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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF

FLORIDA PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION

This Document Relates to:

Charles Rataj v. 3M Company

Case No. 7:20-cv-64733-MCR-GRJ

Case No. 3:19-md-2885

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones

PLAINTIFF’S MOTION AND INCORPORATED 

MEMORANDUM FOR SUMMARY JUDGMENT 

Pursuant to Federal Rule of Civil Procedure 56 and Case Management Order 

Nos. 31 and 45, MDL Dkt. 2304 and 3079, Plaintiff, Charles Rataj, (“Plaintiff”) 

respectfully moves the Court for an order granting Plaintiff summary judgment on 

Defendants’ affirmative defenses relating to government fault, Defenses and 

Affirmative Defenses ¶¶ 17-20. MDL Dkt. 959 at 96, 99-100. As set forth in the 

accompanying memorandum of law, Plaintiff is entitled to summary judgment on 

these affirmative defenses as to all claims asserted in the Short Form Complaint, 

Dkt. 6. This motion is based on the accompanying memorandum of law, declaration, 

and exhibits in support of Plaintiff’s motion for summary judgment, as well as all 

the files, records, and prior proceedings herein.

INTRODUCTION

For 16 years, Defendants sold to the public and the United States military a 
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hearing protection device that they knew was defective and dangerous. Fortuitously, 

the defects and dangers of the Combat Arms Earplug Version 2 (“CAEv2”) came to 

light in 2015, after Defendants filed a sham patent lawsuit against their competitor. 

Nearly 300,000 Plaintiffs now seek judgment against Defendants for hearing loss, 

tinnitus, and related injuries. Throughout this litigation, Defendants have refused to 

accept responsibility for their actions. They previously invoked the government 

contractor defense, claiming “the government made me do it” in an effort to avoid 

liability entirely. With that door closed, see MDL Dkt. 1280, Defendants now seek 

another bite at the apple by invoking several affirmative defenses related to 

government fault. See, e.g., Amended Answer to Master Long Form Complaint, 

MDL Dkt. 959 at 99-100, Defenses and Affirmative Defenses ¶ 17 (alleging 

Plaintiff’s damages “may have been caused by the negligent acts or omissions, in 

whole or in part, of . . . the United States”). 

Relevant here, Defendants attempt to blame the government by invoking 

(1) the sophisticated intermediary doctrine; (2) superseding cause; and 

(3) apportionment (collectively, “government-fault defenses”). Id. at ¶¶ 17-20. 

Defendants cannot blame the military or Plaintiff for their own misdeeds. Plaintiff 

is entitled to judgment on the government fault defenses, consistent with the Court’s 

prior orders. 
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BACKGROUND

1. Plaintiff was injured by the CAEv2.

Plaintiff served in the Vermont National Guard Plaintiff from 1992-2015. Ex. 

PX1 Pl. Depo. at 65:19-66:2. Throughout his service, Plaintiff used the CAEv2 while 

exposed to dangerous levels of noise. Due to the CAEv2, Plaintiff suffers from 

hearing loss and tinnitus. Plaintiff brings negligence, design-defect, failure-to-warn, 

warranty, misrepresentation, fraud, unjust enrichment, consumer-protection, and 

punitive-damages claims. Dkt. 6.

2. Defendants attempt to escape liability by blaming the United States.

On February 3, 2020, Defendants filed an Amended Answer to Plaintiffs’ 

Master Long Form Complaint raising numerous boilerplate defenses. MDL Dkt. 

959. Three of those defenses seek to blame the nonparty United States. First, 

Defendants seek to avoid liability for Plaintiff’s warning claims through the 

sophisticated intermediary doctrines. Id. Defenses and Affirmative Defenses ¶ 18. 

Second, Defendants claim the United States military was a superseding cause of 

Plaintiff’s injuries. Id. Defenses and Affirmative Defenses ¶¶ 19, 20. Third, 

Defendants seek to apportion fault to the military based on its alleged negligence. 

Id. Defenses and Affirmative Defenses ¶¶ 17, 20.

3. The parties dispute whether Vermont or Mississippi law applies to 

Plaintiff’s case. 

The Parties dispute the applicable law; Plaintiff maintains that Vermont law 
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applies, Defendants contend that Mississippi law applies. Dkts. 12, 17, 19. 

ARGUMENT

I. The sophisticated intermediary and other intermediary defenses do not 

protect manufacturers of consumer goods. 

Plaintiff seeks summary judgment on Defendants’ intermediary defenses. See 

MDL Dkt. 959 at 99-100, Defenses and Affirmative Defenses ¶ 18. Defendants’ 

intermediary defenses have no place in this case under either Vermont or Mississippi

law. Whether under the learned intermediary, sophisticated intermediary or bulk

supplier doctrine, no Vermont or Mississippi court would extend these doctrines to 

consumer goods such as the CAEv2. Accordingly, Plaintiff is entitled to summary 

judgment on all three of Defendants’ intermediary defenses.

A. Plaintiff is entitled to summary judgment on the learned 

intermediary defense under both Vermont and Mississippi law.

“Vermont has neither adopted nor rejected the learned intermediary doctrine.” 

Kellogg v. Wyeth, 762 F.Supp.2d 694, 700 (D. Vt. 2010); Drake v. Allergan, Inc., 63 

F.Supp.3d 382, 390 (D. Vt. 2014) (“The learned intermediary doctrine has not been 

accepted or rejected by the Vermont Supreme Court.”). The Vermont District Court 

in Leavitt v. Ethicon, however, “predicted” that Vermont would adopt the learned 

intermediary doctrine. 524 F.Supp.3d 360, 368-70 (D. Vt. 2021). In making this 

prediction, the court characterized the learned intermediary doctrine as arising from 

“[t]he obligation of a manufacturer to warn about risks attendant to the use of drugs 
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and medical devices that may be sold only pursuant to a health-care provider’s 

prescription.” Id. at 369-70 (quoting Restatement (Third) of Torts: Prods. Liab. § 6

cmt. b (1998)). The Leavitt court noted that “[t]the ‘learned intermediary doctrine’

does not apply ‘in certain limited therapeutic relationships where the physician or 

other health-care provider has a much-diminished role as an evaluator or 

decisionmaker.’” Id. at 370 (quoting Restatement (Third) of Torts: Prods. Liab. § 6

cmt. b). Accordingly, even if Vermont adopted the learned intermediary doctrine, 

Vermont would not extend the doctrine to the CAEv2, which is an over-the-counter 

consumer good and not a drug or device available only through a physician. See id.

Mississippi has codified the learned intermediary defense, but it is explicitly 

limited in its application to manufacturers of prescription drugs and devices. See 

Mississippi Products Liability Act (“MPLA”), Miss. Code Ann. § 11-1-63(c)(ii) 

(applying to cases involving “a prescription drug, medical device or other product 

that is intended to be used only under the supervision of a physician or other licensed 

professional person”). 

Although the MPLA does not preclude application of common law defenses, 

the only non-prescription drug cases discussing the learned intermediary theory 

involve dangerous chemicals and hazardous materials that injured employees and 

the manufacturer relied on the employer to warn the employee of the product’s 

dangers. See,e.g., Swan v. I.P., Inc., 613 So.2d 846, 852–56 (Miss. 1993). These 
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sophisticated intermediary or sophisticated user cases are discussed below.

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Regardless, because the CAEv2 is an over-the-counter product—not a drug or 

device available only with a prescription, nor a dangerous chemical or hazardous 

material—the intermediary defense fails here. See Restatement (Third) of Torts: 

Prods. Liab. § 6(a) (“A prescription drug or medical device is one that may be legally 

sold or otherwise distributed only pursuant to a health-care provider’s 

prescription.”); see also Swan at 852-56. There is no indication that Mississippi 

would extend either the common law or statutory doctrine to the CAEv2 or any other 

consumer good that is not a prescription medication, dangerous chemical or 

hazardous material. See, e.g., Swan at 852-56. 

B. Plaintiff is entitled to summary judgment on the sophisticated

intermediary or sophisticated user doctrines.

Vermont has not adopted the sophisticated intermediary or user doctrines, and 

Vermont statutory law and jurisprudence are silent regarding the doctrine. 

Consistent with this Court’s prior rulings, the Defendants’ sophisticated

intermediary defense should be dismissed. 

Unlike Vermont, “Mississippi recognizes both a statutory and the common1 The Mississippi cases that discuss “learned intermediary” outside the context of 

pharmaceutical drugs and medical devices alternate between calling the doctrine

“learned intermediary,” “sophisticated user” or “sophisticated intermediary.” See 

Union Carbide v. Nix, Jr., 142 So. 3d 374, 386 (Miss. 2014) (citing Swan v. I.P., 

Inc., 613 So. 2d 846, 851-56 (Miss. 1993)).
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law ‘sophisticated-user’ defense,” but this defense is limited to industrial products 

and not applicable to a consumer good like the CAEv2. Union Carbide Corp. v. Nix, 

Jr., 142 So.3d 374, 385 (Miss. 2014) (quoting Miss. Valley Silica Co., Inc. v. 

Eastman, 92 So.3d 666, 671 (Miss. 2012)). “The statutory sophisticated-user 

defense provides that the manufacturer is not liable ‘if the danger posed by the 

product is known ... to the user or consumer of the product, or should have been 

known ... to the user or consumer of the product, taking into account the 

characteristics of, and the ordinary knowledge common to, the persons who 

ordinarily use or consume the product.’” Union Carbide Corp., 142 So. 3d at 386 

(quoting Miss.Code Ann. § 11–1–63(e)). The common law differs in that “[t]o use 

the common law sophisticated-user defense, a manufacturer must provide some 

evidence that it actually provided the ‘learned intermediary’ in question with any 

information or warning.” Id. at 386.

Mississippi’s application of the sophisticated user has been limited to 

industrial goods or goods solely used by professional users—and not the public at 

large. In Swan, a schoolteacher sued the manufacturer/supplier of roofing chemicals 

for failing to warn her about the dangers of polyurethane foam when a professional 

roofing contractor had applied the foam on the school’s roof, exposing her to 

chemicals. 613 So. 2d at 851-52. In assessing whether to apply the defense, the 

Mississippi Supreme Court analyzed prior cases where the intermediary defense had 
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been asserted successfully and concluded the defense had been applied only where 

the end-user was either a qualified professional, an employee of an industrial user or 

a patient prescribed pharmaceutical drugs. Id. at 852-54. The court ultimately 

reversed summary judgment in favor of the defendant-manufacturer based on the 

defense, finding that the evidence was insufficient whether the intermediary—an 

experienced polyurethane roofing applicator—was a sophisticated user or whether 

the manufacturer provided him with information regarding the foam. Id. at 857; see 

also Union Carbide, 142 So. 3d at 385-86 (assessing but rejecting the sophisticated 

user defense for an asbestos manufacturer against a plaintiff-employee who was 

exposed while working for his intermediary employer as a driller); Mississippi 

Valley Silica Co. v. Eastman, 92 So. 3d 666, 667 (Miss. 2012) (holding sophisticated 

user jury instruction warranted under Mississippi common law for silica sand 

manufacturer against plaintiff-employee injured while employed); Curtis v. M&S 

Petroleum, Inc., 174 F.3d 661, 676 (5th Cir. 1999) (applying the sophisticated user 

defense to manufacturer of heavy aromatic distillate when intermediary-employer 

confirmed receipt and understanding of manufacturer’s warnings and that employer 

would pass along warnings to employees).

Mississippi’s limited application of the sophisticated intermediary or user

defense is consistent with the Court’s prior rulings and holdings that such 

intermediary defenses are not available for the CAEv2. These defenses are
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inapplicable to consumer products such as the CAEv2 because “the underlying 

rationale for the intermediary defense is lost where . . . users could purchase and use 

the product without an intermediary.” See, e.g., In re 3M Combat Arms Earplugs 

Prods. Liab. Litig., 7:20-cv-131, Dkt. 192 at 8–9 (N.D. Fla. Apr. 27, 2021) (Hacker) 

(citations omitted); Beal, 7:20-cv-6, Dkt. 145 at 9 (same). “When a plaintiff could 

have obtained the product from the normal consumer marketplace, it would be 

illogical to treat the plaintiff differently based on the fact that he received the product 

from an intermediary.”

Moreover, unlike certain risks that are well known within industries, such as 

silica sand, Eastman, 92 So. 3d at 667-68, the CAEv2’s defects, “including 

imperceptible loosening due to the dual sided nature of the plug, were not widely 

known throughout the hearing conservation industry for many years.” Wilkerson,

7:20-cv-35, Dkt. 133 at 5. Rather, “Defendants had superior knowledge about the 

risks associated with the CAEv2 and had the means to warn individual users through 

its packaging. Id. at 6. As such, any argument that Defendants are excused from their 

duty to warn Plaintiff under Mississippi’s sophisticated user defense fails as a matter 

of law. See id.

In sum, the Court should hold that the supreme courts of Vermont and 

Mississippi would not extend the sophisticated intermediary or user defenses to a 

consumer product like the CAEv2.
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C. Vermont does not recognize a bulk supplier or component parts 

supplier defense, and Mississippi’s defense would be inapplicable 

here.

While some states recognize a “bulk supplier” defense applicable to bulk 

sellers of raw materials or component parts, see In re 3M Combat Arms Earplug 

Prods. Liab. Litig., 545 F.Supp.3d 1239, 1244-46 (N.D. Fla. 2021) (citing 

authorities), Vermont has neither adopted nor rejected this defense. Mississippi has 

applied the component parts doctrine, but the defense would not apply here. See 

Scordino v. Hopeman Brothers, Inc., 662 So. 2d 640 (Miss. 1995); Coca Cola 

Bottling Co. v. Reeves, 486 So. 2d 374 (Miss. 1986). As this Court has repeatedly 

found, Defendants did not supply raw materials or non-defective component parts to 

another manufacturer for resale, but instead “designed, manufactured, and marketed

the end product at issue in this case—the CAEv2.” See, e.g., Baker, 7:20-cv-39, 

Dkt. 178 at 11; Camarillorazo, 7:20-cv-98, Dkt. 83, at 5; Wayman, 7:20-cv-149, 

Dkt. 98 at 3-4. For the same reasons, Plaintiff is entitled to summary judgment on 

the bulk supplier defense.

II. Defendants’ superseding-cause defense fails because the United States 

Army’s alleged failure to fit and train and warn was foreseeable.

Plaintiff also seeks summary judgment on Defendants’ superseding-cause 

defense as to the United States. See MDL Dkt. 959 at 99-100, Defenses and 

Affirmative Defenses ¶¶ 17, 19, 20. Under Vermont law, for superseding cause to 

relieve a tortfeasor of liability, the cause must be “a new and independent force that 
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breaks the chain of causal connection between the original wrong and the ultimate 

result.” Estate of Sumner v. Dep’t Social & Rehab. Servs., 162 Vt. 628, 629, 649 

A.2d 1034, 1036 (1994) (citing Paton v. Sawyer, 134 Vt. 598, 600-01, 370 A.2d 215, 

217 (1976)). “Whether or not the negligence of a third person may or may not 

amount to such an intervening cause turns on the issue of whether or not some such 

negligent act or intervention was something the original actor had a duty to 

anticipate.” Id. (quoting Paton, 134 Vt. at 601, 370 A.2d at 217). “[I]f the initial 

negligence creates a situation making it likely that some other force or action will 

occur and bring about harm, responsibility remains with the original actor.” Dodge 

v. McArthur, 126 Vt. 81, 84, 223 A.2d 453, 455 (1966). Foreseeability “is the key 

issue to consider when deciding whether it is an ‘intervening act’ in the sense that it 

should absolve a prior actor of liability.” Lexington Ins. Co. v. Rounds, 349 

F.Supp.2d 861, 867 (D. Vt. 2004). 

Likewise, under Mississippi law, for an intervening act to relieve a tortfeasor 

of liability, the intervening act must be an independent act from the original actor’s 

negligence that severs the connection between the original actor’s conduct and the 

plaintiff’s injury as a matter of law. Lift-All Co., Inc. v. Warner, 943 So.2d 12, 17 

(Miss. 2006). For an intervening act to relieve the original tortfeasor from liability, 

the act cannot be a foreseeable consequence of the original act of negligence. Id.

Although proximate cause is ordinarily an issue for the jury, a superseding 
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cause defense fails as a matter of law in Vermont where “reasonable minds” would 

conclude that the subsequent acts or omissions at issue were foreseeable, see Estate 

of Sumner, 162 Vt. at 629, 649 A.2d at 1036 (quoting Roberts v. State, 147 Vt. 160, 

163-64, 514 A.2d 694, 696 (1986), and in Mississippi where the chain of causal 

events following the defendant’s conduct is foreseeable, Southland Management Co. 

v. Brown ex rel. Brown, 730 So.2d 43, 47 (Miss. 1998).

That holds true here. Defendants have not proffered any evidence to create a 

genuine dispute of material fact about the foreseeability of the Army’s failure to fit, 

train, and warn. In fact, the undisputed evidence proves Defendants knew the 

military did not always train or warn soldiers. E.g., Ex. A (P-GEN-954) (internal 

emails about article stating, inter alia, that the military had “too few [audiologists] 

to explain . . . how to wear earplugs to thousands of Marines”). This is unsurprising 

given the realities of warfare. See Ex. D (D-GEN-565) (noting the “CAE began to 

be issued to all deploying soldiers in 2004”). It is beyond dispute that any failure of 

the Army to fit, train, and warn its servicemembers is not extraordinary, 

unforeseeable, or intentional—as this Court has consistently held in prior cases. See, 

e.g., Adkins, 7:20-cv-12, Dkt. 57 at 4-9; Palanki, 3:19-cv-2324, Dkt. 81 at 5-7; 

Camarillorazo, Dkt. 83 at 7-10; Blum, 7:20-cv-122, Dkt. 56 at 5-8; Sloan, 7:20-cv1, Dkt. 73 at 5-6; Wilkerson, Dkt. 133 at 6-9. And for good reason. “An employer’s 

failure to warn an employee of the hazards posed by a product used in the workplace 
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generally cannot be deemed a superseding cause which exonerates the product 

manufacturer from liability to the employee for its failure to warn of those hazards, 

at least where there was nothing highly extraordinary about the employer’s failure 

to maintain a safe workplace.” 63A Am. Jur. 2d Products Liability § 1073.

Moreover, the alleged negligence of the Army and Defendants are of the same 

kind (failure to warn of the CAEv2’s dangers) and caused the same injury (improper 

fit and thus inadequate protection and hearing loss). By depriving the military of the 

means to adequately fit, instruct, and warn servicemembers about the CAEv2, it was 

eminently foreseeable to Defendants that the military’s alleged failure to warn 

Plaintiff was not a “new” or “independent” cause of the risk and resulting harm to 

Plaintiff. See Estate of Sumner, 162 Vt. at 629, 649 A.2d at 1036. Accordingly, the 

Court should grant Plaintiff’s motion for summary judgment on Defendant’s 

superseding cause defense. See Vaughn, 7:20-cv-134, Dkt. 94 at 8.

III. Vermont prohibits apportioning fault to nonparty the United States. 

Plaintiff seeks summary judgment on Defendants’ apportionment defense as 

to nonparty the United States. Under Vermont law, apportionment of damages is 

only proper among “those joined in the same action.” See Levine v. Wyeth, 83 Vt. 

76, 101, 944 A.2d 179, 195 (2006) (quoting Plante v. Johnson, 152 Vt. 270, 273, 

565 A.2d 1346, 1347-48 (1989)). Vermont’s comparative fault statute, 12 V.S.A. § 

1036, expressly applies to “defendant or defendants,” and the Vermont Supreme 
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Court has affirmatively held that the statute provides for apportionment only among 

named defendants. Levine, 944 A.2d at 195; see Plante, 152 Vt. at 273, 565 A.2d at 

1347 (finding that plain language of § 1036 suggests that only those joined as parties 

to a case should be considered in apportioning damages); McCormack v. State, 150 

Vt. 443, 447, 553 A.2d 566, 569 (1988) (granting new trial where jury interrogatories 

requested allocation of fault to include the state, which was no longer a party after 

being dismissed pursuant to a judgment notwithstanding the verdict). The United 

States is not and has never been a named party in this suit. Accordingly, the Court 

should grant summary judgment for Plaintiff on this defense.

CONCLUSION

For the foregoing reasons, the Court should grant Plaintiff’s motion for 

summary judgment on Defendants’ government-fault defenses.

Dated: July 21, 2022 Respectfully submitted, 

/s/ Nicole C. Berg

Nicole C. Berg (IL Bar #6305464)*

ncb@kellerpostman.com

KELLER POSTMAN LLC

150 N. Riverside Plaza, Suite 4100

Chicago, Illinois 60606

(312) 741-5220

*Admitted Pro Hac Vice

Attorney for Plaintiff
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REQUEST FOR ORAL ARGUMENT

Plaintiff does not believe that oral argument is necessary but is prepared to 

present any amount of oral argument that would assist the Court.

/s/ Nicole C. Berg

Nicole C. Berg
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CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(F) AND 56.1(E)

I hereby certify that this motion complies with the word limit of Local Rules 

7.1(F) and 56.1(E) and contains 3,114 words.

/s/ Nicole C. Berg

Nicole C. Berg
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CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(B) AND 7.1(B), (C)

Pursuant to Local Rule 7.1(B), counsel for Plaintiffs and Defendants Remand 

Leadership and Special Master Adriane Theis conferred on July 12, 2022, regarding 

the foregoing motion but were unable to resolve issue with Defendants.

/s/ Nicole C. Berg

Nicole C. Berg
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CERTIFICATE OF SERVICE

I hereby certify that on July 21, 2022, I caused a copy of the foregoing to be 

filed through the Court’s CM/ECF system, which will serve all counsel of record. 

/s/ Nicole C. Berg

Nicole C. Berg