UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE 3M COMBAT ARMS ) Case No. 3:19-md-02885

EARPLUG PRODUCTS ) 

LIABILITY LITIGATION ) Judge M. Casey Rodgers

) Magistrate Judge Gary R. Jones

) 

This Document Relates to: ) 

Shanika Roper ) 

Civil Case No. 7:20-cv-02945-MCR- ) 

GRJ ) 

MOTION TO EXCLUDE TESTIMONY FROM PLAINTIFF’S EXPERT 

RICHARD TYLER, PH.D. 

Under Federal Rules of Evidence 103 and 702 and Federal Rule of Civil 

Procedure 56(c), Defendants move to exclude the testimony of Plaintiff’s expert, Dr. 

Richard Tyler. 

LEGAL STANDARD 

Under Rule 702 and Daubert and its progeny, “district courts must act as 

‘gatekeepers’” to ensure that expert testimony “is both reliable and relevant” and 

thereby protect juries from “speculative, unreliable expert testimony.” Rink v. 

Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005). “‘[T]he trial court [must] conduct 

an exacting analysis’ of the foundations of expert opinions” to ensure they satisfy 

Rule 702. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (emphasis 

in original). 
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Expert testimony is admissible if (1) the witness is qualified and (2) the 

testimony (a) will “help the trier of fact to understand the evidence” or “determine a 

fact in issue,” (b) is “based upon sufficient facts or data,” and (c) is “the product of 

reliable principles and methods” that (d) have been reliably applied “to the facts of 

the case.” Id. Plaintiff has the burden to show these requirements are satisfied. See 

Rink, 400 F.3d at 1292. 

ARGUMENT 

I. Dr. Tyler is not qualified to opine about alleged CAEv2 design defects 

or allegedly safer alternative designs. 

“[A]n expert must have at least some minimum training, education, 

experience, knowledge, or skill pertaining to the particular subject matter of his 

proposed testimony.” In re 3M Combat Arms Products Liab. Litig., 2021 WL 

765019, at *36 (N.D. Fla. 2021) (citations omitted). Courts may “exclude[] 

testimony when they determine that the witness is testifying to an area outside 

of...his expertise.” Trilink Saw Chain v. Blount, 583 F. Supp. 2d 1293, 1304 (N.D. 

Ga. 2008). Although experts may use “facts, data and conclusions of other experts,” 

they “must make some findings and not merely regurgitate another expert’s 

opinion.” Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357, 1364 (S.D. Fla. 

2009). 

This Court has ruled that “an audiologist...is not qualified to opine on the 

CAEv2’s design from an engineering perspective, as she is not an engineer and has 
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never been involved in designing a preformed earplug.” In re 3M, 2021 WL 

6327375, at *14. By the same reasoning, Dr. Tyler, a clinical audiologist and 

university professor, is not qualified to opine on the CAEv2’s allegedly defective 

design and allegedly safer alternative products. He “pass[es] out some earplugs” in 

his practice but does not fit or guide patients for hearing protection devices. Ex. 1, 

Tyler 7/1/22 Dep. 44:17–45:13; Ex. 2, First Amend. Tyler Report (“Tyler Report”) 

pp. 2–3, 6–7, 12. 

Additionally, Dr. Tyler simply repeats the general experts’ opinions regarding 

alleged flaws in the CAEv2. Tyler 7/1/22 Dep. 24:8–25:1, 90:22–91:14; Ex 2, Tyler 

Report p. 1. He provides no independent analysis of how the CAEv2s worked or did 

not work (or how alternative products would have worked), and has not investigated 

these topics. Ex.1, Tyler 6/8/22 Dep. 66:21–67:6, 25:15–22, 55:10–56:25. 

These opinions are inadmissible. 

II. Dr. Tyler failed to perform a reliable differential etiology. 

Roper lacks admissible expert testimony on causation because Dr. Tyler did 

not perform a proper differential etiology, “a medical process of elimination 

whereby the possible causes of a condition are considered and ruled out one-by-one, 

leaving only one cause remaining.” Hendrix ex rel. G.P. v. Evenflo, 609 F.3d 1183, 

1195 (11th Cir. 2010). A purported differential etiology may be excluded based on 

failings “at both” the “rule in” and “rule out” steps. Hendrix, 609 F.3d at 1197–98. 
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The essential prerequisite of any differential etiology is that a “patient’s condition is 

diagnosed.” Chapman v. Procter & Gamble, 766 F.3d 1296, 1308 (11th Cir. 2014). 

Absent a diagnosis, there is no causation. See id. at 1308–9. As discussed, Dr. Tyler’s 

diagnosis of Roper is due to be excluded. 

A. Dr. Tyler failed to adequately justify his rejection of alternative 

causes. 

At the “rule out” step, “the expert applies the facts of the patient’s case to the 

list” of possible causes created in the “rule in” step, “to form an opinion about the 

actual cause of the patient’s symptoms, i.e., to determine specific causation.” 

Hendrix, 609 F.3d at 1197. The “expert must provide reasons for rejecting 

alternative hypotheses using scientific methods and procedures,” not “subjective 

beliefs or unsupported speculation.” Id. 

Dr. Tyler did not “rule out” other potential causes of Roper’s injuries, such as 

Roper’s: other medical conditions; use of the CAEv2 without following instructions; 

use of other hearing protection; and noise exposures while wearing non-CAEv2 

hearing protection or no hearing protection at all. Ex. 1, Tyler 7/1/22 Dep. 29:6–

32:7, 54:5–56:18, 57:25–58:15, 64:1–67:6, 70:5–71:20, 77:5–80:25, 83:23–85:14, 

113:18–115:14, 122:13–124:19; Ex. 3, Roper Dep. 62:6–63:19. Dr. Tyler does not 

know when Plaintiff used the CAEv2 as opposed to other devices. Without this, he 

cannot adequately conclude the CAEv2 caused Roper’s injuries; he simply 

concludes the CAEv2 caused her injuries based on the blanket generalization that “if 
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she [wore] the 3M earplugs in general, that could be real trouble.” Ex. 1, Tyler 7/1/22 

Dep. at 64:11–66:21, 122:13–124:19. Dr. Tyler’s “methodology” was to rely on 

general expert reports to conclude the CAEv2 caused Roper’s alleged 

hyperacusis/tinnitus because “as far as I know the 3M earplugs in question were the 

only ones identified as being faulty and would come out over time.” Id. at 56:16–

58:15. This lack of analysis “renders [Dr. Tyler’s] differential etiology unreliable 

and inadmissible.” See In re 3M, 2021 WL 6327375, at *12. 

III. Dr. Tyler’s opinions do not meet Rule 702’s “helpfulness” 

requirement. 

To be helpful (and admissible), an expert opinion must (1) “fit” the facts of the 

case, (2) concern matters beyond the understanding of the average lay person, and 

(3) be based upon sufficient facts or data. Prosper v. Martin, 989 F.3d 1242, 1249 

(11th Cir. 2021); In re 3M, 2021 WL 765019, at *40. 

A. Dr. Tyler’s speculative opinions regarding future prognosis and 

treatment must be excluded. 

Expert testimony regarding a claimant’s future prognosis or treatment that is 

speculative, conclusory, or not derived from a reliable methodology is unhelpful, 

unreliable, and, therefore, inadmissible. E.g., Birren v. Royal Caribbean Cruises,

2022 WL 446207, at *10 (S.D. Fla. Feb. 14, 2022) (excluding expert’s conclusory 

opinion that the plaintiff would “need further care and treatment”). Moreover, an 

expert cannot opine that a plaintiff will suffer from future conditions she “more 
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likely than not . . . will not develop . . . if she continues her current treatment.” Ward 

v. Carnival Corp., 2018 WL 11383459, at *11 (S.D. Fla. 2018) (emphasis in 

original). 

Dr. Tyler asserts that Roper’s hearing loss will likely progress, require future 

treatment, and negatively affect aspects of her life, such as sleeping and completing 

tasks. Ex. 2, First Amend. Tyler Report p. 11. The evidence provides no basis for 

that opinion: Roper testified her alleged injuries do not prevent her from working or 

activities of daily life. Ex. 3, Roper 2/1/22 Dep. 16:6–10, 99:12–14, 100:3–19, 

102:1–9, 107:4–6, 108:3–9, 113:4–12, 116:16–117:6, 117:11–15. Further, Dr. 

Tyler’s opinion is devoid of analysis or details. See Ex. 2, First Amend. Tyler Report 

p. 11. His opinion is speculative and inadmissible. Birren, 2022 WL 446207 at *10 

(excluding testimony that did not detail “precise treatment needed, dollar figure 

estimates of the future costs, or reasonableness of any medical bills”). 

CONCLUSION 

For these reasons, Defendants ask the Court to exclude the expert opinions of 

Dr. Richard Tyler. 

 Respectfully submitted, 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 
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Bradley Arant Boult Cummings LLP 

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.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 ATTORNEY CONFERENCE

Pursuant to Local Rule 7.1(B), Defendants certify they have conferred with 

Plaintiff’s counsel and Plaintiff opposes the relief requested. 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 

Bradley Arant Boult Cummings LLP 

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.com 

Counsel for Defendants 3M Company; 3M 

Occupational Safety LLC; Aearo 

Technologies LLC; Aearo Holding, LLC; 

Aearo Intermediate, LLC; and Aearo, LLC 

 
9 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) 

Pursuant to Local Rule 7.1(F), counsel for Defendants certify that this 

response contains 1,259 words, excluding the case style, motion heading and 

introduction, signature block, and certificates of compliance with the Local Rules. 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 

Bradley Arant Boult Cummings LLP 

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.com 

Counsel for Defendants 3M Company; 3M 

Occupational Safety LLC; Aearo 

Technologies LLC; Aearo Holding, LLC; 

Aearo Intermediate, LLC; and Aearo, LLC 

 
10 

CERTIFICATE OF SERVICE 

I hereby certify that on this the 19th day of July, 2022, I electronically filed the 

foregoing document with the Clerk of the United States District Court for the 

Northern District of Florida using the electronic case filing system of the Court, 

which will send electronic service to all registered counsel of record. 

/s/ Tiffany deGruy 

Tiffany deGruy 

Admitted Pro Hac Vice 

Bradley Arant Boult Cummings LLP 

One Federal Place, Suite 1000 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

tdeGruy@bradley.com 

Counsel for Defendants 3M Company; 3M 

Occupational Safety LLC; Aearo 

Technologies LLC; Aearo Holding, LLC; 

Aearo Intermediate, LLC; and Aearo, LLC