IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS LIABILITY

LITIGATION, Case No. 3:19-md-2885

 

 Judge M. Casey Rodgers

 Magistrate Judge Gary R. Jones 

This Document Relates to:

Steven Wilkerson

Case No. 7:20-cv-00035-MCR-GRJ

______________________________/

ORDER

Pending before the Court is Defendants’ Motion to Permit the 

Deposition of a Government Employee After November 19. ECF No. 19. 

Plaintiff opposes the motion. ECF No. 29. For the reasons explained 

below, 3M’s motion is due to be granted.

Plaintiff is among the Trial Group D Bellwether Plaintiffs in this 

multidistrict litigation, a collection of products liability actions concerned 

with whether Defendants were negligent in their design, testing, and 

labeling of the nonlinear dual-ended Combat Arms Earplug Version 2 (the 

“CAEv2”). 

In the instant motion, 3M seeks leave of court to take the deposition 

of a yet-to-be identified Hearing Conservation Program Manager (“HCPM”) 

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for Fort McCoy1 after the November 19, 2021 discovery deadline. ECF No. 

19 at 1. 3M says that despite its own due diligence, it cannot meet the 

November 19, 2021 deadline. 

3M submitted its Touhy request to the government for the HCPM 

deposition on September 28, 2021—seven weeks before the discovery 

deadline, and before Defendants deposed Plaintiff. 3M followed-up with 

the government about its request on October 21 and October 27, 2021. On 

November 4, 2021, the government advised 3M that it was “still processing 

this Touhy request.” In view of the government’s response 3M argues due 

to no fault of its own it cannot possibly take the HCPM’s deposition by the 

court-imposed deadline. 3M says that it needs the HCPM’s testimony to 

explore how the Hearing Conservation Program at Fort McCoy operated 

during the relevant time period, including what role military audiologists and 

civilian-hearing professionals played in the distribution, use and training of 

servicemembers as to their usage of hearing-protection devices. 

Plaintiff opposes the motion arguing that 3M was not diligent in 

pursuing this discovery and instead waited until the last minute, knowing 

that Touhy requests involved months and months of delays. Plaintiff points 

out that even though 3M was aware of Plaintiff’s use of the CAEV2 at Fort 

1 For McCoy is where Plaintiff received his CAEv2s.

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McCoy for more than twelve months it waited until September of 2021 to 

make the Touhy request to the government. According to Plaintiff, 3M’s 

failure to pursue diligently the deposition of the HCPM at Fort Mccoy 

through the Touhy request demonstrates that 3M ‘s delay is inconsistent 

with their burden to establish good cause that the deadline could not be 

met despite the party’s diligence. 

Federal Rule of Civil Procedure 16 provides that a case management

order “may be modified only for good cause and with the judge’s consent.” 

Fed. R. Civ. P. 16(b)(4). “This good cause standard precludes modification 

unless the schedule cannot ‘be met despite the diligence of the party 

seeking the extension.’” Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 

1418 (11th Cir. 1998) (per curiam) (citing Fed. R. Civ. P. 16 advisory 

committee’s note; see also Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 609 (9th Cir.1992) (“If [a] party was not diligent, the [good cause] 

inquiry should end.”).

Although 3M was aware for some time that Plaintiff used the CAEV2 

at Fort McCoy, and could have issued its Touhy request sooner, the Court, 

nonetheless, concludes that 3M has demonstrated sufficient diligence to 

take the deposition after the discovery deadline. Notably, 3M served the 

Touhy request before 3M took Plaintiff’s deposition. At Plaintiff’s deposition 

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Plaintiff provided further information about the circumstances surrounding 

the issuance of the CAEV2, thus making pursuit of the deposition of the

HCPM at Fort McCoy even more relevant. Several times in October 3M 

diligently followed-up with the government. It was not until November 4, 

2021, that the government advised it would not provide the response to the 

Touhy request before the November 19, 2021 deadline for discovery. 

Consequently, there was little 3M could do to take the HCPM’s deposition 

prior to the November 19, 2021 deadline. 

Therefore, the Court concludes that 3M has demonstrated sufficient 

good cause to take the deposition of the individual who was the HCPM at 

Fort McCoy from 2010 to 2012. 3M may take the deposition of the HCPM 

at Fort McCoy from 2010 to 2012 on a mutually convenient date and time 

after coordination with counsel for Plaintiff and coordination with counsel for 

the government. Because trial in this case is scheduled for the two-week 

period beginning on March 14, 2022, 3M is directed to schedule and 

complete the deposition by February 11, 2022.

Accordingly, upon due consideration, it is ORDERED:

1. Defendants’ Motion to Permit the Deposition of Government 

Employee after November 19, ECF No. 19, is GRANTED.

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2. Defendants must complete the deposition by February 11, 

2022.

DONE AND ORDERED this 21st day of December 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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