1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS LIABILITY 

LITIGATION 

This Document Relates to: 

Wayman, 7:20cv149 

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

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

DEFENDANTS’ RESPONSE TO PLAINTIFF’S POST-TRIAL BRIEF 

REGARDING COLORADO’S STATUTORY CAPS ON DAMAGES 

 Mr. Wayman concedes that Colorado law limits awards for noneconomic 

damages to an inflation-adjusted amount—currently $468,010.00. See Colo. Rev. 

Stat. § 13-21-102.5. Yet, in his post-trial brief, he argues that the statutory cap 

should be multiplied six times for each of the six corporate Defendants. In doing so, 

he argues for the first time—indeed, the first time any plaintiff in this litigation has 

argued—that the defendants should be treated individually, rather than collectively, 

in assessing liability. That conclusion is not compelled by Colorado law and is 

entirely inconsistent with the pleadings and the positions Mr. Wayman took at trial. 

It is true, as Mr. Wayman argues, that the Colorado Supreme Court stated that 

“the cap in section 13-21-102.5 applies to the liability share of each defendant in a 

case, and does not act as a cap on the total amount a plaintiff can recovery.” Gen. 

Elec. Co. v. Niemet, 866 P.2d 1361, 1362 (Colo. 1994). But Niemet addressed—and 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 1 of 7
 2 

answered—an entirely different question than the one presented here. Viewed in its 

proper context, Nieman fully supports Defendants’ position. 

The Colorado legislature abolished joint and several liability (other than for 

conspiracy) decades ago and replaced it with pro rata liability. See Colo. Rev. Stat. 

§ 13-21-111.5. Under that statute, “no defendant shall be liable for an amount 

greater than that represented by the degree or percentage of the negligence or fault 

attributable to such defendant.” Id. The statute also requires juries to return a special 

verdict determining the percentage of liability for both parties and non-parties. Id. 

Thus, as the Colorado Supreme Court noted, the sole issue presented in 

Nieman was “the relationship between section 13-21-102.5, which limits 

noneconomic damages in a civil action, and section 13-21-111.5, the pro rata 

liability statute.” Nieman, 866 P.2d at 1362 (citations omitted). Or, “the issue is 

whether a trial court should apply the statutory cap on noneconomic damages before 

or after it rules on the pro rata liability of the defendants and the plaintiff.” Id. at 

1363. The court found the damages cap statute ambiguous on this point. See id. at 

1364. But after examining the legislature history, the court concluded that a trial 

court “should apportion pro rata liability among the defendants and plaintiff before 

it applies the statutory cap of section 13-21-102.5.” Nieman, 866 P.2d at 1367. 

Notably, the decision in Neiman assumed that the plaintiff had proven—and 

the fact finder had determined—pro rata liability against more than one tortfeasor. 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 2 of 7
 3 

Nothing in Nieman suggests that a plaintiff could recover multiple capped amounts 

from defendants sharing a single vicarious liability for an injury. This is especially 

true under the facts here given the allegations in the Master Complaint, the way Mr. 

Wayman litigated the case through trial, and the reality that the Defendants are, in 

fact, for purposes of liability in this case, one and the same. 

First, in the Master Complaint, Plaintiffs do not differentiate the potential 

liabilities of the six defendants at all. To the contrary, Plaintiffs specifically allege 

that “Defendant 3M is liable for Aearo Defendants’ conduct.” Case No. 3:19-md02885-MCR-GRJ, ECF 704 at ¶ 21. Thereafter in the Master Complaint—including 

in every cause of action—Plaintiffs refer to the six corporate defendants collectively 

as “Defendants” and nowhere do they assert that any of the six corporate defendants 

committed any actions or omissions different from the others. 

Second, Mr. Wayman tried the case the same way. He presented no evidence 

that would have permitted a jury to allocate fault differently to any of the Defendants. 

He did not request jury instructions on pro rata liability, nor did he request that the 

jury be asked to apportion fault among the Defendants on the verdict form. See ECF 

122 (Plaintiff’s proposed verdict form). In fact, the Court’s instructions (without 

objection) referred to the Defendants collectively as “3M.” Trial Tr. 1/27/2022 at 

33:13-17. And in closing arguments, his attorneys again asked for a single collective 

verdict against the Defendants. Id. at 135:15 (asking for an amount to “change 3M”). 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 3 of 7
 4 

Third, regardless of their corporate form, the Defendants share the same 

potential liability in this case. Specifically, in their answer to the Master Complaint, 

Defendants admitted the allegations in paragraphs 18 and 19. See Case No. 3:19-

md-02885-MCR-GRJ, ECF 800 at ¶¶ 18-19. In those paragraphs, Plaintiffs allege: 

18. On or about November 15, 2007, 3M and/or 3M 

Occupational Safety LLC (collectively, “3M Defendants”) 

acquired Aearo Holding LLC, Aearo Intermediate LLC, 

Aearo LLC, and Aearo Technologies LLC (collectively, 

“Aearo Defendants”) for approximately $1.2 billion. 

19. Defendant Aearo Technologies LLC’s sole 

member is Defendant Aearo LLC, whose sole member is 

Defendant Aearo Intermediate LLC, whose sole member 

is Defendant Aearo Holding LLC, whose sole member is 

Defendant 3M Occupational Safety LLC, whose sole 

member is Defendant 3M. 

Case No. 3:19-md-02885-MCR-GRJ, ECF 704 at ¶¶ 18-19. Thus, 3M Company 

owns and controls 100% of the other five named defendants, rendering any 

suggestion that they are six separate parties for purposes of this litigation illusory. 

In short, Mr. Wayman—and all the Plaintiffs in this litigation—made a 

strategic decision to treat the six corporate defendants as one and the same for 

liability purposes. Having done that—successfully here—Mr. Wayman cannot now 

receive six times the statutory cap simply because he chose to name 3M Company 

and five wholly-owned subsidiaries in his complaint. Nothing in the language of 

section 13-21-102.5 or the holding in Neiman dictates that result. 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 4 of 7
 5 

Dated: February 23, 2022 Respectfully submitted, 

/s/ Robert C. Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo LLC 

 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 5 of 7
 6 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

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

memorandum contains 907 words. 

Dated: February 23, 2022 Respectfully submitted, 

/s/ Robert C. Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo LLC 

 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 6 of 7
 7 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY this 23rd day of February 2022, a true and correct 

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

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

counsel of record. 

Dated: February 23, 2022 Respectfully submitted, 

/s/ Robert C. Brock 

 Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding, 

LLC, Aearo Intermediate, LLC and 

Aearo LLC 

Case 7:20-cv-00149-MCR-GRJ Document 194 Filed 02/23/22 Page 7 of 7