 

greatly reduced or eliminated” by the yellow end of the CAEv2); 3M Mil. Sales 

Powerpoint, ECF No. 20-21 at 3 (representing CAEv2 as “One-Size-Fits-All”); 

CAEv2 Mil. Advert., ECF No. 20-22 (“You Protect Us. We Protect You.”); id. 

(“Hear the action now, hear life later.”). The evidence also is sufficient to establish 

that Defendant intended both the Army and soldiers to rely and act on the 

misrepresentations by purchasing, recommending, and/or wearing the CAEv2 to 

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protect soldiers’ hearing. See id.; see also Moses 30(b)(6) Dep., ECF No. 20-18

(agreeing that “it was certainly 3M’s understanding that decision-maker’s in the 

military would be relying on the truth of the company’s statements about the 

performance and safety of its products...[, among other internal testing...or other 

information that [the military] might seek to find”). Finally, there is evidence that 

Irizarry did, in fact, receive on verbal and written instructions regarding the safety, 

efficacy, and proper use of the CAEv2, and he relied on those instructions to protect 

his hearing from hazardous noise. See Irizarry Dep., ECF No. 20-15 at 4-9; 

Armstrong Rep., ECF No. 17-1 at 40-43, 60. On this record, a reasonable jury could 

find that Defendant made affirmative misrepresentations about the CAEv2 to the 

Army intending both the Army and individual soldiers would rely on them, that 

Irizarry was in the class of persons that Defendant intended to influence with the 

misrepresentations (i.e., a soldier), and that Irizarry reasonably and foreseeably 

relied on the misrepresentations in choosing to use the CAEv2 during his military 

service. See James v. 3M, No. 7:20cv12243, ECF No. 29 at 5-7 (same); Beal v. 3M, 

No. 7:20cv006, ECF No. 113 at 5 (same); Adkins v. 3M, No. 7:20cv012, ECF No. 

58 at 4-5. Therefore, Defendant’s motion for summary judgment on the fraud-based 

claims is denied.

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E. Gross Negligence (XI)

Defendant argues that Irizarry’s gross negligence claim fails because Alabama 

law evaluates such claims “using the same elements and standards applicable to 

ordinary negligence claims.” See Def. Mot., ECF No. 13 at 12. However, that does 

not compel summary judgment on the claim. While a “gross negligence claim under 

Alabama law is properly evaluated” using ordinary negligence elements and 

standards, see Polk v. Bang, No. 1:20cv093, 2021 WL 3577962, at *3 (S.D. Ala. 

Aug. 12, 2021), it does require proof of “a greater degree of” culpable conduct than 

simple negligence (although less than wantonness), see Coca-Cola Bottling Co. 

United, Inc. v. Stripling, 622 So. 2d 882, 885 (Ala. 1993); see also Miller v. Bailey, 

60 So. 3d 857, 867-68 (Ala. 2010). Applying those principles, district courts 

generally consider gross negligence claims separate and apart from simple 

negligence claims, and allow them to proceed where adequately supported. See, e.g., 

Murray v. CSX Transp., Inc., No. 1:21cv58, 2022 WL 584076, at *2 (S.D. Ala. Feb. 

25, 2022); Moore v. Pilot Travel Ctrs., LLC, No. 5:18cv1440, 2020 WL 1083206, 

at *4-5 (N.D. Ala. Mar. 4, 2020); Craft v. Triumph Logistics, Inc., 107 F. Supp. 3d 

1218, 1220 n.1 (M.D. Ala. 2015). So too here. Because Defendant has offered no 

other grounds for summary judgment on Irizarry’s gross negligence claim, nor even 

argued that the claim lacks evidentiary support, see Def. Mot., ECF No. 13 at 12, the 

claim remains. 

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F. Unjust Enrichment (Count XV)

Defendant moves for summary judgment on Irizarry’s unjust enrichment 

claim because Alabama law does not permit a plaintiff to bring a claim for unjust 

enrichment alongside an express warranty claim.11 However, Irizarry has 

abandoned his express warranty claim. See Pl. Resp., ECF No. 20 at 1. Because 

there no longer is an express warranty claim and Defendant has offered no other 

grounds for summary judgment on the unjust enrichment claim, the motion is denied. 

See Aldridge, 2020 WL 1308335, at *5 (denying summary judgment on unjust 

enrichment claim under Alabama law where plaintiff “conceded dismissal” of 

express warranty claim). 

G. Punitive Damages (Count XVI)

Defendant argues that “Irizarry cannot recover punitive damages” because 

“[t]here is no separate cause of action in Alabama for punitive damages.” See Def. 

Mot., ECF No. 13 at 13. While it is true that punitive damages are not a distinct 

claim under Alabama law, “there are claims on which [Alabama] law authorizes the 

trier of fact to impose punitive damages if certain wrongfulness is proved by a 

11 See White v. Microsoft Corp., 454 F. Supp. 2d 1118, 1133 (S.D. Ala. 2006) (“[W]here a 

plaintiff has brough claims sounding in both express contract and quasi-contract [(i.e., unjust 

enrichment)] as to the same subject matter, Alabama courts have deemed the quasi-contract claim 

not to be cognizable.”); Callaway v. E.H. Smith Elec. Contractors, Inc., 814 So. 2d 893, 899 (Ala. 

Civ. App. 2001) (affirming dismissal of quasi-contract claim due to existence of valid, binding 

contract between parties covering the same subject matter).

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sufficient weight of the evidence.” See Horn v. Brown, 4 So. 3d 1106, 1109 (Ala. 

2008); see also Ala. Code § 6-11-20 (authorizing punitive damages awards “in a tort 

action where it is proven by clear and convincing evidence that the defendant 

consciously or deliberately engaged in oppression, fraud, wantonness, or malice”). 

Based on the foregoing, Irizarry’s separate cause of action for punitive damages will 

be deemed abandoned, and summary judgment on that separate claim granted in 

Defendant’s favor. However, this does not preclude Irizarry from pursuing punitive 

damages at trial to the extent permitted by Alabama law. See, e.g., Irizarry 1st Am. 

Compl., ECF No. 4 at 1 (adopting and incorporating by reference the “allegations, 

claims, and requested relief as set form in the [MDL] Master Long Form 

Complaint”); Master Long Form Compl., ECF No. 704 at 52, 55, 57, 61 (including 

punitive damages in prayer for relief on all counts and alleging requisite basis for 

the award). 

Accordingly, Defendant’s Motion for Summary Judgment, ECF No. 13, is 

GRANTED IN PART and DENIED IN PART, as follows:

1. Summary judgment is GRANTED in Defendant’s favor with respect 

to Irizarry’s claims for breach of express warranty (Count V), breach of 

implied warranty of fitness for a particular purpose (Count VI), 

negligence per se (Count XII), and consumer fraud and/or unfair trade 

practices (Count XIII).

2. Summary judgment is GRANTED in Defendant’s favor with respect 

to Irizarry’s separate cause of action for punitive damages (Count XVI); 

however, this does not preclude Irizarry from pursuing punitive 

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damages for his substantive claims at trial to the extent permitted by 

Alabama law.

3. Summary judgment is DENIED in all other respects.

SO ORDERED, on this 22nd day of June, 2023.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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