UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION 

This Document Relates to: 

James Ingles v. 3M Co., et al. 

Case No. 7:20-cv-52539 

Case No. 3:19-md-2885-MCR-GRJ 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 

Pursuant to Fed. R. Civ. P. 56, Defendants request that the Court enter 

summary judgment in their favor on all of Plaintiff's claims. In support of this 

motion, Defendants rely upon the pleadings and the following memorandum of law 

and exhibits. Critical issues pertaining to Plaintiff's claims are currently on appeal 

in the Eleventh Circuit. See, e.g., 3M Company v. Estes, et al., No. 21-13131, 21-

13133, 21-13135 (11th Cir.). Specifically, each of Plaintiff's claims is barred by 

the government contractor defense. Also at issue on appeal is the applicability of 

the combat-use exemption under the Noise Control Act to the CAEv2. Should 

these issues be resolved in Defendants' favor on appeal, then all of Plaintiff's 

claims would be subject to dismissal. Defendants expressly do not waive reliance 

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION

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Case No. 3:19-md-2885-MCR-GRJ

Judge M. Casey Rodgers

This Document Relates to: Magistrate Judge Gary R. Jones

James Ingles v. 3M Co., et al.

Case No. 7:20-cv-52539

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56, Defendants request that the Court enter 

summary judgment in their favor on all of Plaintiff’s claims. In support of this

motion, Defendants rely upon the pleadings and the following memorandum of law 

and exhibits. Critical issues pertaining to Plaintiff’s claims are currently on appeal 

in the Eleventh Circuit. See, e.g., 3M Company v. Estes, et al., No. 21-13131, 21-

13133, 21-13135 (11th Cir.). Specifically, each of Plaintiff’s claims is barred by 

the government contractor defense. Also at issue on appeal is the applicability of 

the combat-use exemption under the Noise Control Act to the CAEv2. Should 

these issues be resolved in Defendants’ favor on appeal, then all of Plaintiff’s 

claims would be subject to dismissal. Defendants expressly do not waive reliance 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 1 of 16
on this defense and statutory exemption and reserve the right to raise these issues 

in supplemental summary judgment briefing following resolution of the appeal. 

MEMORANDUM OF LAW 

Plaintiff seeks compensatory and punitive damages against Defendants, 

alleging that defects in the Dual-Ended Combat Arms Earplug ("the CAEv2") 

caused him to experience hearing loss and tinnitus from noise exposure during his 

military service. His complaint asserts 14 substantive counts against Defendants. 

See ECF No. 4. All of these claims fail as a matter of Ohio law.1

STATEMENT OF FACTS 

1. Plaintiff served in the Army from 1996 to 2015. Ex. 1, Ingles 2/28/22 

Dep. 40:25-41:7. 

2. Plaintiff was deployed on a UN peacekeeping mission to Kosovo in 

2004. Plaintiff did not use the CAEv2 in Kosovo. Id. 45:9-14, 58:20-59:3. 

3. Plaintiff's first audiogram showing his alleged hearing loss is dated 

February 20,2007. Ex. 2, Levine 5/31/22 Dep. 80:16-23. 

4. Plaintiff claims he was first issued and used the CAEv2 in 2008 or 

2009 during his training for his deployment to Iraq in 2009. Ex. 1, Ingles 2/28/22 

Dep. 51:2-10, 51:19-52:7, 54:24-55:10, 58:16-59:3, 67:23-68:3. 

1The parties have agreed that Ohio law applies to Plaintiff's claims. 

2 2

on this defense and statutory exemption and reserve the right to raise these issues 

in supplemental summary judgment briefing following resolution of the appeal.

MEMORANDUM OF LAW

Plaintiff seeks compensatory and punitive damages against Defendants, 

alleging that defects in the Dual-Ended Combat Arms Earplug (“the CAEv2”) 

caused him to experience hearing loss and tinnitus from noise exposure during his 

military service. His complaint asserts 14 substantive counts against Defendants. 

See ECF No. 4. All of these claims fail as a matter of Ohio law.1

STATEMENT OF FACTS

1. Plaintiff served in the Army from 1996 to 2015. Ex. 1, Ingles 2/28/22 

Dep. 40:25–41:7.

2. Plaintiff was deployed on a UN peacekeeping mission to Kosovo in 

2004. Plaintiff did not use the CAEv2 in Kosovo. Id. 45:9–14, 58:20–59:3.

3. Plaintiff’s first audiogram showing his alleged hearing loss is dated

February 20, 2007. Ex. 2, Levine 5/31/22 Dep. 80:16–23.

4. Plaintiff claims he was first issued and used the CAEv2 in 2008 or 

2009 during his training for his deployment to Iraq in 2009. Ex. 1, Ingles 2/28/22 

Dep. 51:2–10, 51:19–52:7, 54:24–55:10, 58:16–59:3, 67:23–68:3.

1The parties have agreed that Ohio law applies to Plaintiff’s claims.

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 2 of 16
5. Plaintiff does not recall seeing an advertisement for the CAEv2 before 

or during his use of the product or receiving any written instructions about the 

CAEv2. Id. 59:23-60:1, 63:15-23. 

6. Plaintiff claims he first noticed his alleged hearing loss and tinnitus 

during his 2009 deployment to Iraq. Id. 19:23-20:5. 

7. Plaintiff sought medical attention for his alleged hearing loss and 

tinnitus in 2010. Id. 102:23-103:9. 

8. Plaintiff filed his complaint in 2019.2 ECF No. 4. 

ARGUMENT 

"The court shall grant summary judgment if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as 

a matter of law." Fed. R. Civ. P. 56(a); Salinero v. Johnson & Johnson, 995 F.3d 

959, 964 (11th Cir. 2021). "Where the record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party, there is no genuine issue for 

trial." Hubbard v. Bayer HealthCare Pharms. Inc., 983 F.3d 1223, 1232 (11th Cir. 

2020) (citing Tesoriero v. Carnival Corp., 965 F.3d 1170, 1177 (11th Cir. 2020)). 

2 Under a tolling agreement, Plaintiff's claims were deemed filed on October 4, 

2019. 

33 

5. Plaintiff does not recall seeing an advertisement for the CAEv2 before 

or during his use of the product or receiving any written instructions about the 

CAEv2. Id. 59:23–60:1, 63:15–23.

6. Plaintiff claims he first noticed his alleged hearing loss and tinnitus 

during his 2009 deployment to Iraq. Id. 19:23–20:5.

7. Plaintiff sought medical attention for his alleged hearing loss and 

tinnitus in 2010. Id. 102:23–103:9.

8. Plaintiff filed his complaint in 2019.2 ECF No. 4. 

ARGUMENT

“The court shall grant summary judgment if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as 

a matter of law.” Fed. R. Civ. P. 56(a); Salinero v. Johnson & Johnson, 995 F.3d 

959, 964 (11th Cir. 2021). “Where the record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party, there is no genuine issue for 

trial.” Hubbard v. Bayer HealthCare Pharms. Inc., 983 F.3d 1223, 1232 (11th Cir. 

2020) (citing Tesoriero v. Carnival Corp., 965 F.3d 1170, 1177 (11th Cir. 2020)).

2 Under a tolling agreement, Plaintiff’s claims were deemed filed on October 4, 

2019.

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 3 of 16
I. Plaintiff's claims are time-barred. 

A. Plaintiff's claims are barred by Ohio's two-year product 

liability/personal injury statute of limitations. 

Under Ohio law, any action "based on a product liability claim ... shall be 

brought within two years after the cause of action accrues," and "a cause of action 

accrues under this division when the injury or loss to person or property occurs." 

Ohio Rev. Code § 2305.10(A). The two-year statute of limitations thus applies to 

each of Plaintiff's claims. 

The two-year statute begins to run when a plaintiff "has constructive 

knowledge of the facts, rather than actual knowledge of their legal significance." 

Baxley v. Harley-Davidson Motor Co., Inc., 875 N.E.2d 989, 991 (Ohio Ct. App. 

2007). A plaintiff is required to bring an action for personal injury within two 

years of either "the date on which the plaintiff is informed by competent medical 

authority that he has been injured, or upon the date on which, by the exercise of 

reasonable diligence, he should have become aware that he had been injured, 

whichever date occurs first." 0 'Stricker v. Jim Walter Corp., 447 N.E.2d 727, 

732 (Ohio 1983). 

Plaintiff knew of his alleged injuries by 2009 and sought treatment by 

2010. Ex. 1, Ingles 2/28/22 Dep. 19:23-20:5, 102:23-103:9. However, he did not 

file suit until approximately nine years later. See ECF No. 4. Ohio's two-year 

statute of limitations bars all of Plaintiff's claims. 

4 4

I. Plaintiff’s claims are time-barred.

A. Plaintiff’s claims are barred by Ohio’s two-year product 

liability/personal injury statute of limitations. 

Under Ohio law, any action “based on a product liability claim ... shall be 

brought within two years after the cause of action accrues,” and “a cause of action 

accrues under this division when the injury or loss to person or property occurs.” 

Ohio Rev. Code § 2305.10(A). The two-year statute of limitations thus applies to 

each of Plaintiff’s claims.

The two-year statute begins to run when a plaintiff “has constructive 

knowledge of the facts, rather than actual knowledge of their legal significance.” 

Baxley v. Harley-Davidson Motor Co., Inc., 875 N.E.2d 989, 991 (Ohio Ct. App. 

2007). A plaintiff is required to bring an action for personal injury within two 

years of either “the date on which the plaintiff is informed by competent medical 

authority that he has been injured, or upon the date on which, by the exercise of 

reasonable diligence, he should have become aware that he had been injured, 

whichever date occurs first.” O’Stricker v. Jim Walter Corp., 447 N.E.2d 727, 

732 (Ohio 1983). 

Plaintiff knew of his alleged injuries by 2009 and sought treatment by 

2010. Ex. 1, Ingles 2/28/22 Dep. 19:23-20:5, 102:23–103:9. However, he did not 

file suit until approximately nine years later. See ECF No. 4. Ohio’s two-year

statute of limitations bars all of Plaintiff’s claims. 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 4 of 16
B. The Servicemembers Civil Relief Act ("SCRA"), fraudulent 

concealment, and equitable tolling do not save Plaintiff's claims. 

The SCRA excludes the period of a "servicemember's military service" 

from the computation of the statute of limitations. 50 U.S.C. § 3936(a). Plaintiff 

was discharged from the military in 2015 and knew of his alleged injuries at the 

time of discharge, but he did not file his complaint until 2019, four years later. 

The SCRA thus does not save Plaintiff's untimely claims. 

Under Ohio law, fraudulent concealment "is only available `in 

compelling cases which justify a departure from established procedure.' 

Perkins v. Falke & Dunphy, L.L.C., 2012 WL 6097104, at *3 (Ohio Ct. App. 

Dec. 7, 2012) (quoting Frees v. ITT Tech. School, 2010 WL 4323026, at *5 

(Ohio Ct. App. Oct. 29, 2010)). Further, "fraudulent concealment requires some 

affirmative act by the defendant to prevent discovery of the cause of action." 

Thornton v. State Farm Mut. Auto Ins. Co., 2006 WL 3359448, at *6 (N.D. 

Ohio Nov. 17, 2006). "'Concealment by mere silence is not enough. There 

must be some trick or contrivance intended to exclude suspicion and prevent 

inquiry." Id. (quoting Browning v. Levy, 283 F.3d 761, 770 (6th Cir. 2002)). 

Plaintiff has put forth no summary judgment evidence that Defendants 

affirmatively attempted to prevent him from discovering his alleged cause of 

action. Thus, fraudulent concealment does not toll Plaintiff's claims. 

55 

B. The Servicemembers Civil Relief Act (“SCRA”), fraudulent 

concealment, and equitable tolling do not save Plaintiff’s claims. 

The SCRA excludes the period of a “servicemember’s military service” 

from the computation of the statute of limitations. 50 U.S.C. § 3936(a). Plaintiff

was discharged from the military in 2015 and knew of his alleged injuries at the 

time of discharge, but he did not file his complaint until 2019, four years later. 

The SCRA thus does not save Plaintiff’s untimely claims.

Under Ohio law, fraudulent concealment “is only available ‘in

compelling cases which justify a departure from established procedure.’”

Perkins v. Falke & Dunphy, L.L.C., 2012 WL 6097104, at *3 (Ohio Ct. App.

Dec. 7, 2012) (quoting Frees v. ITT Tech. School, 2010 WL 4323026, at *5

(Ohio Ct. App. Oct. 29, 2010)). Further, “fraudulent concealment requires some

affirmative act by the defendant to prevent discovery of the cause of action.”

Thornton v. State Farm Mut. Auto Ins. Co., 2006 WL 3359448, at *6 (N.D.

Ohio Nov. 17, 2006). “‘Concealment by mere silence is not enough. There

must be some trick or contrivance intended to exclude suspicion and prevent

inquiry.’” Id. (quoting Browning v. Levy, 283 F.3d 761, 770 (6th Cir. 2002)). 

Plaintiff has put forth no summary judgment evidence that Defendants

affirmatively attempted to prevent him from discovering his alleged cause of 

action. Thus, fraudulent concealment does not toll Plaintiff’s claims.

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 5 of 16
Nor can Plaintiff claim that equitable estoppel tolled the limitations 

period. Equitable estoppel is available only when a plaintiff establishes that a 

defendant concealed or misrepresented information that "was calculated to 

induce a plaintiff to forgo the right to sue." Allen v. Andersen Windows, Inc., 913 

F. Supp. 2d 490, 511 (S.D. Ohio 2012). Allegations that a defendant failed to 

disclose information that its product was defective "describe a factual basis for 

certain claims for relief, but not a basis for applying" estoppel to the limitations 

period. Id. Plaintiff has no summary judgment evidence that Defendants made 

any misrepresentation to that induced him to forgo filing suit. Indeed, Plaintiff 

does not recall seeing an advertisement for the CAEv2 or receiving any written 

instructions about the CAEv2. Ex. 1, Ingles 2/28/22 Dep. 59:23-60:1, 63:15-23. 

Accordingly, Plaintiff's claims are untimely and should be dismissed under 

Ohio's two-year statute of limitations. 

In the event the Court examines any of the claims on their merits, each 

should be dismissed under Ohio law for the additional reasons set forth below. 

II. All of Plaintiff's claims are barred based on the necessary exclusion of 

Plaintiff's expert witness and lack of evidence of specific causation. 

All of Plaintiff's claims require him to prove causation. Ohio Rev. Stat. Ann. 

§ 2307.73(2). Specifically, Plaintiff must prove that an alleged defect in the 

CAEv2 "was the direct and proximate cause" of his injuries. Parsley v. Hamilton 

Beach/Proctor Silex, Inc., 494 F. Supp. 2d 858, 862 (S.D. Ohio 2007). "Under 

66 

Nor can Plaintiff claim that equitable estoppel tolled the limitations 

period. Equitable estoppel is available only when a plaintiff establishes that a 

defendant concealed or misrepresented information that “was calculated to 

induce a plaintiff to forgo the right to sue.” Allen v. Andersen Windows, Inc., 913 

F. Supp. 2d 490, 511 (S.D. Ohio 2012). Allegations that a defendant failed to

disclose information that its product was defective “describe a factual basis for

certain claims for relief, but not a basis for applying” estoppel to the limitations 

period. Id. Plaintiff has no summary judgment evidence that Defendants made

any misrepresentation to that induced him to forgo filing suit. Indeed, Plaintiff 

does not recall seeing an advertisement for the CAEv2 or receiving any written 

instructions about the CAEv2. Ex. 1, Ingles 2/28/22 Dep. 59:23–60:1, 63:15–23.

Accordingly, Plaintiff’s claims are untimely and should be dismissed under

Ohio’s two-year statute of limitations.

In the event the Court examines any of the claims on their merits, each

should be dismissed under Ohio law for the additional reasons set forth below.

II. All of Plaintiff’s claims are barred based on the necessary exclusion of 

Plaintiff’s expert witness and lack of evidence of specific causation. 

All of Plaintiff’s claims require him to prove causation. Ohio Rev. Stat. Ann. 

§ 2307.73(2). Specifically, Plaintiff must prove that an alleged defect in the 

CAEv2 “was the direct and proximate cause” of his injuries. Parsley v. Hamilton 

Beach/Proctor Silex, Inc., 494 F. Supp. 2d 858, 862 (S.D. Ohio 2007). “Under 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 6 of 16
Ohio law, a plaintiff must present expert medical testimony to establish causation 

when she asserts a specific physical injury, the cause of which is not within 

common knowledge." Botnick v. Zimmer, Inc., 484 F. Supp. 2d 715, 724 (N.D. 

Ohio 2007). Where a plaintiff has "no expert analysis or other evidence 

demonstrating that some aspect of the design" was defective and caused injury, the 

claims should be dismissed. McGrath v. Gen. Motors Corp., 26 F. App'x 506, 511 

(6th Cir. 2002). 

The cause of Plaintiff's alleged hearing loss and tinnitus is a complex 

medical inquiry beyond the ken of the ordinary juror. Accordingly, competent 

expert testimony is required to establish a causal connection between Plaintiff's 

alleged injuries and the CAEv2. Plaintiff proffered one specific causation expert: 

Dr. Steven Levine, an otolaryngologist. For the reasons set forth in Defendants' 

Motion to Exclude Dr. Levine, Plaintiff has not proffered competent expert 

testimony that the CAEv2 caused Plaintiff's alleged hearing loss and tinnitus. 

In addition, by his own admission, Dr. Levine did not offer an opinion that 

the CAEv2 caused or contributed to Plaintiff's alleged injuries. He opined only 

that "[n]oise exposure caused [Plaintiff's] hearing loss," and agreed that he is not 

offering an opinion that Plaintiff would not have hearing loss but for his use of the 

CAEv2. Ex. 2, Levine 5/31/22 Dep. 75:15-76:19. 

77 

Ohio law, a plaintiff must present expert medical testimony to establish causation 

when she asserts a specific physical injury, the cause of which is not within 

common knowledge.” Botnick v. Zimmer, Inc., 484 F. Supp. 2d 715, 724 (N.D. 

Ohio 2007). Where a plaintiff has “no expert analysis or other evidence

demonstrating that some aspect of the design” was defective and caused injury, the 

claims should be dismissed. McGrath v. Gen. Motors Corp., 26 F. App’x 506, 511

(6th Cir. 2002).

The cause of Plaintiff’s alleged hearing loss and tinnitus is a complex 

medical inquiry beyond the ken of the ordinary juror. Accordingly, competent 

expert testimony is required to establish a causal connection between Plaintiff’s 

alleged injuries and the CAEv2. Plaintiff proffered one specific causation expert: 

Dr. Steven Levine, an otolaryngologist. For the reasons set forth in Defendants’ 

Motion to Exclude Dr. Levine, Plaintiff has not proffered competent expert 

testimony that the CAEv2 caused Plaintiff’s alleged hearing loss and tinnitus. 

In addition, by his own admission, Dr. Levine did not offer an opinion that 

the CAEv2 caused or contributed to Plaintiff’s alleged injuries. He opined only 

that “[n]oise exposure caused [Plaintiff’s] hearing loss,” and agreed that he is not

offering an opinion that Plaintiff would not have hearing loss but for his use of the 

CAEv2. Ex. 2, Levine 5/31/22 Dep. 75:15–76:19.

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 7 of 16
Further, Dr. Levine testified that he would withdraw his causation opinions 

if Plaintiff first used the CAEv2 after his February 2007 audiogram, the first 

audiogram demonstrating Plaintiff's alleged hearing loss. Id. 112:14-113:14. 

Plaintiff repeatedly testified that he first received the CAEv2 during his training for 

Iraq in 2008 or 2009 and that he did not have or use the CAEv2 before then, 

including during a 2004 UN peacekeeping mission to Kosovo. Ex. 1, Ingles 

2/28/22 Dep. 45:9-14, 51:2-10, 51:19-52:7, 54:24-55:10, 58:16-59:3, 67:23-

68:3. 

Accordingly, because Dr. Levine's opinions should be excluded on multiple 

grounds, Plaintiff lacks admissible expert testimony to establish specific causation 

and all of his claims should be dismissed. 

III. The Ohio Product Liability Act is the exclusive remedy for Plaintiff's 

injuries and preempts all of Plaintiff's common law claims. 

The Ohio Product Liability Act ("OPLA") defines a product liability claim 

as one that "seeks to recover compensatory damages from a manufacturer or 

supplier for death, physical injury to person, emotional distress, or physical 

damage to property other than the product in question." Ohio Rev. Code 

§ 2307.71(A)(13). The OPLA governs claims arising from a product's alleged 

defective manufacture, defective design, inadequate warning, or failure to conform 

to a relevant representation or warranty. Id. 

88 

Further, Dr. Levine testified that he would withdraw his causation opinions 

if Plaintiff first used the CAEv2 after his February 2007 audiogram, the first 

audiogram demonstrating Plaintiff’s alleged hearing loss. Id. 112:14–113:14. 

Plaintiff repeatedly testified that he first received the CAEv2 during his training for 

Iraq in 2008 or 2009 and that he did not have or use the CAEv2 before then, 

including during a 2004 UN peacekeeping mission to Kosovo. Ex. 1, Ingles 

2/28/22 Dep. 45:9–14, 51:2–10, 51:19–52:7, 54:24–55:10, 58:16–59:3, 67:23–

68:3.

Accordingly, because Dr. Levine’s opinions should be excluded on multiple 

grounds, Plaintiff lacks admissible expert testimony to establish specific causation 

and all of his claims should be dismissed.

III. The Ohio Product Liability Act is the exclusive remedy for Plaintiff’s 

injuries and preempts all of Plaintiff’s common law claims.

The Ohio Product Liability Act (“OPLA”) defines a product liability claim 

as one that “seeks to recover compensatory damages from a manufacturer or 

supplier for death, physical injury to person, emotional distress, or physical 

damage to property other than the product in question.” Ohio Rev. Code 

§ 2307.71(A)(13). The OPLA governs claims arising from a product’s alleged 

defective manufacture, defective design, inadequate warning, or failure to conform 

to a relevant representation or warranty. Id.

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 8 of 16
The statute "applies to [a]ny recovery of compensatory [or punitive] 

damages based on a product liability claim." Mitchell v. Proctor & Gamble, 2010 

WL 728222, at *2 (S.D. Ohio Mar. 1, 2010). The OPLA was amended in 2005 to 

abolish "all common law product liability claims or causes of action." Ohio Rev. 

Code § 2307.71(B). The statute expressly eliminates "common law torts as an 

avenue for relief from injuries suffered from allegedly defective products." 

Fulgenzi v. PLIVA, 867 F. Supp. 2d 966, 972 (N.D. Ohio 2012), rev'd on other 

grounds, 711 F.3d 578 (6th Cir. 2013); accord Meta v. Target Corp., 74 F. Supp. 

3d 858, 861 (N.D. Ohio 2015); Krumpelbeck v. Breg, Inc., 491 F. App'x 713, 721 

(6th Cir. 2012); Parker v. ACE Hardware Corp., 104 N.E.3d 298, 304 (Ohio Ct. 

App. 2018). 

All of Plaintiff's claims based on alleged negligence (Counts I, III, XI, XII), 

breach of warranty (Counts V and VI), fraud and consumer fraud (Counts VII-X), 

and unjust enrichment (Count XV) are abrogated by the OPLA and should be 

dismissed. See McManus v. Smith & Nephew, Inc., 2020 WL 127702, at *2-3 (S.D. 

Ohio Jan. 10, 2020); Parker, 104 N.E.3d at 305; Jones v. Staubli Motor Sports Div. 

of Staiibli Am. Corp., 897 F. Supp. 2d 599, 617-18 (S.D. Ohio 2012); Tolliver v. 

Bristol-Myers Squibb Co., 2012 WL 3074538, at *2-3 (N.D. Ohio July 30, 2012); 

Luthman v. Minster Supply Co., 2008 WL 169999, at *7 (Ohio Ct. App. 2008); In 

re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 950 (6th 

99 

The statute “applies to [a]ny recovery of compensatory [or punitive] 

damages based on a product liability claim.” Mitchell v. Proctor & Gamble, 2010 

WL 728222, at *2 (S.D. Ohio Mar. 1, 2010). The OPLA was amended in 2005 to 

abolish “all common law product liability claims or causes of action.” Ohio Rev. 

Code § 2307.71(B). The statute expressly eliminates “common law torts as an 

avenue for relief from injuries suffered from allegedly defective products.” 

Fulgenzi v. PLIVA, 867 F. Supp. 2d 966, 972 (N.D. Ohio 2012), rev’d on other 

grounds, 711 F.3d 578 (6th Cir. 2013); accord Meta v. Target Corp., 74 F. Supp. 

3d 858, 861 (N.D. Ohio 2015); Krumpelbeck v. Breg, Inc., 491 F. App’x 713, 721 

(6th Cir. 2012); Parker v. ACE Hardware Corp., 104 N.E.3d 298, 304 (Ohio Ct. 

App. 2018).

All of Plaintiff’s claims based on alleged negligence (Counts I, III, XI, XII), 

breach of warranty (Counts V and VI), fraud and consumer fraud (Counts VII-X), 

and unjust enrichment (Count XV) are abrogated by the OPLA and should be 

dismissed. See McManus v. Smith & Nephew, Inc., 2020 WL 127702, at *2-3 (S.D. 

Ohio Jan. 10, 2020); Parker, 104 N.E.3d at 305; Jones v. Staübli Motor Sports Div. 

of Staübli Am. Corp., 897 F. Supp. 2d 599, 617-18 (S.D. Ohio 2012); Tolliver v. 

Bristol-Myers Squibb Co., 2012 WL 3074538, at *2-3 (N.D. Ohio July 30, 2012); 

Luthman v. Minster Supply Co., 2008 WL 169999, at *7 (Ohio Ct. App. 2008); In 

re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 950 (6th 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 9 of 16
Cir. 2014) (Ohio law); Johnson v. Eli Lilly & Co., 2015 WL 1120009, at *2 (S.D. 

Ohio 2015); Mitchell, 2010 WL 728222, at *4; Leen v. Wright Med. Tech., Inc., 

2015 WL 5545064, at *2 (S.D. Ohio 2015).3

IV. Plaintiff's design defect claim (Count II) fails for lack of causation. 

Plaintiff's design defect claim should be dismissed because Plaintiff cannot 

prove that (a) the alleged defect caused his injury; and (b) a safer alternative design 

would have prevented his alleged injuries. 

A. Plaintiff has no proof that the alleged defect caused his injury. 

Plaintiff has not identified the product defect that he alleges caused his 

injury as required by Ohio Rev. Stat. Ann. § 2307.73(2), Utz v. Howmedica 

Osteonics Corp., 2009 WL 5409046, at *10 (N.D. Ohio Mar. 31, 2009) (granting 

summary judgment to defendants where "Plaintiffs lack direct evidence that a 

defect in the design of the [spinal rod system] caused Utz's injury"). Plaintiff 

requires expert testimony to meet this standard. Newell Rubbermaid, Inc. v. 

Raymond Corp., 676 F.3d 521, 529 (6th Cir. 2012). 

Plaintiff's expert Dr. Levine does not offer an opinion that the CAEv2 

caused or contributed to Plaintiff's alleged injuries. See supra Section III. 

Plaintiff thus lacks necessary expert testimony and his claim fails under Ohio law. 

3 Plaintiff cannot avoid the exclusivity of the OPLA under the economic loss 

carveout, which applies only where the alleged damage is to the product itself. See 

Meta, 74 F. Supp. 3d at 863-65. 

10 10

Cir. 2014) (Ohio law); Johnson v. Eli Lilly & Co., 2015 WL 1120009, at *2 (S.D. 

Ohio 2015); Mitchell, 2010 WL 728222, at *4; Leen v. Wright Med. Tech., Inc., 

2015 WL 5545064, at *2 (S.D. Ohio 2015).3

IV. Plaintiff’s design defect claim (Count II) fails for lack of causation.

Plaintiff’s design defect claim should be dismissed because Plaintiff cannot 

prove that (a) the alleged defect caused his injury; and (b) a safer alternative design 

would have prevented his alleged injuries. 

A. Plaintiff has no proof that the alleged defect caused his injury.

Plaintiff has not identified the product defect that he alleges caused his 

injury as required by Ohio Rev. Stat. Ann. § 2307.73(2), Utz v. Howmedica 

Osteonics Corp., 2009 WL 5409046, at *10 (N.D. Ohio Mar. 31, 2009) (granting 

summary judgment to defendants where “Plaintiffs lack direct evidence that a 

defect in the design of the [spinal rod system] caused Utz’s injury”). Plaintiff 

requires expert testimony to meet this standard. Newell Rubbermaid, Inc. v. 

Raymond Corp., 676 F.3d 521, 529 (6th Cir. 2012).

Plaintiff’s expert Dr. Levine does not offer an opinion that the CAEv2 

caused or contributed to Plaintiff’s alleged injuries. See supra Section III.

Plaintiff thus lacks necessary expert testimony and his claim fails under Ohio law.

3 Plaintiff cannot avoid the exclusivity of the OPLA under the economic loss 

carveout, which applies only where the alleged damage is to the product itself. See 

Meta, 74 F. Supp. 3d at 863–65.

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 10 of 16
B. Plaintiff has no proof that a safer alternative design would have 

prevented his injuries. 

Plaintiff must prove that the alleged risks of the CAEv2 exceeded its 

benefits and that a feasible alternative design would have prevented his alleged 

injury without reducing the product's usefulness or purpose. Ohio Rev. Code 

§ 2307.75(F), McGrath, 26 F. App'x at 510. In addition, Plaintiff must proffer 

admissible expert testimony that the proposed alternative feasible design "would 

have prevented the harm for which the plaintiff seeks to recover." Zang v. Cones, 

534 N.E.3d 955, 961 (Ohio Ct. App. 2015). Failure to do so is fatal to the claim. 

Yanovich v. Sulzer Orthopedics, Inc., 2006 WL 3716812, at *13 (N.D. Ohio Dec. 

14, 2006), aff'd, 255 F. App'x 957 (6th Cir. 2007) (granting summary judgment 

because plaintiff's expert did not present any evidence of a design available on the 

marketplace at the time of the surgery that would have prevented his alleged 

injury). 

Plaintiff's expert does not meet this burden. In addition to failing to opine 

that the CAEv2 caused Plaintiff's alleged injuries, Dr. Levine did not present any 

evidence of an alternative design that would have prevented the alleged injuries. 

V. Plaintiff's failure-to-warn claim (Count IV) fails due to lack of 

causation. 

Plaintiff's failure-to-warn claim should also be dismissed because he cannot 

establish proximate cause. To prevail on a failure-to-warn claim under Ohio law, a 

11 11

B. Plaintiff has no proof that a safer alternative design would have 

prevented his injuries. 

Plaintiff must prove that the alleged risks of the CAEv2 exceeded its

benefits and that a feasible alternative design would have prevented his alleged 

injury without reducing the product’s usefulness or purpose. Ohio Rev. Code

§ 2307.75(F), McGrath, 26 F. App’x at 510. In addition, Plaintiff must proffer 

admissible expert testimony that the proposed alternative feasible design “would 

have prevented the harm for which the plaintiff seeks to recover.” Zang v. Cones,

534 N.E.3d 955, 961 (Ohio Ct. App. 2015). Failure to do so is fatal to the claim.

Yanovich v. Sulzer Orthopedics, Inc., 2006 WL 3716812, at *13 (N.D. Ohio Dec. 

14, 2006), aff’d, 255 F. App’x 957 (6th Cir. 2007) (granting summary judgment 

because plaintiff’s expert did not present any evidence of a design available on the

marketplace at the time of the surgery that would have prevented his alleged

injury).

Plaintiff’s expert does not meet this burden. In addition to failing to opine 

that the CAEv2 caused Plaintiff’s alleged injuries, Dr. Levine did not present any 

evidence of an alternative design that would have prevented the alleged injuries. 

V. Plaintiff’s failure-to-warn claim (Count IV) fails due to lack of 

causation. 

Plaintiff’s failure-to-warn claim should also be dismissed because he cannot 

establish proximate cause. To prevail on a failure-to-warn claim under Ohio law, a 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 11 of 16
plaintiff must establish: "(1) a duty to warn against reasonably foreseeable risks; 

(2) breach of this duty; and (3) an injury that is proximately caused by the breach." 

Graham v. Am. Cyanamid Co., 350 F.3d 496, 514 (6th Cir. 2003); Ohio Rev. Code 

§ 2307.76(A)(1). To establish proximate cause for this claim, there are two 

separate issues: (1) whether lack of adequate warnings contributed to the plaintiff's 

use of the product, and (2) whether use of the product constitutes a proximate 

cause of the plaintiff's injury. Seley v. G.D. Searle & Co., 423 N.E.2d 831, 838 

(Ohio 1981). 

Where the evidence demonstrates that a different "warning would have 

made no difference," then "the required element of proximate causation . . . is 

lacking." Seley, 423 N.E.2d at 838-39. That is exactly the fact pattern here. There 

is no evidence that a different warning to the U.S. government would have 

prevented Plaintiff's injury by causing the government not to purchase the CAEv2. 

Nor can Plaintiff establish that an additional warning would have altered the 

outcome in his particular case. 

Plaintiff testified that he was issued the CAEv2 from a bulk shipment 

delivered to the Army while he was preparing to deploy to Iraq. Ex. 1, Ingles 

2/28/22 Dep. 51:19-52:7, 54:24-55:10. The Court has ruled that, consistent with 

the military's instructions not to provide instructions inside the bulk shipments of 

CAEv2, Defendants could have provided warnings to servicemembers by "affixing 

12 12

plaintiff must establish: “(1) a duty to warn against reasonably foreseeable risks; 

(2) breach of this duty; and (3) an injury that is proximately caused by the breach.”

Graham v. Am. Cyanamid Co., 350 F.3d 496, 514 (6th Cir. 2003); Ohio Rev. Code 

§ 2307.76(A)(1). To establish proximate cause for this claim, there are two 

separate issues: (1) whether lack of adequate warnings contributed to the plaintiff’s 

use of the product, and (2) whether use of the product constitutes a proximate 

cause of the plaintiff’s injury. Seley v. G.D. Searle & Co., 423 N.E.2d 831, 838 

(Ohio 1981).

Where the evidence demonstrates that a different “warning would have 

made no difference,” then “the required element of proximate causation . . . is 

lacking.” Seley, 423 N.E.2d at 838–39. That is exactly the fact pattern here. There 

is no evidence that a different warning to the U.S. government would have 

prevented Plaintiff’s injury by causing the government not to purchase the CAEv2. 

Nor can Plaintiff establish that an additional warning would have altered the 

outcome in his particular case.

Plaintiff testified that he was issued the CAEv2 from a bulk shipment 

delivered to the Army while he was preparing to deploy to Iraq. Ex. 1, Ingles 

2/28/22 Dep. 51:19–52:7, 54:24–55:10. The Court has ruled that, consistent with 

the military’s instructions not to provide instructions inside the bulk shipments of 

CAEv2, Defendants could have provided warnings to servicemembers by “affixing 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 12 of 16
warnings to the outside of the [bulk shipment] boxes."4 However, Plaintiff has no 

evidence that he actually saw any warning affixed to any bulk shipment box or any 

other packaging or advertisement. Rather, Plaintiff testified that he does not recall 

seeing an advertisement for the CAEv2 before or during his use of the product, nor 

does he recall receiving any written instructions. Ex. 1, Ingles 2/28/22 Dep. 59:23-

60:1, 63:15-23. Because he did not see the warnings, he could not have read and 

relied on them, and he cannot sustain his failure-to-warn claim.5

VI. Plaintiff's punitive damages claim (Count XVI) should be dismissed. 

Ohio law does not recognize a separate "claim" for punitive damages. Beair 

v. Ohio Dept. of Rehab., 156 F. Supp. 3d 898, 907 (N.D. Ohio 2016) (dismissing 

cause of action for punitive damages "because there is no such freestanding cause 

of action under Ohio or federal law"). Punitive damages "are only determined if 

4 Case No. 3:19-md-02885, Dkt. 1280 at 54. 

5 To the extent Plaintiff purports to allege product non-conformance, the claim 

would fail for the same reason. A claim for non-conformance requires proof of "an 

express representation of a material fact concerning the character, quality, or safety 

of a product." Ohio Rev. Code § 2307.71(A)(14) (emphasis added). "To succeed 

on such a claim, a plaintiff must show that (1) the manufacturer made a 

representation as to a material fact relating to the character or quality of the 

product; (2) the product did not conform to that representation; (3) the plaintiffs 

justifiably relied on that representation; and (4) the plaintiffs' reliance on the 

representation was the direct and proximate cause of the plaintiffs' injuries." 

Tolliver, 2012 WL 3074538, at *5. Plaintiff did not see or rely on any 

representation and thus cannot maintain a claim for non-conformance. 

13 13

warnings to the outside of the [bulk shipment] boxes.”4 However, Plaintiff has no 

evidence that he actually saw any warning affixed to any bulk shipment box or any 

other packaging or advertisement. Rather, Plaintiff testified that he does not recall 

seeing an advertisement for the CAEv2 before or during his use of the product, nor 

does he recall receiving any written instructions. Ex. 1, Ingles 2/28/22 Dep. 59:23–

60:1, 63:15–23. Because he did not see the warnings, he could not have read and 

relied on them, and he cannot sustain his failure-to-warn claim.5

VI. Plaintiff’s punitive damages claim (Count XVI) should be dismissed.

Ohio law does not recognize a separate “claim” for punitive damages. Beair 

v. Ohio Dept. of Rehab., 156 F. Supp. 3d 898, 907 (N.D. Ohio 2016) (dismissing 

cause of action for punitive damages “because there is no such freestanding cause 

of action under Ohio or federal law”). Punitive damages “are only determined if 

4 Case No. 3:19-md-02885, Dkt. 1280 at 54.

5 To the extent Plaintiff purports to allege product non-conformance, the claim 

would fail for the same reason. A claim for non-conformance requires proof of “an 

express representation of a material fact concerning the character, quality, or safety 

of a product.” Ohio Rev. Code § 2307.71(A)(14) (emphasis added). “To succeed 

on such a claim, a plaintiff must show that (1) the manufacturer made a 

representation as to a material fact relating to the character or quality of the 

product; (2) the product did not conform to that representation; (3) the plaintiffs 

justifiably relied on that representation; and (4) the plaintiffs’ reliance on the 

representation was the direct and proximate cause of the plaintiffs’ injuries.” 

Tolliver, 2012 WL 3074538, at *5. Plaintiff did not see or rely on any 

representation and thus cannot maintain a claim for non-conformance. 

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 13 of 16
and after a plaintiff has proven liability." Hertzfeld v. Hayward Pool Prods., Inc., 

2007 WL 4563446, at *10 (Ohio Ct. App. Dec. 31, 2007). 

Plaintiff's separate punitive damages "claim" (Count XVI) should therefore 

be dismissed. 

CONCLUSION 

For these reasons, Defendants respectfully request that the Court enter 

summary judgment in their favor on all Plaintiff's claims. 

Dated: July 21, 2022 

14 

Respectfully submitted, 

/s/ Kimberly Branscome 

Kimberly Branscome 

DECHERT LLP 

633 W. 5th St., Suite 4900 

Los Angeles, CA 90071 

Telephone: (213) 808-5762 

kimberly.branscome@dechert.com 

Counsel for Defendants 3M 

Company, 3M Occupational 

Safety LLC, Aearo 

Technologies LLC, Aearo 

Holding, LLC, Aearo 

Intermediate, LLC and Aearo, 

LLC 

14

and after a plaintiff has proven liability.” Hertzfeld v. Hayward Pool Prods., Inc., 

2007 WL 4563446, at *10 (Ohio Ct. App. Dec. 31, 2007).

Plaintiff’s separate punitive damages “claim” (Count XVI) should therefore 

be dismissed.

CONCLUSION

For these reasons, Defendants respectfully request that the Court enter

summary judgment in their favor on all Plaintiff’s claims.

Respectfully submitted,

Dated: July 21, 2022 /s/ Kimberly Branscome

Kimberly Branscome

DECHERT LLP

633 W. 5th St., Suite 4900

Los Angeles, CA 90071

Telephone: (213) 808-5762

kimberly.branscome@dechert.com

Counsel for Defendants 3M

Company,3M Occupational 

Safety LLC, Aearo

Technologies LLC, Aearo 

Holding, LLC, Aearo 

Intermediate, LLC and Aearo,

LLC

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 14 of 16
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

Pursuant to Local Rule 7.1(F), counsel for Defendants certify that this 

motion contains 3005 words, excluding the case style, signature block, and 

certificates of compliance with the Local Rules. 

Dated: July 21, 2022 /s/ Kimberly Branscome 

Kimberly Branscome 

15 15

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F)

Pursuant to Local Rule 7.1(F), counsel for Defendants certify that this

motion contains 3005 words, excluding the case style, signature block, and

certificates of compliance with the Local Rules.

Dated: July 21, 2022 /s/ Kimberly Branscome

Kimberly Branscome

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 15 of 16
CERTIFICATE OF SERVICE 

I hereby certify that on this date, I electronically filed the foregoing 

document with the Clerk of the United States District Court for the Northern 

District of Florida using the electronic case filing system of the Court, which will 

send electronic service to all registered counsel of record. 

Dated: July 21, 2022 /s/ Kimberly Branscome 

Kimberly Branscome 

16 16

CERTIFICATE OF SERVICE

I hereby certify that on this date, I electronically filed the foregoing 

document with the Clerk of the United States District Court for the Northern 

District of Florida using the electronic case filing system of the Court, which will 

send electronic service to all registered counsel of record.

Dated: July 21, 2022 /s/ Kimberly Branscome

Kimberly Branscome

Case 7:20-cv-52539-MCR-GRJ Document 12 Filed 07/21/22 Page 16 of 16