In re 3M Combat Arms Earplug Prods. Liab. Litig.
In re 3M Combat Arms Earplug Prods. Liab. Litig.
2021 WL 6327373 (N.D. Fla. 2021)
October 20, 2021
Rodgers, M. Casey, United States District Judge
Summary
The court ruled that an Air Force memorandum authored by Vietas was admissible for limited purposes in bellwether trials. The court found that the memorandum was likely not hearsay, given its official nature, and that its probative value outweighed any danger of unfair prejudice. The jury was given a cautionary instruction regarding the single hearsay statement in the memorandum.
Additional Decisions
IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION
This Document Relates to: Blum
This Document Relates to: Blum
Case No. 3:19md2885, 7:20cv122
United States District Court, N.D. Florida, Pensacola Division
Signed October 20, 2021
Rodgers, M. Casey, United States District Judge
ORDER
*1 On August 19, 2021, the Court denied Defendants’ motion to reopen discovery to cross-notice a deposition of Retired Colonel Jay A. Vietas in related Minnesota litigation because they failed to demonstrate good cause and excusable neglect for their failure to timely depose Vietas during corporate and government discovery in this MDL, and reopening discovery for this purpose, in the middle of bellwether trials, would unfairly prejudice Plaintiffs by necessitating additional discovery and potentially requiring extensive modifications to their trial work product. See In re 3M Combat Arms Earplug Prod. Liab. Litig., No. 3:19md2885, ECF No. 1874. The Court further ruled that if the deposition went forward in Minnesota, Defendants could not use it in the MDL as substantive evidence. See id. Inexplicably, Defendants took the deposition anyway.[1] Now they are attempting to use the deposition as the substantive basis for excluding evidence—an Air Force memorandum authored by Vietas—in the MDL that the Court has previously ruled admissible. See ECF No. 88. Absolutely not. Defendants’ Motion to Reconsider Ruling on Admissibility of July 30, 2019 Vietas Letter, see id., is denied.
Reconsideration of an interlocutory ruling “is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” See Wendy's Int'l, Inc. v. Nu-Cape Const., Inc., 169 F.R.D. 680, 685 (M.D. Fla. 1996). To justify reconsideration, there must be: (1) an intervening change in the controlling law; (2) the discovery of new evidence that was not available when the original motion was decided; or (3) the need to correct clear error or prevent manifest injustice. See Fla. College of Osteopathic Medicine, Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308 (M.D. Fla. 1998); Parker v. Esper, No. 3:19cv126, 2020 WL 4480739, at *1 (N.D. Fla. Aug. 4, 2020). The moving party must demonstrate “why the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” See Estate of Jennings v. Gulfshore Priv. Home Care, LLC, No. 2:19-cv-72, 2020 WL 5805368, at *1 (M.D. Fla. Sept. 29, 2020) (citation and internal quotations omitted). “A motion for reconsideration cannot be used ‘to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgement.’ ” Quality of Life, Corp. v. City of Margate, 805 F. App'x 762, 773 (11th Cir. 2020) (quoting Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010)).
Defendants argue that reconsideration is justified by “new facts [that came] to light” during the Vietas deposition that were “previously unavailable to the parties.” See Def. Mot., ECF No. 88 at 2, 4. This argument wholly ignores the applicable legal standard, as well as Defendants complete lack of diligence with respect to Vietas's testimony. When newly discovered evidence is the basis for reconsideration of an interlocutory ruling, the proponent must demonstrate that the evidence was neither in its possession nor available on the exercise of due diligence before the interlocutory ruling. See Reed v. Royal Caribbean Cruises Ltd., No. 1:19cv24668, 2021 WL 2592888, at *11 (S.D. Fla. May 3, 2021). Defendants have not even addressed, much less satisfied, this standard.
*2 It is undisputed that the Air Force memorandum authored by Vietas was produced to Defendants by the government in February 2020. See ECF No. 1862 at 2. Over the next few months, Defendants questioned various government witnesses about their knowledge of the contents and/or basis for the memorandum.[2] Not once during that period did Defendants seek to depose Vietas himself. Instead, they vehemently pushed for—and were granted—an end to general discovery, which the Court set for September 1, 2020. The general discovery completion date came and went with no attempt to depose Vietas. Only after the Air Force memorandum was admitted for limited purposes in bellwether trials did Defendants change course and decide that it might just be worthwhile to hear from Vietas after all. By that time, Defendants had been in possession of the Air Force memorandum for nearly 18 months. They served a Touhy request to depose Vietas in the Minnesota litigation on June 17, 2021, which the government approved two weeks later on July 1, 2021. On this record, there can be no reasonable dispute that deposition testimony from Vietas was available on the exercise of due diligence—as soon as Vietas’ testimony regarding the Air Force memorandum was duly requested, the government made him available to Defendants. The fact that Defendants strategically opted not to obtain Vietas’ testimony until now does not change the fact that his identity and role have been known to them, and his testimony available to them on the exercise of due diligence, since February 2020. Thus, Vietas’ testimony cannot constitute “unavailable” or “newly discovered evidence” justifying reconsideration.
Defendants failed to directly address the other established legal grounds justifying reconsideration of an interlocutory ruling. Briefly, the Court is not aware of any change in controlling law that would impact its prior ruling regarding the limited admissibility of the Air Force memorandum in bellwether trials. No clear error or manifest injustice from its limited admission has been argued or shown. Defendants’ hearsay, relevance, unfair prejudice and juror confusion objections all miss the mark. As the Court recently clarified, the Air Force memorandum as a whole is likely not hearsay, given its official nature, although the jury will continue to receive a cautionary instruction regarding the single hearsay statement that “[t]hese earplugs were found to be defective.”[3] See Adkins Trial Tr. (Sept. 20, 2021) at 18:3-12. This cautionary instruction mitigates any danger of unfair prejudice and juror confusion. In any event, the Air Force memorandum is not the “smoking gun” Defendants claim it is—their own corporate documents do the heavy lifting on the alleged problems with the CAEv2. However, the memorandum's probative value will continue to outweigh any danger of unfair prejudice so long as Defendants maintain the position that they communicated the substance of the Flange Report (i.e., the alleged “problems” with the CAEv2) to the military and the military knew everything there was to know about the plug and were satisfied with it.
In short, Defendants have not shown that reconsideration of its ruling on the admissibility of the Air Force memorandum is warranted. They also have failed to show the good cause and excusable neglect that would be required to reopen discovery for purposes of the Vietas deposition in the first instance. They took Vietas’ deposition and offered it as evidence in the MDL, in direct contradiction of the Court's prior order on the matter. And they filed the instant motion on the eve of trial, well aware that the deadline for filing motions in limine and trial briefs in this case has long since expired. The Court will not reward or countenance such tactics, especially when Defendants failure to timely depose Vietas in the MDL was an obvious strategic calculation that they now simply regret. Regret is not a valid basis for reconsideration.
Accordingly, Defendants’ motion to reconsider the ruling on the admissibility of the “Air Force memorandum”), ECF No. 88, is DENIED. This ruling will apply to all the remaining Group B, C and D cases, and the parties’ respective arguments are preserved for purposes of those cases. Consistent with the trial time allocation rules for this litigation, see ECF No. 30, the Court's time spent reviewing and ruling on the parties’ submissions on this matter—4.5 hours—will count against Defendants’ time allocation in Blum's case.
*3 SO ORDERED, on this 20th day of October, 2021.
Footnotes
In fact, the Vietas deposition was taken by Defendants’ Lead Counsel in the Blum case.
See, e.g., Merkley Dep. (Feb. 26, 2020) at 482:17-484:16; Babeu Dep. (Mar. 10, 2020) at 66:05-76:19; Hobbs Dep. (July 16, 2020) at 82:03-88:08.
Indeed, this Court has admitted, many times at Defendants’ request, numerous exhibits as public records, including emails with government email addresses, PowerPoint presentations, and research studies. The instant memorandum, on Department of the Air Force Headquarters letterhead, pertaining to a matter affecting the Air Force, could hardly be characterized as less official than those other exhibits.