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:

McCombs, 7:20cv94

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. 46. 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 Dustin McCombs raises fifteen 

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

caused by his use of the Combat Arms Earplug version 2 (“CAEv2”) during his 

military service. See Second Am. Master Short Form Compl., ECF No. 11.2

Defendants raise several affirmative defenses, including that the actions of a 

non-party, the United States, are the actual, contributing, intervening, or superseding 

1 The Court previously ruled that Alaska law applies to McCombs’ claims. See ECF No. 42.

2 Specifically, McCombs 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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cause of McCombs’ injuries, and that as a result a jury should apportion fault to the 

government. See ECF No. 12 at pp. 3–9, ¶¶ 4, 14, 16–17.

III. Discussion

McCombs 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 Alaska’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 argue that Alaska law permits apportionment of fault to the United States 

because the United States has sovereign immunity from suit in this case. Defendants 

further argue that they have provided sufficient record evidence to raise a triable 

issue of fact as to their government-fault defenses. The Court agrees, in part, with

both parties.

First, the Court finds that Defendants’ apportionment defense fails because 

Defendants have not shown that the United States could not be added as a third-party 

defendant as required by Alaska Statute § 19.18.080. Under § 19.18.080, “fault may 

be allocated to non-parties if certain conditions are met.” Kendall Dealership 

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Holdings, LLC v. Warren Distrib., Inc., No. 3:18-cv-146, 2020 WL 759868, at *1 

(D. Alaska Feb. 14, 2020) (footnote omitted). In order to allocate fault to a 

non-party, a defendant must (1) “identify the non-party as someone who the 

defendants will argue is at fault,” and (2) “show that the person could not be added 

as a third-party defendant either because that person is outside the jurisdiction of the 

court or because by law or court rule the person cannot be named as a party.” Id. 

(quoting Evans ex rel. Kutch v. State, 56 P.3d 1046, 1060–61 (Alaska 2002)). The 

first requirement is met because Defendants have identified the United States “as 

someone who defendants will argue is at fault.” See id. at *3 (“[D]efendant only has 

to identify a non-party that it will argue is at fault.”). The second requirement, 

however, has not been met because Defendants have not shown that the United 

States could not have been added as a third-party defendant. While, as Defendants 

correctly point out, “the government is immune from claims brought by soldiers for 

their service-related injuries, despite the waiver of sovereign immunity contained in 

the Federal Tort Claims Act,” see McMahon v. Presidential Airways, Inc., 502 F.3d 

1331, 1339 (11th Cir. 2007) (citing Feres v. United States, 340 U.S. 135, 146 

(1950)), Defendants could have brought a claim for equitable apportionment of 

damages against the United States because “[s]o long as no monetary judgment is 

entered against the United States as a consequence of effecting that determination, 

the government’s sovereign immunity rights insofar as plaintiffs are concerned are 

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observed and protected.” See Stingley v. Raskey, No. A95-0242, 1995 WL 696591, 

at *7 (D. Alaska Nov. 20, 1995) (denying the government’s motion for summary 

judgment on the third-party plaintiff’s claim for equitable apportionment); see also 

Cabales v. Morgan, No. 3:14-CV-161, 2015 WL 999100, at *3 (D. Alaska Mar. 6, 

2015) (rejecting the plaintiffs’ argument that “because Plaintiffs cannot obtain 

money damages from the United States here, fault cannot be allocated to it”).

Accordingly, McCombs’ motion for summary judgment on Defendants’ 

apportionment defense is granted.

McCombs argues that Defendants’ other 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. The Court disagrees.

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

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

testimony. See Punches v. McCarrey Glen Apartments, LLC, 480 P.3d 612, 624–25 

(Alaska 2021). Defendants identify two alleged omissions by the United States 

military as potential alternative causes of McCombs’ injuries: (1) its failure to ensure 

McCombs was fit with the CAEv2 by medically trained personnel, and (2) its failure 

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to inform him of the flange-fold fitting technique. The Court finds that these theories 

of injury do not “require the special skill of an expert to help present the evidence to 

the trier of fact in a comprehensible format.” See Choi v. Anvil, 32 P.3d 1, 3 (Alaska 

2001). While medical expert testimony is necessary to establish a causal connection 

between McCombs’ injuries and his exposure to noises during his military service, 

cf. Mathison v. United States, 619 F. App’x 691, 694 (10th Cir. 2015) (applying 

Colorado law, and stating that “identify[ing] the source of [plaintiff’s] sensorineural 

hearing loss [is] a complex medical question outside lay competence”), the record 

contains sufficient medical expert testimony to support a jury finding that 

McCombs’ military noise exposure caused his hearing injuries. However, the next 

link in these two theories of causation—that McCombs 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 in proper use of the 

CAEv2—arises from “a situation easily understood . . . using everyday experience.” 

See Punches, 480 P.3d at 624 (quoting Choi, 32 P.3d at 4).

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 

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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 McCombs’ 

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

States military did not fit him with the CAEv2 or relay the flange-folding fitting 

technique to him. See Response to Interrogatory No. 28 (“Plaintiff does not recall 

being fitted with the CAEv2 by another person.”); McCombs Depo. Tr. at 293:3–7

(testifying that “no one ever stuck an earplug in [my] ear other than myself”);

Response to Interrogatory No. 45 (“Plaintiff states that he does not recall being 

instructed to fold back any of the flanges of the CAEv2.”). Additionally, there is 

record evidence that McCombs was unable to obtain a proper fit with the CAEv2

because “his pinna and ear canal shape catches the tragus on the widest yellow 

flange, which could easily result in displacement with any face movement.” See Dr. 

Moises Arriaga Report at 8; see also id. at 9–10 (photos showing contact between 

widest yellow flange and McCombs’ tragus). Thus, based on the evidence, a lay jury 

could conclude from common knowledge that McCombs’ 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.

Accordingly,

1. McCombs’ motion for summary judgment, ECF No. 46, is GRANTED in 

part and DENIED in part.

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

3. The motion is otherwise DENIED.

DONE AND ORDERED this 6th day of April 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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