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:

Finley, 7:20-cv-170

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Plaintiff Theodore Finley’s Motion for 

Summary Judgment on several of Defendants’ affirmative defenses under Federal 

Rule of Civil Procedure 56. ECF No. 41. Having now fully considered the parties’ 

arguments and applicable Texas law, the Court concludes that Plaintiff’s motion is 

due to be GRANTED.

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 

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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 non-moving party. Liberty Lobby, 477 U.S. at 255; Allen v. Tyson Foods, 121 

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

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

and nature of this multidistrict litigation. Finley has brought fifteen claims against 

Defendants under Texas law1 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. 10.

2 Defendants raise several affirmative 

defenses, including that Finley’s failure to warn claims are barred by various 

intermediary defenses, that the United States military’s actions are a superseding 

cause of Finley’s injuries, and that Finley failed to mitigate his damages. 

Defendants’ Answer, ECF No. 11 at ¶ 7, 15, 16. 

1 The parties agree Texas law applies to Finley’s claims. See ECF No. 26 at 1.

2 Specifically, Finley 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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A. Defendants’ Intermediary Defenses

Finley argues that Defendants’ learned intermediary, bulk supplier, and 

sophisticated user affirmative defenses do not apply to a manufacturer whose 

product is marketed and sold directly to the general public. ECF No. 41-2 at 4–9. 

The Court agrees. 

Under Texas law, “the existence of a duty to warn of the dangers of an alleged 

defective product is a question of law.” Firestone Steel Prods. Co. v. Barajas, 927 

S.W.2d 608, 614–15 (Tex. 1996). In general, a manufacturer has a duty to warn of 

dangers that are known or those that reasonably should be known. See General 

Motors Corp. v. Saenz, 873 S.W.2d 353, 356 (Tex. 1993). However, a manufacturer 

may “depend on an intermediary to communicate a warning to the ultimate user of 

a product” under (1) the learned intermediary doctrine, (2) the bulk supplier doctrine, 

or (3) the sophisticated user doctrine. 3

 Centocor Inc. v. Hamilton, 372 S.W.3d 140, 

154–55 (Tex. 2011) (analyzing the learned intermediary doctrine); Humble Sand & 

3 Defendants argue that both the learned intermediary and “sophisticated intermediary” 

doctrines apply, ECF No. 11; however, they have not cited, and the Court has not found, any Texas 

authority adopting or applying a separate “sophisticated intermediary” doctrine. Texas courts 

recognize the learned intermediary doctrine, which focuses on a knowledgeable intermediary who 

intercedes between the manufacturer and ultimate consumer. See Centocor, 373 S.W.3d at 154–

55 (explaining prior cases and foundation for the learned intermediary doctrine but not discussing 

a separate sophisticated intermediary doctrine). Texas also recognizes the sophisticated user 

doctrine, which focuses on a knowledgeable user of the product. See Humble Sand, 146 S.W.3d at 

194–95. But based on existing authority, there is not a separate “sophisticated intermediary” 

doctrine in Texas. 

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Gravel, Inc. v. Gomez, 146 S.W.3d 170, 185, 194–95 (Tex. 2004) (analyzing the 

bulk supplier doctrine and sophisticated user doctrine).

First, Defendants’ learned intermediary doctrine defense fails as a matter of 

law because no court applying Texas law has recognized the doctrine outside of the 

medical context. See Butler v. Juno Therapeutics Inc., Case No. H-18-898, 2021 WL 

2156742, at *10 (S.D. Tex. May 27, 2021) (compiling cases that have applied the 

learned intermediary doctrine outside of the pharmaceutical context and holding that 

the doctrine should only apply when products must be sold through a medical 

intermediary); Khan v. Velsicol Chemical Corp., 711 S.W.3d 310, 313 (Tex. App. 

Ct. 1986) (“This doctrine has consistently been limited in its application in Texas 

and elsewhere to the prescription drug, physician-patient relationship.”). The Texas 

Supreme Court has held that the doctrine “applies particularly to the medical field 

and unavoidably unsafe products like prescription drugs, which, by law, cannot go 

from manufacturer to the end user except through a prescribing physician.” 

Centocor, 372 S.W.3d at 165. Because the CAEv2 is a consumer good that does not 

by law require a physician intermediary, or any intermediary for that matter, to reach 

the ultimate user, the learned intermediary doctrine does not apply. See In re 3M 

Combat Arms Earplugs Prods. Liab. Litg., Case No. 7:20-cv-131-MCR-GRJ, Trial 

Tr. 04/14/21 at 10:46-10:47 (soldier testifying to purchasing the CAEv2 at a store 

on a base). 

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Defendants’ bulk supplier doctrine defense also fails as a matter of law 

because no court applying Texas law has applied the doctrine to a manufacturer who 

designed, manufactured, marketed, and sold the final product, as Defendants did 

with the product here. Instead, the bulk supplier doctrine is meant to apply to 

manufacturers of component parts who do not manufacturer or market the final 

product that goes to the end user. See, e.g., Alm v. Aluminum Co. of Am., 717 S.W.2d

588, 590–92 (Tex. 1986) (applying the bulk supplier doctrine to a bottle cap 

manufacturer whose caps were added to a soft drink bottle). The rationale behind the 

doctrine is that component parts manufacturers should not have a duty to warn the 

end user because they have “no means of identifying or communicating with the 

ultimate consumer.” Khan v. Velsicol Corp., 711 S.W.2d 310, 313 (Tex. App. Ct. 

1986) (explaining that the ultimate question for applying the bulk suppler doctrine 

is whether it is feasible or practical for the manufacturer to warn the end user). Here, 

Defendants designed, manufactured, and marketed the CAEv2 and had a reasonable 

means of identifying the end user of the product. As such, the bulk supplier doctrine 

is not applicable. 

The Court likewise concludes that the sophisticated user doctrine does not 

apply. Under the sophisticated user doctrine, a manufacturer is not required “to warn 

knowledgeable customers or their employees of risks of use.” Humble Sand, 146 

S.W.3d at 194. However, “the mere presence of an intermediary does not excuse the 

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manufacturer from warning those whom it should reasonably expect to be 

endangered by the use of its product.” Alm, 717 S.W.2d at 591. Thus, for the 

sophisticated user doctrine to apply, the manufacturer must show that the warnings 

it provided to the sophisticated user would be reasonably communicated to the end 

user of the product. For example, in Gamboa v. Centrifugal Casting Machine Co., a 

manufacturer provided heavy machinery to a customer, and the manufacturer argued 

that the sophisticated user doctrine applied because the customer had a sophisticated 

engineering department that could convey the risks to the customer’s employees. 

Case No. H-14-1273, 2015 WL 6835359, at *14 (S.D. Tex. Nov. 6, 2015). In ruling 

on the manufacturer’s motion for summary judgment, the court determined that the 

manufacturer’s sophisticated user doctrine failed because the manufacturer “did not 

have a reasonable assurance that its warnings would reach those endangered by its 

product,” citing evidence showing that the manufacturer knew the customer rarely 

provided the end user with the proper warnings. Id. 

Similarly, in this case, Defendants knew “that the military had a shortage of 

audiologists and that the CAEv2 was being issued to all deploying soldiers without 

instructions from Defendants,” meaning the military could not be reasonably relied 

on to convey the risks of use. In re 3M Combat Arms Earplug Prods. Liab. Litig., 

Case No. 7:20cv122-MCR-GRJ, ECF No. 56 at 7 (N.D. Fla. Sept. 1, 2021) (citing

document evidence of “Defendants’ knowledge that the military had a shortage of 

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audiologists and that the CAEv2 was being issued to all deploying soldiers without 

instructions from Defendants”). Moreover, as stated in this Court’s prior rulings on 

this issue, intermediary defenses such as the sophisticated user doctrine are 

inapplicable to consumer products that can be purchased over the counter because 

“the underlying rationale for the intermediary defense is lost where users could 

purchase and use the product without an intermediary.” In re 3M Combat Arms 

Earplug Prods. Liab. Litg., No. 3:19md2885, 2021 WL 2476651, at *4 (N.D. Fla. 

June 17, 2021). Consistent with this analysis, the Court finds that Texas courts would 

not extend the sophisticated user doctrine to this case. 

B. Defendants’ Superseding Cause Defense

Finley also moves for summary judgment on Defendants’ superseding cause 

defense as to the fault of the United States, arguing that the Army’s conduct in failing 

to fit Finley with the CAEv2 and train him on its use was foreseeable as a matter of 

law. ECF No. 41-2 at 9. The Court agrees.

An intervening cause is a separate act between the original act of negligence 

and the final injury. Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450 

(Tex. 2006). While there can be more than one proximate cause of an injury, an 

intervening cause becomes a superseding cause, which cuts off liability for the 

original tortfeasor, when the “final injury is attributed to the new cause rather than 

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the first and remote cause.” Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) 

(citing Dew, 208 S.W.3d at 450). 

Under Texas law, an intervening cause will not cut off liability as a 

superseding cause where (1) the intervening cause is foreseeable based on the 

original negligent act and (2) “the risk resulting from the intervening act is the same 

risk resulting from the original actor’s negligence.” Columbia Rio Grande 

Healthcare v. Hawley, 284 S.W.3d 851, 858–59 (Tex. 2009). For example, in 

Hawley, a hospital was sued by a patient for failing to notify physicians of the

patient’s cancer diagnosis. Id. at 855. The hospital argued that the physician’s 

negligence in failing to properly follow up with the patient was a superseding cause 

that cut off the hospital’s liability. Id. at 856. The trial court denied the hospital’s 

request to instruct the jury on this issue. Id. at 857. On appeal, the Texas Supreme 

Court affirmed the trial court’s decision because the physicians’ negligence was not 

a superseding cause for two reasons. Id. at 859. First, the risk that the physicians 

would fail to follow up was foreseeable because the hospital had credible evidence 

that physicians failed to properly follow up with patients. Id. at 858–59. Second, the 

risk caused by the physician’s negligence was the same risk that resulted from the 

hospital’s failure to notify the patient because both actions created the risk that the 

patient’s cancer would go untreated. Id. at 859. While the superseding cause defense 

is usually a question of fact for the jury, Venetoulias v. O’Brien, 909 S.W.2d 236, 

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241 (Tex. App. Ct. 1995), “[a] fact issue that is established with uncontroverted 

evidence and is not in dispute should not be submitted to the jury.” Robertson Cnty., 

Tex. v. Wymola, 17 S.W.3d 334, 342 (Tex. App. Ct. 2000) (citing T.O. Stanley Boot 

Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992)). Such is the case here.

The evidence in this case, even viewed in the light most favorable to 

Defendants, demonstrates that the Army’s alleged failure to fit Finley with the 

CAEv2 or train him on its use was not a superseding cause for two reasons. First, 

the Army’s alleged failures were foreseeable by Defendants. Like the hospital in 

Hawley, Defendants had tangible evidence that the Army did not have the capacity 

to fit and train its soldiers, including Finley, with the CAEv2. Specifically, as the 

Court has noted before, Defendants had “knowledge that the military had a shortage 

of audiologists and that the CAEv2 was being issued to all deploying soldiers 

without instructions from Defendants.” See In re 3M Combat Arms Earplug Prods. 

Liab. Litig., Case No. 7:20cv122-MCR-GRJ, ECF No. 56 at 7 (N.D. Fla. Sept. 1, 

2021) (citing documents that convey Defendants’ knowledge of the military’s 

audiologist shortage and Defendants’ knowledge of the widespread use of the 

CAEv2). With this knowledge, the Army’s actions were foreseeable to the 

Defendants as a matter of law. 

Additionally, similar to the physicians’ negligence in Hawley, the Army’s 

alleged failures created the same type of risk as Defendants’ actions. Defendants 

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allege that the Army’s failure to fit and train soldiers, including Finley, created a risk 

of hearing injury because if the Army had properly fit or trained soldiers, problems 

with the plug would have been detected or soldiers would have known to fold back 

the opposing flanges. Finley alleges that the Defendants’ defective design and failure 

to warn created a risk of hearing injury. Since both the Defendants’ and Army’s 

alleged actions worked to create Finley’s hearing injuries, the Army’s actions cannot 

be a superseding cause under Texas law. 

C. Defendants’ Failure to Mitigate Defense

Finley argues “there is no evidence Finley failed to mitigate his damages,” 

and therefore, summary judgment on this defense is proper. ECF No. 41-2 at 13. In 

response, Defendants argue that Finley failed to mitigate his damages by not wearing

hearing aids and by discontinuing mental health counseling. ECF No. 59 at 5–7.

Under Texas law, for the jury to be instructed on a plaintiff’s failure to 

mitigate “the evidence must (1) clearly show that the plaintiff’s decision not to 

mitigate caused further damages, and (2) sufficiently guide the jury in determining 

which damages were attributable to the plaintiff’s decision not to mitigate.” Formosa 

Plastics Corp. v. Kajima Intern., 216 S.W.3d 436, 459 (Tex. App. Ct. 2006) (citing 

Hygeia Diary Co. v. Gonzalez, 994 S.W.2d 220, 225 (Tex. App. Ct. 1999)).4

4 Finley arguesthat the failure to mitigate defense “fails out of the gate” because “an injured 

party is not required to minimize damages resulting from fraud.” ECF No. 41-2 at 13 (quoting 

Formosa, 216 S.W.3d at 459). The Court need not decide this issue based on its ruling.

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Defendants first argue that Finley failed to mitigate his damages by not using 

hearing aids. ECF No. 59 at 6. In support of this argument, Defendants cite Dr. James 

Crawford’s expert report, which states that if Finley “were to pursue hearing aids, 

he would have no limitations of performance due to his hearing loss.” Dr. 

Crawford’s Expert Report, ECF No. 37-14 at 26. The report further states that Finley 

should function well in “most situations” without hearing aids, which “explains why 

he has not pursued hearing aids.” Id. at 15. Dr. Crawford’s report itself provides a 

reasonable explanation for why Finley did not pursue hearing aids, see id; however, 

it does not provide sufficient evidence to “clearly show” that Finley’s decision not 

to use hearing aids “caused further damages.” Formosa, 216 S.W.3d at 459. 

Moreover, there is no evidence of how much the use of hearing aids would have 

mitigated Finley’s damages, and thus no evidence to “sufficiently guide the jury in 

determining which damages were attributable to” Finley’s decision not to use 

hearing aids. Id.; see also In re 3M Combat Arms Earplug Prods. Liab. Litg., 2021 

WL 2476651 at *4 (determining that defendants were not entitled to a failure to 

mitigate defense because there was “no evidence that would allow the jury to 

segregate the damages” attributable to the plaintiff’s decision not to use hearing 

aids).

Second, Defendants argue that Finely failed to mitigate his damages by 

discontinuing mental health counseling prior to filing suit. ECF No. 59 at 7. Based 

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on the records cited by Defendant, Finley sought and underwent mental health 

counseling in 2015 for post-traumatic stress disorder and general anxiety disorder, 

but Finley did not receive mental health counseling again until 2020 after he filed 

his case. ECF No. 59-6; ECF No. 59-7. While this evidence does show a gap in 

Finley’s mental health treatment, Defendants do not cite evidence showing that 

Finley’s mental health issues associated with hearing loss and tinnitus would be 

improved by regular mental health counseling.

5 Thus, there is insufficient evidence 

to “clearly show” that Finley’s decision not to continue mental health counseling 

increased his damages associated with hearing loss and tinnitus. Formosa, 216 

S.W.3d at 459 (explaining that “the evidence must clearly show that the plaintiff’s 

decision not to mitigate caused further damages”). Moreover, the medical records 

and deposition testimony cited by Defendants fail to “sufficiently guide the jury in 

determining which damages were attributable” to Finley’s decision to discontinue 

mental health counseling from 2015 to 2020. Id. 

Accordingly, Finley’s motion for summary judgment, ECF No. 41, is 

GRANTED as to the Defendants’ intermediary defenses, superseding cause 

defense, and failure to mitigate defense. 

5 Dr. Jacobs’s expert report is not relevant to this discussion because the report concludes 

that Finley’s hearing issues do not affect his mental health, meaning Finley does not have any 

damages to mitigate. Dr. Jacob’s Expert Report, ECF No. 41-6 at 7. This is likely why Defendants 

do not cite their own mental health expert’s report in support of this argument. ECF No. 59 at 7. 

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DONE AND ORDERED this 3rd day of November 2021.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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