UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG

PRODUCTS LIABILITY 

LITIGATION

This Document Relates to All Cases

Case No. 3:19-md-2885-MCR-GRJ

Judge M. Casey Rodgers

Magistrate Judge Hope T. Cannon

PLAINTIFFS’ OPPOSITION TO 3M’S MOTION FOR CLARIFICATION

3M’s motion for “clarification of certain procedures” relating to the 

February 23, 2023 Data Day is nothing more than a preemptive public relations 

gambit. It is designed to undercut the credibility of third-party BrownGreer – whose 

role as a neutral in this litigation has expanded many times at 3M’s insistence – and 

to let 3M add another item to their oft-repeated list of grievances against this Court

in bankruptcy and appellate filings.

3M, along with Plaintiffs, chose BrownGreer for this very role, after nearly 

six hours of presentations from eight different litigation technology platform 

vendors. Dkt. 456. The Court tasked BrownGreer, at 3M’s and Plaintiffs’ request, 

with providing “centralized litigation management and support, including assistance 

with gathering, organizing, and analyzing various categories of information in 

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connection with this matter.” Dkt. 508. 3M’s attempt to cast BrownGreer as an 

unvetted stranger is yet another effort to rewrite the history of this case. 1

3M did not merely consent to BrownGreer’s role in this litigation as a neutral 

for tracking and analyzing data regarding Plaintiffs – 3M repeatedly and 

affirmatively pulled BrownGreer further into the process. 3M worked with 

BrownGreer and relied on its analysis in an untimely effort to commence an 

additional deficiency process in April 2022. Time and time again in the wave cases, 

3M advocated for using BrownGreer’s MDL Centrality platform for myriad 

purposes, from service of motions, to exchange of positions on applicable law, to

scheduling of medical examinations and depositions. 3M’s efforts to now suggest 

that BrownGreer is anything but a trusted neutral are baseless.

3M feigns ignorance about BrownGreer’s analyses of the DOEHRS data, but 

has had ample opportunity to test them. On December 12, 2022, 3M attended a twoplus hour presentation on the DOEHRS data and BrownGreer’s methods, processes, 

and conclusions. See Ex. A, Seeger Declaration; Ex. B, Ellis Declaration. 3M’s 

counsel had a more than adequate opportunity to ask the BrownGreer representatives 

any questions about those methods and conclusions, or raise any concerns, at that

 1 Even if BrownGreer could be considered a Court-appointed expert under Rule 

706 (as 3M contends), this history makes clear 3M fully participated in selecting 

and approving BrownGreer for the tasks it has performed.

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time. Even after that presentation and discussion, Plaintiffs understand that 3M met 

with Judge Rodgers and had further opportunity to discuss the DOEHRS data, 

BrownGreer’s presentation and analysis, and raise any questions or concerns. See 

Ex. A. 3M’s efforts to suggest in its filing that it lacks an opportunity to prepare for 

Data Day, or requires cross-examination of BrownGreer, are simply bad faith.

3M’s true aim is to undermine the Plaintiff hearing data that 3M knows 

BrownGreer has. When 3M thought that the DOEHRS data might help its cause, 3M 

sought that data from the military arm-in-arm with BrownGreer and Plaintiffs. 3M 

and BrownGreer participated together in many of the calls and meetings that yielded 

the DOEHRS data, up to and including traveling to the Pentagon to meet with 

representatives of the U.S. Military. It was only after 3M saw the Plaintiff hearing 

data that it began to backpedal. But 3M’s problem is not a lack of disclosure from 

BrownGreer, or a lack of opportunity to vet BrownGreer or its analyses: 3M’s 

problem is simply that it doesn’t like the data.

The Court’s January 18, 2023 and January 20, 2023 orders require no 

additional clarification, and Defendants’ motion should be denied.

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Dated: February 16, 2023

Respectfully submitted,

/s/ Bryan F. Aylstock

Bryan F. Aylstock, Lead Counsel

Florida State Bar No. 078263

Aylstock, Witkin, Kreis & Overholtz, PLLC

17 East Main Street

Suite 200

Pensacola, FL 32502

Tel.: (850) 202-1010

baylstock@awkolaw.com

Christopher A. Seeger, Co-Lead Counsel

(Admitted Pro Hac Vice)

New Jersey State Bar No. 042631990

Seeger Weiss LLP

55 Challenger Road 6th Floor

Ridgefield Park, NJ 07660

Tel.: (212) 584-0700

cseeger@seegerweiss.com

Shelley V. Hutson, Co-Lead Counsel

(Admitted Pro Hac Vice)

Texas State Bar No. 00788878

Clark, Love & Hutson, GP

440 Louisiana Street

Suite 1600

Houston, TX 77002

Tel.: (713) 757-1400

shutson@triallawfirm.com

Brian H. Barr, Co-Liaison Counsel

Levin, Papantonio, Thomas, Mitchell,

Rafferty, & Proctor, P.A.

316 South Baylen Street

Pensacola, FL 32502

Tel.: (850) 435-7044

bbarr@levinlaw.com

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Michael A. Burns, Co-Liaison Counsel

Mostyn Law Firm

3810 W. Alabama Street

Houston, TX 77027

Tel.: (713) 714-0000

epefile@mostynlaw.com

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2023, I caused the foregoing

Memorandum of Law to be filed with the Clerk of the Court using the CM/ECF 

system, which will send notification to all counsel of record.

/s/ Bryan F. Aylstock

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