In re 3M Combat Arms Earplug Prods. Liab. Litig.
In re 3M Combat Arms Earplug Prods. Liab. Litig.
2021 WL 2605911 (N.D. Fla. 2021)
June 3, 2021

Rodgers, Margaret C.,  United States District Judge

Failure to Produce
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Summary
The court denied Defendants' motion to compel the production of a presentation made by Dr. Packer to the President's Counsel of Advisors on Science and Technology (“PCAST”) and to exclude four documents. The court found the motion untimely and failing to meet other requirements, and that the four documents did not carry a risk of “overwhelming” undue prejudice. The court also found that Dr. Packer could authenticate or identify the PCAST presentation for admission into evidence.
Additional Decisions
IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION
This Document Relates to: Baker
Case No. 3:19md2885, 7:20cv39
United States District Court, N.D. Florida, Pensacola Division
Signed June 03, 2021
Rodgers, Margaret C., United States District Judge

ORDER

*1 This matter is before the Court on Defendants' Motion to Compel and Trial Brief Regarding Dr. Mark Packer's PCAST Presentation and Related Documents, ECF No. 127. More specifically, Defendants seek production of a presentation made by Dr. Packer to the President's Counsel of Advisors on Science and Technology (“PCAST”), as well as the exclusion of four documents: (1) P-GEN-2403, a United States Marine Corps chart on Passive Hearing Devices (hereinafter “USMC chart”) contained in the PCAST Presentation; (2) P-GEN-2586, a July 30, 2019 Air Force Memorandum regarding the removal of the CAEv2 from inventory; (3) P-GEN-2602, an October 15, 2019 email thread regarding the removal of the CAEv2 from inventory with the aforementioned Air Force Memorandum attached; and (4) P-GEN-2660, a January 10, 2020 email thread similar to P-GEN-2602 with the aforementioned Air Force memorandum attached. Plaintiff filed a timely response on May 25, 2021 opposing Defendants' requests as untimely and otherwise improper. See ECF No. 132. On consideration, Defendants' motion is denied.
 
As an initial matter, Defendants' motion is clearly untimely. Defendants' motion to exclude four documents for reasons specific to Baker's case is effectively a Baker-specific motion in limine, which was due by April 16, 2021.[1] See Order Setting Trial and Pretrial Schedule, ECF No. 74. Defendants have not sought leave to file a late motion in limine, nor have they argued that they have good cause for an extension of the pretrial deadline to accommodate their motion. See Fed. R. Civ. P. 16(b)(4). Defendant's motion is untimely, and thus warrants denial. See Payne v. Ryder Sys., Inc. Long Term Disability Plan, 173 F.R.D. 537, 540 (M.D. Fla. 1997) (“The Eleventh Circuit has consistently held that motions filed after a deadline imposed by a court should be denied as untimely.”).
 
Defendants' motion to compel production of the PCAST presentation—seven months after the close of discovery—is also untimely. Defendants argued that they only learned of Dr. Packer's involvement in creating the USMC chart and use of the chart in a PCAST presentation at the first bellwether trial, but the USMC chart was included in Dr. Packer's October 9, 2020 general report. Although the date of his report coincided with the last day of fact discovery, Defendants had the opportunity to obtain discovery from Dr. Packer in connection with his deposition in December 2020—and in fact did request document discovery from him with respect to another topic—but failed to do so. Additionally, Defendants have had many months to seek leave of Court to obtain discovery from Dr. Packer outside the discovery period, but waited until 19 days before trial to do so.[2] Their motion is untimely and warrants denial for this reason as well.[3] See Rollins v. Cone Distrib., Inc., 710 F. App'x 814, 819 (11th Cir. 2017) (“The court must limit the frequency or extent of discovery otherwise permitted if it determines ... ‘the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.’ ” (quoting Fed. R. Civ. P. 26(b)(2)(C))).
 
*2 Even if Defendants' motion was timely, it fails for several additional reasons. Regarding the four documents Defendants seek to preclude, they do not carry a risk of “overwhelming” undue prejudice to Defendants, contrary to what Defendants argue. These documents are highly probative of what the military knew or believed about the CAEv2, and such evidence is relevant to Defendants' claims that the military conducted its own research on the CAEv2 and was aware of issues or problems associated with it. See Joint Pretrial Stip., ECF No. 99 at 4-6 (For example, Defendants' statement of the case includes claims that the Army “knew that the CAEv2 was a ‘one-size-fits-most’ product that would not work for about 20% of soldiers and that the military “knew that folding back the flanges would allow some individuals to obtain a better fit.”). Moreover, any risk of prejudice to Defendants will be mitigated by the Court's limiting instructions, such as those given in the first two bellwether trials requiring the jurors to consider the Air Force Memorandum not for proof of the truth of the matter asserted in the document, but rather only in their determination of what the military knew about the earplugs. See Wks. v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its instructions.”); United States v. Almanzar, 634 F.3d 1214, 1222 (11th Cir. 2011) (“We presume that jurors follow the instructions given by the district court.”); United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005) (“A jury is presumed to follow the instructions given to it by the district judge.”).
 
With respect to the PCAST presentation, Defendants are not “entitled” to its production under Fed. R. Evid. 106. Rule 106 provides that if a party introduces all or part of a writing, an adverse party “may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.” More specifically, “when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). But Defendants have not argued that the PCAST presentation is necessary to avert any misunderstanding or distortion of the USMC chart.[4] Nor do they cite a single case otherwise supporting their “entitle[ment]” to the entire PCAST presentation.
 
Defendants argument that Dr. Packer only has the foundation to testify to the USMC chart with respect to his use of it for a slide presentation to PCAST also fails. Dr. Packer testified at the first bellwether trial that he created the USMC chart as part of his work at the Hearing Center of Excellence. See EHK Trial, April 12, 2021 Tr. at 307:23-308:4. In other words, Dr. Packer is a witness with knowledge of the document and can therefore authenticate or identify the document for admission into evidence. See Fed. R. Evid. 901(b)(1).
 
Accordingly, Defendants' Motion is DENIED.
 
SO ORDERED, on this 3rd day of June, 2021.
 
Footnotes
Defendants also could have raised Baker-specific objections to the exhibits in their pretrial stipulation, which was also due on April 16, 2021, but they did not do so. Instead, it appears the same objections raised in the first bellwether trial were preserved. The Court has overruled Defendants' objections to these exhibits. See Exhibits Order No. 1, ECF No. 131.
Defendants argue that Dr. Packer's trial testimony on April 12, 2021 explains the late timing of Defendants' motion to compel, but Defendants waited until one month after Dr. Packer's testimony to request production of the full PCAST presentation from Plaintiff. See May 13, 2021 Email re P-GEN-2403, ECF No. 127-7.
Furthermore, as Plaintiff points out, Defendants have failed to identify any discovery request to which the PCAST presentation is responsive, in violation of Local Rule 26.1(D). See also Green v. Fiveash, No. 3:18CV2393-MCR-HTC, 2019 WL 8063985, at *5 (N.D. Fla. Sept. 11, 2019) (addressing only those requests in plaintiff's motion to compel that were compliant with Local Rule 26.1(D)).
Moreover, although Dr. Packer testified that the USMC chart was part of the PCAST presentation, the chart itself is a separate standalone document. See Passive Hearing Devices Poster, available at https://www.mcieast.marines.mil/portals/33/documents/safety/osh/passive-hearing-devices-poster.pdf?v....