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: 

Finley, 7:20cv170 

 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

ORDER 

On November 15, 2021, the Court entered an order granting in part, denying 

in part, and deferring ruling in part on the parties’ respective motions in limine in 

Plaintiff Theodore Finley’s case, See ECF No. 85, and on November 17, 2021 the 

Court held a hearing to discuss parties’ motions in limine, priority exhibit lists, and 

priority deposition designations. The following matters were discussed: 

1. Defendants’ motion in limine No. 3 to exclude evidence, argument, and 

testimony relating to Finley’s military service was previously granted. See ECF No. 

85 at 2. After considering the discussion of Finley’s army history, the Court 

VACATES its prior ruling, and Defendants’ motion in limine No. 3 is now 

GRANTED in part and DENIED in part. Consistent with the Court’s prior 

rulings in other bellwether cases, evidence of Finley’s military commendations, 

performance reviews, and awards will be excluded as improper character bolstering 

unless (1) the door is opened by Defendants through attack on Finley’s character or 

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military service; (2) the exhibit relates to weapons training; or (3) the exhibit is 

deemed relevant by the trial judge. Finley can testify about his deployment and his 

experiences in the Army as they relate to his noise exposure, including combat. 

Further, to the extent Finley was wearing the CAEv2 at the time he was injured in 

the incident that resulted in him receiving the Purple Heart, the fact that Finley 

received that award, and the circumstances of the incident, are admissible. 

Additionally, should evidence of Finley’s PTSD be deemed relevant by the trial 

judge in the context of his claims at trial, then all evidence of combat activities will 

likewise be relevant. 

2. Defendants’ motion in limine to exclude testimony or argument that the 

VA is not a reliable or effective source of healthcare is DENIED.

1

 Defendants argue 

that Finley should be excluded from commenting on the reliability and quality of the 

medical care administered by the VA because Defendants consider this to be an 

expert opinion. The Court disagrees. Finley’s explanation for why he chose to seek, 

or not to seek, medical treatment at the VA is not an expert opinion. Finley can 

testify as to his personal experiences with the VA, and he can give his own opinions 

about why he chose not to seek VA treatment to explain gaps in his medical care. 

1

 The Court previously denied this motion due to lack of specificity and heard argument 

regarding the parties’ respective positions at the November 17, 2021 hearing.

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3. The Court previously ruled that Defendants may use select statements 

from certain VA C&P records for impeachment purposes depending on Finley’s trial 

testimony. See ECF No. 85 at 9. However, at the November 17th hearing, the 

parties’ informed the Court that these statements, which the Court considered 

potentially usable for impeachment, were in fact written by a VA examiner and not 

Finley himself. Accordingly, Defendants may not use these statements for 

impeachment. To the extent there are VA C&P records containing statements 

written by Finley, these may be used for the limited purpose of impeachment after 

seeking leave from the trial judge outside the presence of the jury. 

4. The Court considered argument from both parties regarding Plaintiff’s 

motion in limine No. 14 to exclude any reference to unrelated Facebook, Messenger, 

or other social media postings. The Court previously ruled on this motion, See ECF 

No. 85, and rulings addressing specific exhibits submitted to the Court will be 

included in forthcoming Exhibit Order(s). 

5. The Court heard argument regarding D-FINLEY-0321, which includes 

a list of medications currently, and previously, prescribed to Mr. Finley. Plaintiff’s 

objections to this exhibit are OVERRULED provided that the corresponding 

testimony concerning this exhibit does not violate the Court’s prior orders on 

ototoxic medication, see 3M MDL Docket, ECF No. 1330, or admissible expert 

testimony and opinions, see Finley, ECF No. 62.

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6. After considering the discussion of Finley’s mental health/emotional 

distress claims during the hearing, the Court now VACATES its prior rulings on the 

following motions in limine, and DEFERS RULING on them until trial: 

a. Finley’s 2012 house fire and loss of personal possessions (P MIL 3) 

b. Finley’s financial condition, including references or suggestions that 

Finley is malingering and/or exaggerating injuries for secondary gain or 

monetary purposes (P MIL 4)2

Additionally, the Court continues to DEFER RULING on the following 

motions in limine until trial: 

a. The general admissibility of Dr. Robert Collins’ testimony and/or 

references to his medical exam and testing (P MIL 9) 

b. References to opinions, testing and/or findings by Finley’s withdrawn 

experts and all corresponding defense experts (P MIL 17) 

c. References to documents and/or testing relating to mental health diagnoses 

or treatment other than garden-variety effects of hearing loss and/or 

tinnitus (P MIL 20) 

d. References to opinions, testing, records, or testimony of Dr. Melanie 

Ottenbacher (P MIL 21) 

e. References to opinions, testing, records, or testimony of Dr. James Ezelle 

(P MIL 22) 

 

2

 To the extent that evidence of Finley’s financial condition is deemed relevant at trial, 

Defendants remain precluded from suggesting or implying in any way that this impacts Finley’s 

credibility or that he is malingering and/or exaggerating his injuries for financial gain. 

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The admissibility of the above evidence will be determined by Chief Judge 

Walker in the context of the full evidentiary record at trial. 

SO ORDERED, on this 20th day of November, 2021. 

 

M. CASEY RODGERS 

 UNITED STATES DISTRICT JUDGE 

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