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

______________________________/

ORDER

Pending before the Court is Defendants’ Expedited Motion to Compel 

Plaintiff Steven Wilkerson to Undergo Genetic Testing for Hearing Loss. 

ECF No. 23. Plaintiff opposes the motion. ECF No. 25. The motion is 

otherwise ripe for consideration. For the reasons discussed below, 

Defendants’ motion is due to be denied.

I. INTRODUCTION

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”). Plaintiffs are servicemembers, veterans, and civilians seeking 

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damages in this action for hearing loss, tinnitus, and related injuries caused 

by their use of the CAEv2. Master Docket ECF No. 704. 

In his deposition taken on October 1, 2021, Plaintiff Wilkerson 

testified that he has a family history of hearing loss. Steven Wilkerson 

Deposition, ECF No. 23-1 at 42 ¶¶1-23 (SEALED). Specifically, Plaintiff 

testified that his cousin and one of his cousins-once-removed were born 

deaf. ECF No. 23-1 at42 ¶¶1-23 (SEALED). 

Defendants contend that they are entitled to examine Plaintiff’s 

genetic make-up as to hearing loss for three reasons. First, Defendants 

say that hearing loss can be attributed to a number of causes, one of which 

is genetics. Second, Defendants point to Plaintiff’s audiograms, which they 

say, demonstrate that Plaintiff has low-frequency hearing loss, a condition 

not often attributable to noise exposure.1

 Third, pointing to Plaintiff’s cousin 

and the son of one of Plaintiff’s cousins, who were born deaf, Defendants

argue that Plaintiff’s family history of hearing loss coupled with his own 

hearing loss may suggest an inherited condition. 

Relying upon Rule 35 of the Federal Rules of Civil Procedure, 

Defendants want the Court to order Plaintiff to undergo the OtoSCOPE 

1 Plaintiff’s audiograms were provided to Defendants nearly one year ago on December 

16, 2020. ECF No. 25 at 6.

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Genetic Hearing Loss Test, which is narrowly tailored to analyze only a 

fraction of the genes associated with hearing loss.

2

 Defendants propose 

that the test would be conducted by Dr. Nathaniel H. Robin, M.D., a genetic 

testing specialist, at the University of Alabama at Birmingham’s Medical 

Center. The Medical Center is a three-and-a-half-hour drive from Plaintiff’s 

home. Notably, the results of the OtoSCOPE Genetic Hearing Loss Test, 

generally take six weeks to receive so if testing was ordered the current 

deadline for expert disclosures, December 3, 2021, would be adversely 

affected. See ECF No. 23 at 3 n.1.

II. DISCUSSION

While Defendants’ motion in an appropriate case with a documented 

immediate family history of hearing loss at birth involving, for example, 

parents, grandparents or siblings, might have some traction, here, 

Defendants instead rely upon a distant relative with a different hearing 

related condition as the predicate for the genetic testing of Plaintiff. But 

even if having a distant relative with hearing loss at birth was enough, 

(which it is not) Defendants’ motion is untimely and if granted would upset 

and derail the deadlines in this case. 

2 The OtoSCOPE test would not analyze Plaintiff’s entire genome.

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Turning first to the timeliness of Defendants’ motion, while the 

motion was filed one week before the fact discovery deadline, Defendants 

waited far too long to bring the motion. As a practical matter if the Court 

granted Defendants’ motion on the day Plaintiff’s expedited response was 

due the genetic testing at Birmingham’s Medical Center would take place 

well after the November 19, 2021 discovery deadline. The Court was very 

clear when setting the deadlines in the bellwether cases that Rule 35 

medical examinations for the bellwether Plaintiffs in Trial Groups C and D 

must occur prior to the fact discovery deadline. ECF No. 1550, at p. 8. 

Plaintiff’s deposition was taken on October 1, 2021, more than one and a 

half months before Defendants filed the motion. But even if there were 

legitimate reasons for the delay in filing the motion, allowing Defendants to 

conduct the genetic testing well after the discovery deadline would 

seriously impact the court-ordered deadlines for preparing and serving 

expert reports and possibly result in further delays by the parties in 

supplementing expert reports to address the genetic testing. The timeline 

for the genetic testing highlights the adverse impact genetic testing would 

have on the schedule in this case.

Even assuming that an appointment could be scheduled for Plaintiff 

to travel to Birmingham, Alabama for the testing after the Thanksgiving 

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holiday in early December Defendants advise that the results of the genetic 

hearing test generally take six weeks to receive. Thus, even under an 

ambitious schedule the parties would not have the results of the genetic 

testing until at least the second week in January 2022. Plaintiff’s expert 

disclosures are due on December 3, 2021, meaning that Plaintiff would be 

forced to serve expert reports without any information on the results of the 

genetic testing. Importantly, depending upon the results of the test Plaintiff 

would potentially need to redo and/or supplement his expert reports and 

possibly need to retain his own expert on genetic testing, all of which would 

adversely impact the trial schedule in this case. 

Additionally, depending upon the results of the genetic testing, there 

is a strong likelihood that Plaintiff would lodge a Daubert challenge to the 

use of genetic testing in a case, like here, where the family history of 

hearing loss relates to distant relatives and not immediate family members. 

The requirement that Rule 35 examinations should take place within 

the discovery deadline assures that like any other discovery tool it may be 

used to develop evidence that an expert would use in forming her opinion. 

Thus, authorizing Rule 35 examinations to take place after the close of fact 

discovery deadlines raises a risk of further delays because of “the 

likelihood od additional discovery disputes, expert designations, expert 

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depositions, and disclosures in the parties’ expert reports.” Garayoa v. 

Miami-Dade Cty., No. 16-CIV-20213, 2017 WL 2880094, at *5 (S.D. Fla. 

July 5, 2017).

One of the reasons Defendants argue they should be entitled to 

subject Plaintiff to genetic testing rests upon Plaintiff’s audiograms, which 

Defendants say show low frequency hearing loss, a condition that is not 

attributable to noise exposure. Whether low frequency hearing loss is or is

not caused by noise exposure, the audiograms upon which Defendants 

now rely were provided to Defendants in December 2020, more than 

eleven months ago. This would have afforded Defendants with more than 

sufficient time to explore this issue and, if necessary, to bring it to the 

attention of the Court. Instead, Defendants waited until the final week of 

discovery knowing that genetic testing would involve at least six weeks for 

results to be obtained. Thus, because of the lateness of Defendants’

request and the substantial impact genetic testing would surely have on the 

expert disclosure deadlines, supplementation of expert reports and possibly 

the necessity for retention of other experts regarding genetic testing, 

Plaintiff’s Rule 35 motion is due to be denied.

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Separate from the problems with the timeliness of Defendants’ motion 

Defendants have not established good cause for the examination at this 

late stage of the case. 

In Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 242, 13

L.Ed.2d 152 (1964), the Supreme Court held that the “good cause” and “in 

controversy” requirements of Rule 35 require a showing greater than mere 

relevance, or conclusory allegations of the parties. Rule 35 requires an 

affirmative showing by the movant that each condition as to which the 

examination is sought is really and genuinely in controversy and that good 

cause exists for ordering each particular examination. 379 U.S. at 118, 85 

S.Ct. at 242-43 (emphasis added). The ability of the movant to obtain the 

information by other means is also relevant. Id. The Court further noted 

that Rule 35 examinations should not be “ordered routinely” and that “there 

must be a greater showing of need under [Rule 35] than under the other 

discovery rules.” Id. at 118, 122.

Although there is no question that Plaintiff’s hearing loss is “in 

controversy” in this case, Defendants fail to establish good cause for

ordering additional medical testing and in particular genetic testing for 

hearing loss at this late date. Defendants already have conducted 

extensive examinations of Plaintiff on his hearing loss and his family history 

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of hearing loss. Plaintiff already has undergone a four-hour medical 

examination consisting of thirteen different examinations. The Rule 35 

medical examination in this case and the types of tests that were 

conducted were not random but rather were part of a general IME protocol 

negotiated by the parties for the Group A cases (PTO 56) and which the 

parties as a matter of practice have been applying to Groups B. C and D 

cases. This is consistent with the Court’s expectations that the parties will 

utilize the agreed-upon IME protocol for the Group B, C and D bellwether 

cases. ECF No. 1550, p. 2, n. 1. Notably, the protocol negotiated in the 

Group A cases—and which the parties have been applying to the Group B, 

C and D cases—lists 15 specific hearing tests to which Plaintiffs agreed to 

submit. ECF No. 1477, Ex. A. The parties agreed that the Rule 35 

examinations will include all of some of the tests with the examination time 

limited to four hours. Conspicuously absent from the list of agreed-upon 

tests is genetic testing. Certainly, if Defendants believed genetic hearing 

testing might be a valid and reliable test in some cases Defendants would 

have at least attempted to include it and if there was a serious dispute 

regarding the applicability of genetic testing in cases involving hearing loss 

the issue could have been fleshed out a long time ago between the parties 

and, if necessary, with the Court. That never happened.

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Moreover, although Defendants submit a cursory declaration from 

Derek Jones, M.D. in support of their motion Dr. Jones never explains the 

basis of his conclusion that genetic testing is warranted because Plaintiff 

presents with a strong family history of deafness. To be sure the family 

history upon which Defendants rely, and presumably upon which Dr. Jones

references, consists of a cousin and the son of one of Defendants’ cousins. 

The Defendants do not explain nor does Dr. Jones elaborate upon the 

scientific link or basis for connecting deafness in cousins with the Plaintiff. 

This shortcoming is important because under Rule 35 “there must be a 

greater showing of need than under the other discovery rules.”

Schlagenhauf, at 118, 122. The Court therefore is not satisfied that

Defendants have met their burden of showing that additional testing outside

of the protocol utilized in the other MDL bellwether cases is necessary or

that Defendants have established beyond mere conclusions that Plaintiff

should be subjected to genetic testing.

Lastly, the cases offered by Defendants do not change the result.

While Defendants’ cases involve circumstances where other courts have

permitted genetic testing, none of the cases are product liability cases, but

rather are medical malpractice cases. In Burt v. Winona Health, No. 16-

1085 (DWF/FLN), 2018 WL 3647230 (D. Minn. Aug. 1, 2018), a medical

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negligence case, the Court permitted genetic testing because the

defendant had identified specific facts relating to the plaintiff’s parents,

which indicated the possibility of underlying genetic issues within the family.

Here, Defendants rely upon the naked assertion that Plaintiff’s cousin and

his son were born deaf. There is no discussion by Defendants or by Dr.

Jones of the cause or type of hearing loss experienced by Plaintiff’s cousin

or how this type of familial relationship would be genetically linked to

hearing loss in a distant family member like Plaintiff.

Defendants’ reliance upon Bennett ex rel. Bennett v Fieser, 1994 WL

542089 (D. Kan. Feb. 25, 1994) fares not much better. In Bennett—another

medical malpractice case—the Court there authorized genetic testing but

only after the requesting party had established to the Court’s satisfaction

that the testing met the Daubert standard. Here, Dr. Jones’ brief declaration

offers nothing remotely close to or supportive of scientific information that

would demonstrate that genetic testing of a party because of conditions of

a distant cousin are supported in the scientific peer reviewed literature. In

the absence of such a showing, authorizing the genetic testing of the

Plaintiff not only will impact the expert deadlines in this case but without

more of a showing could result in generating discovery into an area that on

this record is speculative at best. In the absence of a competent showing

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based upon expert testimony demonstrating that there is a reliable scientific

basis for the genetic testing, as opposed to a conclusory declaration, the

Court concludes that Defendants have not made a sufficient showing of

good cause to support their request that Plaintiff undergo OtoSCOPE

Genetic Hearing Loss Testing

Accordingly, for these reasons, it is ORDERED:

Defendants’ Expedited Motion to Compel Plaintiff Steven Wilkerson 

to Undergo Genetic Testing for Hearing Loss, ECF No. 23, is

DENIED.

DONE AND ORDERED this 24th day of November 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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