UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE 3M COMBAT ARMS ) Case No. 3:19-md-02885

EARPLUG PRODUCTS ) 

LIABILITY LITIGATION ) Judge M. Casey Rodgers

) Magistrate Judge Gary R. Jones

) 

This Document Relates to: ) 

Shanika Roper ) 

Civil Case No. 7:20-cv-02945-MCR- ) 

GRJ ) 

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO EXCLUDE 

CERTAIN EXPERT OPINIONS1

 

The Court should deny Plaintiff Shanika Roper’s motion to exclude certain 

opinions of Defendant’s expert, Alan Pollak, M.D. (ECF No. 18 (“Motion”)). Dr. 

Pollak is a well-qualified otolaryngologist, whose medical opinions will assist the 

jury. Fed. R. Evid. 702. 

1

 On July 26, 2022, Defendants 3M Occupational Safety, LLC, Aearo Holding LLC, 

Aearo Intermediate LLC, and Aearo Technologies LLC filed voluntary petitions for 

relief under chapter 11, title 11 of the U.S. Code in the U.S. Bankruptcy Court for 

the Southern District of Indiana. See In re Aearo Technologies LLC, et al., Case No. 

22-02890-JJG-11 (Bankr. S.D. Ind.) (Jointly Administered). Those debtors do not 

join in this Response due to their filing for bankruptcy and operation of the automatic 

stay, see 11 U.S.C. § 362. Defendant 3M reserves all rights with respect to the 

Motion, now pending in the U.S. Bankruptcy Court for the Southern District of 

Indiana, Case No. 22-02890, Adv. Proc. No. 22-50059, for Declaratory and 

Injunctive Relief (I) Declaring that the Automatic Stay Applies to Certain Actions 

Against a Non-Debtor or (II) Preliminarily Enjoining Certain Actions Against a 

Non-Debtor and (III) Granting a Temporary Restraining Order Pending an Order on 

the Preliminary Injunction. 
2 

Argument

1. Roper’s argument to exclude opinions that the CAEv2 is not defective 

should be denied as moot. 

Roper moves to preclude Dr. Pollak from offering opinions that the Dual 

Ended Combat Arms Earplug (“the CAEv2”) is not “defective.” Motion 2–3. But 

Dr. Pollak did not offer any opinion that the CAEv2 is not “defective” in his report 

or during his deposition. See Ex. 1, Pollak Dep. 110:3–19; see generally Ex. 2, 

Pollak Report 15-19. Dr. Pollak will not be offering that opinion at trial. Roper’s 

motion should be denied as moot. 

Moreover, the fact that he will not opine on “defect” does not mean that Dr. 

Pollak cannot testify about the facts underlying his opinions. See, e.g., Morris v. 

Wal-Mart Stores E., LP, No. 5:20-CV-32, 2021 WL 3088004, at *4 (S.D. Ga. July 

22, 2021) (“expert may . . . testify about the facts forming the basis for that opinion”); 

Fed. R. Evid. 705 (“expert may state an opinion — and give the reasons for it”). In 

considering the CAEv2 as a potential cause of Roper’s alleged injuries, Dr. Pollak 

necessarily had to consider the CAEv2’s purpose and function; otherwise, it would 

be impossible to evaluate its potential role. The Court should not prevent Dr. Pollak 

from explaining his understanding of Roper’s use of the CAEv2. That would be 

confusing for the jury and render his testimony incomplete. 
3 

2. Dr. Pollak’s opinion that the CAEv2 did not contribute to Roper’s alleged 

tinnitus is based on record evidence and is admissible. 

Roper’s Motion seeks to prohibit Dr. Pollak from opining that the CAEv2 did 

not contribute to Roper’s alleged tinnitus, on the basis that he did not review 

information about the CAEv2’s design, testing, efficacy, marketing, or sale. Motion 

4. Roper does not explain why Dr. Pollak would need to review that information to 

conclude that Roper’s alleged tinnitus was not caused by use of the CAEv2. There 

is no reason Dr. Pollak would need to do so. See, e.g., In re 3M, 3:19-md-2885, ECF 

No. 2845 at 21–22 (“Nonetheless, Dr. Crawford may explain why he concluded that 

a plaintiff’s auditory injuries are not attributable to the CAEv2 based on record 

evidence regarding the plaintiff’s noise exposures, other potential causes of auditory 

damage, and the timeline of any alleged injuries.”); In re 3M, 3:19-md-2885, ECF 

No. 2218 at 43 (N.D. Fla. Oct. 18, 2021) (“The fact that Crawford did not examine 

the alleged defect of the CAEv2 to determine whether it contributed to Plaintiffs’ 

injuries goes to the weight of his opinion but not admissibility.”). 

Dr. Pollak’s opinion that the CAEv2 did not contribute to Roper’s alleged 

tinnitus is based on his experience and his review of record evidence such as Roper’s 

testimony, medical history, and other information concerning potential causes for 

her tinnitus. Ex. 1, Pollak Dep. 109:1–11; Ex. 2, Pollak Report 3–19 & Appendix A. 

Those opinions are reliable, relevant, and admissible under Daubert and Fed. R. 

Evid. 702. 
4 

3. Dr. Pollak does not opine that Roper’s tinnitus is non-existent. 

Roper asks the Court to prohibit Dr. Pollak from “giving any opinion as to 

[Roper]’s tinnitus being non-existent due to a lack of noise induced hearing loss.” 

Motion 4. Dr. Pollak has not given such an opinion. He does opine, based on Roper’s 

audiometric exams, that she does not suffer from any permanent hearing loss. As to 

her claims of tinnitus, he opines that: 

(1) Some symptoms Roper associates with tinnitus (an “itch and ache” she 

describes in her inner ear) are known to be associated with TMJ, a condition 

that she has, and can be described as “somatic tinnitus”; and 

(2) Other symptoms Roper describes that “do fit within the category of 

tinnitus – the ringing in her ear occurring twice per month” fall “within the 

norm of clinically insignificant tinnitus in the general population.” 

Ex. 2, Pollak Report 16. These are not opinions that Roper does not have tinnitus. 

They are reliable and admissible. Roper’s motion on this point should be denied as 

moot. 

4. Dr. Pollak’s opinions on NSAIDs are admissible. 

Roper argues that the Court should exclude Dr. Pollak’s opinions about “a 

variety of allegedly ototoxic substances and medications” as causes for or 
5 

contributing factors to Roper’s alleged “hearing loss and/or tinnitus,”2 to the extent 

that those opinions do not conform to the Court’s prior rulings. Motion 5 (citing 

MDL ECF No. 1330). To be clear, Dr. Pollak did not give an opinion on “a variety” 

of other substances, only on NSAIDs, including aspirin (Excedrin).3

 Nor did he 

opine that these substances caused or contributed to her symptoms—only that they 

could not be excluded. Ex. 2, Pollak Rep. 18; Ex. 1, Pollak Dep. 99:19–24 (noting 

medical records showing Roper took “frequent Excedrin for her migraine 

headaches”), 98:7–18 (discussing cumulative effect of aspirin dosage and 

connection to tinnitus), 100:9–102:3 (discussing literature and experience 

connecting NSAIDs and tinnitus, and acknowledging that without information about 

dosage, he cannot conclude that these substances were the “sole cause” or a 

contributor to Roper’s tinnitus, but stating that he does not agree with Roper’s 

expert’s “completely, without question,” excluding these substances). 

This Court has held that an expert can give opinions on ototoxic medications 

where there has been a finding that such medications are “arguably relevant” to the 

2

 Later on the same page, the Motion acknowledges that Roper’s “only claim in this 

lawsuit is for tinnitus.” Motion 5. Roper alleges her tinnitus began in 2018. Ex. 3, 

Pl’s. Resps. to Deft. 3M’s Am. First Set of Interrogs. to Pltf., Resp. to Interrog. No. 

2, at pp. 5-6. 

3 See https://www.excedrin.com/dosage-ingredients-chart/ (last accessed August 6, 

2022) (noting that Excedrin contains acetaminophen and aspirin, a non-steroidal 

anti-inflammatory drug). 
6 

plaintiff’s alleged hearing loss and/or tinnitus. See MDL ECF 2845 at 29–30 (citing 

MDL ECF 1330). Roper has had a history of taking NSAIDs, including ibuprofen 

and Excedrin, both before and since her alleged tinnitus began. E.g., Composite Ex. 

4 (3M_ROPER_S004915 (prescribed 800-mg dosage of ibuprofen in 2016), 

3M_ROPER_S004920 (200-mg dosage, 2018), 3M_ROPER_S004924 (800-mg 

dosage 2015 and 2012); Ex. 1, Pollak Dep. 99:19–100:8 (Excedrin). 

Dr. Pollak’s opinion that Roper’s case-specific expert did not reliably rule 

these medications out is based on Dr. Pollak’s review of Roper’s medical records 

and his clinical experience, as well as information known to the medical community. 

Ex. 1, Pollak Dep. 96:20–102:4.4 These opinions satisfy both Rule 702 and Daubert. 

CONCLUSION 

Defendant respectfully requests that the Court deny Roper’s Motion. 

 

4 See also MDL ECF 1330 at 5, 9–10, 12; MDL ECF 2845 at 29–30; ECF 18 at 8 

(citing Jay M. Bhatt, M.D., et al., Otolaryngology Head and Neck Surgery, JAMA, 

2016 Oct 1, 142 (10)); see also American Tinnitus Association – Causes, 

https://www.ata.org/understanding-facts/causes (“However, there are some ototoxic 

drugs known to cause more permanent tinnitus symptoms. These include: NonSteroidal Anti-Inflammatory Drugs (NSAIDs).”). 
7 

 Respectfully submitted, 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 

Bradley Arant Boult Cummings LLP 

One Federal Place |1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.com 

Counsel for Defendant 3M Company 

 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

Pursuant to Local Rule 7.1(F), counsel for Defendants certify that this 

response contains 1,348 words, excluding the case style, signature block, and 

certificates of compliance with the Local Rules. 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 

Bradley Arant Boult Cummings LLP 

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.com 

Counsel for Defendant 3M Company 

 

 
8 

CERTIFICATE OF SERVICE 

I hereby certify that on this the 8th day of August, 2022, I electronically filed 

the foregoing document with the Clerk of the United States District Court for the 

Northern District of Florida using the electronic case filing system of the Court, 

which will send electronic service to all registered counsel of record. 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 

Bradley Arant Boult Cummings LLP 

One Federal Place, Suite 1000 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.com 

Counsel for Defendant 3M Company