UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

LIABILITY LITIGATION

Case No. 3:19md2885

This Document Relates to:

Wayman, 7:20-cv-149

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

Following a trial in January 2022, a jury awarded Plaintiff William Wayman 

$10,000,000 in noneconomic damages, $5,000,000 in physical impairment damages, 

and $40,000,000 in punitive damages against Defendant 3M. ECF No. 186. Under 

Colorado law, statutory caps and prejudgment interest apply to certain damages 

awards, and these issues must be decided prior to entry of final judgment. The 

parties, therefore, have submitted briefing on these issues and they are now ripe for 

resolution. 

I. Compensatory Damages

Under Colorado law, compensatory damages for a tort claim include physical 

impairment damages, noneconomic damages, and prejudgment interest. The Court 

will address each in turn.

First, under Colorado law, there is no limit on damages for physical 

impairment. See Colo. Rev. Stat. § 13-21-102.5(5) (“Nothing in this section shall be 

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construed to limit the recovery of compensatory damages for physical impairment 

or disfigurement.”). Therefore, the jury’s award of $5,000,000 for Wayman’s 

physical impairment will not be reduced prior to entry of final judgment. 

Colorado does have a statutory cap on noneconomic damages, however. See 

Colo. Rev. Stat. § 13-21-102.5(3)(a). This damages cap is $468,010, which can be 

increased to a maximum of $936,030 on a trial court’s finding that an increase is 

justified by “clear and convincing evidence.”1 See ECF No. 190-1 (Official 

Certificate from the Colorado Secretary of State providing the updated statutory caps 

on noneconomic damages); see also Colo. Rev. Stat. § 13-21-102.5(3)(a); see also

Pisano v. Manning, --- P.3d ---, 2022 WL 480895, at *4 (Colo. App. Feb. 17, 2022) 

(citing Colwell v. Mentzer Invs., Inc., 973 P.2d 631, 639 (Colo. App. 

1998)(explaining that “[a] ‘justification’ is an acceptable reason for doing something. 

Therefore, the court must find a reason, by clear and convincing evidence, to award 

damages above the statutory limit.”). Although the statute is silent on what 

constitutes an adequate justification for increasing the cap, Colorado courts have 

1 The original noneconomic damages cap was $250,000, which could be increased to a 

maximum of $500,000. Colo. Rev. Stat. § 13-21-102.5(3)(a). However, the cap is subject to an 

inflation adjustment, which is determined by the accrual date of the plaintiff’s claims and the 

inflation rate calculated by the Colorado Secretary of State. Colo. Rev. Stat. § 13-21-

102.5(3)(c)(I)-(III). The inflation adjusted cap for all claims that “accrue on and after January 1, 

2008 and before January 1, 2020” is “$468,010, which may be increased . . . to a maximum of 

$936,030.” ECF No. 190-1 (Official Certificate of the Colorado Secretary of State). Since the 

parties agree that Wayman’s claims accrued in 2019, see ECF No. 197, the noneconomic cap is 

$468,010, which can be increased to a maximum of $936,030 on the requisite finding by the Court.

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recognized that a valid justification could include “a finding that the Plaintiff’s 

noneconomic injuries are unusually severe.” Id. (citing Schwab v. Martino, Case No. 

05-cv-01456, 2007 WL 4522714, at *4 (D. Colo. Dec. 17, 2007)). In determining 

whether adequate justification exists, the court has broad discretion to “consider any 

factors it deems relevant.” Id.

In this case, the parties disagree on whether there is clear and convincing 

evidence to support an increase to the statutory cap. ECF No. 189 at 4; ECF No. 190 

at 4. Defendants argue that Wayman’s injuries are not unusually severe because he 

has continued to excel at his job, has not been subject to physical restrictions by 

doctors, and is able to care for himself and his family. ECF No. 189 at 4–5 (citing 

Pisano, 2022 WL 480895 at *5). Wayman argues that the clear and convincing trial 

evidence shows that his injuries are unusually severe. ECF No. 190 at 3. The Court 

agrees with Wayman.

As noted, Colorado law draws a clear distinction between physical 

impairment damages and noneconomic damages. See Colo. Rev. Stat. §§ 13-21-

102.5(3), 13-21-102.5(5) (capping noneconomic damages and explicitly excluding 

physical impairment damages). Noneconomic damages are defined as 

“nonpecuniary harm . . . including pain and suffering, inconvenience, emotional 

distress, and impairment of the quality of life.” Colo. Rev. Stat. § 13-21-102.5(2)(b). 

In making their argument, Defendants focus solely on Wayman’s physical abilities, 

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overlooking evidence of the immense impact that Wayman’s hearing injuries have 

on his mental state and quality of life. More specifically, the trial record reflects that 

Wayman has permanent hearing damage that affects his ability to hear at high 

frequencies, Trial Tr. 1/20/2022 at 231, 233, and permanent “severe to catastrophic 

tinnitus” that cannot be “masked effectively,” id. at 240–41, 243, 246, both of which 

affect his ability to understand speech. Id. at 32, 35–37, 234. Due to these injuries 

Wayman has lost confidence in his ability to communicate with others, he feels 

unsafe outside of his home, and he has lost contact with his closest friends. Trial Tr. 

1/19/2022 at 120, 253. Even within his home, Wayman’s inability to understand 

speech has affected his bond with his wife and children who are forced to repeat 

themselves several times during meaningful interactions. Id. at 130–131.

Additionally, regarding Wayman’s tinnitus, which is constant, the sound resembles 

a high pitch ringing, see id. at 92, that reminds him of an incident involving the death 

of his close friend and fellow Army ranger who died in Wayman’s arms following a 

surprise mortar attack in Iraq. Id. at 106–107, 126. This constant ringing “infuriates” 

Wayman, causing him to lose focus, lose sleep, and question his continued sanity. 

Id. at 104–105, 131, 134; see D-WAYMAN-1228 (medical record created during 

Wayman’s military service that describes how Wayman’s tinnitus affects his ability 

to sleep); Trial Tr. 1/20/22 at 244–45 (Dr. Lustig explaining that Wayman reported 

that his tinnitus “interferes with his concentration,” causes him “significant difficulty 

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sleeping,” and “causes him to become depressed and anxious”). Wayman’s impact 

testimony was compelling and provides clear and convincing evidence that Wayman 

has suffered and will continue to suffer “unusually severe” emotional distress and 

loss of quality of life due to his hearing-related injuries. See Pisano, 2022 WL 

480895 at *5; see also Colo. Rev. Stat. § 13-21-102.5(2)(b). Therefore, the Court 

will increase the statutory cap to $936,030.

Wayman also argues that the noneconomic damages cap should be multiplied 

by the number of Defendants, relying on General Electric Company v. Niemet. See 

ECF No. 190 at 2 (citing Gen. Elec. Corp. v. Niemet, 866 P.2d 1361 (Colo. 1994)). 

In Niemet, the Colorado Supreme Court explained that the cap on noneconomic 

damages “does not act as a cap on the total amount a plaintiff may recover from 

several defendants.” 866 P.2d at 1368. Instead, “a trial court should apportion pro 

rata liability among the defendants and plaintiff before it applies the” statutory cap 

for noneconomic damages. Id. Thus, when a jury apportions fault to more than one 

party, the trial court should apportion liability based on the jury’s verdict and then 

apply the statutory cap to the total amount a particular defendant is liable for. See id.

Wayman’s reliance on Niemet is misplaced because the jury in his case only 

found fault by one party, the Defendants, who were treated collectively as “3M” by 

the Court and the parties throughout the trial. See ECF No. 185. Under Niemet, the 

noneconomic damages cap applies after apportioning liability consistent with the 

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jury’s verdict. 866 P.2d at 1368. Here, the Defendants - collectively as “3M” - were 

found to be 100% at fault for $10,000,000 in noneconomic damages., ECF No. 185.

Accordingly, no defendant multiplier applies. 

Last, Wayman seeks a prejudgment interest award. In a diversity case such 

as this, state substantive law governs an award of prejudgment interest. SEB S.A. v. 

Sunbeam Corp., 476 F.3d 1317, 1320 (11th Cir. 2007) (quoting Royster Co. Union 

Carbide Corp., 737 F.2d 941, 948 (11th Cir. 1984)). Under Colorado law,

“[p]rejudgment interest in a personal injury case is an element of compensatory 

damages, ‘awarded to compensate the plaintiff for the time value of the award 

eventually obtained against the tortfeasor.’” Old Republic Ins. Co. v. Ross, 180 P.3d 

427, 437 (Colo. 2008) (quoting Allstate Ins. Co. v. Starke, 797 P.2d 14, 18–19 (Colo. 

1990)); See Colo. Rev. Stat. § 13-21-101(1). A prejudgment interest award must be 

based on the amount of final judgment once the statutory cap has been applied, see 

Morris v. Goodwin, 185 P.3d 777, 780 (Colo. 2008) (“[W]e conclude that the statute 

must be interpreted to provide interest on the amount awarded by final judgment, 

regardless of the jury’s determination.”). Colorado law does not allow for

prejudgment interest on exemplary damages, whether punitive damages, see Ballow 

v. PHICO Ins. Co., 878 P.2d 672, 683 (Colo. 1994), or treble damages under the 

Colorado Consumer Protection Act (CCPA). See Becker & Tenenbaum v. Eagle 

Restaurant Co., Inc., 946 P.2d 600, 602 (Colo. App. 1997). Finally, prejudgment 

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interest begins “from the date the action accrued.” Colo. Rev. Stat. § 13-21-101, 

which is “on the date both the injury and its cause are known or should have been 

known by the exercise of reasonable diligence.” Colo Rev. Stat. § 13-80-108(1).

Thus, to calculate prejudgment interest there must be a total amount in compensatory 

damages, an accrual date, an interest rate, and a final judgment date. Here, the final 

compensatory damages amount is $5,936,030, and the final judgment date is the date 

of this Order. Regarding the accrual date and applicable interest rate, the parties 

agree that Wayman’s claims accrued on October 30, 2019, and that the proper 

interest rate is eight percent compounded annually. See ECF No. 197. Accordingly,

Wayman is entitled to $1,296,391.46 in prejudgment interest and thus his total 

award, including compensatory damages and prejudgment interest is $7,232,421.46.

II. Exemplary Damages

Exemplary damages include punitive damages and treble damages under the 

CCPA. The jury awarded Wayman 40,000,000 in punitive damages and found by 

clear and convincing evidence that Defendants’ violation of the CCPA was in bad 

faith, see ECF No. 186, supporting an award of treble damages under the CCPA. See 

Colo. Rev. Stat. § 6-1-113(2)(a)(III). However, because punitive damages and treble 

damages serve the same purpose, Wayman cannot receive both. See Lexton-Ancira 

Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 822 (Colo. 1992) (en banc) 

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(citations omitted). Wayman has elected to receive the higher of the two amounts 

after the statutory caps have been applied. ECF No. 190 at 6. 

In general, punitive damages must not exceed actual damages under 

Colorado law. Colo. Rev. Stat. § 13-21-102(1)(a). However, the punitive damages 

cap can be increased to “three times the amount of actual damages, if it is shown 

that:

(a) The defendant has continued the behavior or repeated the action 

which is the subject of the claim against the defendant in a willful 

and wanton manner, either against the plaintiff or another person or 

persons, during the pendency of the case; or

(b) The defendant has acted in a willful and wanton manner during the 

pendency of the action in a manner which has further aggravated the 

damages of the plaintiff when the defendant knew or should have 

known such action would produce aggravation.”

Colo. Rev. Stat. § 13-21-102(3)(a)-(b) (emphasis added). Neither provision 

applies.

There is no evidence that Defendants repeated their actions or caused further 

injury to other individuals “during the pendency of [Wayman’s] case.” See Colo. 

Rev. Stat. § 13-21-102(3)(a). In fact, Defendants discontinued distribution of the 

CAEv2 well before Wayman filed his case and well before Wayman was even aware 

of his claims against Defendants in 2019. See ECF No. 197. Furthermore, there is 

no record evidence that Defendants “aggravated” Wayman’s damages “during the 

pendency of the action.” See Colo. Rev. Stat. § 13-21-102(3)(b). Therefore, the

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statutory cap on punitive damages cannot be increased, and Wayman’s punitive 

damages cannot exceed compensatory damages. See Colo. Rev. Stat. § 13-21-

102(1)(a). Thus, absent the jury’s finding of bad faith on the CCPA claim, the 

punitive damages award would have to be reduced from $40,000,000 to 

$7,232,421.46, resulting in a $14,464,842.92 total potential judgment.

Under the CCPA, a plaintiff may recover “three times the amount of actual 

damages sustained, if it is established by clear and convincing evidence that” the 

defendant “engaged in bad faith conduct.” Colo. Rev. Stat. § 6-1-113. The jury in 

Wayman’s case made this finding, and thus he is entitled to treble damages. See 

Jury’s Verdict, ECF No. 186. The total amount of treble damages is $21,697,264.38, 

which, as noted, Wayman has elected over punitive damages. 

Accordingly, the Clerk is directed to enter final judgment for Wayman in the 

total amount of $21,697,264.38, which is three times the amount of actual damages 

Wayman sustained ($5,000,000 in physical impairment damages, $936,030 in 

noneconomic damages, and $1,296,391.46 in prejudgment interest). 

DONE AND ORDERED this 24th day of May 2022.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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