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:

William Wayman

Case No. 7:20-cv-149

______________________________/

ORDER

On November 9, 2020, the Court conducted a telephone hearing to 

address Defendants’ Motion for Leave to Take the Deposition of Mark 

Klever. ECF No. 14. Prior to the hearing, Plaintiff Wayman filed a 

response in opposition to Defendants’ motion. ECF No. 16.

For the reasons discussed on the record (which are fully incorporated 

herein) and those explained below, Defendants’ Motion for Leave is due to 

be GRANTED. This order is a non-exhaustive recitation of the arguments 

made by the parties, as well as the Court’s reasoning.

I. BACKGROUND

This multidistrict litigation is a products liability action concerned with 

whether Defendants were negligent in their design, testing, and labeling of 

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 1 of 9
2

the nonlinear dual-ended Combat Arms Earplug Version 2 (the “CAEv2”). 

Plaintiffs are servicemembers, veterans, and civilians, asserting state law 

claims for negligence and strict products liability based on design defect 

and failure-to-warn theories, as well as warranty, misrepresentation, fraud, 

gross negligence, negligence per se, and consumer-protection claims. 

They seek damages for hearing loss, tinnitus, and related injuries caused 

by their use of the CAEv2.

The parties are engaged in case-specific discovery related to the 

Bellwether Plaintiffs’ claims and Defendants’ defenses. Plaintiff is a 

Bellwether Plaintiff in Trial Group B. The Trial Group B cases are subject 

to the Discovery and Pretrial Schedule set forth in Pretrial Order No. 46, 

which the Court entered on July 31, 2020. MDL ECF No. 1295.1 Relevant 

here, fact discovery closes this Friday, November 13, 2020. Id. at 2. Fact 

discovery includes “up to six case-specific depositions per side[,]” absent 

leave of court. Id.2 Two weeks ago, on October 26, 2020, the Court 

entered an order on a motion for protective order explaining this limitation 

1 For ease of reference, citations to the multidistrict litigation docket (Case No. 3:19-md2885-MCR-GRJ) are “MDL ECF No. __.”

2 The six deposition limit superseded the Court’s original allowance of four case-specific 

depositions per side, MDL ECF No. 1009 at 1 (Pretrial Order No. 28), after Defendants 

asked for eight depositions. See MDL ECF No. 1331 at 63 (“I'm firm on the six depositions 

per side. I set four, the Defendants asked for eight, and I've compromised at six, and 

that's where you all are.”).

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 2 of 9
3

includes Defendants’ deposition of the Bellwether Plaintiff. Keefer v. 3M

Co., No. 7:20-cv-104-MCR-GRJ, ECF No. 23 (N.D. Fla. Oct. 26, 2020).

Prior to the Court’s order in Keefer, Defendants had conducted only

two case-specific depositions—Plaintiff Wayman and Lesley Wayman

(Plaintiff’s spouse). ECF No. 14 at 2. Since then, Defendants deposed Dr. 

Debra Powell (a VA audiologist who once completed an audiology 

examination on Plaintiff Wayman in 2017 and diagnosed his tinnitus) on 

November 5, 2020. ECF No. 14 at 3; ECF No. 16 at 3. Defendants 

subpoenaed for deposition Dr. Elizabeth Knight (a VA physiatrist who once 

conducted a comprehensive traumatic brain injury evaluation on Plaintiff 

Wayman in 2018) and Dr. John DeCelles (Plaintiff Wayman’s primary care 

physician since 2018), ECF No. 14 at 3; ECF No. 16 at 3, but those 

subpoenas are the subjects of motions to quash in the United States 

District Court for the District of Colorado pending transfer to this Court, ECF 

No. 14 at 7.

Defendants’ discovery plan for Plaintiff Wayman’s case also includes 

the depositions of Dr. Gloria Ryder (a therapist familiar with Plaintiff 

Wayman’s mental health conditions and related symptoms), Mr. Mark 

Klever (Plaintiff Wayman’s immediate supervisor at his current employment 

as an automotive technician for Land Rover in Colorado Springs), and

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 3 of 9
4

(potentially) an unidentified Hearing Conservation Program Manager from 

one of Plaintiff Wayman’s duty stations. ECF No. 14 at 3–4; ECF No. 16 at 

3. Defendants have scheduled Mr. Klever’s and Dr. Ryder’s depositions for 

November 11 and November 13, respectively. ECF No. 14 at 7.

II. LEGAL STANDARD

The parties do not dispute that the Court has the authority to limit the 

number of case-specific depositions in this multidistrict litigation. See Fed. 

R. Civ. P. 26(b)(2)(A) (“By order, the court may alter the limits in these rules 

on the number of depositions and interrogatories or on the length of 

depositions under Rule 30.”).

3 And it is well-established that this Court has 

the inherent power to enforce its own orders. Magluta v. Samples, 162 

F.3d 662, 664 (11th Cir. 1998); Jones v. Graham, 709 F.2d 1457, 1458 

(11th Cir. 1983). This leaves only the discrete question of whether the 

Court should grant Defendants leave to depose Mr. Klever.

3 See also In re Nat’l Prescription Opiate Litig., 956 F.3d 838, 841 (6th Cir. 2020) (“Within 

the limits of [the Federal Rules of Civil Procedure ... an MDL court has broad discretion 

to create efficiencies and avoid duplication—of both effort and expenditure—across cases 

within the MDL.”); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 

1232 (9th Cir. 2006) (“[M]ultidistrict litigation is a special breed of complex litigation where 

the whole is bigger than the sum of its parts. The district court needs to have broad 

discretion to administer the proceeding as a whole, which necessarily includes keeping 

the parts in line. Case management orders are the engine that drives disposition on the 

merits.”).

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 4 of 9
5

The Court reserved the power to alter the limit on the number of 

case-specific depositions with “leave of court,” MDL ECF No. 1295 at 2, a 

decision within the sound discretion of the trial court. Espey v. Wainwright, 

734 F.2d 748, 750 (11th Cir. 1984). The Court, however, finds it 

appropriate to look to the burden a party must satisfy to exceed the 10-

deposition limit in Federal Rule of Civil Procedure 30. Fed. R. Civ. P. 

30(a)(2). The moving party must make “a particularized showing of why 

the discovery is necessary[,]” Archer Daniels Midland Co. v. Aon Risk 

Servs., Inc. of Minn., 187 F.R.D. 578, 586 (D. Minn. 1999), including 

establishing “the necessity of all the depositions [that party] took in 

reaching the prescribed limit[,]” Barrow v. Greenville Indep. School Dist., 

202 F.R.D. 480, 483 (N.D. Tex. 2001). See also Jones-Walton v. Villas at 

Lake Eve Condo. Ass’n, Inc., No. 6:15-cv-995-Orl-22TBS, 2016 WL 

6071736, at *2 (M.D. Fla. Oct. 17, 2016).

III. DISCUSSION

Upon consideration of the arguments presented by the parties in their 

briefs and at the telephonic hearing, the Court will grant Defendants leave 

for a seventh case-specific deposition of Mr. Klever. For starters, as 

Defendants argued at the hearing, Plaintiff Wayman’s claims are unique in 

a few respects. Mr. Wayman has been diagnosed with mental health 

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 5 of 9
6

conditions (including PTSD), suffered several potential traumatic brain 

injuries during his military service, and is seeking claims for lost wages. 

Additionally, Mr. Wayman has a spouse who served with him in the military.

This leads to Defendants’ discovery plan, which Defendants 

explained includes a “unique lineup ... for unique claims.” Defendants 

have either deposed or noticed for deposition six persons with relevant

and, more importantly, necessary knowledge of Plaintiffs’ hearing loss or 

damages claims. Plaintiff is a given. Mrs. Wayman was Plaintiff Wayman’s 

“direct supervisor in the Army[,] and she testified based on her daily 

interactions with him regarding [Plaintiff] Wayman’s alleged hearing-related 

injuries.” ECF No. 14 at 3. Dr. Powell was the first medical professional to 

diagnose Plaintiff Wayman’s tinnitus. Dr. Ryder has treated Plaintiff 

Wayman for his mental health conditions including his PTSD, which he 

claims has been exacerbated by his tinnitus. Dr. Knight conducted Plaintiff 

Wayman’s traumatic brain injury evaluation, which Defendants say would

shed light on the underlying incident and its potential relationship to his 

alleged tinnitus. And, lastly, Dr. DeCelles has been Plaintiff Wayman’s 

primary care physician since 2018 and, accordingly, will be able to testify to 

his longitudinal medical history (including, as Defendants anticipate, 

whether Plaintiff Wayman complained of or discussed his hearing loss).

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 6 of 9
7

This leaves Plaintiff Wayman’s claim for lost wages. It is clear that a 

deposition of Mr. Klever would allow Defendants to explore that claim. 

Plaintiff Wayman has worked as an automobile technician for Land Rover 

for, at least, two years. As Plaintiff Wayman’s immediate supervisor, 

Defendants expect Mr. Klever to testify to the severity of Plaintiff Wayman’s 

hearing-related injuries and “how [Plaintiff] Wayman’s current job 

responsibilities may interact with those injuries.” ECF No. 14 at 3–4. There 

is little dispute that Mr. Klever’s anticipated testimony is relevant and 

necessary to Defendants’ defenses.

The undersigned appreciates that Defendants’ motion presents a 

close question of whether the Court should exercise its discretion. The

Court’s limit on case-specific depositions serves an important purpose in 

this litigation, and Plaintiff Wayman presents compelling arguments as to

the relevance of some of Defendants’ witnesses and the supposed

prejudice resulting from a seventh deposition. Indeed, the Court agrees

with Plaintiff that choices and limitations are essential to the proper 

operation of discovery.

Nevertheless, the Court’s limitation included an exception for 

additional depositions with leave of court. Defendants timely ask for such 

an exception, and, in the Court’s view, they satisfy the arduous showing of 

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 7 of 9
8

relevance and necessity as to Mr. Klever and all their previous depositions. 

That is, there is a reasoned basis for Defendants’ discovery plan, including 

Mr. Klever’s deposition. The Court, therefore, will grant Defendants leave 

of court to depose Mr. Klever.

Finally, it bears mentioning some of the practical consequences of 

granting Defendants’ motion, all of which the Court also considered in 

resolving the instant motion. First and foremost, there is no guarantee that 

Defendants will conduct six case-specific depositions in this matter. They 

have only taken three depositions (Plaintiff Wayman, Mrs. Wayman, and 

Dr. Powell), but Mr. Klever’s and Dr. Ryder’s depositions are imminent 

before Friday’s discovery deadline. Defendants may be able to take the 

depositions of Dr. Knight and Dr. DeCelles if their subpoenas survive the 

Government’s motions to quash, but they may not. Second, the Court is 

not persuaded that Mr. Klever’s deposition will result in an unjust 

expenditure of Plaintiff Wayman’s resources to prosecute this case or affect 

other discovery deadlines. This deposition of a fact witness seems 

relatively straightforward and, consequently, should not take an inordinate 

amount of time. And third, as discussed at the hearing, the Court’s holding 

here does not establish precedent for future motions for leave to expand 

the case-specific deposition limitation. For the purpose of resolving these 

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 8 of 9
9

motions, the Court views the facts of each Bellwether Plaintiff’s case in 

isolation.

IV. CONCLUSION

Accordingly, it is ORDERED that Defendants’ Motion for Leave to 

Take the Deposition of Mark Klever, ECF No. 14, is GRANTED.

DONE AND ORDERED this 9th day of November 2020.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge 

Case 7:20-cv-00149-MCR-GRJ Document 18 Filed 11/09/20 Page 9 of 9