UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

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

EARPLUG PRODUCTS LIABILITY )

LITIGATION ) Judge M. Casey Rodgers

) Magistrate Judge Hope T. Cannon

This Document Relates to: )

All cases

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3M’s MOTION FOR CLARIFICATION

REGARDING DATA DAY PROCEDURES

3M respectfully submits this request for the clarification of certain 

procedures for the forthcoming “Data Day” in order to facilitate a full and fair 

presentation of the data through a transparent exchange of information.

I. BACKGROUND

In September 2022, the United States Department of Defense produced 

Defense Occupational and Environmental Health Readiness System (“DOEHRS”) 

records, including audiometric data, for hundreds of thousands of claimants. 

Plaintiffs and 3M have recognized the importance of the DOEHRS data and have 

engaged their own experts to assess and analyze it. 

On September 19, 2022, the Court entered an order sua sponte “expanding 

the role” of BrownGreer PLC to “conduct any analyses of the new DOEHRS 

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records that it deems necessary to develop a complete and accurate picture of the 

MDL inventory.” ECF No. 3468 at 3.1 The Court did not specify under what 

authority it made this appointment, but its Order observed that “BrownGreer has 

conducted extensive analyses of this data” and stated that “BrownGreer’s cutting 

edge technology, and its in-depth knowledge and expertise with the complexities 

of this litigation, are unparalleled.” Id. at 2. In light of the Court’s subsequent 

direction that BrownGreer present the information publicly, 3M assumes the 

appointment was intended to fall under Federal Rule of Evidence 706, regarding 

court-appointed expert witnesses.

2

Following this appointment, on October 27, 2022, the Court reported that 

BrownGreer had “analyzed the [DOEHRS] data and shared its findings with the 

Court.”3 ECF No. 3568 at 5. “In the Court’s view,” it was “critically important for 

both sides to hear” BrownGreer’s insights and analysis which had already been 

1 According to its website, BrownGreer provides “claims administration and 

litigation management” services. See https://www.browngreer.com/. Early in 

the MDL, the Parties agreed that BrownGreer would manage certain data in 

MDL Centrality.

2 The Court did not issue a “show cause” order as required by Rule 706(a) either 

at the point at which BrownGreer’s role was expanded or when it indicated that 

BrownGreer would report its results publicly.

3 Other than the Order authorizing BrownGreer to analyze the DOEHRS data 

(ECF No. 3468), 3M has not received the Court’s instructions to BrownGreer 

regarding how the DOEHRS data should be analyzed or any information 

regarding BrownGreer’s methodology in assessing the audiometric data.

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shared ex parte with the Court. See id. On January 18, 2023, despite the stay 

issued in conjunction with its successor-liability ruling, the Court issued an order 

“declaring an impasse of the MDL mediation,” while reiterating its views that “any 

successful resolution will require consideration of the [DOEHRS] records,” and 

that it is “critically important for all stakeholders to hear BrownGreer’s unbiased 

insights regarding the nature and scope of the audiometric data for the hearingrelated claims in this litigation, so those insights may inform their decision-making 

going forward.”4 ECF No. 3624 at 3.

On January 20, 2023, the Court set February 23, 2023 as the “Data Day” at 

which BrownGreer would publicly present its findings, including through a Zoom 

conference that would permit up to 350 attendees. ECF No. 3632.

II. REQUEST FOR CLARIFICATION

Given the public nature of the presentation and the Court’s stated belief that 

it will be “critically important” to “all stakeholders,” (ECF No. 3624 at 3 (original 

emphasis)), 3M requests clarification on two discrete points to ensure a complete

and robust presentation and exchange of information and to ensure that the 

proceedings fully comply with the applicable rules. 

4 3M assumes that the public hearing is not intended for mediation purposes, 

given that the parties’ mediations have been confidential.

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First, in order to facilitate a streamlined and efficient presentation, 3M seeks

clarification regarding how and when BrownGreer’s presentation materials and 

findings and back-up material (including any instructions from the Court regarding 

the inquiries addressed and the scope and methodology of the analysis) will be 

provided to the parties. 3M requests that the materials be provided to the parties at 

least three days before Data Day. See Rule 706(b)(2). The public setting of Data 

Day makes the advance production of such materials particularly important. 

Compare Fed. R. Civ. P. 26 (requiring disclosure of reliance and other materials 

for testifying experts). 

It would also be beneficial to 3M and all the stakeholders to clarify the scope 

of BrownGreer’s presentation, including (1) identifying what topics will be 

covered and who the person or persons are from BrownGreer who will be 

presenting on each topic; (2) disclosing any additional findings and information 

that were not previously shared with the parties; and (3) confirming that any 

presentations will be made by under oath. 3M respectfully requests that the 

information and materials discussed above be produced sufficiently in advance of 

the Data Day session, so that the parties can be prepared to meaningfully explore 

and address the findings presented.

Second, the Court’s Order contemplates that some persons will “actively 

participate” in the proceedings (ECF No. 3632), but it does not specify the 

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parameters of such participation. Consistent with Rule 706 (and general principles 

of due process, transparency and the adversary process), 3M expects that, at a 

minimum, parties will be able to examine BrownGreer during Data Day. See Rule 

706(b)(3)-(4) (the expert “may be called to testify” and “may be cross-examined 

by any party”). 3M requests clarification regarding the length of time each party 

will have to conduct their examination.

* * *

3M looks forward to the Court’s guidance on these issues. If helpful to the 

Court and the parties, 3M proposes that the Court hold an on-the-record conference 

before Data Day to address any remaining procedural issues.

CERTIFICATION UNDER RULE 7.1B

Counsel for 3M conferred with counsel for Plaintiffs’ leadership regarding 

the relief requested in this motion, and Plaintiffs indicated they reserved the right 

to respond after discussing with the broader leadership team.

DATED: February 15, 2023 By: /s/ Charles F. Beall, Jr.

Larry Hill

Charles F. Beall, Jr. 

MOORE, HILL & 

WESTMORELAND, P.A.

350 W Cedar St. Suite 100

Pensacola, FL 32502

Tel. (850) 434-3541

lhill@mhw-law.com 

cbeall@mhw-law.com

Attorneys for Defendant 3M Company

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY this 15th day of February, 2023, a true and correct copy 

of the foregoing was electronically filed via the Court’s CM/ECF system, which will 

automatically serve notice of this filing via e-mail notification to all registered 

counsel of record.

/s/ Charles F. Beall, Jr.

Charles F. Beall, Jr.

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