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 All Cases Judge M. Casey Rodgers

Magistrate Judge Hope T. Cannon

ORDER1

This matter is before the Court on Plaintiff Alvin Irizarry’s motion for 

summary judgment. See ECF No. 15. On full consideration, the motion is 

GRANTED.

I. Legal Standard

Summary judgment is appropriate where the record reflects 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 

1 This Order assumes the parties’ familiarity with the general factual allegations and nature 

of this multidistrict litigation. 

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such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

The moving party bears the initial burden of “informing the court of the basis 

for its motion and of identifying those materials that demonstrate the absence of a 

genuine issue of material fact.” Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 

836, 840 (11th Cir. 2000) (citing Celotex, 477 U.S. at 323). Once that burden is met, 

the nonmoving party must “go beyond the pleadings” and present competent record 

evidence showing the existence of a genuine, material factual dispute for trial. 

Celotex, 477 U.S. at 324. In doing so, and to avoid summary judgment, the 

nonmoving party “must do more than simply show that there is some metaphysical 

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986). The “mere existence of a scintilla of evidence” supporting 

the nonmovant’s case is insufficient to defeat a motion for summary judgment. 

Liberty Lobby, 477 U.S. at 252. In assessing whether a movant is entitled to 

summary judgment, a court must view the evidence and factual inferences drawn 

therefrom in the light most favorable to the non-moving party. See id. at 255; Allen 

v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). Ultimately, summary judgment 

must be entered where “the nonmoving party has failed to make a sufficient showing 

on an essential element of [its] case with respect to which [it] has the burden of 

proof.” Celotex, 477 U.S. at 323.

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II. Discussion

Irizarry asserts fifteen claims against Defendant 3M Company under Alabama 

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

Earplug version 2 (“CAEv2”) during his military service. See 1st Am. Compl., ECF 

No. 4.2

 Defendant raises several affirmative defenses, including, as relevant here, 

that Irizarry’s claims are barred by various intermediary doctrines and that Irizarry’s 

injuries may have been caused by the superseding acts of negligence of a non-party, 

the United States. See Answer, ECF No. 21 at 7-8. Irizarry now moves for summary 

judgment on the intermediary and superseding cause defenses. 

A. Intermediary Defenses

Irizarry seeks summary judgment on Defendant’s affirmative defenses under 

the sophisticated intermediary, learned intermediary, and bulk supplier or purchaser 

doctrines on grounds that the doctrines do not apply to consumer products marketed 

and sold directly to the general public. The Court agrees. 

Under Alabama law, the learned intermediary doctrine is limited to cases 

involving drugs and medical devices only available to patients by prescription, 

which the CAEv2 is not. See Blackburn v. Shire U.S., Inc., --- So. 3d ---, 2022 WL 

4588887, at *4-5 (Ala. 2022). Alabama’s bulk supplier doctrine applies only in the 

context of component parts manufacturers or raw material/industrial chemical 

2 The parties agree that Alabama law applies to Irizarry’s claims. See ECF No. 11.

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suppliers, which, with respect to the CAEv2 at least, Defendant is not. See Sanders 

v. Ingram Equip., Inc., 531 So. 2d 879, 880 (Ala. 1988); Lakeman v. Otis Elevator 

Co., 930 F.2d 1547, 1551-52 (11th Cir. 1991) (applying Alabama law). Last, no 

Alabama court has ever adopted the sophisticated intermediary doctrine, and 

Defendant has not even argued that those courts would do so, much less cited 

authority to support such a conclusion. In any event, none of the jurisdictions that 

recognize the sophisticated intermediary doctrine have applied it to ordinary 

products marketed and sold directly to the general public, like the CAEv2. See In re 

3M, ECF No. 173 at 6-8 (collecting cases); Estes v. 3M, 7:20cv137, ECF No. 173 at 

8 (“[T]he basis for distinguishing ordinary consumer products is clear—the 

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

purchase and use the product without an intermediary.”) (internal marks omitted); 

see also S-GEN-083 (CAEv2 commercial packaging). Here, soldiers could and 

routinely did purchase the CAEv2 in stores. See, e.g., Hacker v. 3M Co., No. 

7:20cv131, ECF No. 233-22 at 104 (soldier testifying that he purchased the CAEv2 

at a store on a military base). In short, because the CAEv2 was marketed and sold 

directly to consumers as a discrete, finished product, all of Defendant’s asserted 

intermediary defenses fail as a matter of law. Therefore, Irizarry’s motion for 

summary judgment is granted as to the intermediary defenses. 

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B. Superseding Cause Defense

Irizarry moves for summary judgment on Defendant’s superseding cause 

defense, arguing that the Army’s alleged failure to properly fit Irizarry with the 

CAEv2, train him on its use, and/or warn him of its dangers was foreseeable and 

created the same risk as Defendant’s actions, and thus cannot constitute a 

superseding cause as a matter of law. The Court agrees. 

Under Alabama law, an independent act or event constitutes a superseding 

cause that relieves a defendant from liability for a plaintiff’s injuries only where the 

intervening act or event was unforeseeable and not a “normal part of the risk created” 

by the defendant’s conduct. See Haddan v. Norfolk S. Ry. Co., --- So. 3d ---, 2022 

WL 333879, at *3 (Ala. 2022); Ala. Power Co. v. Moore, 899 So. 2d 975, 979 (Ala. 

2004). “A [reasonably] foreseeable intervening act does not break the causal 

relationship between the defendant[’s] actions and the plaintiff[’s] injuries,” and 

does not relieve the defendant of liability. See Ala. Power, 899 So. 2d at 979 (“The 

line is drawn to terminate the defendant’s responsibility for injuries of the 

unanticipated sort resulting from intervening causes which could not reasonably be 

foreseen, and which are no normal part of the risk created.”); Haddan, 2022 WL 

333879, at *3 (“If an intervening cause could have reasonably been foreseen at the 

time the tortfeasor acted, it does not break the chain of causation” between the 

defendants’ actions and the plaintiffs’ injuries.). While the reasonable foreseeability 

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of an intervening cause generally is a question of fact for a jury, it is to be decided 

by the court as a matter of law where “the facts of the cause are not conflicting, and 

where there can be no reasonable difference of opinion as to the conclusion to be 

reached upon them.” Haddan, 2022 WL 333879, at *6 (quoting Ala. Power, 899 

So. 2d at 979). 

Here, as the Court has repeatedly found in this litigation, even viewed in the 

light most favorable to Defendant, the undisputed facts establish that Defendant 

knew the Army had a shortage of audiologists and that the CAEv2 was being issued 

to all deploying soldiers without manufacturer’s warnings or instructions. See, e.g., 

Adkins v. 3M, No. 7:20cv012, ECF No. 57 at 8 (citing internal documents 

demonstrating Defendant’s knowledge); George v. 3M, No. 7:20cv71963, ECF No. 

81 at 5; see also ECF No. 15-2 (internal company emails discussing same). With 

that knowledge, it was entirely foreseeable to Defendant that the Army may fail to 

fit Irizarry with the CAEv2, train him on its use, and/or warn him of its dangers. See, 

e.g., Adkins, ECF No. 57 at 4-9; Camarillo v. 3M, No. 7:20cv098, ECF No. 83 at 9; 

James v. 3M, 7:20cv12243, ECF No. 27 at 6. Moreover, the Army’s alleged failure 

to fit, train, and/or warn Irizarry and the Defendant’s alleged actions in designing a 

defective earplug created precisely the same type of risk—namely, that Irizarry’s 

hearing would be damaged by injurious noise. See, e.g., Adkins, ECF No. 57 at 6-7 

& 9; Camarillo, ECF No. 83 at 9-10; James, ECF No. 27 at 6. Because the Army’s 

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alleged failures were foreseeable and resulted in the same type of risk as Defendant’s 

actions, the failures cannot constitute a superseding cause of Irizarry’s injuries as a 

matter of Alabama law. See Haddan, 2022 WL 333879, at *6 (quoting Ala. Power, 

899 So. 2d at 979). Accordingly, Irizarry’s motion for summary judgment is granted 

as to the superseding cause defense. 

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

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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