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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS ) Case No. 3:19-md-2885-MCR-GRJ 

EARPLUG PRODUCTS LIABILITY ) 

LITIGATION ) Judge M. Casey Rodgers 

) Magistrate Judge Gary R. Jones 

This Document Relates to: ) 

)

Lloyd Baker )

Case No. 7:20-cv-00039 )

DEFENDANTS’ RESPONSE TO PLAINTIFF BAKER’S 

APRIL 15, 2021 OBJECTIONS TO THE COURT’S 

APRIL 2, 2021 AND APRIL 8, 2021 ORDERS 

Plaintiff Lloyd Baker’s objection to Judge Jones’ April 2, 2021 and April 8, 

2021 Orders (ECF 84 and 86, respectively) should be overruled. Judge Jones’ ruling 

on Plaintiff’s motions to exclude these depositions correctly determined that 

“Plaintiff Baker’s interests were represented at the deposition and there is ‘a 

substantial identity of issues’ between his case and the Adkins and Taylor bellwether 

cases.” ECF 84 at 10 (quoting Hub v. Sun Valley Co., 682 F.2d 776, 778 (9th Cir. 

1982)). Plaintiff’s objection to those orders fails because Plaintiff has failed to meet 

his burden of demonstrating that the orders are clearly erroneous. This Court should 

overrule Plaintiff’s objections and admit the deposition testimony of Van Densen 

and LTC Cave. 

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I. STANDARD OF REVIEW 

When a magistrate judge decides a “pretrial motion not dispositive of a party’s 

claim or defense,” the district judge in the case may “modify or set aside any part of 

the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see 

also 28 U.S.C. § 636(b)(1)(A). The clearly erroneous standard “is a very difficult 

one to meet.” S.E.C. v. Nat. Diamonds Inv. Co., 493 F. Supp. 3d 1260, 1263 (S.D. 

Fla. 2020) (citation and quotation marks omitted). To reverse a decision as clearly 

erroneous, the Court “must be left with a definite and firm conviction that a mistake 

has been committed.” United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 

2015) (citation and quotation marks omitted). “To be clearly erroneous, a decision 

must strike us as more than just maybe or probably wrong; it must ... strike us as 

wrong with the force of a five-week-old, unrefrigerated dead fish.” Nat. Diamonds 

Inv. Co., 493 F. Supp. 3d at 1263 (quoting Parts & Elec. Motors, Inc. v. Sterling 

Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). 

Additionally, for both witnesses at issue here, Plaintiff initially raised several 

objections to their testimony in their underlying discovery motions. See generally 

ECF 79; ECF 81. However, Plaintiff’s subsequent objections to Judge Jones’ orders 

are much more limited. He argues that the orders are wrong because of a lack of 

representation and notice at the depositions, and, for the first time, argues that 

admitting these depositions would “fatally undermine the efficiencies of this MDL.” 

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ECF 89 at 12. But “[a] party may not assign as error a defect in the order not timely 

objected to.” Fed. R. Civ. P. 72(a). In reviewing the current motion, the Court 

should focus only on those issues properly preserved and raised. 

II. ARGUMENT 

A. Judge Jones’ Ruling Regarding Witness Mark Van Densen Was 

Not Clearly Erroneous 

Judge Jones’ decision on the admissibility of the deposition testimony of Mr. 

Van Densen was based on consideration of two factors: 1) whether the Plaintiff 

received reasonable notice of Van Densen’s deposition, and 2) whether the Plaintiff 

was represented at that deposition. See ECF 84 at 6-10. Judge Jones determined 

that although Plaintiff was not provided reasonable notice of the deposition, id. at 6, 

he was represented at the deposition by counsel for Plaintiffs who were present for 

unrelated cases. Id. at 8. 

As Judge Jones noted, under Rule 32(a)(1)(A) it is permissible to use a witness 

deposition against a party if “the party was present or represented at the taking of 

the deposition or had reasonable notice of it.” ECF 84 at 5 (quoting Fed. R. Civ. P. 

32(a)(1)(A)). As Judge Jones explained, it has long been recognized that “the 

presence of an adversary with the same motive to cross-examine the deponent and 

identity of issues in the case in which the deposition was taken with the one in which 

it is sought to be used provide a well-recognized exception to the rule.” ECF 84 at 

8 (quoting Ikerd v. Lapworth, 435 F.2d 197, 205 (7th Cir. 1970)). Under this 

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exception, a party is deemed to be “represented” at a deposition where a different 

party with the substantially similar interests as the non-present party does attend the 

deposition. Rule v. Int’l Assn of Bridge, Structural & Ornamental Ironworkers, Loc. 

Union No. 396, 568 F.2d 558, 569 (8th Cir. 1977). Under such circumstances, “the 

purpose of Rule 32(a)—to ensure that the deposition is taken under adversarial 

circumstances—is substantially satisfied.” Geller v. Von Hagens, 2012 WL 

13109663, at *3 (M.D. Fla. 2012). The crucial factor is that in these circumstances, 

there is “no basis upon which it can be assumed that the cross-examination of the 

deponents would have been any different had [the absent party’s] counsel had the 

opportunity to participate therein.” Ikerd, 435 F.2d at 206. 

In Ikerd, multiple plaintiffs brought actions against the car dealership that had 

allegedly sold defective cars. Id. at 199-200. During the course of the litigation, 

several witnesses were deposed by the parties, including an eyewitness to a car 

accident and an employee of the car dealership. Id. at 204-05. One of the plaintiffs 

objected to the inclusion of these depositions, on the grounds “that they were taken 

prior to the date his action was filed, March 7, 1969, and, consequently, he received 

no notice thereof and was denied the opportunity to have his counsel present.” Id.

at 205. On appeal, the Seventh Circuit rejected the plaintiff’s argument, finding that 

the presence of the co-plaintiff’s counsel coupled with “substantial identity of factual 

and legal issues involved in the two cases,” meant that the absent party was 

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sufficiently represented to allow the admission of the deposition testimony. Id. at 

205-06.1

Plaintiff attempts to distinguish this rule, by excessively narrowing the “same 

motive” and “identity of issues” requirement. Under the Plaintiff’s description of 

this factor, any factual differences would destroy similarity of motives and identity 

of issues. But the requirement is not so stringent. Courts have recognized that 

“substantial overlap in the subject matter for which the deposition testimony may be 

relevant” is sufficient to meet the representation requirement. S.W. v. City of New 

York, 2010 WL 4791712, at *2 (E.D.N.Y. 2010), aff’d, 2012 WL 1100906 

(E.D.N.Y. 2012). There is no requirement that the cases have identical fact patterns, 

or even claims; rather it is sufficient that “if the interest of the objecting party in the 

prior suit was calculated to induce as thorough a cross-examination as the interest of 

the present opponent.” Rule, 568 F.2d at 569. 

Here, there can be no doubt as to the substantial overlap in the subject matter. 

Baker, Adkins, and Taylor share a Master Long Form Complaint, in which they 

make similar allegations against Defendants. See Short Form Compl. at 1, Baker

ECF No. 1; Short Form Compl. at 1, Adkins ECF No. 1; Short Form Compl. at 1, 

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 Contrary to Plaintiff’s assertion, the Seventh Circuit in Ikerd was not “creat[ing] 

an exception to Rule 32’s representation requirement,” ECF 89 at 7, but was rather 

applying a recognized rule. The Seventh Circuit described the doctrine as “a wellrecognized exception to the rule.” Ikerd, 435 F.2d at 205. 

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Taylor ECF No. 9 (incorporating by reference the Master Long Form Complaint). 

All three Plaintiffs allege hearing loss and Tinnitus. See Short Form Compl. at 3, 

Baker ECF No. 1; Short Form Compl. at 3, Adkins ECF No. 1; Short Form Compl. 

at 3, Taylor ECF No. 9. And the three Plaintiffs have partially common 

representation. See ECF 83 at 7. Thus, they have the same motive and identity of 

issues for purposes of cross-examining witnesses.

Plaintiff Baker acknowledges that counsel for Adkins and Taylor questioned 

Van Densen about his work at Fort Lewis. Baker asserts, however, that this was 

insufficient to represent his interests because “there is no evidence Baker was ever 

treated by Van Densen: Indeed, there is no evidence that Baker and Van Densen ever 

interacted in any manner at any time.” ECF 89 at 10. As Judge Jones noted, the 

very fact that Baker never interacted with Van Densen—and therefore considers his 

testimony “not significantly important”—means there is little reason that Baker 

would have questioned Van Densen differently than he was actually questioned by 

the present counsel. ECF 84 at 9. Given the similarities between the cases, this is 

simply not enough divergence in identity or issue to preclude a finding of 

representation; “Plaintiff Baker’s interests were represented at the deposition and 

there is a ‘substantial identity of issues.’” Id. at 10 (quoting Hub, 682 F.2d at 778). 

Certainly, the decision to admit this deposition cannot be reasonably described as 

“clearly erroneous.” 

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B. Judge Jones’ Ruling Regarding Witness Kara Cave Was Not 

Clear Error 

Similarly to the objections raised regarding Van Densen’s deposition, Baker 

objects to Judge Jones’ order regarding the deposition of LTC Cave. Baker claims 

that he was not a party to the Estes case, that he was insufficiently noticed of the 

deposition, and that counsel for Estes did not adequately represent him and that 

therefore Judge Jones’ order admitting this deposition is in error. See ECF 89 at 2-

3, 9-10. Judge Jones denied Baker’s motion, finding both that he was adequately 

represented by counsel for Estes, ECF 86 at 7, and that under all the circumstances, 

Baker received reasonable notice of the deposition. Id. at 7-8. As with Baker’s 

argument regarding the Van Densen deposition, Baker’s motion fails to demonstrate 

clear error to Judge Jones’ decision to admit the Cave deposition. 

Specifically, Plaintiff focuses once again on superficial factual differences, 

between Estes and his own case, while ignoring the similarities. According to 

Plaintiff, those differences are that Baker was stationed at Fort Benning at a different 

time than the Estes, that Estes and Baker served different roles in the military, and 

that Estes was deployed to Iraq, while Baker never was. ECF 89 at 8-9. According 

to Plaintiff, the present counsel had no motivation to question Cave on these three 

issues. However, as Judge Jones’ order of April 8 explained, counsel for Estes “had 

the same motivation to develop a cross-examination of LTC Cave about the timing 

and scope of her service as Hearing Conservation Program Manager at Fort Benning, 

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her presentation at the Armor Basic Officer Leadership Course, and her instruction 

to servicemembers that they wear both earplugs and CVC helmets inside tracked 

vehicles.” ECF 86 at 7. Plaintiff has simply not provided grounds to refute this 

explanation, let alone to label it “clearly erroneous.” 

Plaintiff’s objection regarding the notice of Cave’s deposition likewise fails. 

Defendants served a Touhy request for Cave’s deposition on September 11, 2020, 

which the Army approved on February 4, 2021. See ECF 85 at 3. Defendants served 

notice of Cave’s deposition on February 23, 2021, with a deposition date of March 

11, 2021. Id. On March 10, Defendants included Cave on their witness list, alerting 

Plaintiff that they intended to use her deposition testimony. ECF 86 at 7. As Judge 

Jones noted, a one day deposition notice can be reasonable. Id. at 8 (quoting Natural 

Organics v. Proteins Plus, Inc., 724 F. Supp. 50, 52 n.3 (E.D.N.Y. 1989)). And, as 

Judge Jones noted, Baker had already identified Cave as a potential witness for its 

own case. See ECF 85-6 at 3. Further, Baker’s counsel was actually present at the 

deposition, and had the opportunity to elicit testimony relevant to Baker from the 

witness. ECF 86 at 7. 

Plaintiff argues that he is prejudiced by having had only one day of notice for 

the deposition. ECF 89 at 4-5. However, given the totality of the circumstances—

that Plaintiff’s counsel was noticed of the deposition on February 23, and that 

Plaintiff’s counsel actually attended the deposition, the one day notice that 

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Defendants intended to rely on the deposition was reasonable. Judge Jones’ decision 

of April 8 was not wrong, and was far from clear error. 

C. Plaintiff’s Argument That Admitting These Depositions Would 

Undermine The MDL Process Is Without Merit 

Plaintiff’s final argument, raised for the first time in his objections to Judge 

Jones’ ruling, is that admitting these depositions would “fatally undermine the 

efficiency of the MDL process.” ECF 89 at 12. The crux of this argument is that 

admitting the depositions would burden all plaintiffs by requiring them to prepare 

for and attend every deposition, and would require them to cross examine witnesses 

to “show the deponent’s lack of personal knowledge if Defendants later elect to use 

the testimony.” Id. at 12-13. 

First, “the plaintiff is generally required to bear any reasonable burdens of 

inconvenience that the action presents.” DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 

600, 607-08 (N.D. Fla. 2019). Plaintiff cannot reasonably complain about the 

inconvenience of preparing for and attending the depositions of third-party 

witnesses, and does not cite any precedent for this proposition. Second, Plaintiff’s 

contention that asking a deponent to confirm that they have no personal knowledge 

of the plaintiff would be unduly prejudicial because it would “burn limited 

deposition time,” ECF 89 at 13, is simply insufficient to support excluding evidence 

that is otherwise admissible under the Rules of Evidence. Plaintiff cites no precedent 

supporting the proposition, and the Court should focus, as Judge Jones did, on the 

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fact that “there is a ‘substantial identity of issues’ between [Baker’s] case and the 

Estes bellwether,” ECF 86 at 8-9 (quoting Hub, 682 F.2d at 778), and that given the 

circumstances, “Plaintiff Baker had reasonable notice of LTC Cave’s deposition 

testimony.” ECF 86 at 7. 

Finally, the Plaintiff is raising an argument here that Judge Jones did not have 

a chance to pass upon. Plaintiff’s initial objections to the admission of these 

depositions did not mention, even in passing, the dangers to the MDL process in the 

event of the admission of these depositions. See ECF 79; ECF 81. However, “a 

district court has discretion to decline to consider a party’s argument when that 

argument was not first presented to the magistrate judge.” Williams v. McNeil, 557 

F.3d 1287, 1292 (11th Cir. 2009). Allowing Plaintiff to present new arguments here 

“would turn the magistrate judge referral process on its head” because it allows the 

Plaintiff “to identify weaknesses in its case, so that it may shore them up later by 

presenting additional evidence to the District Judge.” All-S. Subcontractors, Inc. v. 

Amerigas Propane, Inc., 2015 WL 4603567, at *2 (N.D. Fla. 2015). “[T]o require 

a district court to consider evidence not previously presented to the magistrate judge 

would effectively nullify the magistrate judge’s consideration of the matter and 

would not help to relieve the workload of the district court.” Williams, 557 F.3d at 

1292 (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)). Because 

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the Plaintiff did not raise these arguments in his initial motion, the Court should 

reject them here. 

III. CONCLUSION 

For the foregoing reasons, the Court should overrule Plaintiff’s objections to 

Judge Jones’ orders of April 2, 2021 (ECF 84) and April 8, 2021 (ECF 86). 

DATED: April 29, 2021 Respectfully submitted, 

/s/ Kimberly Branscome 

Kimberly Branscome 

DECHERT LLP 

633 W. 5th St., Suite 4900 

Los Angeles, CA 90071 

Telephone: (213) 808-5762 

kimberly.branscome@dechert.com

Robert C. “Mike” Brock 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Telephone: (202) 389-5991 

mike.brock@kirkland.com 

Mark J. Nomellini 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

Chicago, Illinois 60654 

Telephone: (312) 862-3254 

mark.nomellini@kirkland.com 

Counsel for Defendants 3M Company, 

3M Occupational Safety LLC, Aearo 

Technologies LLC, Aearo Holding 

LLC, Aearo Intermediate LLC, and 

Aearo LLC 

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CERTIFICATE OF SERVICE 

I, Kimberly Branscome, hereby certify that on April 29, 2021, I caused a copy 

of the foregoing to be filed through the Court’s CM/ECF system, which will serve 

all counsel of record. 

DATED: April 29, 2021 /s/ Kimberly Branscome

Kimberly Branscome 

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