[DO NOT PUBLISH] 

In the 

United States Court of Appeals 

For the Eleventh Circuit 

____________________ 

No. 21-12393 

Non-Argument Calendar

____________________ 

LLOYD EUGENE BAKER, 

 Plaintiff-Appellee, 

versus 

3M COMPANY, et al., 

 Defendants, 

KIMBERLY O. BRANSCOME, 

JAY L. BHIMANI, 

 Interested Parties-Appellants. 

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____________________ 

Appeal from the United States District Court 

for the Northern District of Florida 

D.C. Docket No. 7:20-cv-00039-MCR-GRJ 

____________________ 

Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges. 

LAGOA, Circuit Judge: 

This is an appeal from the district court’s order imposing 

monetary sanctions against attorneys Kimberly O. Branscome and 

Jay L. Bhimani. At the conclusion of a bellwether trial, the district 

court found that Branscome’s closing argument violated its order 

and imposed sanctions under its inherent authority. On appeal, the 

attorneys argue that the district court deprived them of their right 

to due process and that the district court failed to assess whether 

the attorneys acted with subjective bad faith. After careful review, 

we vacate and remand the order imposing sanctions. 

I. RELEVANT BACKGROUND 

This appeal arises from one of the bellwether trials—Baker

v. 3M Co., No. 7:20-cv-00039-MCR-GRJ (N.D. Fla.)—in a multidistrict litigation concerning combat arms earplugs. Appellants Branscome and Bhimani are two of the attorneys for the defendants, 3M 

Company and Aearo Technologies LLC, in that litigation. 

One of the “hotly contested” pieces of evidence at trial was 

testing conducted by Michael & Associates, Inc.; specifically, the 

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conclusion based on the testing that the at-issue earplugs had a 

noise reduction rating (“NRR”) of 23. Prior to trial, the district 

court held that this evidence was inadmissible hearsay. But the district court allowed the parties “to examine or cross-examine expert 

witnesses regarding the bases for their opinions using” this evidence. 

The bellwether jury trial was held between June 7 and June 

18, 2021. On June 18, 2021, the district court held proceedings related to the parties’ closing arguments. During the proceedings before the parties made their closing arguments, the plaintiff raised 

an issue with one of defendants’ demonstrative slides. The demonstrative at-issue focused on the testimony of Richard McKinley, one 

of the plaintiff’s expert witnesses. Under the heading of “Cross,” 

the demonstrative stated “The NRR is 23”—a reference to the testing conducted by Michael & Associates. The district court held 

that, “[i]f Ms. Branscome makes that clear in her closing that this is 

not being offered for the truth that the NRR was 23, then I’m fine 

with it. If not, it’s not coming in.” Because Branscome was not in 

the room at the time, the district court gave its directive to Bhimani. 

During the defendants’ closing argument, Branscome displayed the demonstrative and asserted that the relevant expert admitted that there was an independent study, that the study was inconsistent with the expert’s opinion, and that “an independent laboratory got a 23.” Before Branscome moved to the next slide, the 

district court asked Branscome to approach the bench. The district 

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court asked Branscome whether Bhimani discussed the district 

court’s ruling regarding the at-issue demonstrative. Branscome responded in the affirmative. The district court stated that Branscome “didn’t connect” the NRR of 23 to the expert and that Branscome must “clear this up to my satisfaction or I’m going to clear it 

up” because the jury “need[s] to know they cannot consider the 23 

for the truth of the results of that test.” 

Thereafter, Branscome stated the following to the jury: 

 You heard from Judge Rodgers that the testing 

from Michael & Associates falls into a unique evidence category; it’s called hearsay. And what that 

means is you can consider it not for the truth of the 

testing but for the credibility that it has to the plaintiff’s case on whether their experts relied on it, 

whether they told you about it. . . . 

 And so, how does that fit in the framework if 

you’re evaluating Mr. McKinley? 

 It comes into play if you ask yourself, if he 

reached the opinion that the Combat Arms Earplug 

Version 2 was defective but he didn’t tell you about 

evidence that’s contrary to that opinion, does that call 

into question the basis for his conclusion. 

The district court then interceded, stating: “Ms. Branscome is absolutely correct in the way she’s described that to you, but I want 

to make sure you understand. You may not consider the NRR of 

23 on the Michael study for the truth.” 

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At the conclusion of the parties’ closing arguments, and after 

the jury retired to deliberate, the district court stated that Branscome failed to inform the jury that “the NRR of 23 was not offered 

for the truth.” The district court found that the “clarification that 

was made between” itself and Branscome “was sufficient to ameliorate the misleading impression.” But the district court stated 

that the clarification did not ameliorate “the willful violation of [the 

court’s] order.” The district court concluded that “right now my 

intent is to enter monetary sanctions against one or both of you for 

this violation of my court order” and that “if I decided that I want 

to hear from you, I’ll give you that opportunity.” 

Approximately seven hours later, and without notice, the 

district court stated that it “wanted to take the time, between [7:41 

p.m. and 8:00 p.m.], to hear from Ms. Branscome and Mr. Bhimani, 

[to] give you an opportunity to address the [c]ourt on why sanctions shouldn’t be imposed for what happened this morning.” The 

attorneys stated that they did not intend to violate the district 

court’s order and that they thought that their closing argument, 

and clarification that the source of the statement was inadmissible 

hearsay, complied with the district court’s order. The district court 

concluded that it would “summarily sanction[]” Branscome and 

Bhimani because the “proceedings and the integrity of the [c]ourt 

were degraded . . . by the willful violation of [its] orders.” With 

respect to willfulness, the district court held that the attorneys’ conduct was willful because the district court’s directives were clear, 

“there [was] no reasonable lawyer who could have construed them 

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in any way other than as a specific directive,” and the attorneys “did 

everything . . . to avoid doing the [district court’s] . . . very clear 

directive.” 

On June 22, 2021, the district court issued a written order 

imposing sanctions against Branscome and Bhimani. The written 

order clarified that the district court sanctioned the attorneys under 

its “inherent authority and responsibility to summarily punish misconduct that it observes.” The district court held that the attorneys’ “conduct cannot be reasonably construed as anything other 

than willful” based on “the knowledge and experience of both attorneys, their course of conduct during the trial, and the specificity 

and unequivocally of the [c]ourt’s rulings.” The district court further found that “summary disposition” was appropriate because 

unless the court “took a significant, essentially immediate step . . . 

this extraordinarily complicated trial, and the broader multidistrict 

litigation, risked becoming unmanageable.” 

This appeal followed. 

II. STANDARD OF REVIEW 

 “We review sanctions orders for an abuse of discretion.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 

1218, 1222–23 (11th Cir. 2017). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or bases the decision upon 

findings of fact that are clearly erroneous.” Johnson v. 27th Ave. 

Caraf, Inc., 9 F.4th 1300, 1310 (11th Cir. 2021) (quoting Peer v.

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Lewis, 606 F.3d 1306, 1311 (11th Cir. 2010)). “We review de 

novo the argument that the sanctions imposed by the district court 

violated due process.” Serra Chevrolet, Inc. v. Gen. Motors Corp., 

446 F.3d 1137, 1147 (11th Cir. 2006) 

III. ANALYSIS 

While a district court has the inherent power to sanction attorneys, the court must “exercise caution in invoking its inherent 

power, and it must comply with the mandates of due process.” 

Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). When an attorney is sanctioned by the court, 

complying with the mandates of due process means 

that the attorney must, first, be afforded “fair notice 

that [her] conduct may warrant sanctions and the reasons why,” and, second, “be given an opportunity to 

respond, orally or in writing, to the invocation of such 

sanctions and to justify [her] actions.” 

Kornhauser v. Comm’r of Soc. Sec., 685 F.3d 1254, 1257 (11th Cir. 

2012) (alterations in original) (quoting In re Mroz, 65 F.3d 1567, 

1575–76 (11th Cir. 1995)). “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action 

and afford them an opportunity to present their objections.” Donaldson v. Clark, 819 F.2d 1551, 1559 (11th Cir. 1987) (en banc) 

(quoting Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 314 

(1950)). 

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Here, the district court did not provide any notice to Branscome or Bhimani before stating that it intended to “enter monetary 

sanctions” against the attorneys. Approximately seven hours later, 

without notice that a hearing would take place that same day, the 

district court asked the attorneys to address “why sanctions 

shouldn’t be imposed.” Because “[a]n attorney charged with misconduct is entitled to notice of the charge[—]that is, the attorney is 

entitled to know the precise rule, standard, or law that he or she is 

alleged to have violated and how he or she allegedly violated it”—

we must vacate the district court’s order imposing sanctions.1 

United States v. Shaygan, 652 F.3d 1297, 1318–19 (11th Cir. 2011) 

(vacating sanctions award where “[t]he district court did not provide [the attorneys] with notice that it was considering a public reprimand”). 

Moreover, “the inherent-powers standard is a subjective 

bad-faith standard.” Purchasing Power, 851 F.3d at 1223. The subjective bad faith standard “can be met” if there is “direct evidence 

of subjective bad faith,” or if the “attorney’s conduct [that] is so 

1 The district court found that “summary disposition” was appropriate because 

the court needed to take this “essentially immediate step to deter counsel” so 

that the trial and multidistrict litigation would not become “unmanageable.” 

We do not need to address whether a court may, under exigent circumstances, 

“summarily sanction[]” attorneys. Here, the district court imposed sanctions 

after the trial had already concluded and after any “misleading impression” 

was “ameliorate[d].” Therefore, there was no exigency to plausibly justify 

“summarily sanction[ing]” the attorneys. 

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egregious that it could only be committed in bad faith.” Id. at 

1224–25. 

Therefore, because the district court imposed sanctions under its inherent power to do so, the district court was required to 

find that the attorneys subjectively engaged in bad faith. See id. at 

1224. While the district court found that the attorneys’ conduct 

“cannot be reasonably construed as anything other than willful”, it 

did not assess the subjective bad faith standard. On remand, after 

providing the attorneys with notice and an opportunity to be 

heard, the district court must determine whether the attorneys’ 

conduct met this Court’s subjective bad faith standard.2

Accordingly, we vacate the court’s order imposing sanctions 

and remand. 

VACATED AND REMANDED.

2 Appellants also assert that they did not violate the relevant order and that the 

order was too vague to support sanctions for its violation. In essence, they 

contend that the district court erred in finding that they violated the order as 

initially stated by the district court. This argument is better addressed in the 

first instance by the district court on remand. 

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UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 

56 Forsyth Street, N.W. 

Atlanta, Georgia 30303

David J. Smith 

Clerk of Court 

May 31, 2023 

For rules and forms visit

www.ca11.uscourts.gov

MEMORANDUM TO COUNSEL OR PARTIES 

Appeal Number: 21-12393-GG 

Case Style: Lloyd Baker v. Kimberly Branscome, et al 

District Court Docket No: 7:20-cv-00039-MCR-GRJ 

Secondary Case Number: 3:19-md-02885-MCR-GRJ 

All counsel must file documents electronically using the Electronic Case Files ("ECF") system, 

unless exempted for good cause. Although not required, non-incarcerated pro se parties are 

permitted to use the ECF system by registering for an account at www.pacer.gov. Information 

and training materials related to electronic filing are available on the Court's website. 

Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been 

entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with 

FRAP 41(b). 

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for 

filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise 

provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is 

timely only if received in the clerk's office within the time specified in the rules. Costs are 

governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for 

attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3. 

Please note that a petition for rehearing en banc must include in the Certificate of Interested 

Persons a complete list of all persons and entities listed on all certificates previously filed by 

any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be 

reheard must be included in any petition for rehearing or petition for rehearing en banc. See 

11th Cir. R. 35-5(k) and 40-1 . 

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming 

compensation for time spent on the appeal no later than 60 days after either issuance of mandate 

or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via 

the eVoucher system. Please contact the CJA Team at (404) 335-6167 or 

cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher 

system. 

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Clerk's Office Phone Numbers 

General Information: 404-335-6100 Attorney Admissions: 404-335-6122 

Case Administration: 404-335-6135 Capital Cases: 404-335-6200 

CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141 

OPIN-1 Ntc of Issuance of Opinion 

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