UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

 Case No. 3:19md2885 

LIABILITY LITIGATION 

This Document Relates to All Cases on 

Exhibits A, B and C 

 

Judge M. Casey Rodgers 

Magistrate Judge Hope T. Cannon 

ORDER 

 

On March 23, 2022, the Court directed all MDL plaintiffs who are veterans to 

submit a Form DD214 or DoD Military Service Information Report by certain 

deadlines.1

 See Case Management Order No. 40, ECF No. 2911. The Order warned 

that a plaintiff’s failure to timely submit the requisite form or report would result in 

the dismissal of the plaintiff’s case without prejudice. See id. at 3. This order 

addresses the plaintiffs represented by Aylstock of Aylstock, Witkin, Kreis & 

Overholtz, PLLC and identified on Exhibits A, B, and C who were required to submit 

the requisite military service documentation by March 14, 2023 but failed to do so.2

 

1

 The Court previously stayed certain proceedings in the MDL pending resolution of any 

interlocutory appeal of its Order dated December 22, 2022. See ECF Nos. 3568 & 3610. On 

December 30, 2022, the Court further clarified that the DD214 and census form requirements are 

not subject to the stay and that plaintiffs must fulfill their DD214 and census form obligations in 

accordance with the previously established deadlines. See ECF No. 3615 at 2. 

2

 The deadlines set forth in CMO 40 are staggered based on the number of plaintiffs 

represented by a particular law firm. Beginning March 23, 2022, each law firm was (and is) 

required to submit at least 3,000 DD214s every 30 days. See CMO 40, ECF No. 2911 at 3. The 

Court suspended the DD214 deadlines in July 2022 but then later reinstated them in September 

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The plaintiffs on Exhibits A and B have submitted census materials indicating they 

are veterans.3

 The plaintiffs on Exhibit C have submitted census materials that 

contain conflicting answers about their veteran status and none have advised the 

Court or BrownGreer that they are not veterans, such that the document requirements 

in CMO 40 would not apply. 

Rules 16(f) and 37(b)(2)(A) of the Federal Rules of Civil Procedure authorize 

a court to sanction a party, up to and including dismissal of a case, for failing to 

comply with pretrial orders. This authority has particular significance in the MDL 

context. An MDL judge bears the “enormous” task of “mov[ing] thousands of cases 

toward resolution on the merits while at the same time respecting their 

individuality.” In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 

1231 (9th Cir. 2006). To carry out this task in an organized and efficient manner, 

an MDL court must define and strictly adhere to case management rules. See id. at 

1232 (“[T]he district judge must establish schedules with firm cutoff dates if the 

coordinated cases are to move in a diligent fashion toward resolution by motion, 

settlement, or trial.”); see also Fed. R. Civ. P. 1 (stating that the Federal Rules of 

Civil Procedure “should be construed and administered to secure the just, speedy, 

2022. See ECF Nos. 3342 & 3479. Consequently, the DD214 deadline for the plaintiffs listed on 

Exhibits A and B was March 14, 2023. 

3

 The Court was advised that the plaintiffs listed on Exhibit A failed to timely submit 

DD214 Forms only after granting their Motions to Withdraw and staying the cases. As such, these 

cases are now due to be dismissed without prejudice and the order staying the cases is due to be 

vacated. 

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and inexpensive determination of every action and proceeding”). Pretrial orders—

and the parties’ compliance with those orders and their deadlines— “are the engine 

that drives disposition on the merits.” Id. at 1232. “A [court’s] willingness to resort 

to sanctions in the event of noncompliance can ensure that the engine remains in 

tune, resulting in better administration of the vehicle of multidistrict litigation.” In 

re Cook Medical, Inc. Pelvic Repair Sys. Prof. Liab. Litig., 2018 WL 4698953, at *2 

(S.D. W. Va. Sept. 28, 2018) (citing Freeman v. Wyeth, 764 F.3d 806, 810 (8th Cir. 

2014) (“The MDL judge must be given ‘greater discretion’ to create and enforce 

deadlines in order to administrate the litigation effectively. This necessarily includes 

the power to dismiss cases where litigants do not follow the court’s orders.”)). 

Applying these rules, the Court concludes that dismissal without prejudice is 

appropriate in the cases identified on Exhibits A, B and C. This MDL has been 

pending for well over three years. All veterans who allegedly wore the CAEv2 

during their military service, and their counsel, have been on notice—for nearly as 

long—that a DD214 would be a fundamental requirement for pursuing a claim in 

this litigation. See Pretrial Order No. 18, ECF No. 775 & 775-2.4

 This is because 

the DD214 constitutes official proof of a veteran’s military service and provides 

4

 Indeed, the DD214 is the very first item on the list of required initial census documents. 

See PTO 18, Exhibit B, ECF No. 775-2. The initial census deadlines were suspended for a time 

(both for initial census questions and for initial census documents), see Case Management Order 

No. 6, ECF No. 836, and ultimately reinstated for initial census questions only, see PTO 81, ECF 

No. 1848. The initial census documents requirement was never reinstated, which led to CMO 40, 

separately requiring the production of DD214s. 

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essential details about the veteran’s service record, information that is critical to the 

claims and defenses involved in virtually every veteran’s claim.5

 The Court 

reemphasized the importance of a DD214 at the February 16, 2022 Case 

Management Conference, and, at that time, advised the parties that an order 

requiring its production by all veterans would be forthcoming. See also Case 

Management Order No. 35, ECF No. 2789 at 4. That Order (again, CMO 40) was 

entered on March 23, 2022, and, in light of potential time constraints for veterans 

who had not yet obtained a copy of their DD214 from the DoD, the Order identified 

two different ways for a plaintiff veteran to establish his or her military service—

either (1) by producing a DD214; or (2) by producing a DoD Military Service 

Information Report (colloquially referred to as the “Blue Button”) which is readily 

and easily accessible to every veteran (and/or a legal representative with the 

veteran’s credentials) on the VA’s health management portal, MyHealtheVet.6

 

Given the advanced stage of this litigation and the importance of veterans’ military 

service information to the various claims and defenses in this litigation, it was and 

is entirely reasonable to require veterans to timely show basic proof of military 

service before both sides start incurring the costs involved with preparing a CAEv2 

5

 For example, the DD214 includes information regarding dates of service, military 

occupational specialties held, awards, education, and separation information (i.e., date and type of 

separation, character of service, and the authority and reason for separation). 

6

 CMO 40 even included a link to the VA’s public website for the “Blue Button,” as well 

as a sample Blue Button form. 

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case for trial. The plaintiffs identified on Exhibits A, B and C failed to fulfill this 

basic requirement, despite ample notice of it and ample time to comply. Consistent 

with CMO 40, those plaintiffs’ cases are due to be dismissed without prejudice. 

 Accordingly: 

1. The Court hereby sua sponte LIFTS the STAY and VACATES the

Orders for the cases listed on Exhibit A. The Clerk is directed to enter

this Order in its place.

2. The plaintiffs’ cases identified on Exhibits A, B and C are hereby

DISMISSED WITHOUT PREJUDICE for failure to comply with a

court order.7

3. Active-duty plaintiffs and non-veterans are hereby granted leave to file

a motion to reopen their case, which must be accompanied by a

statement clarifying their status with respect to military service. Any

motion to reopen on this basis must be filed on the individual docket

for a plaintiff’s case only by April 26, 2023.

4. The Clerk is directed to enter a copy of this Order on the main MDL

docket and on the individual dockets and close the cases in their entirety

for all purposes.

SO ORDERED, on this 27th day of March, 2023. 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

7

 To the extent a Request for Dismissal from Administrative Docket (RFD) was filed in a 

particular case before CMO 40 was entered, the case will be dismissed pursuant to the RFD, and 

not pursuant to CMO 40. 

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