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: 

McCombs, 7:20cv94

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

PRETRIAL ORDER NO. 75

Trial Time Allocation in McCombs

The Court sets the following time limits for the trial in the above entitled case, 

which is scheduled to begin on May 17, 2021.1

 

The Court has discussed the matter of time limits for trial with counsel for the 

parties and has decided that setting reasonable limits on the amount of time allowed 

for the parties to present their claims and defenses will prevent delay, ensure efficient 

presentation of the evidence and arguments, avoid unnecessary, cumulative, and 

repetitive evidence and arguments, and minimize undue burden on the jurors. It is 

well-established that a court has the authority to impose reasonable trial time limits.

See Fed. R. Civ. P. 16(c)(2)(D) & (O); Fed. R. Evid. 611(a). The Court has discussed 

the overall length of the trial with the parties, and has scheduled the trial for two 

weeks.

1 This Order applies only to the McCombs trial. The Court has not yet set the time limits 

for the Baker trial.

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The length of an average trial day in trials before the undersigned is 9.5 hours, 

with the day starting at 8AM and ending at 5:30PM. The first half hour is reserved 

for bench discussions on matters needing resolution by the Court. The remaining 

9 hours is jury time. After accounting for a mid-morning, mid-afternoon, and 

lunchtime break, and allowing some additional cushion time, the actual time in trial 

with the jury each day is 7.5 hours. The Court reserves the right to extend any trial 

day if warranted in order to complete the trial within the trial period set.

In this case, 10 business calendar days have been set aside for the trial, which 

includes time for jury selection and opening statements on the first day and 

instructions and closing arguments on the last day. The Court does not intend to 

include the first day and closing arguments in the time calculation, so the actual 

amount of charged time for trial is approximately 8.5 days. Thus, the Court allocates 

a total of sixty-four (64) hours to this trial. 

On consideration of the time necessary to educate the jury on the science and 

the development, testing, and sales of the CAEv2, the Court has decided that the 

time will be split 55/45, with Plaintiff having 35 hours to try his case, including a 

rebuttal case, and Defendants having 29 hours to try their case. This time allocation

excludes jury selection, openings, closings, and jury instruction.

2

 This decision is 

2 The Court will be the official timekeeper and its clock will be the official clock. The 

Court will keep track of each side’s time and notify counsel at regular intervals of the time used 

by each side.

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based on the Court’s consideration of the parties’ presentations in the first bellwether 

trial and Plaintiff’s need to educate the jury early in the trial, as indicated.3

 

Time will count against a side’s allocation whenever it is questioning a 

witness, arguing an objection or other matters to the Court, or otherwise presenting 

its case, including motions for judgment as a matter of law. Time spent arguing 

evidentiary or other in limine matters after the final pretrial conference, including 

the Court’s review of written submissions on such matters, will count against a side’s 

allocation.

4 The Court also reserves the right to count the time spent following the 

start of the trial arguing jury instructions; i.e. the jury charge conference. 

If a party intends to read or play deposition testimony before the jury, this may 

require the Court to rule on objections to designated testimony. The reading of 

deposition testimony may constitute trial time. Time will count against a side’s 

allocation for all testimony that side has designated to be read or played by video. 

The parties are directed to confer prior to the presentation of any deposition 

testimony to attempt to agree on how the time spent reading or playing the deposition 

should be allocated as between the parties. In this regard, the Court encourages the 

parties to do their best to pare down deposition testimony to significant and non3 The Court’s decision to split the time 55/45 was made well before it became apparent that 

Plaintiffs in the first bellwether trial would run out of time.

4 Time the Court spends reviewing written in limine submissions and hearing argument 

on such matters prior to or during the final pretrial conference will not count against a party’s 

allocation.

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repetitive matters. 

The allocation of 64 hours is subject to reduction based on rulings barring or 

limiting claims, precluding opinion witness testimony, and excluding or limiting 

evidence via in limine rulings and rulings made during trial. Additionally, the parties 

are forewarned that the Court may reduce a party’s allotted time for, among other 

things, presenting unduly cumulative testimony or evidence or evidence of minimal 

probative value, or repeatedly making unwarranted objections to testimony or

exhibits.

With regard to exhibits, the Court directs the parties to attempt to pare down 

their exhibit lists, resolve foundational objections to exhibits by stipulation or 

otherwise, and attempt to narrow objections to exhibits to the extent reasonably 

possible. This is in both sides’ interest, as it will reduce the time needed for resolving 

objections at trial. The Court reserves the right to impose an overall limit on the 

number of exhibits introduced by each side.

Further particulars of the rules for time allocation may be addressed at or 

before the trial, although the Court will not reconsider the decisions outlined in this 

Order.

In addition, with one exception explained below, the Court will exercise its 

authority pursuant to Federal Rule of Evidence 611(a) to require that each witness 

be called only once and will not be recalled later in the case, except to rebut evidence 

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offered later that the party wishing to recall the witness could not reasonably have 

anticipated. Consistent with this directive, there will be no restriction on the scope 

of cross-examination of a witness called by an adverse party. In addition, 

examination of a witness beyond redirect (beyond “recross,” for a witness called by 

an adverse party) will not be permitted absent a showing at sidebar—for which the 

requesting party will be charged time—that the immediately preceding examination 

by the other side raised new points that the party has been unable to adequately 

address. 

For any adverse witness testimony presented via deposition by one side, the 

Court will require the “cross” (which is really direct) of that witness to be presented 

to the jury in the other side’s case. The other side, however, may present limited 

clarification testimony excerpts in the presenting side’s case. The matter of what 

testimony is true “clarification” versus direct must be discussed among the parties 

with Judge Herndon’s assistance before being brought to the Court for resolution. 

To the extent the party seeking to admit the clarification testimony fails to abide by 

this directive, the testimony will not be allowed. Under no circumstances will the 

Court entertain argument on this issue at trial.

To minimize interruptions in the jury’s receipt of evidence, the Court will 

limit the number and extent of sidebar conferences while the jury is present in the 

courtroom. If a party anticipates that a matter may come up during a witness’s 

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testimony that will require discussion outside the jury’s presence, the party should 

raise the matter beforehand at a break. Where this does not occur, and discussion 

outside the jury’s presence is requested or is necessary, the Court may require the 

testimony to proceed while holding until the next break the issue to be discussed.

Finally, counsel for both sides are directed to advise witnesses, in advance of 

their testimony, of in limine rulings that may impact the witness’s testimony—in 

particular, rulings that preclude or limit admission of evidence about which the 

witness might otherwise testify.

SO ORDERED, on this 2nd day of May, 2021.

M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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