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:

Beal, 7:20-cv-00006

Kelley, 7:20-cv-00153

Vaughn, 7:20-cv-00134

Vilsmeyer, 7:20-cv-00113

Wilkerson, 7:20-cv-00035

______________________________/

ORDER

Pending before the Court are Plaintiffs’ Motions to Authorize Remote 

Testimony Pursuant to Rule 43(a) From Elliott Berger. Master Docket ECF 

No. 2679.1 Defendants have filed responses to the motions in each of the 

cases.2 Although Elliott Berger—a non-party witness—filed in each of the 

cases a response in the form of an opposition to Plaintiffs’ motions and a 

1 Plaintiffs filed their Motion to Authorized Remote Testimony in each of the individual 

cases identified above. The respective docket entries are as follows: Beal, case no. 

7:20-cv-00006, ECF No. 44; Kelley, case no. 7:20-cv-00153, ECF No. 33; Vaughn, case 

no. 7:20-cv-00134, ECF No. 36; Vilsmeyer, case no. 7:20-cv-00113, ECF No. 33; 

Wilkerson, case no. 7:20-cv-00035, ECF No. 50. 

2 Beal, case no. 7:20-cv-00006, ECF No. 56; Kelley, case no. 7:20-cv-00153, ECF No. 

40; Vaughn, case no. 7:20-cv-00134, ECF No. 48; Vilsmeyer, case no. 7:20-cv-00113, 

ECF No. 59; Wilkerson, case no. 7:20-cv-00035, ECF No. 79.

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motion for protective order, Mr. Berger is not a party in these cases.

3 

Because Mr. Berger is not a party in any of these cases and has filed a 

miscellaneous action in which he advances his motion for protective order, 

see, case no. 3:22-mc-8-MCR-GRJ, to the extent that Mr. Berger’s filings in 

the above referenced cases are considered motions for protective order the 

motions are denied. 

For the reasons explained below, Plaintiffs’ Motions to Authorize 

Remote Testimony Pursuant to Rule 43(a) from Elliott Berger are due to be 

granted. Plaintiffs will be permitted to subpoena Elliott Berger for remote 

live testimony in these five group D bellwether cases. 

I. BACKGROUND

The five (5) bellwether trials in Group D are scheduled to take place 

between March and May 2022. For each of these trials Plaintiffs request 

authorization under Rule 43(a) of the Federal Rules of Civil procedure to 

obtain the testimony of Elliott Berger—a former 3M employee and current 

paid consultant—in open court by contemporaneous transmission from a 

location outside this district. 

3 Beal, case no. 7:20-cv-00006, ECF No. 59; Kelley, case no. 7:20-cv-00153, ECF No. 

49; Vaughn, case no. 7:20-cv-00134, ECF No. 51; Vilsmeyer, case no. 7:20-cv-00113, 

ECF No. 65; Wilkerson, case no. 7:20-cv-00035, ECF No. 82.

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This is not the first time the Court has been called upon to address 

this identical issue. In Baker v. 3M, case no. 7:20-cv-39-MCR-GRJ the 

Court there found that there were compelling circumstances under Rule 

43(a) to permit the live remote transmission of Mr. Berger’s testimony at 

trial. Baker, ECF No. 133. Similarly, on October 28, 2021, the Court 

granted an identical motion filed on behalf of eight bellwether plaintiffs, 

authorizing each of the eight bellwether plaintiffs to subpoena Mr. Berger to 

testify remotely by contemporaneous transmission. MDL ECF No. 2247. 

There, the Court concluded that compelling circumstances existed to permit 

remote testimony of Mr. Berger at the bellwether trials. 

In the present case, Plaintiffs advance similar arguments previously 

presented to the Court in support of their request. Although Defendants 

recognize that the Court already has addressed this issue, they say the 

circumstances are now different because Mr. Berger has now testified at 

ten trials and, therefore, the Court should not permit Plaintiffs to subpoena 

Mr. Berger to testify ad infinitum. Alternatively, Defendants request that if 

the Court grants the motion the Court’s ruling should apply equally to both 

parties so that Defendants will also have the right to compel Mr. Berger’s 

live testimony under Rule 43(a).

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II. DISCUSSION

A witness’s testimony at trial must be taken in open court unless a 

federal rule or statute allows otherwise. Fed. R. Civ. P. 43(a). When a 

party presents “good cause in compelling circumstances” and assures the 

Court of “appropriate safeguards,” the Court “may permit testimony in open 

court by contemporaneous transmission from a different location.” Fed. R. 

Civ. P. 43(a).

An overwhelming consensus of federal courts, including MDL courts, 

have held that Rules 43(a) and 45 should be read in tandem. See, e.g., In 

re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2017 WL 

2311719, at *4 (E.D. La. May 25, 2017) (holding the MDL Plaintiffs’ 

subpoena compelling a witness to testify by contemporaneous transmission 

“within 50 miles from his home and place of business” is “within the bounds 

of” Rule 45(c)); In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods.

Liab. Litig., No. 3:11-md-2244-K, 2016 WL 9776572, at **1–2 (N.D. Tex. 

Sept. 20, 2016) (granting leave of court for the MDL Plaintiffs to “present 

testimony via contemporaneous video transmission for certain witnesses 

under Defendants’ control that are unavailable to testify in the Northern 

District of Texas”); In re Actos (Pioglitazone) Prods. Liab. Litig., No. 6:11-

md-2299, 2014 WL 107153, at *9 (W.D. La. Jan. 8, 2014) (“[T]he two Rules 

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embrace and address the concept of appearance at ‘trial’ to include 

contemporaneous live transmission from another location at the location of 

the Court.”). 

Thus, as the Court previously found, a party may use a Rule 45 

subpoena to compel remote testimony by a witness from anywhere so long 

as the place of compliance (where the testimony will be given by the 

witness and not where the trial will take place) is within the geographic 

limitations of Rule 45(c). This is because “the 100-mile limitation now found 

in Rule 45(c) has to do with the place of compliance; not the location of the 

court from which the subpoena issued.” Int’l Seaway Trading Corp. v. 

Target Corp., No. 0:20-mc-86-NEB-KMM, 2021 WL 672990, at *5 (D. Minn. 

Feb. 22, 2021) (emphasis in original); see also In re Newbrook Shipping 

Corp., 498 F. Supp. 3d 807, 815 (D. Md. 2020) (“Given the modification of 

the deposition notice to provide for a remote deposition over Zoom or other 

teleconferencing platform, the deposition notice no longer requires GMS or 

Sharma to travel more than 100 miles (or at all) to comply, so the Court 

declines to address GMS’ argument that the subpoena compels GMS to 

comply outside of the geographical bounds of Rule 45(c).”).

Turning to Plaintiffs’ current motion, the Court now has the benefit of 

observing Mr. Berger’s testimony by remote transmission in ten bellwether 

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trials. As the Court previously recognized Mr. Berger is a key witness in 

these bellwether cases. Indeed, for good reason Defendants do not 

challenge Plaintiffs’ assertion that Mr. Berger is an important witness. Mr. 

Berger drafted the Flange report, invented the CAEv2 and has been one of 

the key witnesses defending the CAEv2. 

In addition to the importance of Mr. Berger’s testimony in these 

upcoming bellwether cases, during the previous ten bellwether trials Mr. 

Berger’s testimony has evolved. Because the issues have been and 

continue to be finely tuned as the bellwether cases proceed the importance 

of Mr. Berger’s testimony is heightened, thus, making some of the 

questioning of Mr. Berger during his videotaped depositions stale and in 

some instances out of cinq with his trial testimony. 

Defendants say simply because Mr. Berger’s testimony has evolved 

is no reason to authorize his live testimony by contemporaneous 

transmission because to do so essentially is giving the Plaintiffs additional 

bites at the apple. But that is not a compelling reason to deny Plaintiffs’ 

request. Certainly, whenever a witness provides live testimony at trial after 

having provided deposition testimony during discovery, a party is given 

another opportunity to examine the witness and in that sense the party gets 

another bite at the apple. 

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But the key inquiry is not whether granting the motion will provide 

Plaintiffs with another opportunity to question Mr. Berger. Rather, the key 

inquiry is whether there are compelling circumstances to permit Mr. Berger 

to provide live testimony via remote means. There continue to be 

compelling circumstances for several reasons. 

First, as the Court observed previously “[T]here is little doubt that live 

testimony by contemporaneous transmission offers the jury better quality 

evidence than a videotaped deposition.” MDL ECF No. 2247, at n. 3. And, 

importantly, live testimony via video also produces higher levels of jury 

engagement than does pre-recorded deposition testimony. Mullins v 

Ethicon, 2017 WL 532102, at *2 (S.D. W. Va. Feb. 8, 2017).

Second, in addition to the importance of live testimony at trial, the 

upcoming trials are bellwether trials thus making a jury verdict based upon 

live testimony more meaningful for the litigants to evaluate the strengths 

and weaknesses of their cases. A full evaluation of the cases by the parties 

is the goal of bellwether trials so that the parties are more fully informed 

about their strategies going forward for resolving the cases in the MDL.

Thus, in the Court’s view, the importance of presenting live testimony, 

through remote transmission, takes on added importance because the trials 

are bellwether trials. The Court does not stand alone in this view. Other 

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MDL courts, including Judge Fallon in In re Vioxx, has observed that “[T]he 

Manuel for Complex Litigation recognizes the permissibility and value of 

contemporaneous transmission through the use of videoconferencing.” In 

re Vioxx, 439 F. Supp. At 642-43 (citing Manuel for Complex Litigation 

(Fourth) § 12.334 (2004)).

In addition to these reasons, the Court finds instructive, as it did 

previously, the five-factor test used in In re Vioxx Prod. Liab. Litig,, 439 F. 

Supp. 2d 640, 643 (E.D. La. 2006). Those factors include:

(1) the control exerted over the witness by the defendant; (2) the 

complex, multi-party, multi-state nature of the litigation; (3) the 

apparent tactical advantage, as opposed to any real 

inconvenience to the witness, that the defendant is seeking by 

not producing the witness voluntarily; (4) the lack of any true 

prejudice to the defendant; and (5) the flexibility needed to 

manage a complex multi-district litigation.

In re Vioxx 439 F. Supp. 2d at 643.

As to control over the witness, although Defendants say they have no 

control over Mr. Berger at this juncture, Berger continues to cooperate with 

Defendants in preparing his trial testimony and coordinating how and when 

he will testify. As the Court previously observed after a recent evidentiary 

hearing Berger continues to have an ongoing consulting agreement with 

3M’s counsel despite the fact Berger terminated his consulting agreement 

with 3M in early October 2021. Additionally, Mr. Berger has been paid 

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approximately $600,000 thus far for consulting with 3M’s counsel, including 

the preparation of his trial testimony. And, at least in some of the past 

bellwether trials Mr. Berger has voluntarily appeared in Defendants’ case in 

chief without the need for a subpoena. While there may be room for some 

debate whether Mr. Berger has separated himself from 3M, the fact 

remains he was employed for decades with the Defendants and even after

his retirement has cooperated extensively with 3M and provided deposition 

and trial testimony on many occasions. This underscores that Mr. Berger is 

not simply a disinterested witness but rather is a witness over whom 3M 

has in the past exerted a significant amount of control.

The second and fifth Vioxx factors are particularly relevant here. As 

the Court observed in Baker in granting Plaintiff’s request for the remote 

testimony of Mr. Berger, “[t]hese bellwether trials are complex—the 

complexity of these cases mirrors the undisputed fact that this is the largest 

MDL in American history.” Baker, ECF No. ECF No. 133, at 14. Because of 

the multi-party and multi-state nature of the litigation it is simply not 

practical to expect that witnesses like Berger are going to be located in the 

forums where these cases are litigated. 

The third and fourth Vioxx factors point decidedly in favor of authorizing 

remote testimony from Berger. In the Court’s view there is a significant 

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tactical advantage if the Court denied Plaintiffs’ request. Defendants resist

Plaintiffs’ attempt to present the live testimony of Mr. Berger so that Berger 

will not be further subjected to the crucible of cross-examination by 

Plaintiffs. Instead, Defendants want to limit the presentation of Berger’s 

testimony to sanitized and brief snippets of videotape deposition testimony. 

Proceeding in that fashion will deprive the Plaintiffs from testing the 

credibility of Mr. Berger’s testimony on critical issues involving the testing 

Defendants performed on the CAEv2, the development of the CAEv2 and 

the level of disclosures about the product to the military. 

But in addition to depriving Plaintiffs of the opportunity to test the 

credibility of Berger’s testimony on these issues the jury will be deprived of 

the opportunity of observing and deciding for themselves as fact finders the 

credibility of the testimony of Mr. Berger. In short, the continuing dispute 

about whether to present Berger’s testimony live through remote 

transmission or through sterile videotaped deposition testimony is all about 

tactics and strategies. This Vioxx factor, therefore, strongly favors granting 

Plaintiffs’ motion.

As to prejudice to the Defendants, Defendants complain that 

compelling Berger to be available to provide live testimony would greatly 

prejudice Defendants and Mr. Berger because Defendants would be 

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required to coordinate with Mr. Berger to prepare him for five trials over a 

three-month condensed time frame. Admittedly, although Defendants will 

spend some time preparing Mr. Berger’s testimony, Defendants claims of 

prejudice ignore that they already have spent hundreds of hours preparing 

his testimony in the prior bellwether trials. While some time may be 

required refreshing Mr. Berger’s trial preparation the Court assumes that 

significantly less time would be necessary since Defendants have done this 

in ten prior bellwether trials. 

As to prejudice to Mr. Berger, the Court is fully aware that Mr. Berger 

is retired and represents that he no longer has the time or commitment to 

testify in the bellwether cases. While that may be so Mr. Berger was well 

aware when he agreed to participate in these case that extensive time 

testifying would be involved. Mr. Berger has been compensated 

handsomely for the time involved in preparing his testimony and working 

with counsel for 3M. Consequently, some inconvenience to Mr. Berger is to 

be expected and certainly should have been anticipated when he entered 

into the consulting agreement with 3M’s counsel. But inconvenience and 

prejudice are separate considerations. Indeed, allowing Mr. Berger to 

testify at a location convenient to him and directing the parties to coordinate

with Mr. Berger’s schedule for the dates and times he will testify reduces 

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much of the inconvenience and lessens the chances that Mr. Berger would 

be prejudiced if the parties are permitted to present his testimony remotely.

There also is another compelling reason relevant to prejudice that tips 

the scales in favor of granting Plaintiffs’ motion. So far in every bellwether 

trial Defendants have not presented one live witness, who is an employee, 

officer or representative for 3M. Although the Court has no way of 

predicting whether 3M will continue to pursue this strategy in the remaining 

five bellwether trials, assuming they do, the jury will have the benefit of 

each of the Plaintiffs, and possibly family members, testifying live subject to 

broad and probing cross-examination by 3M. In the absence of Mr. 

Berger’s live remote testimony Plaintiffs will have no opportunity to subject 

any 3M employees, past or present, to probing cross-examination in the 

presence of the jury. In the Court’s view this could prejudice the Plaintiffs’

ability to fully present their case on critical issues and would deprive the 

jury of the opportunity to assess for itself the competing credibility of the 

witnesses for both sides.

And contrary to 3M and Berger’s protestations, the Court’s 

authorization in this order will not impose on Berger the burden of having to 

continue to testify ad infinitum. Rather, the Court’s authorization in this 

order extends only to the remaining five bellwether cases and does not 

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extend to the cases that are included in the Court’s wave orders. 

Obviously, Mr. Berger is not going to testify live in the next fifteen hundred 

trials. The parties will be required at some point in the future to reach 

agreement and accommodation on how the testimony of the parties’

various witnesses, including Mr. Berger, will be presented in those future 

trials. But for now, in the remaining bellwether trials there is a heightened 

importance to the presentation of live testimony so that the verdicts of the 

juries in these remaining cases will truly be a “bellwether” for the parties to 

use in charting a course of action to address the more than 200,000 cases 

in this MDL.

For all these reasons, the Court concludes that Plaintiffs have 

presented compelling reasons to grant their motion. Plaintiffs are, therefore,

authorized to subpoena Mr. Berger under Rule 43(a) and Rule 45 to obtain

his testimony by contemporaneous transmission in the remaining five 

bellwether trials. The Court’s authorization is subject to the safeguards and 

conditions included in this order.

That leaves for resolution Defendants’ alternative request that the 

Court authorize Defendants under Rule 43(a) to subpoena Berger to obtain 

his remote testimony. According to Defendants, the factors the Court 

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considers in making this determination compel symmetrical treatment of 

both parties. 

While the analysis of whether to compel Berger to provide live 

testimony is not necessarily symmetrical because the level of control and 

influence 3M has on Berger is much different from the complete lack of 

control Plaintiffs have over Berger, the Court agrees that the complexity of 

this case and the importance of providing the jury with live testimony of a 

critical witness such as Mr. Berger in the bellwether trials applies to both 

sides. The Court cannot identify any prejudice to the Plaintiffs if Defendants 

were also granted permission to compel his live testimony. Therefore, the 

Court concludes that Defendants are also authorized under this order to 

obtain the remote testimony of Mr. Berger.

Under Rule 43, the court has a duty to impose appropriate 

safeguards when it allows for remote testimony at trial. Fed. R. Civ. P. 

43(a). “Appropriate safeguards exist where the opposing party’s ability to 

conduct cross-examination is not impaired, the witness testifies under oath 

in open court, and the witness’s credibility can be assessed adequately.” 

Warner v. Cate, No. 1:12-cv-1146-LJO-MSJ (PC), 2015 WL 4645019, at *1 

(E.D. Cal. Aug. 4, 2015).

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As has been the case in previous bellwether trials Berger will testify 

via contemporaneous videoconferencing technology (ZoomGov), which is, 

of itself, an appropriate safeguard. See Liu v. State Farm Mut. Auto. Ins. 

Co., No. 2:18-1862-BJR, 2020 WL 8465987, at *2 (W.D. Wash. Dec. 17, 

2020) (“[M]odern videoconferencing technology allows for near 

instantaneous transmission of testimony with no discernable difference 

between it and ‘live’ testimony, thereby allowing a juror to judge credibility 

unimpeded.”); In re RFC and ResCap Liquidating Trust Action, 444 F. 

Supp. 3d at 971 (“Given the speed and clarity of modern videoconference 

technology, where good cause and compelling circumstances are shown, 

such testimony ‘satisfies the goals of live, in-person testimony and avoids 

the short-comings of deposition testimony.’” (In re Vioxx, 439 F. Supp. 2d 

at 644). 

Additionally, to ensure that technological problems do not affect the 

presentation of Mr. Berger’s testimony at trial the Court directs the party 

issuing the subpoena to Mr. Berger to have the technology vendor present 

at the site of Berger’s remote testimony each time he testifies. Further, the 

party issuing the subpoena must supply an attorney at the remote location 

to manage exhibits were there to be a delay in transmitting the exhibits via 

ZoomGov. 

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The Court further directs the parties to establish a schedule for 

Berger’s remote testimony for each of these cases. Counsel for the parties 

must coordinate with Mr. Berger and his counsel the dates, times, and 

locations for his testimony, giving Mr. Berger ample time to prepare and 

adjust his schedule. In the event both parties subpoena Mr. Berger, the 

parties will coordinate which party proceeds first with examination. And 

regardless of which party proceeds first the entire examination by both 

parties must take place one after the other until the examination is 

completed. The parties will not be permitted to each call Mr. Berger in their 

case in chief, which would require Mr. Berger to testify more than once in 

each case. The Court determines that requiring Mr. Berger to testify more 

than once in each case is unnecessary and would create an unfair burden 

for Mr. Berger.

III. CONCLUSION

Accordingly, for the reasons explained above, it is ORDERED:

1. Plaintiffs’ Motions to Authorize Remote Testimony Pursuant to 

Rule 43(a) From Elliott Berger, Master Docket ECF No. 2679,

are GRANTED.

4 Plaintiffs in the five remaining bellwether trials

4 This order GRANTS the Motions to Authorize Remote Testimony in each of the

individual cases: Beal, case no. 7:20-cv-00006, ECF No. 44; Kelley, case no. 7:20-cv00153, ECF No. 33; Vaughn, case no. 7:20-cv-00134, ECF No. 36; Vilsmeyer, case no. 

7:20-cv-00113, ECF No. 33; Wilkerson, case no. 7:20-cv-00035, ECF No. 50. 

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may subpoena Berger to testify remotely by contemporaneous 

transmission.

2. The Court’s ruling on Plaintiffs’ motions also applies to 

Defendants so Defendants also may subpoena Berger to testify 

remotely by contemporaneous transmission.

3. The parties must coordinate with Mr. Berger the schedule for 

Berger’s remote testimony at the five remaining bellwether 

trials. The presentation of Mr. Berger’s testimony by either side 

is subject to the conditions in this order.

DONE AND ORDERED this 18th day of February 2022.

s/Gary R. Jones GARY R. JONES

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