Donna L. Boland, RPR, FCRR

Certified Court Reporter

1702 E Baars Street * Pensacola, Florida 32503

DLBolandUSCR@gmail.com

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS EARPLUG ) Case No. 3:19md2885

PRODUCTS LIABILITY LITIGATION, )

) Pensacola, Florida

) March 14, 2024

In re: RICKY DEAN KELLY ) 2:44 p.m.

7:20cv36595 )

)

)

STATUS CONFERENCE

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

(Pages 1-34)

A P P E A R A N C E S

FOR THE PLAINTIFFS: Aylstock, Witkin, Kreis & Overholtz, PLLC

By: BRYAN F. AYLSTOCK

baylstock@awkolaw.com

17 E Main Street, Suite 200

Pensacola, Florida 32502

Moore, Hill & Westmoreland, PA

By: CHARLES F. BEALL, JR.

cbeall@mhw-law.com

350 W Cedar Street, Suite 100

Pensacola, Florida 32502

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P R O C E E D I N G S

THE COURT: Okay. So the next thing I want to do is

talk to you, Mr. Kelly, about how your case is going to proceed

going forward, whether you're represented by counsel or you're

not.

MR. AYLSTOCK: Should I get Mr. Beall?

THE COURT: Yeah, I was just about to say, but I'm

going to bring in -- thank you, Mr. Burns. 3M's lawyer is

going to be a part of this, and has been for other conferences

of this nature.

Hello, Mr. Beall. Come on in.

(Mr. Beall present.)

Mr. Kelly, this is Mr. Charles Beall. Mr. Beall is

with a law firm here in town, and he represents 3M. He is one

of many lawyers who represents 3M, but he is the local.

So, Mr. Kelly, I've been conducting these conferences

with plaintiffs who have elected to opt out of the settlement,

and you're not the only one. There's not a large number --

I'll talk about that in just a moment -- but I have been

holding these conferences, and two reasons for that. And these

were -- this was something I contemplated doing way back in

August when the settlement was reached.

The first reason for holding these conferences with

opt-out plaintiffs was to talk with plaintiffs -- I wanted to

to talk with plaintiffs about the extraordinary nature of the

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litigation, everything that had gone into the MDL, which was,

again, extraordinary.

And your situation, though, is a little different,

because in the other conferences I've had, whether they were

pro se plaintiffs or they were represented plaintiffs, those

individuals were not on the front lines of the litigation as

your counsel has been.

And so these were people who were, as I said earlier,

truly on the sidelines and had not had sort of a front seat to

the litigation day in and day out, understanding the strain of

it and experiencing the strain and the toll of it.

But regardless, even though Mr. Aylstock is familiar

with the strain and the toll and everything I've been saying to

other opt-out litigants, I want you to hear this from me,

because you have not been here day in and day out in the

litigation.

And frankly, I thought it would be important for

opt-out plaintiffs to hear from me personally as someone who

was very experienced and knowledgeable about the litigation,

but also I'm the only neutral person in this courtroom. These

people aren't neutral, you're not neutral, and, of course, 3M

is not neutral. But I am. And I have had a front row seat to

the litigation.

I also felt that it would be important at this

juncture for opt-out plaintiffs to have one last opportunity to

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decide to take the settlement, to get into the program and, you

know, take the benefit of the settlement before the final

settlement registration deadline of the 25th of March.

So I thought it would be helpful for people like you

maybe who are pro se or don't have a lawyer who is as

knowledgeable about the litigation as Mr. Aylstock but to be

able to meet with leadership.

So we've been having these conferences, and

Mr. Aylstock has been at some of them, and Mr. Bradford and Mr.

Burns have been at some of them, to meet with opt-out

plaintiffs and/or their attorneys, and Mr. Beall as well, but

mainly on the plaintiffs' side, leadership, to discuss what the

litigation has been like and also to discuss the nuances of the

settlement program.

Some people in your shoes are really not very well

educated or versed in the settlement program. There are things

about it, questions that they have, aspects of it that they're

not fully aware of. Even some of the lawyers may not have

taken advantage of as many opportunities as there have been to

learn about the settlement program.

And so this also is an opportunity for someone like

you to meet with leadership but also to meet with Magistrate

Judge Cannon.

Hope Cannon is a judge who, like me, is assigned to

this litigation. She's a judge on this Court. And although

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Judge Cannon was not involved in the trenches as I was

throughout the MDL, she was very involved in the trenches in

the settlement and in negotiating the settlement.

And so, again, helpful for people in your shoes

perhaps to have an opportunity to talk to her about the

settlement program as well.

Being here, as you mentioned, is a huge commitment on

your part, and I promise you I don't fail to recognize that. I

do recognize it. I appreciate you making the commitment. The

Outer Banks of North Carolina is a long haul. I know it

because I've driven it. But this was necessary. We couldn't

do this, in my view, as effectively via Zoom.

It gives me an opportunity to meet you, you an

opportunity to meet me. If you go forward in your litigation,

you're going to get to know me better. But this is sort of the

start of that, if your litigation does go forward.

And also, it's a good time for particularly a pro se

plaintiff to realize that being in court with the judge in

person is part and parcel of litigating. That's part of --

even if you have counsel, it can be part and parcel of

litigating. And certainly you may have to come back.

If you're pro se, you'll, I'm sure, have to come back.

If you are represented by Mr. Aylstock, he can appear at times

for you, but there may be times where you have to come back in

person. That's just part of litigation.

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So the litigation, as I said, was extraordinary. I

don't want to take you through all those trials, and I don't

literally mean all the bellwether trials, although that's part

of the extraordinary nature of the litigation. But there were

trials and tribulations as part of this litigation that really

did render it extraordinary, not the least of which was the

size of it.

At one point we had over 300,000 plaintiffs in this

litigation, which, by far -- and if you're versed in MDLs, then

you know by far surpasses any other MDL in the history of the

judiciary. And at many times throughout the life of the

litigation, including today, this MDL occupies a third, a total

one-third of the entire federal judiciary's civil docket. So

it is extraordinary in that sense. And because of that, it's

been a strain on not just this Court but a strain on the

judiciary as a whole.

In one of my orders I wrote at the time in

contemplating remands of cases that, if I had -- when I could

have done it with the stroke of a -- or a keystroke -- I was

going to say a pen but I guess we don't do it with pens anymore

-- a keystroke remanded cases to the transferor districts,

would have been, on average, 2500 cases per 94 districts. You

can do the math and that will tell you what number we were up

to at that point. But that's what it would have been on

average.

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And the burden of that on districts throughout the

country that are already overwhelmed would have been

extraordinary in and of itself.

And so, for that reason, I felt it was important back

at the time, again, of the settlement, because no one knew -- I

mean, we don't have a crystal ball, so no one knew whether this

program would be successful or not in terms of participation.

We didn't know. We certainly hoped it would be. The parties

hoped it would be, I hoped it would be. But no one knew.

So, at that time, I'm thinking to myself I may have to

remand thousands and thousands and thousands of cases if people

don't participate. And because of that, I put into place what

you now know as CMO 57, because I was not going -- and I'm

still not -- going to burden my colleagues around the country

with these cases that I know so much about.

And you can say, well, you don't know much about my

individual case. And I grant you that. But I do know a lot

about the claims that are raised by you and have been raised by

others. I know a lot about the evidence, which is very similar

in terms of -- certainly in terms of liability and even

causation in some respects. I know a lot about that. I know a

lot about the defenses.

And because of that, I felt that, for cases to go

forward, they were going to have to be real, viable cases that

were not going to just go clog up other courts' dockets, they

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were going to be real cases ready for trial. And so that's why

CMO 57 was put into place.

And some people may argue CMO 57 has a lot of hurdles.

And I wouldn't argue against that. Some may argue that it's

unfair. CMO 57 is not an order that I enter in every single

civil case on my docket by any means. But there's nothing

ordinary about this litigation, and so that's why I felt it was

necessary.

And it may be that some whose cases end up being

dismissed because they are unable or do not comply with CMO 57,

that they appeal my decision to dismiss their case to the

Eleventh Circuit. That may happen. And they may argue to

those judges on that court that this is unfair, it's overly

burdensome, shouldn't have been done. And we'll just have to

wait and see what those judges think about my decision on how

to deal with this very extraordinary, challenging, and

unprecedented litigation.

So, CMO 57, again, you're aware of it. You've been

mostly compliant with it. I know Mr. Aylstock has assisted --

or I believe he's assisted you with that because you've been

compliant, for the most part.

Mr. Aylstock, you have assisted Mr. Kelly in complying

with CMO 57?

MR. AYLSTOCK: (Indicating affirmatively.)

THE COURT: There are numerous deadlines, many of them

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are 30-day deadlines right off the bat.

Mr. Beall, have you all issued a deficiency? I think

you have.

MR. BEALL: We did on March 8th. It is shorter than

some of the other ones, but there are a handful that -- we sent

it to Mr. Aylstock through MDL Centrality.

THE COURT: Okay. So, do you know what I'm talking

about, Mr. Kelly, the deficiency letter? Do you know what I'm

referring to?

MR. KELLY: Short -- CMO 57 short information or

something?

THE COURT: Well, CMO 57, as I said, has a number of

different deadlines. Many of them are 30-day deadlines that

kick off quickly, they trigger quickly.

MR. KELLY: Right.

THE COURT: And when that deadline runs for those

30-day requirements -- your deadline actually passed on

February 21st -- there is a cure period, c-u-r-e, a cure period

in which 3M would notify the plaintiff -- in your case, you and

Mr. Aylstock -- of what they perceive -- "they" being 3M --

perceive as deficiencies with those deadlines, whether you just

completely missed a deadline or whether you maybe complied but

only partially with a deadline.

And so 3M then issues notice to you and your counsel

about those deficiencies, and then you have 30 days of what we

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call a cure period to correct those deficiencies.

And I believe, as Mr. Beall just indicated, they

notified you of deficiencies on March 8th, and so you have a

cure deadline for those deficiencies of April 8th.

MR. KELLY: Your Honor, I hadn't -- nobody has told me

anything about being deficient.

THE COURT: Well, it's in the order, sir.

MR. KELLY: What order?

THE COURT: My order. It's in CMO 57. It spells this

out.

MR. BEALL: I'd be happy to -- I've got an extra copy

of the deficiency if I could just hand it to him.

THE COURT: Okay, that'll be fine. The letter was

just sent, but, yes, that's fine.

But again, something I should stress, since you still

have counsel, Mr. Beall's obligation is to serve that on your

counsel, not you. If you're pro se, that's different. Then

his obligation is to serve you individually.

But as long as Mr. Aylstock is your attorney, he's

your agent, and that's who -- lawyers talk to lawyers, if

you're represented. That's an ethical rule.

There was also, as part of CMO 57, a requirement for

an affidavit to be submitted regarding the statute of

limitations. I believe that's been submitted. Mr. Aylstock

has done that.

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What I have told other plaintiffs is that it's a

possibility that one of the first things that will happen, if

your case is not settled, is that I will set a short time frame

for you to be deposed. And it would be strictly limited --

this deposition would be strictly limited to the issue of

statute of limitations, nothing else about your claims or

damages or anything like that, but just the statute of

limitations.

And then 3M would have an opportunity for an early

dispositive motion or summary judgment motion -- frankly, you

could file one as well -- in which the matter will be presented

to me for me to decide whether there is an issue of fact for a

jury regarding the statute of limitations.

If there is not, then your case would be dismissed on

that basis. If there is, then I would find that question of

fact, and I would put that into my order, and then that's

something a jury would determine if your case goes to trial.

There are also 60-day deadlines in my CMO 57 order

that has been issued to you for expert reports. I'm sure that

you're aware of this. I feel certain Mr. Aylstock has talked

to you about this. Your 60-day deadline is March 22nd. That

deadline, too, is subject to a cure period of 30 days.

So, depending on when 3M -- let's just say they issue

you a deficiency notice. I don't know that they will. Maybe

you have your experts lined up, you're ready to issue your

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reports timely. If that's the case, there won't be a

deficiency. If there is, then that also would trigger a 30-day

cure period. Again, just making sure that you understand what

will happen going forward.

Now, the other thing, before I get into experts, I

just want to make sure that you know how many -- I feel

certain, because of Mr. Aylstock being your lawyer, you know

what the participation rate is right now with the settlement.

It is extraordinary.

I keep talking about how extraordinary this litigation

is. Some of it is extraordinary in a way that may seem a

negative because it's been a toll and a strain because of some

of the challenges that we face because of the size of it. But

this reference to extraordinary is a very positive.

And what I'm referring to is there were just over

300,000 plaintiffs that appeared on a declaration form on the

date of September 12th, 2023, which was the reference date.

And if you didn't appear on a declaration form, then you were

out. And that certainly happened. But you did, fortunately

you were on a declaration form, and so were just over 300,000

other people.

And then we went forward with registration, as you

know. And after all of that dust settled in terms of who

timely registered, who didn't, there are over 250,000 claimants

or plaintiffs who registered. And out of those 250,000 that

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registered, under 20 of them have opted out of the litigation.

So, out of over 250,000 people, only 20 have elected not to

participate and have decided to go forward, and those are the

people I've been meeting with over the last couple of weeks.

So, if you haven't had this discussion with

Mr. Aylstock, I'd be surprised, because he knows it so well.

But if not, I'm sure you will have this discussion about how

expensive the experts are in this litigation.

And we've seen it -- I'll just tell you, again, he

knows this because he's lived it. Other lawyers in the

courtroom know it, certainly from the plaintiffs' perspective.

I don't know it from 3M's perspective in terms of what they

spent. I know what the plaintiffs spent on experts per

bellwether trial, and it was over $200,000 per trial for

experts. And there's not just one expert.

And they come with a stable of experts, "they" meaning

3M. And you have to meet that head on, and you have what we

call a battle of the experts. There are experts in audiology,

there are experts in ENT and neurotology, which you probably

know about what a neurotologist is, a surgeon who operates in

the ear. And then there were ballistics experts, there were

acoustical engineering experts, and even government contracting

experts.

And I have no doubt, if your case proceeds to trial,

you'll need all of those experts.

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The military contracting expert is an interesting one.

In the bellwether trials, the plaintiffs had a military

contracting expert. The defense did not. But I suspect in

trials going forward, that will not be the case. I suspect 3M

will have a contracting expert.

And you've probably heard about the government

contractor defense. You know what I'm talking --

MR. KELLY: Uh-huh.

THE COURT: So it's important for you to keep in mind,

in terms of having opened eyes and appreciating the challenges

you'll face going forward, no matter how strongly you believe

in your case, that issue is still a live issue for cases that

go forward. Because, although the parties had the benefit of

my ruling, it was appealed, that ruling was appealed as part of

every bellwether judgment that was appealed, and the Eleventh

Circuit did not rule on that issue, they did not decide whether

I was correct as a matter of law or incorrect with my decision

because the case -- the litigation settled before that decision

was made. And so there's been no final decision on appeal

regarding whether I was right or wrong about that.

Best case scenario for 3M -- say your case -- I'll

just use you since you're here -- goes to trial, you prevail.

They will appeal. There's no question about that, they will

appeal. And on appeal they will raise again the government

contractor defense, which they are entirely within their right

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to do.

And one of three things can happen. One is I get

affirmed, my ruling gets affirmed in its entirely. Second,

they decide that I erred in granting judgment as a matter of

law for the plaintiffs, which is what I did, and they say, no,

Judge Rodgers, you erred, there's a question of fact for a jury

here, and they send the case back for a retrial and a jury

decision on that issue.

And that's why I say government contracting experts

may become very, very relevant in the future, if there are

future cases in this litigation.

The third thing that can happen, which would be a big

win for 3M, is that the Eleventh Circuit decides, Judge

Rodgers, you got it really wrong, not only did you err in

entering judgment for the plaintiffs, we agree with you there's

no question of fact, but we believe that there's no question of

fact and the ruling, as a matter of law, should be in favor of

the defense, and they are entitled to step into the shoes of

the United States military because of their involvement in the

design of the earplug.

That could happen. And if that happens, game over for

-- not for the settlement. The people who have settled, that

ruling would not affect those people. So they wouldn't have to

give their money back or anything like that. But it would 100

percent affect any cases -- live cases moving forward.

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So, please, do keep that in mind. Because I had

countless discussions with plaintiffs' lawyers about that

decision and trying to get through to them that they needed to

think about the risks of that in terms of their settlement

perspective that that was a very real risk that that could

happen.

And if the Eleventh Circuit decided that I got it

really wrong, game would have been over for everybody,

including the bellwether verdicts and punitive damages and all

of that would have been out the window.

So I don't have any doubt, Mr. Kelly, that you've

suffered a great deal. I've looked at some of your records.

Again, I've sat through -- I presided over six of the

bellwether trials. I covered for two judges in two of the

other trials, and I listened to every single trial via Zoom,

sometimes more than one at once, from day one to the end. And

so I know the records very well of every single trial.

And I know that plaintiffs have suffered. And I know

that plaintiffs are all very good witnesses. They -- all of

them made excellent witnesses, they were personable, they

served our country, and every single juror in every trial

appreciated them for their service, 3M appreciated their

service. And that rang loudly throughout the trials.

And every single one of them believed strongly in

their case, and they believed strongly that the earplug was

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defective. 3M did not agree with that and still doesn't. They

believed strongly that the plug was defective, and they

believed strongly that the defect in the plug was responsible

for their suffering. No doubt about that.

And throughout those trials, all of those plaintiffs

had the opportunity because they were randomly selected -- this

really was a random process. But their number was called, so

their case got tried. And 13 of them prevailed and six of them

did not.

And the six that did not prevail, it wasn't because

they believed less strongly in their case, it wasn't because

they were not as damaged as the 13 who did prevail.

And I'm looking at Mr. Monsour because I know that he

had one of the clients that stands out most in my memory as far

as the bellwether trials because the case could not have been

tried any better, and Mr. Monsour could not have had a more

likeable, personable client as a plaintiff, nor could he have

had a client who had a record of more brave service than that

individual had. And he lost.

And he lost at the hands of a jury that wanted to give

him money, lots of money. But the jurors followed the jury

instructions, and, under the law, they could not find that Mr.

-- Mr. McCombs was his name -- they could not find that he had

proven, in spite of tinnitus, in spite of hearing loss, that he

had proven that he suffered those injuries at the time he was

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wearing the earplug and was exposed to noise.

I'm a veteran of the Army. Maybe you know that. I

know how much noise there is in the military, particularly the

Army. There is a lot of noise and there is a lot of noise all

of the time.

I was not in -- I mean, thankfully, I was not in Iraq,

I was not in Afghanistan. Many of these soldiers were,

yourself included. Lots and lots of noise in those venues.

For some of these juries it was just -- it was too difficult

for them to get over the causation sort of hurdle that they

have to get over to find that the plaintiff had proven his

case.

And Mr. McCombs was only one. There were five others

just as devastated. Cases very well tried, good, likeable

people with injuries, wore the plug. Because it's not enough

to prove that the plug was defective, you know that.

MR. KELLY: Right.

THE COURT: And even then, you have to prove it again.

No one will ever stand in this courtroom or any other courtroom

in the country and argue to a jury that they should find that

the plug is defective because 13 other juries found it

defective. That will never, ever, ever be heard inside of any

courtroom. But that's still not enough.

And so there are also, in addition to the 13 -- excuse

me, the six who lost -- Mr. Beall will I think probably mention

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this in a minute -- but there were others who were in the

bellwether process, had been selected for bellwether trials,

whose cases were dismissed before they ever got to trial, for

whatever the reasons were by those attorneys for dismissing

those cases. My guess is they realized they couldn't prove

their client's case, and so those cases got dismissed.

So it's really more than just six that didn't prevail

as far as the bellwethers.

The last thing I'm going to talk to you about, and

then I'm going to stop talking, are your records, the ones that

I'm familiar with. I haven't seen every, I'm sure, one of your

records. But I have looked at your DOEHRS data. And an expert

audiologist who is working with us in the settlement program --

maybe you know Dr. Spankovich or you've heard of him.

MR. KELLY: No.

THE COURT: No? Well, anyway, I've had him look at

the DOEHRS data, and you have some challenges going forward. I

don't doubt that you have hearing loss and tinnitus, for sure.

But before you ever -- and I'm just basing this on the records,

okay? We haven't met, I've never talked to you. I don't know

-- this is not a credibility determination.

This is objective data that you will have to contend

with, because these people, 3M, will absolutely be hanging

their hat on some of this. But you actually had evidence of

hearing loss before you ever wore the CAEv2. You had a

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September 2002 audiogram, mild hearing loss in the left ear at

6000 hertz, slight hearing loss in the right ear at 6000 hertz,

again, before your use of the CAEv2, which was in, I believe,

started in '04 or '05.

One thing that's interesting about your records, and,

I don't know, maybe you have an answer for this. You have a

medical record from December of 2008 that shows your physical

sort of health profile as an H3.

Did you know that?

MR. KELLY: (Indicating negatively.)

THE COURT: Well, that's an indication that you have

hearing impairment. That's the highest sort of -- I'll call it

an impairment rating. That's really not what it's called. But

it's a designation that the military gives to individuals when

they have hearing problems.

There's no corresponding audiogram, though, for that

rating. So I don't know where -- there should be a 2008

audiogram. It's not in your DOEHRS data. Maybe you have it,

but the DoD didn't have it. If you do have it, you should let

Mr. Aylstock know. There is one from 2009, but that's after

this.

MR. KELLY: I was -- at the same time I was going

through MEBs. Fort Bragg should have something.

THE COURT: I don't know. But there's no way that --

I don't know whether Fort Bragg has it or not. That would be

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something that you'd have to look into. I don't know. The DoD

did not have it.

But if you -- you know, perhaps it could be helpful to

you if you had a 2008 audiogram -- let's just say you had one

in your back pocket -- that would be -- that could be helpful

for you in the settlement program for sure. And it would be

something you would probably need if you were going to continue

litigating for sure.

The other thing -- and this is an issue -- these

lawyers here in the courtroom can tell you this, they will

vouch for what I'm about to say because they lived it. But

concurrent with your use of the Combat Arms Earplug, you

suffered a head injury due to an IED explosion while you were

serving in Iraq.

And I'm sorry about that. I've heard descriptions of

that from other plaintiffs in their trials, and it's tragic.

It should not have happened. I'm sorry to hear that it

happened to you. But there is -- in your records there is

indication of a traumatic brain injury, or TBI, from that

explosion.

And again, I know from the other trial records that is

something you'll have to contend with, because TBI can and does

cause tinnitus. I'm not saying that that's what happened in

your case. But I can promise you 3M will say that that's what

happened in your case.

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And I'm not here to make any -- again, there's no

findings, there's no credibility determinations. This is just

something you and Mr. Aylstock need to be aware of or certainly

you need to be aware of if he's allowed to withdraw.

Interesting that your VA application for service

connection for hearing loss was denied in 2006 because you

later had that H3 rating. And so this is -- I'm just saying

this is a surprise to me. And it may be that, if you have that

audiogram or even if you don't -- and this has nothing to do

with your case. I'm just telling you this as a person.

Because you had that H3 designation, I don't know whether you

can reapply to the VA for -- what's that?

MR. KELLY: The reason being, I had a Christian group

help me do my packet, and I actually went to an audiologist,

and my tinnitus was so bad that day she couldn't get an

accurate measurement. They were supposed to refile that and

reschedule my appointment. I never heard anything else. But

they did deny it and they denied just about all my claims.

And then we -- I had to -- thought we could appeal it.

I had to appeal it. And they said they wouldn't recommend

appealing everything because it wouldn't look good on your

record, so they just said let's just leave this one out, and

this is exactly what happened.

THE COURT: Well, you did receive a rating for

tinnitus. I guess what I'm saying is, if there is some

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document that you didn't have back at the time of your initial

application for benefits that you now have or if there's

something that the VA did not consider because you didn't have

it, it had been lost, or maybe it's at Fort Bragg, I don't

know. And I don't know enough about the VA process to know

whether you still have time to do this, but it might be

something you want to look into.

MR. KELLY: It should have come with the archive

record because it comes with the C&P exams.

THE COURT: Well, I can tell you the archive records

doesn't include everything.

MR. KELLY: I just got an email from the archives

office.

THE COURT: Okay. Well, maybe it's there. And if it

is and there's a 2008 audiogram that corresponds with the H3

finding, I suggest you ask Mr. Aylstock about it. And

hopefully you can do that before I issue my ruling because I

don't know what I'm going to do, and if he's allowed to

withdraw, I don't know that he'll be able to help you.

And I'm not indicating to you what my ruling is going

to be. But if you have those documents, I'd get them to him

now, is my point.

MR. KELLY: Somebody has got them somewhere.

THE COURT: The other thing I would mention and would

be remiss if I didn't, Mr. Kelly, is that there is a record in

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July of 2019 where you denied experiencing either hearing loss

or tinnitus.

I'm not saying that you weren't experiencing it. We

saw all kinds of records and comments in records throughout the

trials. But it's in there. And again, in terms of things

you'll have to contend with from 3M, that's one of them.

You may have an explanation for it, and it's fine. I

really -- it's not that I don't want to hear it. It just won't

matter here. You may have an explanation. And, again, I'm not

here to make any credibility determinations at all.

And then I'm not here to tell you you're not going to

win your case if you make it to trial. It's just it's going to

be difficult to get to trial. But if you do, I'm not here to

tell you that you won't prevail.

I am here to tell you it's going to cost you a lot of

money, there's no doubt about that. There are going to be

challenges along the way from these folks over on the other

side of the courtroom, the other side of the v. And after all

of those challenges, even if you meet them, you may lose. And

Mr. Monsour can tell you that.

I mean, it is -- when I say these folks were

devastated, that's an understatement. And again, all of them

wanted their day in court, and they got it. Again, luck of the

draw for them, I suppose, in some respects. They got their day

in court as far as a trial.

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I know they all wanted and they were seeking

vindication. I don't know that having a jury tell Mr. McCombs

that his problems were not as a result of a defective earplug

that he believed was defective and caused his problems made him

feel any better about his situation. I suspect not,

unfortunately. But that is what happens.

And again, the jury follows the law, and sometimes

it's a win for the plaintiffs and sometimes it's a win for the

defense.

So what I'm going to do now, Mr. Kelly, is I'm going

to see if, from a leadership perspective, if there's anything

Mr. Aylstock wants to say. So this is not as your counsel --

or Mr. Bradford or Mr. Monsour or Mr. Burns, not all of them.

You guys have talked longer than I have.

But if one of you does want to speak on behalf of

leadership as opposed to Mr. Aylstock, since he has this dual

role here, that's fine. And then I'm going to let Mr. Beall

speak for just a moment, and then I'm going to ask you if you

have any questions of me.

MR. MONSOUR: Can I approach?

THE COURT: Certainly. It's nice to see you again.

MR. MONSOUR: Thank you, Your Honor. Nice to be here,

nice to see you.

Since you brought it up, if you would be so willing,

Dustin McCombs would probably love to opt into the settlement

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now, if you could figure out a way to do that.

THE COURT: Well, you know what, if I was my

settlement, I would allow it. But unfortunately, it's not my

settlement. It's these guys' settlement.

MR. MONSOUR: One of the things, Judge, if I could, I

would like to ask the Court for a favor.

I met Mr. Kelly just when I walked up this morning.

And I know you had asked if I had talked to him and -- I would

like a chance to sit down and talk with him about his case.

Maybe he could hear about some of the issues from litigation

from a lawyer that has tried cases in this very courtroom and

lost. But I've won in other courtrooms. And maybe talk to him

about the merits of his case.

There were a couple of things that you mentioned that

kind of perked my ears up when talking about the merits of his

case, and so I'd like to flesh some of that out with him. Some

of them seemed to be big issues, some didn't seem to be as big,

but some of them kind of -- they definitely perked my ears up.

So, if I could at some point in time this afternoon,

I'd love to sit down and talk with Mr. Kelly about his case.

Because if he's got a sure fire loser, I want to tell him. And

if his case is more of a varying quality, I would like to -- if

there's one thing I know, it's bad 3M cases. And you can ask

anybody in this courtroom, I know bad ones as good as anybody.

So I would like to talk with him about some of those

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things and see -- kind of find out a little more about him, a

little more about his case, a little bit more about him.

THE COURT: Well, point out the pluses, too.

MR. MONSOUR: Oh, absolutely.

THE COURT: I pointed out to him things that I know 3M

will make a mountain out of. Even if you guys think it's a

molehill, they will make a mountain out of it, because I've

seen it and you've seen it.

MR. MONSOUR: Yes, I know. That's why I wanted to

talk to him a little bit more. And he said he had some

records, and I'll gladly look through anything he has.

THE COURT: If he's willing. I mean, it's really his

decision.

MR. MONSOUR: I'll do some homework. But I flew in to

talk to him, and I'm more than happy to talk to him, I would

love to sit down and talk to him and go through the entire

merits of his case and see kind of what I think about it. I'm

more than happy to do that from leadership perspective that is

not with the AWKO law firm.

THE COURT: Well, if he's willing to do that, and AWKO

is willing to allow you to do that, since they still represent

him, that's up to you all. You can talk about that.

I can't think of -- really, aside from your own

lawyer, I can't think of a better lawyer for you to talk to,

because Mr. Monsour has been in the trenches, he's won some and

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he's lost some. And so he's about as good as anybody. And he

doesn't have any interest in your case, whereas Mr. Aylstock --

you know, I don't mean to be critical here, but you do, you

have an interest in his case, whereas Mr. Monsour really

doesn't.

And it doesn't cost you anything. Mr. Monsour is

here. And if you'd like to talk with him, I think that's not a

bad idea. But, again, you two have to be willing to let that

happen.

MR. AYLSTOCK: We're happy to allow that. And I think

Mr. Kelly is willing to do that as well.

So, thank you, Mr. Monsour.

THE COURT: Well, I'm certainly in favor of it, if you

all are willing to do it.

Thank you, Mr. Monsour. Good, again, to see you.

Mr. Beall, I'm going to let you speak for 3M.

MR. BEALL: I'll be happy to. And I'll speak over

here, if that's okay with you.

THE COURT: That's fine.

MR. BEALL: Just briefly, I appreciate you coming

here, and I appreciate your service. And I actually want to

say I do concur, you meeting with Mr. Monsour would be a great

idea. I think I tried I think three cases against him at

least. It seemed like 20, but it was, I think, only three.

But anyway, he knows these cases.

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I know you feel strongly about your case or you

wouldn't be here. But, just as Judge Rodgers pointed out, 3M

feels just as strongly on the other side. And not only do we

feel like it would be hard for you to get to trial and also to

prove your case, but we do not believe this plug was defective

to this day. And during the trials, we put on evidence from

highly trained to highly accomplished acoustical people about

that and also some military documents and records that showed

the military tested it and liked the plug.

So you're going to have prove that the plug was

defective before you even get to the fact of proving the

causation. And that's why -- you know, 3M did not settle

because we said we can't win this. We settled because it was a

business decision, as you, I think, understand. When you're

dealing with 300,000 lawsuits, you have business decisions to

make.

The settlement that we reached with the plaintiffs'

leadership was based on a structure that includes an

independent medical evaluation of any claims remaining in

litigation, including yours, which is why Judge Rodgers has

your records, we have your records. We can look at them, we

have independent experts looking at them to see, you know, how

viable your case is.

That structure was supported by the plaintiffs'

leadership, it was supported by people like Mr. Monsour and

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others who were the people who tried the cases, and also by the

Court itself.

We do recognize that some people may decide to

challenge it and to litigate their cases and to opt out of the

settlement. But we will, obviously, ask the Court to enforce

strictly the requirements of her orders, including CMO 57. And

thus far, the Court has done that, and we expect her to

continue to do that.

We, obviously, tried 16 cases, as Judge Rodgers said.

That is an extraordinary number of cases. Because of that, we

have the trial -- we're ready to go, basically, but for looking

at your specific case. We've got our experts lined up, we've

got the evidence of the witnesses. And once we have sort of

pored through your records with our experts, we can try these

cases, and it wouldn't be problem for us to do that.

And if we do try the case and we were to lose the

case, we will, in fact, appeal. I can assure you of that with

about 100 percent certainty, because we've appealed every other

case, including on the government contractor issue that the

Court mentioned earlier, which could completely end the case.

Judge Rodgers pointed out that, prior to settlement,

we had 27 people selected for bellwether cases. Six the

plaintiffs lost at trial, another, I believe, 14 -- another

eight of them dismissed their cases. So what that meant, of

the 27, over half -- 14 -- recovered nothing.

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And I know that the CMO has a mediation requirement.

We will obviously participate in good faith in that mediation.

But we want you to understand that we don't view that as an

opportunity for 3M to throw more money towards you to sweeten

the deal. The settlement is what the settlement is, and that's

the way we're going to approach those mediations.

So, with that said, we would -- hopefully, after you

confer with Mr. Monsour and Mr. Aylstock, you will perhaps opt

into the settlement, which we think is fine. If not, just be

prepared that we will be contesting the claim strongly.

Thank you, Your Honor.

THE COURT: Thank you, Mr. Beall.

Mr. Kelly, is there anything that you would like to

ask me or any questions? I'm here. I certainly can't advise

you. You don't need that; you have a lawyer. But I'm

certainly here to answer any questions, if you have any.

MR. KELLY: I don't think so, Your Honor. I

appreciate it.

THE COURT: Mr. Kelly, again, my point here is not to,

you know, to be critical or to try to twist your arm. It

really isn't. It is more of an opportunity for me and you to

meet and then also for me to express to you what I know to be

the challenges, so that, if I end up having to dismiss your

case -- I hope not, but if I do -- and I've dismissed over

100,000 cases in this litigation, and so I won't hesitate.

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Because I am an equal opportunity judge, and if I've dismissed

100,000, I'll dismiss another one. And if I have to do that, I

want you to know why. And that's why I was talking to you

about the hurdles of CMO 57.

But if you feel strongly and you want to move forward,

that's your right. That's what this courtroom is designed for,

we hear cases and trials, and that's what the court system

does. And so that's -- whether it's this Court or a different

court, if your case gets to trial down the road -- it will be

some time, I have no doubt.

But if your case does get to trial, then I wish you

all the luck in the world. I just, again, eyes wide open that

you may end up with nothing.

And one thing we didn't discuss, I should just mention

it briefly -- sorry, everybody -- is the bankruptcy. I know

you're aware of the Aearo bankruptcy, and that had its own

trials and tribulations. But that was Aearo. And there's

nothing that says Aearo can't try it again, and there's nothing

that says 3M can't file for bankruptcy.

If that happens and your case is a live case, I

haven't even thought all of this through yet, what that would

do for the settlement people. My guess is they would be ahead

of you in terms of priority for -- whoever hadn't been paid

would be ahead of you in terms of priority. But everything

changes in a bankruptcy.

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For instance, in a bankruptcy, if this had gone

forward and 3M had been able to get the protection it was

trying to get in bankruptcy, you may not have been able to opt

out. And there wasn't nearly the money in the pot in

bankruptcy or projected in bankruptcy than 3M ended up agreeing

to pay here. Frankly, not even close.

But what happens in bankruptcy is, if there's enough

people that agree to it, then people like you are stuck, at

least for now, unless the Supreme Court rules otherwise. But

for now that's the law.

I hope that doesn't happen. I'm not telling you that

I think it's going to happen. But they have other legal

liabilities that they're facing and having to deal with from a

business standpoint, and it certainly is possible. I hope not,

but it's possible, so you need to keep that in mind in the

equation as well, I guess.

But good luck to you.

Mr. Kelly, I'm going to ask also that you -- I

mentioned this earlier -- you speak to Judge Cannon, who has

now come into the courtroom. This is Judge Hope Cannon.

This is Mr. Kelly.

And as I said, Judge Cannon is very, very familiar

with the settlement program, and she'll be able to answer any

questions that you may have about it.

MR. KELLY: Thank you.

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THE COURT: Mr. Kelly, thank you again for coming. It

was very nice to meet you. And thank you also for your

service.

Counsel, thank you for being here. And let me know if

you all need anything.

We'll be in recess.

(Proceedings concluded at 3:36 p.m.)

--------------------

I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter. Any

redaction of personal data identifiers pursuant to the Judicial

Conference Policy on Privacy are noted within the transcript.

s/Donna L. Boland 5-21-2024

Donna L. Boland, RPR, FCRR Date

Official Court Reporter

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