KEEFER v. 3M COMPANY et al

Filing 68

ORDER denying 43 Plaintiff's Motion for Summary Judgment on Defendants' Affirmative Defenses Relating to Government Fault. Signed by JUDGE M CASEY RODGERS on 2/16/2021. (hhd)

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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:
Keefer, 7:20cv104

Judge M. Casey Rodgers
Magistrate Judge Gary R. Jones
ORDER

This matter is before the Court on Plaintiff’s motion for summary judgment,
ECF No. 43. On full consideration, the motion is DENIED.
I. Legal Standard
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
Lobby, Inc., 477 U.S. 242, 248 (1986).

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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).
II. Background
The Court assumes the parties’ familiarity with the general factual allegations
and nature of this multidistrict litigation. Plaintiff Lewis Keefer raises fifteen claims
under Georgia law 1 against Defendants arising from injuries he alleges were caused
by his use of the Combat Arms Earplug (“CAEv2”) during his military service. See
Am. Master Short Form Compl., ECF No. 10.2 Defendants raise several affirmative
defenses, including that the actions of a nonparty, the United States, are the actual,
contributing, intervening, or superseding cause of Keefer’s injuries. See ECF No. 11
at pp. 3–9, ¶¶ 4, 14, 16–17.

1

The Court previously ruled that Georgia law applies to Keefer’s claims. See ECF No. 31.

2

Specifically, Keefer 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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III. Discussion
Keefer moves for summary judgment on Defendants’ affirmative defenses
relating to the alleged fault of the United States military in causing his injuries. He
argues that the Defendants’ apportionment defense fails as a matter of law because
Defendants did not provide notice as required under Georgia’s apportionment
statute. He further argues that the Defendants’ affirmative defenses relating to the
United States’ role in causing his injuries fail as a matter of law for the additional
reason that Defendants have not provided sufficient evidence to show that the United
States proximately caused any portion of his injuries. In response, Defendants argue
that (1) the requirements imposed by Georgia’s apportionment statute conflict with
the Federal Rules of Civil Procedure and therefore do not apply in this federal case
under the Supreme Court’s decision in Shady Grove Orthopedic Associates, P.A. v.
Allstate Insurance Co., 559 U.S. 393 (2010); (2) even if Georgia’s apportionment
statute were applicable, Defendants complied with its requirements; and (3) they
have provided sufficient record evidence to raise a triable issue of fact as to their
government-fault defenses. For the following reasons, the Court agrees with
Defendants and denies Keefer’s motion.
First, the Court need not decide whether Georgia’s apportionment statute
applies in this case because, assuming it does, Defendants complied with its
requirements. Under Georgia’s apportionment statute, “[n]egligence or fault of a

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nonparty shall be considered . . . if a defending party gives notice not later than 120
days prior to the date of trial that a nonparty was wholly or partially at fault.”
O.C.G.A. § 51-12-33(d)(1). The statute requires that the notice “be given by filing a
pleading in the action” that (1) “designat[es] the nonparty;” (2) “set[s] forth the
nonparty’s name and last known address, or the best identification of the nonparty
which is possible under the circumstances;” and (3) provides “a brief statement of
the basis for believing the nonparty to be at fault.” O.C.G.A. § 51-12-33(d)(2).
“[T]he plain and unambiguous meaning of [§ 51-12-33(d)(1)’s] text mandates strict
compliance. Accordingly, failure to give proper timely notice precludes
apportionment between a nonparty and a party.” Trabue v. Atlanta Women’s
Specialists, LLC, 825 S.E.2d 586, 593 (Ga. Ct. App. 2019), aff’d sub nom. Atlanta
Women’s Specialists, LLC v. Trabue, 850 S.E.2d 748 (Ga. 2020).
Trial in this case is set for March 29, 2021. Therefore, if § 51-12-33(d) applies,
Defendants were required to file a proper notice on or before November 29, 2020.
The Court finds Defendants gave proper and timely notice. Specifically, on July 13,
2020, Defendants identified the United States as a nonparty at fault in their answer
to Keefer’s short-form complaint. See ECF No. 11 at pp. 6–7, ¶¶ 14, 16 (“The
injuries and damages allegedly sustained by Plaintiff may have been caused, in
whole or in part, by the negligence acts or omissions of . . . the nonparty the United
States.”). In their answer, Defendants further stated that they “instructed the United

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States military in the proper fitting of the CAEv2,” “relied on the United States
military to convey those instructions to the users of the CAEv2,” and that “[t]he
United States military trained users to fit the CAEv2 and created written instructions
that advised some users to roll back the opposing flanges to attain the best fit.” Id. ¶
15.3
Defendants’ answer satisfies Georgia’s apportionment statute because it is a
“pleading” that (1) was filed more than 120 days before trial, (2) designates the
United States as the nonparty at fault, (3) sets forth the best identification of the
United States “which is possible under the circumstances,” see O.C.G.A.
§ 51-12-33(d)(2), and (4) provides a brief statement of the basis for believing the
United States to be at fault—that is, that the United States military did not provide
appropriate fitting instructions for the CAEv2 to soldiers like Keefer. See O.C.G.A.
§ 51-12-33(d)(2). Accordingly, Keefer’s motion for summary judgment on
Defendants’ apportionment defense is denied on this basis.
Second, the Court finds that Defendants have offered sufficient evidence to
create a fact dispute as to whether the United States military proximately caused

3

Defendants’ February 3, 2020, Amended Answer to Plaintiffs’ Master Long Form
Complaint also states that “Plaintiffs’ alleged injuries may have been caused by the intervening or
superseding acts of negligence by . . . the United States” and that Defendants” relied on the United
States military to convey these instructions to the users of the [CAEv2].” See MDL Dkt. No. 959
at pp. 99–100, ¶¶ 18–19. The amended answer further states “that representatives of the military
informed defendants that the military would provide instructions concerning the use of earplugs.”
Id. at p. 36, ¶ 173.
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Keefer’s injuries. Keefer argues that Defendants’ government-fault affirmative
defenses fail because Defendants have failed to offer expert medical testimony
establishing a causal link between the United States military’s conduct and his
injuries. He further argues that even if expert testimony were not required,
Defendants have failed to introduce sufficient non-expert evidence to create a triable
issue of fact on proximate causation. It is Defendants’ burden to demonstrate
proximate cause. See Suzuki Motor of Am., Inc. v. Johns, 830 S.E.2d 186, 192 (Ga.
Ct. App. 2019), aff’d, 850 S.E.2d 59 (Ga. 2020); Brown v. Tucker, S.E.2d 810, 820
(Ga. Ct. App. 2016). For the following reasons, the Court finds that Keefer’s motion
is due to be denied.
As a preliminary matter, the Court must determine whether Defendants’
government-fault defenses involve a “specialized medical question” requiring
medical expert testimony. See Cowart v. Widener, 697 S.E.2d 77, 786 (Ga. 2010).
This inquiry turns on the theory of injury alleged. See Pierzchala v. Olds, No. 1:15CV-260, 2017 WL 3498706, at *7–9 (N.D. Ga. Feb. 14, 2017). Defendants identify
two alleged omissions by the United States military as potential alternative causes
of Keefer’s injuries: (1) its failure to ensure Keefer was fit with the CAEv2 by
medically trained personnel, and (2) its failure to inform him of the flange-fold
fitting technique. The Court finds that these theories of injury do not present a
specialized medical question requiring expert medical testimony. While medical

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expert testimony is necessary to establish a causal connection between Keefer’s
injuries and his exposure to noises during his military service, cf. Mathison v. United
States, 619 F. App’x 691, 694 (10th Cir. 2015) (applying Colorado law, and stating
that “identify[ing] the source of [plaintiff’s] sensorineural hearing loss [is] a
complex medical question outside lay competence”), the record contains sufficient
medical expert testimony to support a jury finding that Keefer’s military noise
exposure caused his hearing injuries. However, the next link in these two theories of
causation—that Keefer was exposed to injurious noises because the United States
military did not ensure his CAEv2 earplugs were properly fitted or provide him with
adequate instruction in proper use of the CAEv2—is not the type of “medical
question” that requires medical expert testimony under Georgia law. Cf. Self v. Exec.
Comm. of Ga. Baptist Convention of Ga., Inc., 266 S.E.2d 168, 169 (Ga. 1980)
(concluding the plaintiffs were not required to introduce expert testimony on
causation where a patient died from a subdural hematoma after falling, even though
the defendant submitted expert testimony that the hematoma was caused instead by
leukemia).
There is sufficient record evidence to create a triable issue of fact on these
theories of causation. First, the regulation governing the Army Hearing Program
required, among other things, “that medically trained personnel fit individuals with
preformed earplugs,” see Tuten Report at 9 (quoting DA Pamphlet 40-501), and

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Department of Defense (“DoD”) regulations state that “[p]ersonnel shall receive
adequate and effective training in the proper care and use of personal hearing
protectors,” see DoD Instruction 6055.12 ¶ 6.6.10. Further, based on Keefer’s
deposition testimony and interrogatory responses, there is evidence that the United
States military did not fit him with the CAEv2 or provide him instructions or training
in using the CAEv2. See Response to Interrogatory No. 28 (“I do not recall being
‘fitted’ with the CAEv2 ear plug by another person.”); Keefer Depo. Tr. at 168:17–
169:1 (testifying that he did not “recall” an audiologist or technician examining the
fit of his ear protection devices), 263:23–264:25 (testifying that he did not remember
receiving instructions for using the CAEv2). Thus, based on the evidence, a lay jury
could conclude from common knowledge that Keefer’s hearing-related injuries
occurred when he was exposed to loud noise due to inadequate fitting of his CAEv2
or instruction on the proper use of his CAEv2. See Bruce v. Classic Carrier, Inc.,
No. 1:11-cv-1472, 2014 WL 1230231, at *8 (N.D. Ga. May 24, 2014) (Carnes, C.J.)
(“[W]here the symptoms complained of emerge immediately or soon after the event
alleged to have caused them, and it is common knowledge that such an event is one
that could cause that kind of injury, a reasonable jury could draw conclusions about
proximate cause.”).

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Accordingly, Keefer’s motion for summary judgment, ECF No. 43, is
DENIED.
DONE AND ORDERED this 16th day of February 2021.

M. Casey Rodgers

M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

CASE NO. 7:20cv104-MCR-GRJ