In re 3M Combat Arms Earplug Prods. Liab. Litig.

IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION

This Document Relates to:

Baker, 7:20cv039

Estes, 7:20cv137

Hacker, 7:20cv131

Keefer, 7:20cv104

McCombs, 7:20cv094

Case No. 3:19md2885

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

February 28, 2021

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER¹

The first of three bellwether trials in this multidistrict products liability litigation is set for March 29, 2021; the two others will follow in May and June 2021,respectively.² Omnibus motions to exclude expert testimony and opinions, in whole or in part, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), have been filed by both sides.³ Having considered the law, the voluminous record, and the parties' arguments, the Court rules as follows.

I. Legal Standard

Rule 702, as explained by Daubert and its progeny, governs the admissibility of expert testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). Under Rule 702 and Daubert, district courts are compelled to act as "gatekeepers" to ensure the reliability and relevancy of expert testimony. Id. (quoting Daubert, 509 U.S. at 589). Expert testimony is reliable and relevant—and, therefore, admissible—when the following criteria are met: (1) the expert is sufficiently qualified to testify about the matters he intends to address; (2) the methodology used is "sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific,technical, or specialized expertise, to understand the evidence or to determine a fact in issue." Id. The Eleventh Circuit refers to these criteria separately as "qualification, reliability, and helpfulness," United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004), and has emphasized that they are "distinct concepts that courts and litigants must take care not to conflate," Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). The party offering the expert has the burden of showing, by a preponderance of the evidence, that each of these requirements is met. Rink, 400 F.3d at 1292.

To meet the qualification requirement, a party must show that its expert has sufficient "knowledge, skill, experience, training, or education to form a reliable opinion about an issue that is before the court." Hendrix ex. Rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010) (citing Fed. R. Evid. 702) ("Hendrix II"), aff'g 255 F.R.D. 568 (N.D. Fla. 2009) ("Hendrix I"). Importantly, if a "witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Frazier, 387 F.3d at 1261 (quoting Fed. R. Evid. 702 advisory committee's note to 2000 amendments). The qualifications standard for expert testimony is "not stringent" and "[s]o long as the witness is minimally qualified, objections to the level of [his] expertise [go] to credibility and weight, not admissibility." Hendrix I, 255 F.R.D. at 585.

To meet the reliability requirement, an expert's opinion must be based on scientifically valid principles, reasoning, and methodology that are properly applied to the facts at issue. Frazier, 387 F.3d at 1261-62. The reliability analysis is guided by several factors, including: (1) whether the scientific technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) whether the technique has a known or knowable rate of error; and (4) whether the technique is generally accepted in the relevant community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. "[T]hese factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis." Quiet Tech., 326 F.3d at 1341. The court's focus must be on the expert's principles and methodology, not the conclusions they generate. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The test for reliability is "flexible" and courts have "broad latitude" in determining both how and whether this requirement is met. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999).

Finally, to satisfy the helpfulness requirement, expert testimony must be relevant to an issue in the case and offer insights "beyond the understanding and experience of the average citizen." United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985). Relevant expert testimony "logically advances a material aspect of the proposing party's case" and "fits" the disputed facts. McDowell v. Brown, 392 F.3d 1283, 1298-99 (11th Cir. 2004). Expert testimony does not "fit" when there is "too great an analytical gap" between the facts and the proffered opinion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 147 (1997).

"Because of the powerful and potentially misleading effect of expert evidence, sometimes expert opinions that otherwise meet the admissibility requirements may still be excluded [under Federal Rule of Evidence] 403." Frazier, 387 F.3d at 1263 (internal citations excluded). "Exclusion under Rule 403 is appropriate if the probative value of otherwise admissible evidence is substantially outweighed by its potential to confuse or mislead the jury, or if the expert testimony is cumulative or needlessly time consuming," or if it is otherwise unfairly prejudicial. Id. "Indeed, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses." Id. "Simply put, expert testimony may be assigned talismanic significance in the eyes of lay jurors, and, therefore, the districts must take care to weigh the value of such evidence against its potential to mislead or confuse." Id.

When scrutinizing the reliability, relevance, and potential prejudice of expert testimony, a court must remain mindful of the delicate balance between its role as a gatekeeper and the jury's role as the ultimate factfinder. Frazier, 387 F.3d at 1272. The court's gatekeeping role "is not intended to supplant the adversary system or the role of the jury." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999). Only the jury may determine "where the truth in any case lies" and the court "may not usurp this function." Frazier, 387 F.3d at 1272. Thus, a court may not "evaluate the credibility of opposing experts" or the persuasiveness of their conclusions, Quiet Tech., 326 F.3d at 1341; instead, its duty is limited to "ensur[ing] that the fact-finder weighs only sound and reliable evidence," Frazier, 387 F.3d at 1272.

II. Defendants' Experts

Plaintiffs move to exclude the testimony and opinions, in whole or in part, of 13 experts proffered by Defendants. This Order addresses Plaintiffs' challenges to Elliott Berger and Drs. John House, Derek Jones, Jennifer LaBorde, and Margaret Richards.⁴ The Court addresses each expert in turn.

A. Elliott Berger

Elliott Berger is an acoustical engineer with decades of experience developing hearing protection devices. See Berger Discl., ECF No. 1595-55 at 2. He is a former 3M employee, and he has been identified by the Defendants as a "hybrid-witness"who will provide both fact and opinion testimony, "based on his personal knowledge of Aearo's design, development, and testing of the CAEv2." See id., ECF No. 1595-55 at 2-3.

Plaintiffs have moved to exclude Berger's testimony on the grounds that it does not satisfy Daubert's reliability standard. They also argue that certain aspects of his testimony should be excluded as outside the scope of permissible hybrid testimony. See Pl. Mot., ECF No. 1595 at 54-59.

Under Fed. R. of Civ. P. 26(a)(2)(A), parties are required to disclose the identity of any witness who is expected to provide expert testimony under Fed. R. of Evid. 702, 703, or 705. Rule 26(a)(2)(B) also requires that parties disclose the expert's opinion testimony, and the bases for those opinions, in a written report. See Fed. R. Civ. P. 26(a)(2)(B); Pediatric Nephrology Assocs. v. Variety Children's Hosp., 2017 U.S. Dist. LEXIS 200023, at *9 (S.D. Fla. Nov. 6, 2017). For hybrid witnesses, however, parties are only required to disclose "a summary of the facts and opinions to which the witness is expected to testify." See Fed. R. Civ. P. 26(a)(2)(C); Pediatric Nephrology Assocs., 2017 U.S. Dist. LEXIS 200023, at *12 (citing Moshe Ashkenazi v. South Broward Hosp. Dist., 2012 U.S. Dist. LEXIS 30692, at *1 (S.D. Fla. Mar. 8, 2012)) (internal quotes omitted). Hybrid witnesses are non-retained expert witnesses who can provide both fact and opinion testimony that is grounded in their scientific, technical, or specialized knowledge. See Pediatric Nephrology Assoc., 2017 U.S. Dist. LEXIS 200023, at *4. Hybrid witnesses may testify on "their observations based on personal knowledge as well as their lay opinions, consistent with Rule 701, when such opinion testimony is based upon the witness' experience as a professional and is helpful in understanding the witness' decision making process." See Kaplan v. Kaplan, 2012 U.S. Dist. LEXIS 66114, at *5 (M.D. Fla. May 11, 2012) (citing Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011). The distinction between lay and expert testimony is a critical one, requiring that "trial courts be vigilant in ensuring that the reliability requirements set forth in Rule 702 not 'be evaded through the simple expedient of proffering an expert in lay witness clothing.'" See Williams, 644 F.3d at 1317 (quoting Fed. R. Evid. 701 advisory committee's note to the 2000 amendment). Thus, to the extent that a hybrid witness' testimony goes beyond an account of "their own observations and technical experience" the trial court must...