Marks v. 3M Co. ( In re 3M Combat Arms Earplug Prods. Liab. Litig.)

• Docket Number: 3:19md2885
• Decision Date: 05 June 2023
• Parties: IN RE 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION This Document Relates to Wilcox, 720cv4677
• Court: U.S. District Court — Northern District of Florida

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IN RE 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION This Document Relates to Wilcox, 720cv4677

No. 3:19md2885

United States District Court, N.D. Florida, Pensacola Division

June 5, 2023

Hope T. Cannon, Magistrate Judge.

ORDER^[1]

M CASEY RODGERS, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant 3M Company's motion for summary judgment. See ECF No. 20. On full consideration, the motion is GRANTED IN PART and DENIED IN PART.

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 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.

II. Discussion

Wilcox asserts sixteen claims against Defendant 3M Company under Maryland law arising from injuries he alleges were caused by his use of the Combat Arms Earplug version 2 (“CAEv2”) during his military service. See Wilcox Compl., ECF No. 5.^[2]Defendant moves for summary judgment on all sixteen claims. In response, Wilcox seeks dismissal of his negligence per se (Count XII) and unjust enrichment claims (Count XV).^[3]See Pl. Resp., ECF No. 27 at 1. The Court addresses the remaining claims in turn.

A. Causation

Defendant challenges several aspects of Wilcox's evidence on causation grounds. First, Defendant argues that all of Wilcox's claims fail due to lack of admissible expert testimony on specific causation. Second, Defendant argues that Wilcox's design defect claims (Counts I, II, and XI) fail because he cannot establish that a specific defect in the CAEv2 proximately caused his alleged injuries. Last, Defendant argues that Wilcox cannot establish causation for his failure to warn claims (Counts III and IV) because he cannot show that additional warnings would have caused the government not to purchase the CAEv2, or would have been seen by Wilcox, or otherwise prevented his injuries. These arguments fail.

1. Expert Evidence on Specific Causation (All Counts)

Defendant argues that summary judgment is proper on all claims due to lack of admissible expert testimony on causation. The Court has already determined that Wilcox's specific causation experts, Drs. David R. Friedmann and Lynda Wayne, provided scientifically reliable bases for their opinions that the CAEv2 caused Wilcox's auditory injuries. See Daubert Order, ECF No. 30. Those doctors' opinions are sufficient to raise a triable issue of fact regarding the alleged causal connection between the CAEv2 and Wilcox's injuries.

2. Design Defect Claims (Counts I, II, and XI)

Defendant's causation challenge with respect to Wilcox's design defect claims is somewhat of a variation of the previous argument-namely, that Wilcox “has failed to identify, with expert testimony, a specific defect in the [CAEv2] that proximately caused his injuries, alleging instead that his injuries arose because of the device generally.” See Def. Mot., ECF No. 20 at 8 (emphasis modified from original). This is incorrect.

In Maryland, design defect claims-whether based in strict liability or negligence-require proof of “a causal relationship between the [alleged] defect and the [plaintiff's] injury.” Laing v. Volkswagen of Am., Inc., 949 A.2d 26, 40 (Md. Ct. Spec. App. 2008) (quoting Ford Motor Co. v. Gen. Accident Ins. Co., 779 A.2d 362, 370 (Md. 2001). Here, Wilcox has made that showing. More specifically, Wilcox has designated at least four experts-Richard McKinley and Drs. Moises Arriaga, Mark Packer, and Lawrence Lustig-who have offered general opinions that the various aspects of the CAEv2's design prevented proper fit and seal (e.g., stem is too short, too wide, and too stiff; opposing flange contacts tragus causing imperceptible loosening), and that those alleged design defects present a risk of noise-induced auditory injury to users. See Pl. R. 26 Expert Disclosures, ECF No. 21-1 at 2-4. Defendant has not challenged the reliability of those experts' general causation opinions in Wilcox's case, and the Court has already found them scientifically reliable, admissible, and sufficient to establish triable issues of fact for purposes of summary judgment. See, e.g., In re 3M, No. 3:19md2885, ECF No. 1680. Wilcox's specific causation experts, Drs. David R. Friedmann (an otolaryngologist and neurotologist) and Lynda Wayne (an audiologist), demonstrably considered those general causation opinions and much of the evidence on which the opinions were based (e.g., Flange Report, CID Report, internal corporate documents) in the context of their many years of experience with hearing protection, and agreed, from a clinical perspective, that the CAEv2's alleged fit and seal inadequacies caused Wilcox's noise-induced auditory injuries. See Friedmann Rep., ECF No. 25-2 at 1-2, 8-9, 12-14; Wayne Rep., ECF No. 26-1 at 1-2, 7-8, 1315; see also In re Ethicon Inc. Pelvic Repair Sys. Prod. Liab. Litig., 2016 WL 8788207, at *4 (S.D. W.Va. Aug. 26, 2016) (“A single expert need not provide all the pieces of the puzzle for their testimony to be useful to the jury in determining the ultimate issues in the case.”); In re Wright Med. Tech., Conserve Hip Implant Prods. Liab. Litig., 127 F.Supp.3d 1306, 1320 (N.D.Ga. 2015) (“The facts and data upon which an expert may rely in reaching an expert opinion includes the opinions and findings of other experts, if experts in their respective field would reasonably rely on other expert's opinions and findings.”); Eberli v. Cirrus Design Corp., 615 F.Supp.2d 1357, 1364 (S.D. Fla. 2009) (“[A]n expert's testimony may be formulated by the use of the facts, data and conclusions of other experts, [but] such expert must make some findings and not merely regurgitate another expert's opinion.”). Taken together, this expert evidence raises genuine disputes of material fact regarding whether the CAEv2's specific alleged defects (again, alleged fit and seal inadequacies due to the stem being too short, wide, and stiff, and the opposing flange contacting the wearer's tragus and causing imperceptible loosening) proximately caused Wilcox's auditory injuries.

3. Failure to Warn Claims (Counts III, IV, and XI)

Defendant argues that Wilcox cannot establish causation for his failure to warn claims because he cannot show that additional warnings would have caused the government not to purchase the CAEv2, would have been seen and relied on by Wilcox, or otherwise prevented his injuries. These arguments fail.

To establish proximate cause for a failure to warn claim, a plaintiff must show that an adequate warning would have been read and heeded, which would have prevented his alleged injury. See Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 468-69 (Md. 1992). However, Maryland courts have “long recognized a presumption that plaintiffs would have heeded a legally adequate warning had one been given.” U.S. Gypsum Co. v. Mayor & City Council of Baltimore, 647 A.2d 405, 413 (Md. 1994) (citing Eagle-Picher, 326604 A.2d at 413). The presumption may be rebutted by evidence that a warning would not have been heeded, such as with “evidence that the personalities or dispositions of the [relevant actor] were such that they clearly would have ignored warnings.” Eagle-Picher, 604 A.2d at 469.

As an initial matter, Wilcox has produced ample evidence that Defendant did not provide any warnings, must less adequate written warnings, to the Army or its soldiers about the dangers associated with use of the CAEv2-dangers about which Defendant was uniquely aware. Compare Flange Rep., ECF No. 27-3 (detailing alleged fit and variability problems with the CAEv2 that occur especially in “subjects with medium and large ear canal”) & Berger Tr. Wayman, ECF No. 27-4 at 3 (testifying that neither the Flange Rep. nor its results were “transmitted to the military”), with P-GEN-68 (Wallet Card instructing only those with “very large ear canals” to fold back opposing flanges to get a better fit); Compare P-GEN-2294, ECF ...