IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS LIABILITY

LITIGATION, Case No. 3:19-md-2885

 

 Judge M. Casey Rodgers

 Magistrate Judge Gary R. Jones 

This Document Relates to:

Stephen Hacker

Case No. 7:20-cv-131 

______________________________/

ORDER

Pending before the Court is Defendants’ Motion to Preclude 

Testimony from [Plaintiff’s] Experts Relating to Conditions that [Plaintiff] 

Claims Other than Hearing Loss and Tinnitus. ECF No. 36. Plaintiff

Stephen Hacker has filed a response in opposition, ECF No. 55, and the 

motion, therefore, is ripe for consideration. For the reasons explained 

below, Defendants’ motion to preclude testimony is due to be GRANTED.

Plaintiff Hacker is a Trial Group A Bellwether Plaintiff in this 

multidistrict litigation, a collection of products liability actions concerned 

with whether Defendants were negligent in their design, testing, and 

labeling of the nonlinear dual-ended Combat Arms Earplug Version 2 (the 

“CAEv2”). Plaintiffs are servicemembers, veterans, and civilians seeking 

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damages in this action for hearing loss, tinnitus, and related injuries caused 

by their use of the CAEv2. MDL ECF No. 704.

Ten months ago, Defendants asked the Court to compel the 

Bellwether Plaintiffs to execute authorizations permitting the production of 

their entire mental health records from third-party (non-government) 

providers. The Court—applying the majority rule—held that the Bellwether 

Plaintiffs did not place their mental health “in controversy” merely by 

requesting damages for “garden variety” mental anguish or emotional 

distress. MDL ECF No. 1065 at 6. The Court, however, left open the door 

for Defendants to explore whether a particular Bellwether Plaintiff would 

place his or her mental health “in controversy” at trial by testifying to a 

specific psychological diagnosis or by offering testimony from a 

psychological expert on an award of damages for mental anguish, distress, 

or loss of enjoyment of life. Id. at 7 n.2. This rule has persisted throughout 

this litigation. See, e.g., MDL ECF No. 1108 at 12; MDL ECF No. 1258 at 

10; MDL ECF No. 1335 at 3; MDL ECF No. 1390 at 3.

Heeding the Court’s suggestion, Defendants proceeded with 

discovery on the Bellwether Plaintiff’s mental health conditions and claims. 

In their Second Set of Interrogatories, Defendants included the following 

questions to the Bellwether Plaintiffs:

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INTERROGATORY NO. 72: 

State whether You intend to offer expert testimony relevant to (i) 

mental anguish, distress, or loss of enjoyment of life, or (ii) Any 

mental health condition with which You have been diagnosed. If 

so, please Describe the expert testimony You intend to offer.

INTERROGATORY NO. 73:

State whether You intend to offer any evidence at trial related to 

(i) mental anguish, distress, or loss of enjoyment of life, or (ii) Any 

mental health condition with which You have been diagnosed. If 

so, please Describe the evidence you intend to offer.

MDL ECF No. 36-1 at 6–7. 

Plaintiff Hacker served his answers to these interrogatories on May 

15, 2020. Id. at 2. In response to Interrogatory No. 72, he stated that he 

“does not intend to offer expert testimony to support a claim of mental 

anguish, distress, or loss of enjoyment of life” and “has not identified health 

conditions beyond his hearing loss and tinnitus on which Plaintiff intends to 

offer expert proofs.” Id. at 7. In response to Interrogatory No. 73, he stated 

that he “does not intend to offer evidence at trial related to the mental 

anguish, distress, and loss of enjoyment of life caused by the CAEv2” and 

“does not intend to offer expert testimony to support the claim of a specific 

diagnosed mental health condition caused by the CAEv2.” Id. Plaintiff 

Hacker supplemented his interrogatory responses three times since then 

(in June and July 2020) but did not amend the above answers. ECF No. 36 

at 6. Indeed, he relied on these representations in a successful attempt to 

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avoid disclosure of his unredacted VA mental health records. MDL ECF 

No. 1248 at 16.

Nevertheless, on the last day of fact discovery (in October 2020), 

Plaintiff Hacker disclosed to Defendants Dr. Moises A. Arriaga as an expert 

in neurotology, otolaryngology, tinnitus, anxiety, and depression. ECF No. 

55-3 at 2–3. Dr. Arriaga opines in his case-specific report that Plaintiff 

Hacker suffered “[t]innitus, [a]ggravation of [s]leep disorder, [a]nxiety[,] and 

PTSD” as a “direct cause” of using the CAEv2. ECF No. 36-3 at 22; see 

also id. at 24 (“While using the CAEv2 device from 2003 to 2010 and being 

exposed to both ongoing toxic noise levels and injurious impulse noise as 

discussed above, Mr. Hacker developed auditory injuries resulting in 

tinnitus and aggravation of his sleep disorder, anxiety, and PTSD 

symptom.”).

Plaintiff Hacker also disclosed Dr. Christopher Spankovich as an 

expert in audiology, tinnitus, and synaptopathy. ECF No. 55-4 at 2–3. In 

his “general” report, Dr. Spankovich describes “sleep disturbance, 

concentration, loss of silence/feeling of inability to escape, and 

emotional/stress-based issues” as the “most common” effects of tinnitus 

and states that tinnitus exacerbates PTSD. ECF No. 36-4 at 49. In his 

case-specific report, Dr. Spankovich opines that Plaintiff Hacker’s tinnitus 

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will have “significant consequences” for “the rest of his life[,]” including the 

“risk for cognitive decline.” ECF No. 36-5 at 14. Dr. Spankovich relies on 

Plaintiff Hacker’s representation that his tinnitus has “significant effects ... 

on his daily function[,] including concentration, attention, sleep, ability to 

relax, and loss of quiet.” Id. at 13.

Defendants ask the Court to preclude the testimony from Dr. Arriaga 

and Dr. Spankovich described above. ECF No. 36 at 9–10. They assert 

this expert testimony “concerning his mental anguish claim and relating to 

conditions other than hearing loss and tinnitus is a reversal of his 

interrogatory answers.” Id.

A federal litigant must supplement or correct his or her response to 

an interrogatory “in a timely manner if the party learns that in some material 

respect the disclosure or response is complete or incorrect, and if the 

additional or corrective information has not otherwise been made known to 

the other parties during the discovery process or in writing[.]” Fed. R. Civ. 

P. 26(e)(1). When a party fails to do so, he or she “is not allowed to use 

that information ... to supply evidence on a motion, at a hearing, at a trial, 

unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 

37(c)(1). Courts enjoy broad discretion under Rule 37(c)(1) to exclude 

evidence, Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 718 (11th Cir. 

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2019), and “will routinely strike expert reports or exclude expert testimony 

which is not timely disclosed, even if the consequence is to preclude a 

party’s entire claim or defense,” Warren v. Delvista Towers Condo. Ass’n, 

Inc., No. 13-23074-CIV, 2014 WL 3764126, at *1 (S.D. Fla. July 30, 2014) 

(citing Santiago-Diaz v. Laboratorio Clinico y de Referencia del Este, 456 

F.3d 272, 277–78 (1st Cir. 2006); Bearint v. Dorell Juvenile Grp., Inc., 389 

F.3d 1339, 1348–49 (11th Cir. 2004)); see also B-K Lighting, Inc. v. Vision3

Lighting, 930 F. Supp. 2d 1102, 1136 (C.D. Cal. 2013) (“A party’s failure to 

supplement answers to interrogatories in a timely fashion can be grounds 

for exclusion of the undisclosed information.” (citing Hancock v. Hobbs, 967 

F.2d 462, 468 (11th Cir. 1992))).

The Court concludes that Plaintiff Hacker violated the duty to 

supplement his interrogatory answers.

1 As an initial matter, there is a clear 

inconsistency between Plaintiff Hacker’s answers and his expert 

disclosures. Assuming dubitante, as Plaintiff Hacker contends, that Dr. 

Arriaga and Dr. Spankovich will not “offer expert testimony regarding a 

specific mental health diagnosis resulting from his CAEv2 use[,]” ECF No. 

1 Because this Court’s ruling rests on the application of the Federal Rules of Civil 

Procedure, the undersigned will not address Defendants’ argument for exclusion based 

on judicial estoppel.

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55 at 8,2 their expert testimony concerning the “significant effects” of his 

tinnitus on his daily function and the “aggravation” of any preexisting mental 

health conditions is at least evidence in support of his “garden variety” 

claims of mental anguish, distress, or loss of enjoyment of life, which he 

previously said (in his interrogatory answers) that he would not present.

Moreover, this information was not “otherwise ... made known” to 

Defendants in a “timely manner.” Fed. R. Civ. P. 26(e). Plaintiff Hacker 

argues Defendants were put on notice during his deposition, when he 

“testified as to how his hearing issues aggravate his sleep apnea and 

PTSD[,]” and, again, when he “timely disclosed Drs. Arriaga and 

Spankovich[.]” ECF No. 55 at 7. This argument is unavailing for two 

reasons. First, Plaintiff Hacker’s cursory and vague deposition testimony 

about his own perception of an interaction between his tinnitus, sleep 

apnea, and PTSD, id. at 3, did not put Defendants on notice that Plaintiff

Hacker would offer expert testimony on the same topic, which, in turn, 

2 This Court held in September 2020 that a Bellwether Plaintiff’s claims for damages 

arising from his “frustration,” “sleep issues,” “focus issues,” “irritability,” and “social 

isolation” were more than “the typical garden-variety complaint of mental anguish or 

distress.” MDL ECF No. 1390 at 11; see also Jakes v. Boudreau, No. 19-C-2204, 2020 

WL 5297007, at *2 (N.D. Ill. Sept. 4, 2020); Trans v. Wells Fargo Bank, N.A., No. 3:15-

cv-979-BR, 2017 WL 1234131, at *3 (D. Or. Jan. 20, 2017). At bottom, “a party cannot 

inject his or her psychological treatment, condition, or symptoms into a case and expect 

to be able to prevent discovery of information relevant to those issues.” Awalt v. Marketti, 

287 F.R.D. 409, 418–19 (N.D. Ill. 2012).

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places his mental health in controversy. Second, Plaintiff Hacker’s 

disclosures of Dr. Arriaga and Dr. Spankovich as experts were not in a 

“timely manner” during the “discovery process,” as contemplated under 

Rule 26(e), because they were made on the last day of the fact discovery 

period. This left Defendants no time to reexamine their discovery plan and 

implement any changes thereto.

Under Rule 37(c)(1), exclusion is an “automatic sanction” that is 

meant to be “self-executing.” Fed. R. Civ. P. 37 advisory committee’s note. 

This leaves only the question of whether Plaintiff Hacker has shown that his

failure to supplement his interrogatory answers was “substantially justified” 

or “harmless.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 825 (11th Cir. 

2009); King v. Akima Global Servs., LLC, 323 F.R.D. 403, 410 (S.D. Fla. 

2017). He has not.

“A failure to timely make the required disclosures is harmless when 

there is no prejudice to the party entitled to receive the disclosure.” Hewitt 

v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 683 (M.D. Fla. 2010). Here, the

Court concludes there is substantial prejudice. Defendants understood 

Plaintiff Hacker’s interrogatory answers as a representation that he would 

not place his mental health in controversy. They, in turn, formulated a 

discovery plan that did not include depositions of his mental health care 

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providers or even depositions of lay witnesses that explored the mental 

health conditions in issue. ECF No. 36 at 12–14. For example, 

Defendants did not “press the issue” when Plaintiff Hacker’s former spouse

refused to answer questions relating to any of Plaintiff Hacker’s medical 

conditions other than hearing loss and tinnitus. ECF No. 36-9. Any lesser 

sanction (such as reopening the discovery period at this juncture) is not 

viable for the reasons stated by the Court in its January 15, 2021, order, 

MDL ECF No. 1611, so the only appropriate recourse for Plaintiff Hacker’s 

failure to supplement his interrogatory answers is to preclude the abovedescribed testimony of Dr. Arriaga and Dr. Spankovich.

Accordingly, it is ORDERED that Defendants’ Motion to Preclude 

Testimony from [Plaintiff’s] Experts Relating to Conditions that [Plaintiff] 

Claims Other than Hearing Loss and Tinnitus, ECF No. 36, is GRANTED.

DONE AND ORDERED this 25th day of January 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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