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: 

Woodard, 7:20cv82803

Judge M. Casey Rodgers

Magistrate Judge Hope T. Cannon

ORDER

This matter is before the Court on Defendant’s Motion for Summary 

Judgment. ECF No. 14. Having fully considered the parties’ arguments and 

applicable Colorado law,1 the Court concludes that Defendant’s motion should be 

denied in part and granted in part. 

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 

1 The parties agree Colorado law applies to Woodard’s claims. See ECF No. 12.

Additionally, the Court assumes the parties’ familiarity with the general factual allegations and 

nature of this multidistrict litigation.

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Lobby, Inc., 477 U.S. 242, 248 (1986). 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 nonmoving party. Liberty Lobby, 477 U.S. at 255; Allen v. Tyson Foods, 121 

F.3d 642, 646 (11th Cir. 1997).

Woodard has brought fifteen claims against Defendant under Colorado law 

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

version 2 (“CAEv2”) during his military service. See Master Short Form Compl., 

ECF No. 1.2 Defendant moves for summary judgment on several grounds including 

that: (a) each of Woodard’s claims fails as a matter of law due to insufficient 

causation evidence; (b) Woodard’s fraud-based claims fail as a matter of law due to 

insufficient reliance evidence; (c) Woodard’s fraudulent concealment claim fails as 

a matter of law because Defendant had no duty to disclose known defects; (d) 

Woodard’s fraud and deceit and Colorado Consumer Protection Act (“CCPA”) 

claims are duplicative of other counts; (e) Woodard’s punitive damages claim fails 

2 Specifically, Woodard 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). ECF No. 1 at 4.

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as a matter of law because his underlying substantive claims should be dismissed; 

and (f) Woodard’s negligent misrepresentation, breach of express warranty, breach 

of implied warranty, and unjust enrichment claims fail as a matter of law under 

various theories. See ECF No. 14. In response, Woodard withdrew his claims for 

negligent misrepresentation, breach of express warranty, breach of implied warranty, 

and unjust enrichment claims. ECF No. 16 at 14. The Court will address the 

remaining issues below.

I. Sufficient Causation Evidence

Defendant moves for summary judgment on all of Woodard’s claims on the 

issue of specific causation, arguing, as it previous argued in a Daubert motion, see

ECF No. 15, that Woodard has not proffered reliable specific causation testimony 

from an expert witness. Alternatively, Defendant argues summary judgment is 

appropriate on specific claims due to causation issues. First, Defendant argues 

Woodard’s design defect claim fails as a matter of law because he cannot show his 

injuries were caused by a design defect. Additionally, Defendant argues that 

Woodard’s failure to warn claim fails as a matter of law because he cannot show he 

relied on an inadequate product warning or that he would have used a different 

product if additional or different warnings had been provided. The Court disagrees 

with these arguments.

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Under Colorado law, the issue of causation is ordinarily a question of fact for 

the jury. Gibbons v. Ludlow, 304 P.3d 239, 244 (Colo. 2013) (citing Allen v. Martin, 

203 P.3d 546, 566 (Colo. App. 2008). Where causation cannot be established 

through general knowledge, a plaintiff must present expert medical testimony that 

establishes causation to a reasonable degree of medical certainty. Mathison v. U.S., 

619 F. App’x 691, 694 (10th Cir. 2015) (citing Truck Ins. Exch. v. MagneTek, Inc., 

360 F. 3d 1206, 1214-16 (10th Cir. 2004)) (applying Colorado law). As the Court 

previously explained in a separate 3M case that went to trial, to prove causation for 

a design defect claim a plaintiff “must produce expert evidence that would allow a 

reasonable jury to find, to a reasonable degree of medical probability, both that (1) 

the CAEv2 had defects that could have caused his injuries, and (2) that one or more 

of those defects did in fact cause his injuries.” See Wayman v. 3M Co., Case No. 

7:20cv149, ECF No. 152 at 3-4 (N.D. Fla. Jan. 9, 2022) (applying Colorado law).

Regarding a failure to warn claim, Colorado has adopted the doctrine of strict 

liability as stated in the Restatement (Second) of Torts § 402A, which includes

provisions in Comment j that require a manufacturer to provide directions or 

warnings in order to prevent a product from being unreasonably dangerous and also 

that “[w]here warning is given, the seller may reasonably assume that it will be read 

and heeded.” See Hiigel v. General Motors Corp., 544 P.2d 983, 987 (Colo. 1975);

Restatement (Second) of Torts §402A Comment j (Am. L. Inst. 1977); Uptain v. 

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Huntington, Lab, Inc., 723 P.2d 1322 (Colo. 1986) (adopting the “heeding 

presumption”). Applying this doctrine, Colorado courts have recognized that “a 

manufacturer has a duty to warn all foreseeable ultimate users of dangers inherent 

in its products” and the plaintiff carries the burden of proving the manufacturer gave 

an inadequate warning of the danger that caused the injury. O’Connell v. Biomet, 

Inc., 250 P.3d 1278 (Colo. App. 2010) (citing Hiigel, 544 P.2d at 987). 

In this case, Woodard has disclosed an expert witness, Dr. Veena Vats, on the 

issue of specific causation. ECF No. 16-3. Defendant separately moved to exclude 

Dr. Vats’s expert testimony and opinions under Federal Rule of Evidence 702 and 

Daubert v. Merrell Dow. Pharm., Inc., 509 U.S. 579 (1993). See ECF No. 17. After 

careful consideration, the Court found that Dr. Vats’s opinions that Woodard’s 

auditory injuries are causally linked to his use of the CAEv2 were reliable and that 

her expert testimony and opinions otherwise satisfied Rule 702 and Daubert. See

ECF No. 20. Thus, the Court finds that Woodard has presented sufficient specific 

causation evidence as to his auditory injuries to establish a genuine dispute of fact 

and none of his claims fail on this ground.

To the extent Defendant also challenges general causation—that is, the 

sufficiency of Woodard’s evidence that the CAEv2 was defective and unreasonably 

dangerous such that it can cause the kinds of auditory injury that he suffered—the 

challenge also fails. Woodard has identified several expert witnesses on his Rule 26 

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Expert Disclosure list who will offer general causation testimony, see ECF No. 16-

3 (disclosing Packer, Spankovich, and McKinley), and this Court has already found 

those experts’ general causation opinions are scientifically reliable, admissible, and 

sufficient to establish a triable issue of fact for purposes of summary judgment, see, 

e.g., In re 3M, ECF No. 1680 (Packer, Spankovich, McKinley); Estes v. 3M, ECF 

No. 53 at 14.

Additionally, Woodard has provided evidence that Defendant was aware of 

the alleged defects in the CAEv2 and thus had a duty to warn of those defects. See, 

e.g., ECF No. 16-6 (“Flange Report” indicating that the CAEv2 is “too short for 

proper insertion” and noting issues with fit requiring modified instructions to obtain 

the advertised NRR of 22 dB and that initial testing with standard fitting techniques 

resulted in a NRR of 11); ECF No. 16-8 at 1-2 (internal email stating both that “the 

CAE is not the optimal choice for a gun range” and “we need to be very clear that 

CAEs will not reduce 190 dB explosions to a safe level of 140 dB or less”). Woodard 

also points to previous trial testimony indicating that Defendant did not 

communicate these issues to the military and, by extension, to him as a 

servicemember. See ECF No. 16-11 (Wayman 1/12/22 Trial Tr. of testimony from 

Elliot Berger noting the Flange Report was not shared with the military); ECF No. 

16-9 (internal email from 2014, long after the military started purchasing the CAEv2, 

stating “[a] shooter should not go to the gun range and fire a box of shells with the 

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yellow side in” while discussing a modification to the marketing stating “[i]nsert 

yellow end for gunshot noise protection”). Defendant argues the causal link should 

nonetheless be broken because Woodard indicated he did not recall whether he 

received instructions or warnings for the CAEv2. ECF No. 14 at 9. But Woodard 

explicitly stated at his deposition that he read the instructions for his earplugs and 

would have followed warnings on those instructions had they been provided,

bolstering his heeding presumption. See ECF No. 16-11 at 115, and Defendant has 

offered no evidence that any instructions given were adequate to convey the 

warning.

Finally, Defendant argues Woodard has proffered no evidence that he would 

not have used the CAEv2 had adequate warnings been provided. However, Woodard 

has proffered evidence to show that the military would not have purchased the 

CAEv2 had it been provided adequate warnings of the alleged issues with the 

CAEv2. See ECF No. 16-19 at 5 (deposition testimony from Jeffrey Hamer, an 

employee of Defendant, acknowledging the military would find a NRR of 11 

insufficient), ECF No. 16-21 at 2 (MPID indicating “instructions explaining proper 

use and handling of the ear plugs shall be supplied with each unit”); ECF No. 16-22 

at 1 (orders to verify CAEv2 are not being used after being found defective by the 

military). Further, in stating that he relied on the military’s safety guidelines for 

hearing protection and its choice of equipment issued, a reasonable jury could infer 

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that Woodard would have used a different product had the military been warned to 

provide a different one. See ECF No. 16-2 at 74, 88-89.

Accordingly, the Court finds that Woodard has presented sufficient causation 

evidence to establish a genuine dispute of fact which must be decided by a jury.

II. Sufficient Reliance Evidence

Defendant also moves for summary judgment on Woodard’s fraud-based 

claims, arguing Woodard has not identified any false representations or deceptive 

trade practices on which he personally relied. ECF No. 14 at 11-14, 18. The Court 

disagrees.

As the Court previously addressed in Wayman v. 3M Co., Colorado courts 

allow plaintiffs to recover for injuries resulting from misrepresentations made to 

third parties on which the plaintiff reasonably and foreseeably relied and that, 

generally, justifiable reliance is a question of fact for the jury. Wayman v. 3M Co., 

Case No. 7:20cv149, ECF No. 152 at 7 (N.D. Fla. Jan. 9, 2022) (applying Colorado 

law); see also Mehaffy, Rider, Windholz & Wilson v. Central Bank of Denver, N.A., 

892 P.2d 230, 236 (Colo 1995) (recognizing that a negligent misrepresentation claim 

is valid when the defendant “knows that its representation will be relied upon by” 

third parties); Schnell v. Gustafson, 638 P.2d 850, 852 (Colo. App. 1981) 

(recognizing that a fraudulent misrepresentation claim is actionable as long as the 

plaintiffs “were among that group of people who the [Defendant] intended to rely” 

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on the fraudulent acts); Varady v. White, 595 P.2d 272, 391 (Colo. App. 1979) 

(“[T]he questions of misrepresentation and reliance are questions of fact . . . .”) 

(citing Linley v. Hanson, 477 P.2d 453 (Colo. 1970)).

Here, Woodard has presented a sufficient evidentiary basis to raise a genuine 

dispute of material fact on which a reasonable jury could find that Defendant made 

affirmative misrepresentations to the United States military regarding the CAEv2,

see, e.g., ECF No. 16-26 (brochure stating that the CAEv2 is “protective up to 

approximately 190 dBP for outdoor exposures” and “sufficient to cover most of the 

weapons in the military infantry” to protect service members against both impulse 

and steady-state noise); ECF No. 16-27 (advertisement stating “[p]remolded tripleflange design fits most earcanals [sic]” and indicating high impulse noises, like 

weapons fire and explosions, are blocked instantly to suppress the noise to a safe 

level while using the yellow-end); ECF No. 16-8 (internal email chain from 

Defendant indicating “the CAE is not the optimal choice for a gun range” and that 

the “CAEs will not reduce 190 dB explosions to a safe level of 140 dB or less”); PGEN-2962 at 28-29 (CAEv2 blister pack noting yellow end is for instant protection 

against weapon noise and the green end protects against constant noise with an NRR 

of 22); P-GEN-271 (paper insert accompanying blister pack noting standard fitting 

instructions only under “instructions for use” and reiterating use of yellow end for 

weapons fire), and that Woodard reasonably and foreseeably relied on these 

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misrepresentations in using the earplug. See, e.g., ECF No. 16-2 at 51-53, 57-59 

(Woodard explaining at his deposition that he would read any instructions he 

received with hearing protection devices and regularly used the yellow-and-green 

dual-sided earplugs he was issued pursuant to military safety requirements including 

while firing weapons on the shooting range). Thus, the Court finds that Woodard’s

fraud-based claims survive summary judgment.

III. Fraudulent Concealment Claim

Defendant also moves for summary judgment on Woodard’s fraudulent 

concealment claim, arguing it had no duty to disclose the alleged issues with the 

CAEv2 to Woodard, or alternatively that if the duty existed, Defendant did not 

conceal the information with the intent to induce Woodard to act. ECF No. 14 at 14-

15. The Court disagrees.

As the Court previously addressed in Wayman v. 3M Co., under Colorado Law 

the defendant owed a duty to disclose known issues with the CAEv2 that could have 

resulted in injury to servicemembers absent the disclosure. See Wayman v. 3M Co.,

Case No. 7:20cv149, ECF No. 152 at 5-8 (N.D. Fla. Jan. 9, 2022); see also Mallon 

Oil Co. v. Bowen/Edwards Assocs., Inc., 965 P.2d 105, 111 (Colo. 1998) (defendant 

has a duty to disclose “material facts that ‘in equity or good conscience’ should be 

disclosed”) (emphasis added) (citation omitted); Loughridge v. Goodyear Tire and 

Rubber Co., 192 F. Supp. 2d 1175, 1184 (D. Colo. 2002) (citing Schnell, 638 P.2d

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at 852) (duty to disclose can arise absent a business transaction in the products 

liability context). When viewing the evidence in the light most favorable to 

Woodard, a jury could infer that the problems with the CAEv2 were material and 

had they been disclosed to the military and servicemembers (who could purchase the 

earplugs commercially), the military and/or the servicemembers would not have 

used them for safety. Thus, Woodard’s claim for fraudulent concealment survives 

summary judgment. 

IV. Duplicative Claims

Defendant moves for summary judgment on Woodard’s fraud and deceit and 

CCPA claims on the ground that these claims are duplicative of his fraudulent 

misrepresentation and failure to warn claims, respectively. ECF No. 14 at 10, 17-18. 

The Court agrees with the Defendant that the fraudulent misrepresentation and fraud 

and deceit claims are duplicative and thus dismisses Woodard’s fraud and deceit 

claim.3 However, the Court disagrees as to the CCPA and failure to warn claims.

3 Under Colorado law, the elements for fraud and deceit and fraudulent misrepresentation 

are the same, and both claims have been consolidated into a single pattern jury instruction. See

CJI-Civ. 19:1, Source and Authority n.1 (providing case law that supports the elements for the 

cause of action listed under the instruction and citing to Colorado cases that use either fraud and 

deceit or fraudulent misrepresentation to describe the same cause of action); compare, Knight v. 

Cantrell, 390 P.2d 948, 951 (Colo. 1964) (describing the elements under Instruction 19:1 as the 

necessary elements for a “fraud and deceit” claim), with Just in Case Bus. Lighthouse, LLC v. 

Murray, 383 P.3d 1, 14 (Colo. App. 2013), aff’d in part, rev’d in part on other grounds, 374 P.3d 

443 (Colo. 2016) (describing these same elements as the necessary elements for a “fraudulent 

misrepresentation” claim). In prior 3M cases that went to trial, the Court submitted this pattern 

instruction under the heading of fraudulent misrepresentation, and therefore, this claim should be 

the surviving claim here. See Wayman v. 3M Co., Case No. 7:20cv149, ECF No. 184-1 at 20-21 

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Under Colorado law, CCPA claims and failure to warn claims arise under

distinct statutory authority. See, e.g., C.R.S. § 6-1-113(1) (providing the statutory 

basis for a private cause of action under the CCPA rooted in unfair trade practices); 

C.R.S. § 13-21-401(2) (providing the statutory basis for failure to warn liability). A

plaintiff’s right to assert a claim under the CCPA is not barred by bringing other 

statutory or common law causes of action based on the same set of facts. See Hall v. 

Walter, 969 P.2d 224, 237 (Colo. 1998) (citing Lexton-Ancira Real Estate Fund, 

1972 v. Heller, 826 P.2d 819 (Colo. 1992)). As the Court previously addressed in 

Wayman, the text of the CCPA very broadly allows for recovery for “any claim 

against any person who has engaged in . . . any deceptive trade practice listed,” 

C.R.S. § 6-1-113 (emphasis added), and the Colorado Supreme Court has directed 

that the CCPA be given a “liberal construction” to offer “broad remedial relief” 

consistent with the CCPA’s purpose. See Wayman v. 3M Co., Case No. 720cv149,

ECF No. 152 at 9-10 (N.D. Fla. Jan. 9, 2022); see also Hall, 969 P.2d at 230 (Colo. 

1998). This Court, sitting in diversity, is bound by decisions of Colorado’s Supreme 

Court and in the absence of those decisions, is bound by the decisions of lower 

Colorado appellate courts. See Royal Ins. Co. of Am. V. Whitaker Contr. Corp., 242 

F.3d 1035, 1040 (11th Cir. 2001); Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 

(N.D. Fla. Jan. 27, 2022); Vaughn v 3M, Case No. 7:20cv134, ECF No. 167 at 14-15 (N.D. Fla. 

Apr. 29, 2022).

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F.3d 1008, 1025 (11th Cir. 2014). In the absence of any binding state precedent, the 

Court must decide the issue as it believes a Colorado state court would. See 

Wammock v. Celotex. Corp. 835 F.2d 818, 820 (11th Cir. 1988) (citing Green v. 

Amerada-Hess Corp., 612 F.2d 212, 214 (5th Cir.), cert. denied, 449 U.S. 952, 101 

S. Ct. 356, 66 L.Ed. 2d 216 (1980)). The decision of a federal district court, while 

perhaps persuasive, is “not binding precedent in either a different judicial district, 

the same judicial district, or even upon the same judge in a different case.” Camreta 

v. Greene, 563 U.S. 692, 709 n.7 (2011).

Defendant fails to cite, ECF No. 14 at 17-18, and the Court has not found a 

Colorado state court decision ruling that CCPA claims and failure to warn claims 

are duplicative. Defendant’s reliance on a federal district court decision, Curtin v. 

Ethicon, Inc., for this proposition is misplaced. Although the district court in 

Curtin found that the plaintiff’s CCPA claim and failure to warn claim were 

“duplicative,” the district court’s reasoning makes clear that it found both claims 

barred by the learned intermediary defense, and the court limited its ruling to this 

context. See Curtin v. Ethicon, Inc., Case No. 1:20cv3172, 2021 WL 825986, at *8 

(D. Colo. Mar. 4, 2021) (applying Colorado law). Indeed, a review of the district 

court’s decision confirms that its decision was based solely on the scope of the 

learned intermediary defense. Id. (citing Carver v. Am. Med. Sys. Inc., Case No. 

1:20cv445, 2020 WL 8258217, at 3 (D. Colo. May 18, 2020); Huskey v. Ethicon, 

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Inc., 29 F. Supp. 3d 736, 744-45 (S.D. W. Va. 2014) (finding in both cases that if 

the learned intermediary doctrine bars failure to warn claims, it also bars fraudbased claims premised on a failure to warn)). This is further evident based on the 

Curtin court’s citing of the compilation of cases in Huskey v. Ethicon, Inc. as 

additional support. Id. (citing Huskey, 29 F. Supp. 3d 736, 744 (S.D. W. Va. 2014) 

(collecting cases finding the learned intermediary doctrine extends to all claims 

based on a failure to warn, including fraud-based claims)).

But, as the Court previously explained in Wayman v. 3M Co., the learned 

intermediary defense is not applicable here because the CAEv2 is a consumer good 

that can be obtained without a physician intermediary. See Wayman v. 3M Co., 

Case No. 7:20cv149, ECF No. 98 at 3 (N.D. Fla. Dec. 10, 2021); see also

O’Connell v. Biomet, Inc., 250 P.3d 1278, 1281 (Colo. App. 2010) (adopting the 

learned intermediary defense and explaining that this defense applies to a medical 

device because “it is only available to physicians and obtained by prescription”).

And in Wayman, Defendant previously conceded the learned intermediary doctrine 

applies only to prescriptions and medical devices under Colorado law. See

Wayman v. 3M Co., Case No. 7:20cv149, ECF No. 54 at 3. The same applies here. 

Thus, in this case, where the learned intermediary defense does not apply, Curtin

provides no guidance as to whether these claims should be considered duplicative

under Colorado law. Absent binding precedent finding that failure to warn and 

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CCPA claims are necessarily duplicative, this Court adopts the Colorado Supreme 

Court’s position in Hall v. Walter in which the court noted that a CCPA claim is 

not barred by other statutory or common law causes of action based on the same 

set of facts. See Hall, 969 P.2d 224, 237 (Colo. 1998). 

Accordingly, Defendant’s Motion for Summary Judgment, ECF No. 14, is 

GRANTED as to Woodard’s fraud and deceit claim and is otherwise DENIED.

4

SO ORDERED, on this 17th day of June 2023. 

 M. Casey Rodgers M. CASEY RODGERS

 UNITED STATES DISTRICT JUDGE 

4 Given the Court’s ruling on the other matters, Defendant’s motion for summary judgment 

on Woodard’s punitive damages claim is denied. 

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