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: 

Hacker, 7:20cv131

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

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

ECF No. 50. On full consideration, the motion is GRANTED in part and DENIED

in part.

I. Legal Standard

Summary judgment is appropriate where there are no genuine disputes of 

material fact and the moving party is entitled to judgment as a matter of law. See 

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 

A fact is “material” if, under the applicable substantive law, it might affect the 

outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 

(11th Cir. 2004). A dispute of fact is “genuine” if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

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

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The burden of demonstrating the absence of a genuine dispute of material fact 

rests with the moving party. Celotex, 477 U.S. at 323. In determining whether the 

moving party has carried its burden, a court must view the evidence and factual 

inferences drawn therefrom in the light most favorable to the non-moving party. 

Liberty Lobby, 477 U.S. at 255; Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 

1997).

II. Background

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

and nature of this multidistrict litigation. Plaintiff Stephen Hacker raises fifteen 

claims under Kentucky law1 against Defendants arising from injuries he alleges were 

caused by his use of the Combat Arms Earplug (“CAEv2”) during his military 

service. See Second Am. Short Form Compl., ECF No. 13.2 Defendants raise several 

affirmative defenses, including that the actions of a nonparty, the United States, are

the actual, contributing, intervening, or superseding cause of Hacker’s injuries. See 

ECF No. 15 at pp. 3–9, ¶¶ 4, 14, 16–17.

1 The Court previously ruled that Kentucky law applies to Hacker’s claims. See ECF 

No. 38.

2 Specifically, Hacker raises claims for Design Defect – Negligence (Count I), Design 

Defect – Strict Liability (Count II), Failure to Warn – Negligence (Count III), Failure to Warn –

Strict Liability (Count IV), Breach of Express Warranty (Count V), Breach of Implied Warranty 

(Count VI), Negligent Misrepresentation (Count VII), Fraudulent Misrepresentation (Count VIII), 

Fraudulent Concealment (Count IX), Fraud and Deceit (Count X), Gross Negligence (Count XI), 

Negligence Per Se (Count XII), Consumer Fraud and/or Unfair Trade (Count XIII), Unjust 

Enrichment (Count XV), and Punitive Damages (Count XVI).

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III. Discussion

Hacker moves for summary judgment on Defendants’ affirmative defenses

relating to the alleged fault of the United States military in causing his injuries. He 

argues that the Defendants’ apportionment defense fails as a matter of law because 

the United States has never been a party to this litigation, as required by Kentucky’s 

apportionment statute. He further argues that the Defendants’ affirmative defenses 

relating to the United States’ role in causing his injuries fail as a matter of law for 

the additional reason that Defendants have not provided sufficient evidence to show 

that the United States proximately caused any portion of his injuries. In response, 

Defendants concede that their apportionment defense fails but argue that they have 

provided sufficient record evidence to raise a triable issue of fact as to their other 

government-fault defenses.

The Court finds that Defendants have offered sufficient evidence to create a 

fact dispute as to whether the United States military proximately caused Hacker’s 

injuries. Hacker argues that Defendants’ government-fault affirmative defenses fail 

because Defendants have failed to offer expert medical testimony establishing a 

causal link between the United States military’s conduct and his injuries. He further 

argues that even if expert testimony were not required, Defendants have failed to 

introduce sufficient non-expert evidence to create a triable issue of fact on proximate 

causation. It is Defendants’ burden to demonstrate proximate cause. See Logan v. 

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Cooper Tire & Rubber Co., No. 10-03, 2011 WL 3267831, at *2–3 (E.D. Ky. July 

29, 2011). For the following reasons, the Court finds that Hacker’s motion is due to 

granted, in part, and denied, in part.

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

government-fault defenses involve a question of medical causation requiring expert 

testimony. See Fulcher v. United States, 88 F. Supp. 3d 763, 771 (W.D. Ky. 2015); 

Blair v. GEICO Gen. Ins. Co., 917 F. Supp. 2d 647, 657 (E.D. Ky. 2013). This 

inquiry turns on the theory of injury alleged. See Garrison v. Sam’s E., Inc., No. 

1:16-CV-152, 2019 WL 3535991, at *3–4 (W.D. Ky. Aug. 2, 2019). Defendants 

identify three alleged omissions by the United States military as potential alternative 

causes of Hacker’s injuries: (1) its failure to ensure Hacker was fit with the CAEv2 

by medically trained personnel and to subsequently conduct annual examinations of 

the fit of his CAEv2, (2) its failure to conduct annual audiograms for Hacker in 

certain years, and (3) its failure to adequately instruct Hacker on the proper use of 

his CAEv2. The Court finds that Defendants’ second theory of injury—that a failure 

to conduct annual audiograms in certain years contributed to Hacker’s injuries—is 

a medical question about causation that lay jurors could not answer based on 

experience and common sense. Cf. Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572, 

579 (Ky. 2019) (in medical malpractice case, holding that expert medical testimony 

was necessary to establish that earlier medical intervention would have limited the 

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plaintiff’s injuries). Defendants do not present expert medical testimony that the 

military’s alleged failure to conduct annual audiograms in certain years contributed 

in any way to Hacker’s injuries. Accordingly, Hacker’s motion is granted as to this 

theory of causation.

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

medical question requiring expert medical testimony. While medical expert 

testimony is necessary to establish a causal connection between Hacker’s injuries 

and his exposure to noises during his military service, see Lacefield v. LG Elecs., 

Inc., No. 3:06-12, 2008 WL 544472, at *4, *7 (E.D. Ky. Feb. 26, 2008) (concluding 

that expert medical testimony was necessary to show that the volume of a cell 

phone’s ring caused the plaintiff’s hearing loss and tinnitus), the record contains 

sufficient medical expert testimony to support a jury finding that Hacker’s military 

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

theories of causation—that Hacker was exposed to injurious noises because the 

United States military did not ensure his CAEv2 earplugs were properly fitted or 

provide him with adequate instruction on the proper use of the CAEv2—is not the 

type of medical question that requires expert medical testimony under Kentucky law. 

Cf. Tatham v. Palmer, 439 S.W.2d 938, 939 (Ky. 1969) (“It is within the realm of 

common knowledge that a severe blow to the head will cause headaches and that 

severe shock . . . will produce nervousness . . . .”); Garrison, 2019 WL 3535991, at 

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*3 (“Jurors do not need a medical degree to find that falling results in pain, so 

Plaintiff does not need expert testimony on this particular question.”). 

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

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

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

preformed earplugs,” see Tuten Report at 9 (quoting DA Pamphlet 40-501), and 

Department of Defense (“DoD”) regulations state that “[p]ersonnel shall receive 

adequate and effective training in the proper care and use of personal hearing 

protectors,” see DoD Instruction 6055.12 ¶ 6.6.10. Further, based on Hacker’s 

deposition testimony and interrogatory responses, there is evidence that the United 

States military did not fit him with the CAEv2 or provide him adequate instructions 

on using the CAEv2. See Response to Interrogatory No. 28 (“I do not recall a ‘fitting’ 

process.”); Hacker Depo. Tr. at 157:14–16 (testifying that he does not remember 

being fitted with the CAEv2 by an audiologist or another technician); 127:14–21

(making no mention of the flange-fold fitting technique when asked what 

instructions he received on inserting the CAEv2). Thus, based on the evidence, a 

jury could “reasonably infer from common or a layman’s knowledge that” Hacker’s 

hearing-related injuries occurred when he was exposed to loud noise due to 

inadequate fitting of his CAEv2 or instruction on the proper use of his CAEv2. See 

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Taylor v. Brandon, No. 3:14-cv-588, 2019 WL 7454712, at *2 (W.D. Ky. Sept. 30, 

2019) (citation omitted). 

Accordingly,

1. Hacker’s motion for summary judgment, ECF No. 50, is GRANTED in 

part and DENIED in part.

2. The motion is GRANTED as to (1) Defendants’ apportionment defense 

and (2) Defendants’ other government-fault affirmative defenses to the 

extent those defenses are based on the United States military’s alleged 

failure to conduct annual audiograms for Hacker.

3. The motion is otherwise DENIED.

DONE AND ORDERED this 17th day of February 2021.

M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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