WILCOX

v.

3M COMPANY

This Document Relates to: Judge M. Casey Rodgers Wilcox,⁷:20cv4677 Magistrate Judge Hope T. Cannon

ORDER1

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

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 version² (“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

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, 13-

15; 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, 326 604 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 No. 27-8 at 3 (internal email explaining that “[a] shooter should not go to the range and fire a box of shells with the yellow side in”) & Internal Emails, ECF No. 27-7 at 5 (“If you are at the range shooting and the guns are going off a lot…, the open position of the [CAEv²] is NOT going to provide protection.”), with P-GEN- 1013 (marketing material explaining the CAEv² will protect soldiers’ hearing from impulse noise such was weapons fire and explosives). Thus, the Court rejects

Defendant’s attempt to frame the proximate cause argument in terms of whether the Army and/or Wilcox would have read and heeded an “additional” or “different” warning. See Def. Mot., ECF No. 20 at 10. On this record, the proper question is whether Wilcox has produced sufficient evidence that if a warning had ever been provided, it would have been read and heeded by both the Army and him, and prevented his auditory injuries. The Court finds that he has. First, Wilcox is entitled to the benefit of Maryland’s heeding presumption,

meaning it is presumed that both he and the Army would have followed a legally adequate warning had one been provided. See Gypsum, 647 A. 2d at 413. Defendant has offered no evidence to the contrary. See Def. Mot., ECF No. 20 at 8-10. The presumption alone is sufficient to establish a triable issue of fact on the issue of causation. But there is more. Wilcox also has produced affirmative evidence that the Army would not have purchased the CAEv² for use by its soldiers, including him, had Defendant adequately warned of the dangers associated with the product’s use. See, e.g., Army CID Report, ECF No. 27-12; Warren Dep., ECF No. 27-13 at 2-3 (agreeing that an earplug with an NRR of 11 would “[a]bsolutely” be “harder…[i]f not impossible to sell”); Hamer Dep. (Moldex), ECF No. 27-6 (testifying that an NRR of 11 for closed end of the CAEv² “would be insufficient”). Moreover, Wilcox testified that he was issued the CAEv² with a written instruction “pamphlet,” which he read, and he also was verbally taught how to insert the CAEv² and when to use each side on numerous occasions by Army audiologists, drill sergeants, and/or range NCOs. See Wilcox Dep., ECF No. 27-11 at 2-6. Wilcox reportedly follow those instructions by using the CAEv² in a “situational dependent” manner—wearing the green end for military noise exposures that did not require

“having a conversation with someone,” but switching to the yellow end when he needed to receive instructions or otherwise interact with others. See id. at 4-5. Thus, on this record, even absent the heeding presumption, a reasonable jury could conclude that: (1) if the Army had been adequately warned of the CAEv²’s alleged dangers, it would have declined to purchase the CAEv²; and (2) just as Wilcox heard, read, and followed the instructions actually given to him, he would have listened to, read, and heeded adequate warnings, had they been provided, which would have prevented his auditory injuries. Taken together, the heeding presumption and the record evidence are more than sufficient to raise a triable issue of fact under Maryland law regarding whether the CAEv² proximately caused Wilcox’s injuries. B. Express and Implied Warranty Claims (Counts V and VI)

Defendant argues Wilcox’s breach of express and implied warranty claims fail for lack of pre-suit notice. This is incorrect. The “clear” and “express” language of Maryland’s Commercial Code requires only actual “buyers” to give notice of a breach as a condition precedent to bringing a breach of warranty claim. Frericks v. Gen. Motors Corp., 363 A. 2d 460, 463 (Md. 1977) (interpreting pre-suit notice statute, Md. Code Ann. § 2-607); Nemphos ex rel. C.G.N. v. Nestle USA, Inc., No. 1:12cv2718, 2013 WL 4501308, at *9 (D. Md. Aug. 21, 2013) (applying Maryland law and finding same).⁴ Warranty beneficiaries under Md. Code Ann. § 2-318, like

Wilcox, are not required to give pre-suit notice.5 See Frericks, 363 A. 2d at 463

C. Fraud Claims (Counts VII, VIII, IX, and X)

Defendant argues that all of Wilcox’s fraud claims—which Defendant defines to include the claims for negligent misrepresentation, fraudulent misrepresentation, fraudulent concealment, and fraud and deceit—fail for lack of evidence that he personally relied on any alleged misrepresentations by Defendant. This argument fails. To begin with, and although it ultimately makes no difference to the result in this case, personal reliance is not required for Wilcox’s negligent misrepresentation claim under Maryland law. Briefly, Maryland’s standard for proving the reliance element of a misrepresentation claim—in particular, the need for proof of personal reliance by the plaintiff—depends on the nature of both the misrepresentation (fraudulent v. negligent) and the alleged harm (physical v. pecuniary). See White v. Kennedy Krieger Inst., Inc., 110 A. 3d 724, 743-44 (Md. Ct. Spec. App. 2015).

ultimate consumer or user of the goods or person affected thereby if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.”). Negligent misrepresentations that allegedly “create[d] a threat or risk of physical harm” (as opposed to pecuniary harm only) do not require proof of the plaintiff’s

“direct, personal reliance” on the misrepresentation. See id. at 747. Instead, reliance may be established with evidence that the defendant negligently provided false information to a third-party who, acting in reliance on the information, caused physical harm to another person, like the plaintiff, “who neither hears, nor directly relies on” the information, and it was foreseeable to the defendant that physical harm of that nature would result to that class of persons. See id. at 748-49. In that circumstance, the element of reliance for the plaintiff’s negligent misrepresentation claim is satisfied indirectly by the third-party’s direct reliance on the defendant’s misrepresentation. See id. at 748. Fraud claims, on the other hand, do require evidence of personal reliance,

although the allegedly fraudulent statement need not have made directly to the plaintiff. See id. at 744; Exxon Mobile Corp. v. Albright, 71 A. 3d 30, 49-50 (Md. 2013). More specifically, indirect reliance may be shown with evidence that: (1) the defendant made misrepresentations to third-parties intending or with reason to expect that other persons also would rely and act on them; (2) the plaintiff is in the class of persons so contemplated; and (3) the plaintiff “act[ed] or refrain[ed] from acting” in reliance on the misrepresentation. See White, 110 A. 3d at 745; Exxon Mobile, 71 A. 3d at 50. A plaintiff who makes this showing creates a triable issue of fact on the issue of reliance. White, 110 A. 3d 747.

In this case, there is ample record evidence to raise a triable issue of fact as to reliance under both standards. First, there is evidence that Defendant affirmatively misrepresented material information regarding the safety and efficacy of the CAEv²,

as well the propriety of using its yellow end on a gun range, and concealed known dangers associated with the CAEv², from both the Army and soldiers, like Wilcox. See, e.g., CAEv² Mil. Advert., ECF No. 27-14 at 9 (representing the CAEv² as “protective up to approximately 190 dBP” and “sufficient to cover most of the weapons in the military inventory, including shoulder-fired rockets”); CAEv² Mil. Advert., P-GEN-977 at 3 (stating that the CAEv² “fits most ear canals” and that the yellow end protects against “weapons fire and explosions”); id. at 4 (representing that “[t]he chance of permanent hearing damage or disorientation from explosion is greatly reduced or eliminated” by the yellow end of the CAEv²”); 3M Mil. Sales Powerpoint, P-GEN-1381 at 2 (representing CAEv² as “One-Size-Fits-All”); P- GEN-2001 at 2 (“Hear the action now, hear life later.”); see also Order, ECF No. 1280 at 14-16 (describing concealment of the Flange Report, which documented the CAEv²’s alleged fit and seal defects, from the Army). This same evidence also is sufficient to establish that Defendant intended and expected both the Army and soldiers to rely and act on the misrepresentations by purchasing, issuing, recommending, and/or wearing the CAEv² to protect soldiers’ hearing. See id. There is no dispute that the Army relied on Defendant’s misrepresentations and acted on them by purchasing the CAEv², issuing it to soldiers, and instructing soldiers on its use. And there is evidence that Wilcox received verbal and written instructions from the Army regarding the safety, efficacy, and proper use of the CAEv², and he personally relied on those instructions to protect his hearing from hazardous noise. See Wilcox Dep., ECF No. 27-11 at 2-6.6 On this record, a reasonable jury could find that Defendant made affirmative misrepresentations about the CAEv² to the Army intending and expecting both the Army and individual soldiers would rely on them, it was foreseeable to Defendant that noise-induced auditory injuries may result from reliance on the misrepresentations, Wilcox was in the class of persons Defendant intended and expected to influence with the misrepresentation (i.e., a soldier), and Wilcox personally relied on the misrepresentations in wearing the CAEv² during his military service, which resulted in noise-induced auditory

No. 58 at 4-5. Because Wilcox has demonstrated reliance (including personal reliance) and Defendant has offered no other grounds for summary judgment on his negligent misrepresentation and fraud claims, the claims remain.

D. Consumer Protection Claim (Count XIII)

Defendant argues Wilcox’s consumer protection claim is not actionable under Maryland’s Consumer Protection Act (“MCPA”) and otherwise fails because he cannot show reliance.⁷ The Court disagrees, with two exceptions.

Ann. § 13-408 (actions for damages), including affirmative misrepresentations, deception, and material omissions in connection with the sale of product, see Md. Code Ann. § 13-408 (unfair or deceptive trade practices defined). Even so, not all such allegedly fraudulent conduct is actionable under the MCPA. Claims premised on injuries caused by an alleged defect in the product’s design or warning are not “the result of” unfair or deceptive practices for MCPA purposes. See Sacks v. Phillip-Morris, Inc., No. 1:95cv1840, 1996 WL 780311, at *1-2 (D. Md. 1996) (defendant’s alleged misrepresentations and concealment of information about the technical feasibility of manufacturing a “fire-safe” cigarette did not “result” in decedents’ deaths from a fire allegedly ignited by a non-fire-safe cigarette manufactured by defendant for MCPA purposes); see also Murphy ex rel. Murphy v. Playtex Fam. Prods. Corp., 176 F. Supp. 2d 473, 483 n.9 (D. Md. 2001) (granting summary judgment on “disguised defective design claim [that] is not actionable under the” MCPA). Only claims in which a plaintiff’s injury resulted from the defendant’s alleged misrepresentation itself—such as where the product allegedly did not work or perform as promised, separate and apart from any alleged product defect—are actionable under the MCPA. See Brown-High v. L’Oreal USA, Inc., No. 8:17cv276, 2017 WL 5952688, at *7 (D. Md. Nov. 29, 2017) (finding MCPA violation “sufficiently pled” based on allegations that defendant falsely marketed hair relaxer as containing no lye, even though it actually contained lye, and plaintiff relied on the marketing when deciding to purchase defendant’s relaxer, resulting in injury). In this case, Wilcox’s MCPA claim is based on three categories of allegedly fraudulent statements or conduct by Defendant: (1) misrepresentations regarding the efficacy of the CAEv²; (2) concealment of known dangers associated with the CAEv²; and (3) misrepresentations that the CAEv²’s yellow end was safe for use on a gun range, when Defendant knew it was not safe to do so. Only the third category is actionable under the MCPA. This is because the third category is not premised on a problem with the design of the product; rather, the alleged problem is with Defendant’s misrepresentations about when and where it is safe to use the product. Injuries caused by use of the yellow end of the CAEv² on a gun range in reliance on Defendant’s alleged misrepresentations thus are “the result of” unfair or deceptive practices for MCPA purposes. The other two categories of allegedly fraudulent conduct are not, however. Defendant’s alleged misrepresentations regarding the efficacy of the CAEv² are based on allegations that the CAEv²’s design was defective (i.e., stem is too short, too wide, and too stiff; opposing flange contacts tragus causing imperceptible loosening), and Defendant’s alleged concealment of known dangers is substantively identical to Wilcox’s failure to warn claim. See Murphy, 176 F. Supp. 2d at 483 n.9; Sacks, 1996 WL 780311, at *1-2. Those two categories of misrepresentations are essentially “disguised” defective design and failure to warn claims, and thus may not support a consumer protection claim under the MCPA. See Murphy, 176 F. Supp. 2d at 483 n.9. Regarding reliance, the Court has already found the evidence sufficient to establish that Wilcox personally relied on Defendant’s alleged misrepresentations to the Army that the CAEv²’s yellow end was safe for use on a gun range. The evidence also is sufficient to show that misrepresentation substantially induced Wilcox’s choice to wear the yellow end of the CAEv² on the range when he needed to hear instructions from drill instructors or range noncommissioned officers. See Wilcox Dep., ECF No. 27-11 at 2-6; see also Currie v. Wells Fargo Bank, N.A., 950 F. Supp. 2d 788, 796 (D. Md. 2013) (applying Maryland law) (“A consumer relies on a misrepresentation when the misrepresentation substantially induces the consumer’s choice.”). Taken together, this expert evidence raises genuine disputes of material fact regarding the reliance element of Wilcox’s MCPA claim. E. Punitive Damages (Count XVI)

Defendant moves for summary judgment on Wilcox’s punitive damages claim on grounds that it is not a standalone cause of action under Maryland law and Defendant is entitled to summary judgment on the substantive claims on which it depends. While it is true that Maryland does not recognize an independent claim for punitive damages, see Biggs v. Eaglewood Mortg., LLC, 582 F. Supp. 2d 707, 711 n.5 (D. Md. 2008), punitive damages are an available form of relief for appropriate substantive claims that must be pled in a complaint, Scott v. Jenkins, 690 A. 2d 1000, 1008 (Md. 1997). Based on the foregoing, Wilcox’s separate cause of action for punitive damages will be deemed abandoned, and summary judgment on that independent claim granted in defendant’s favor. However, this does not preclude Wilcox from pursuing punitive damages at trial to the extent permitted by Maryland law because he properly and specifically pled them in connection with the substantive claims that survived summary judgment here. See, e.g., Wilcox Compl.,

ECF No. 5 at 1 (adopting and incorporating by reference the “allegations, claims, and requested relief as set forth in the [MDL] Master Long Form Complaint”); Master Long Form Compl., ECF No. 704 at 52, 55, 57, 61 (including general and punitive damages in prayer for relief on all counts and alleging requisite factual basis for the award). F. Loss of Consortium (Count XIV)

Defendant argues that Paula Wilcox’s loss of consortium claim fails because it is derivative of Wilcox’s substantive claims, none of which can survive summary judgment. Because the Court has already found that most of Wilcox’s substantive claims satisfy the summary judgment standard, Paula Wilcox’s loss of consortium claim remains. See Oaks v. Connors, 660 A. 2d 423, 430 (Md. 1995) (“[A] loss of consortium claim is derivative of the injured spouse’s claim for personal injury[.]”).

Accordingly, Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED IN PART and DENIED IN PART, as follows: 1. Summary judgment is GRANTED in Defendant’s favor with respect to Wilcox’s independent claims for negligence per se (Count XII), unjust enrichment (Count XV), and punitive damages (Count XVI). However, this does not preclude Wilcox from offering Defendant’s alleged statutory violations as evidence of negligence at trial or from pursuing punitive damages for his substantive claims to the extent permitted by Alabama law.

2. Summary judgment is DENIED in all other respects.

SO ORDERED, on this 5th day of June, 2023.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE