UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS

LIABILITY LITIGATION

This Document Relates to:

Vilsmeyer,

Case No. 7:20-cv-113

Wilkerson,

Case No. 7:20-cv-35

Kelley,

Case No. 7:20-cv-153

Vaughn,

Case No. 7:20-cv-134

Beal,

Case No. 7:20-cv-6

Case No. 3:19-md-2885

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

PLAINTIFFS’ MOTION TO AUTHORIZE REMOTE TESTIMONY 

PURSUANT TO RULE 43(a) FROM ELLIOTT BERGER

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INTRODUCTION

For the upcoming Group D bellwether trials, Plaintiffs seek the live, remote 

testimony of former 3M employee, and current paid consultant Elliot Berger. “When 

a party presents ‘good cause in compelling circumstances’ and assures the Court of 

‘appropriate safeguards,’ the Court ‘may permit testimony in open court by 

contemporaneous transmission from a different location.’” Dkt. 2247 at 6 (quoting 

Fed. R. Civ. P. 43(a)). Good cause in compelling circumstances exists for the remote 

testimony of Berger. He has intimate knowledge of the design, testing, and 

development of the CAEv2. As the Court has previously observed, “he is and has 

been from the outset, a key witness for both parties,” “he has been 3M’s star witness 

until now and is a paid consultant for 3M,” and his “presentation of evidence has 

evolved, substantially.” Dkt. 2247 at 9. The five above-captioned cases are last 

scheduled bellwether trials in this massive MDL. As he has now done multiple times 

without incident, Berger would testify near his home in Indiana using familiar 

technology, and Defendants would suffer no prejudice. Additionally, Plaintiffs can 

assure the Court of appropriate safeguards—as evidenced by the Court’s prior 

experience with remote testimony during this litigation, including by Berger on a 

half-dozen occasions and two different courthouses, and other fact witnesses such 

as Sergeant Moody in the Adkins trial, and Kelly Sloan in the Sloan/Wayman trial. 

Accordingly, the Court should issue an order permitting remote testimony from 

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Berger.

FACTUAL BACKGROUND

Berger was central to the development, sale, testing, and labelling of the 

CAEv2. Berger oversaw the labelling tests of the CAEv2 and ultimately drafted the 

Flange Report. To date, Berger has repeatedly been subpoenaed to testify in a 

plaintiff’s case at trial, or the parties have worked cooperatively to secure Mr. 

Berger’s live trial testimony through various agreements. He has testified live in all 

but one bellwether trial (Palanki, where Defendants agreed to bring Brian Myers 

live and in exchange Plaintiff agreed not to subpoena Berger), and in Camarillo, 

when the plaintiff released Berger from the subpoena, he appeared via Zoom in 

Defendants’ case. 

On October 1, 2021, Defendants contacted Plaintiffs’ Leadership to propose 

an agreement regarding “future live testimony” of Berger. Dkt. 2190 at 3. In the 

course of subsequent communications, defense counsel indicated that 3M did not 

agree to produce Berger live in any MDL bellwether plaintiff’s case, and that they 

did not plan to call Berger to testify live in the defense case for the remaining MDL 

bellwether trials. Defendants also declined to make available or commit to calling 

any current or former employee for live testimony. Since that time, Defendants have 

continued to insist that Berger is not available to them, but—as mentioned above—

called Berger in their case during the Camarillo trial, and defense counsel have an 

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ongoing consulting agreement with Mr. Berger .

With the final five bellwether trials scheduled to start within the next three

months—and two starting in six weeks—Plaintiffs need certainty and the ability to 

plan their order of proof. None of these bellwethers should lose their opportunity to 

question Berger live before a jury of their peers. Accordingly, Plaintiffs move for 

the authorization of remote testimony. 

LEGAL STANDARD

Rule 43(a) provides that generally a witness’s testimony “must be taken in 

open court.” Fed. R. Civ. P. 43(a). However, a district court “may permit testimony 

in open court by contemporaneous transmission from a different location” when 

there is “good cause in compelling circumstances” and “appropriate safeguards” are 

used. Id.; see Dkt. 2247 at 6-8. “The Court’s discretion on this question is 

supplemented by its wide latitude in determining the manner in which evidence is to 

be presented under the Federal Rules of Evidence.” Id. at 8 (citing In re RFC and 

ResCap Liquidating Tr. Action, 444 F. Supp. 3d 967, 970 (D. Minn. 2020)); see 

Argonaut Ins. Co. v. Manetta Enters., 2020 WL 3104033, at *1 (E.D.N.Y. June 11, 

2020). 

Rule 45 governs subpoenas for parties ordered to testify by contemporaneous 

transmission from a remote location. Subpoenas “must issue from the court where 

the action is pending,” but “may be served at any place within the United States,” 

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Fed. R. Civ. P. 45(a)(2), (b)(2). Subpoenas “may command a person to attend a 

trial” at the courthouse or “within 100 miles of where the person resides,” depending 

on witness’s role in the case. Fed. R. Civ. P. 45(c)(1).

As this Court has previously held in this MDL, “Rules 43(a) and 45 should be 

read in tandem” such that upon a Rule 43(a) order authorizing remote testimony, “a 

party may use a Rule 45 subpoena to compel remote testimony by a witness from 

anywhere so long as the place of compliance (where the testimony will be given by 

the witness and not where the trial will take place) is within the geographic 

limitations of Rule 45(c).” Baker, Dkt. 133 at 9-12.

ARGUMENT

I. Good cause exists to permit Berger to testify remotely.

A. There is good cause in compelling circumstances under Rule 43.

Good cause in compelling circumstances exists to permit Berger to provide 

live testimony at trial via remote link. See Fed. R. Civ. P. 43(a). 

This Court has made clear that live testimony is superior to pre-recorded video 

depositions. See Dkt. 2247 at 4 n.3; Baker, Dkt. 133 at 13-14 (“[T]here is little doubt 

that live testimony by contemporaneous transmission offers the jury better quality 

evidence than a videotaped deposition”); Baker, Dkt. 131 Ex. J at 19:4-6 (“[I]t was 

always -- no surprise -- my preference that you present as many live witnesses as 

absolutely possible.”). Live testimony via video permits “the jury to more 

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realistically ‘see’ the live witness along with ‘his hesitation, his doubts, his variations 

of language, his confidence or precipitancy, his calmness or consideration,’ without 

editing or the unavoidable esthetic distance created by a video deposition.” In re 

Actos, 2014 WL 107153, at *8; see also Ramada Worldwide Inc. v. Bellmark 

Sarasota Airport, 2006 WL 1675067, at *4 (D.N.J. June 15, 2006). The “very 

ceremony of trial and the presence of the factfinder may exert a powerful force for 

truthtelling.” Fed. R. Civ. P. 43 advisory committee’s note to 1996 amendment. 

Live testimony via video also produces higher levels of jury engagement than does 

pre-recorded deposition testimony. Mullins v. Ethicon, 2017 WL 532102, at *2 

(S.D. W.Va. Feb. 8, 2017). 

Berger is key witness whose contemporaneous testimony is essential to the 

jury’s resolution of these upcoming bellwether trials. See Dkt. 2247 at 9. Berger 

has repeatedly appeared in Plaintiffs’ case-in-chief. And for good reason. Berger 

drafted the Flange Report and invented the CAEv2, and he has been Defendants’ 

star witness in defending the product. “As Berger’s testimony has evolved, so, have 

Plaintiffs’ case strategies. If these [] bellwether Plaintiffs are deprived of the 

opportunity to question Berger live before the jury, they will be prejudiced.” Dkt. 

2247 at 9. Accordingly, this Court has previously held that “there is good cause in 

compelling circumstances to permit his remote testimony.” Baker, Dkt. 133 at 13; 

Dkt. 2247 at 9-10. 

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Because these are bellwether trials, a jury verdict based on live testimony will 

be more meaningful for all litigants. See In re Xarelto, 2017 WL 2311719, at *5. 

Defendants are likely to argue that attending repeated trials is a burden on Berger, 

who is 70 years old, retired, and has traveled from Indiana to Florida multiple times 

in 2021. But testimony via remote link does not require the witnesses to travel at 

all. Defendants may further argue that prior orders grating Plaintiffs’ motions for 

remote testimony cautioned that Berger cannot be expected to testify at all remaining 

trials contemplated in this massive MDL. Dkt 2247 at 10. After the next five trials, 

the Courts bellwether schedule will be complete, and the need for live testimony 

from Berger may be subject to reevaluation, but that time has not come. At this time, 

the tail-end stage of the bellwether process, compelling circumstances require his

live testimony from convenient locations near his home. Indeed, the practice of live 

transmission of remote trial testimony is particularly prevalent in MDLs because 

“the Manual for Complex Litigation recognizes the permissibility and value of 

contemporaneous transmission through the use of videoconferencing.” In re Vioxx, 

439 F. Supp. 2d at 642-43 (citing Manual for Complex Litigation (Fourth) § 12.334 

(2004)).1

 And precluding Berger’s live testimony for these remaining bellwether 

 1 Courts around the country routinely order live testimony at trial via remote means 

under Rule 43. See, e.g., Baker, Dkt. 133; Int’l Seaway Trading Corp., 2021 WL 

672990, at *5; Newbrook Shipping Corp., 2020 WL 6451939, at *4; In re RFC & 

ResCap Liquidating Trust Action, 2020 WL 1280931, at *2-4 (D. Minn. Mar. 13, 

2020); Aoki v. Gilbert, 2019 WL 1243719, at *2 (E.D. Cal. Mar. 18, 2019); Chapman 

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cases will have the undesired effect of thwarting the parties’ access to information 

they need to chart the “future course of this entire litigation.” Dkt. 2247 at 10 

(quoting In re Xarelto, 2017 WL 2311719, at *4).

B. The Vioxx factors also support remote testimony at trial. 

The Vioxx factors provide additional compelling reasons to permit Berger to 

testify via live video feed at the upcoming bellwether trial. See Dkt. 2247 at 12-13; 

Baker, Dkt. 133 at 14-15. Though the Vioxx court coined the test, these factors have 

been used for decades by MDL courts: 

[T]here has been an increasing trend by federal courts allowing . . . the 

use of contemporaneous transmission of trial testimony. . . . In 1988 

and 1989, respectively, in the context of multidistrict litigation, the 

Western District of Washington, In re Washington Public Power 

Supply System Sec. Litig., MDL No. 551, 1988 WL 525314 (W.D. 

Wash. Aug. 9, 1988), and the District of Puerto Rico, In re San Juan 

Dupont Plaza Hotel Fire Litig., 129 F.R.D. 424 (D.P.R. 1989), each 

allowed the testimony of witnesses through the use of contemporaneous 

transmission. . . . 

In Washington Public . . . the court fashioned a five-prong test for 

determining whether the use of videoconferencing was permitted at 

 

v. Tristar Prod., Inc., 2017 WL 7048986, at *1 (N.D. Ohio July 6, 2017); In re 

Xarelto, 2017 WL 2311719, at *4 (E.D. La. May 26, 2017); In re DePuy 

Orthopaedics, Inc. Pinnacle Hip Implant Prod. Liab. Litig., 2016 WL 9776572, at 

*2 (N.D. Tex. Sept. 20, 2016); Mullins v. Ethicon, Inc., 2015 WL 8275744, at *3 

(S.D. W.Va. Dec. 7, 2015); Hall v. Boston Sci. Corp., 2015 U.S. Dist. LEXIS 120031 

(W.D. Wisc. Sept. 9, 2015); Warner v. Cate, 2015 WL 4645019, at *2 (E.D. Cal. 

Aug. 4, 2015); Rockett v. Stifel, Nicolaus & Co., 2014 WL 5500546, at *1 (M.D. Ga. 

Oct. 30, 2014); In re Actos (Pioglitazone) Prod. Liab. Litig., 2014 WL 107153, at 

*1, 4-5 (W.D. La. Jan. 8, 2014); Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 480 (D. 

Md. 2010); In re Vioxx Prods. Liab. Litig., 439 F. Supp. 2d 640, 643 (E.D. La. 2006). 

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trial. 1988 WL 525314, at *2-3. The five factors were: (1) the control 

exerted over the witness by the defendant; (2) the complex, multi-party, 

multi-state nature of the litigation; (3) the apparent tactical advantage, 

as opposed to any real inconvenience to the witness, that the defendant 

is seeking by not producing the witness voluntarily; (4) the lack of any 

true prejudice to the defendant; and (5) the flexibility needed to manage 

a complex multi-district litigation. Id. This same five-prong test was 

adopted and used by the court in San Juan Dupont, 129 F.R.D. at 426.

In re Vioxx Prod. Liab. Litig., 439 F. Supp. 2d at 642-43. MDL courts continue to 

use these factors to assess good cause under Rule 43. See Baker, Dkt. 133 at 14-15; 

see also, e.g., In re Xarelto, 2017 WL 2311719, at *4; Hall, 2015 U.S. Dist. LEXIS 

120031; Mullins, 2015 WL 8275744, at *2.

Defendants have previously conceded that the second and fifth factors favor 

remote testimony. See Baker, Dkt. 122 at 16-17. As Judge Fallon explained, even 

a trial that involves “a single plaintiff . . . and the law of a single jurisdiction” favors 

remote testimony where it is “a bellwether trial for a MDL involving thousands of 

lawsuits” and implicating “every state of the nation.” In re Vioxx, 439 F. Supp. 2d 

at 643; cf. O’Bryant v. Gray Ins. Co., 2017 WL 4785793, at *2 (E.D. La. Oct. 19, 

2017). And “[t]hese bellwether trials are complex—the complexity of these cases 

mirrors the undisputed fact that this is the largest MDL in American history.” Baker, 

Dkt. 133 at 14.

The remaining Vioxx factors favor the same result. Indeed, this Court has 

previously held that the Vioxx factors favor remote testimony from Berger. See Dkt. 

2247 at 12-13. Under the first factor, the Court’s authority to compel remote 

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testimony is at its peak where, as here, the witness is controlled by a party. See In re 

Actos, 2014 WL 107153, at *7. “Berger is under Defendants’ control—he has an 

(indirect) consulting contract with Defendant 3M, and Defendants presented him as 

a live witness in the prior bellwether cases.” Baker, Dkt. 133 at 14; Dkt. 2247 at 12. 

Under the third factor—“the most important one,” Dkt. 2247 at 12—the 

timing of Defendants’ refusal to produce Berger—shows “3M seeks a tactical 

advantage by withholding Berger from testifying live in front of the jury.” Dkt. 2247 

at 12; see Mullins, 2015 WL 8275744, at *2. The relative convenience of remote 

testimony also raises the inference that Defendants’ preference for “‘canned’ 

deposition testimony” is “purely tactical.” In re Vioxx, 439 F. Supp. 2d at 643. 

Defendants cannot cry foul about preparing Berger to testify at these trials. Berger 

has already spent hundreds of hours preparing to appear live already, and have 

disclosed him as a hybrid-expert in the Group D bellwethers. See Mullins, 2015 WL 

8275744, at *2. The time required to prepare his for additional trials would be 

minimal.

The same considerations demonstrate that, under the fourth factor, 3M will 

not be unduly prejudiced. Dkt 2247 at 13. Berger has already been deposed, 

Chapman, 2017 WL 7048986, at *1, and “has already testified at . . . another 

[Earplugs] trial,” In re Vioxx, 439 F. Supp. 2d at 643. Moreover, “there is no 

prejudice or inconvenience to 3M or Berger, given that he can testify remotely from 

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a location convenient to him, and Defendants have raised no specific prior 

commitment that would preclude their participation in the trial. Dkt. 2247 at 13; 

Baker, Dkt. 133 at 14-15.

Plaintiffs, on the other hand, would be prejudiced by presenting video 

deposition testimony or reading trial transcripts in lieu of live testimony. Although 

Berger sat for depositions, those examinations took place nearly two years ago.2

Since then, substantial discovery has occurred. And in Berger’s case, he has testified 

live at trial, providing testimony that may be fodder for future impeachment. Forcing 

Plaintiffs to play tape or read these admissions to the jury rather than cross-examine 

this witness based on recent developments would perversely reward Defendants for 

withholding this witness—the precise tactical advantage they seek. 

With Defendants’ refusal to bring or make available current employees, and 

Berger’s refusal to come to future bellwethers, Defendants are strategically 

preventing the presentation of live fact witness testimony on the liability issues—

e.g., no live defense witnesses to challenge on defense counsel’s opening contentions 

or arguments it develops through cross. To be sure, Defendants will bring one or 

 2 Berger’s former testimony in his personal capacity as a fact witness is not as 

extensive as Defendants may claim. Berger testified for two days, pursuant to the 

parties’ deposition protocol. Plaintiffs later obtained a court order to question Berger 

for one additional day, but only because Berger belatedly disclosed certain expert 

opinions. Any remaining depositions are attributable to Defendants, who not only 

designated him as a 30(b)(6) witness (twice) but also took their own full-day 

deposition of Berger.

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two experts to spin the documents and testimony, but there can be no doubt that 

Defendants are refusing to put a witness in the box (or live on the screen) to face 

scrutiny before the factfinder on the facts in the context of a specific bellwether’s 

case. As the trials to date have revealed, the testimony before the fact finder, with 

the oversight of the Court, has compelled admissions on questions a witness had 

been able to evade during deposition. More fundamentally, Plaintiffs will have no 

live defense witness to challenge on fundamental contentions made by defense 

counsel, or to undermine the premises of the Defendants’ experts (whose disclosures 

post-date all of the deposition testimony). The reverse is not true; Defendants have 

the opportunity at trial to examine each Plaintiff well beyond their deposition, and 

in a manner responsive to trial counsel’s contentions/arguments, and the 

assumptions and conclusions of both sides’ experts. One party—Plaintiffs—will be 

at trial and subject to examination before the fact finder; under Defendant’s plan, the 

other will not.

II. Modern technology and the COVID-19 pandemic have ameliorated 

concerns about the feasibility and reliability of remote testimony.

Finally, “appropriate safeguards” for testimony by contemporaneous 

transmission can be assured. See Fed. R. Civ. P. 43(a). As this Court held and has 

experienced at evidentiary hearings, Daubert hearings, and in the Baker and Adkins

trials, there are appropriate safeguards because Berger will testify via 

contemporaneous videoconferencing technology (ZoomGov). Dkt. 2247 at 13-14 

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(concluding ZoomGov is, of itself, an appropriate safeguard); Baker, Dkt. 133 at 16; 

see Liu v. State Farm Mut. Auto. Ins. Co., No. 2:18-1862-BJR, 2020 WL 8465987, 

at *2 (W.D. Wash. Dec. 17, 2020) (“[M]odern videoconferencing technology allows 

for near instantaneous transmission of testimony with no discernable difference 

between it and ‘live’ testimony, thereby allowing a juror to judge credibility 

unimpeded.”); In re RFC and ResCap Liquidating Trust Action, 444 F. Supp. 3d at 

971 (“Given the speed and clarity of modern videoconference technology, where 

good cause and compelling circumstances are shown, such testimony ‘satisfies the 

goals of live, in-person testimony and avoids the short-comings of deposition 

testimony.’” (quoting In re Vioxx, 439 F. Supp. 2d at 644)).

Defendants cannot seriously dispute that adequate safeguards exist for live 

video testimony, especially given the parties experience with remote testimony on 

top of the sheer number of video depositions already taken in this MDL, and defense 

counsel’s remote appearance at the Court’s most recent Daubert hearing, and at the 

Sloan/Wayman pretrial conference. See, e.g., Aoki, 2019 WL 1243719, at *1 

(“Appropriate safeguards exist where the opposing party’s ability to conduct crossexamination is not impaired, the witness testifies under oath in open court, and the 

witness’s credibility can be assessed adequately.”).

While Plaintiffs would prefer that Berger be made available in person, “courts 

are moving into a more technologically advanced world,” where “testimony of this 

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nature is feasible” and can “be presented smoothly and without interruption.” 

Rockett, 2014 WL 5500546, at *1; see Mullins, 2017 WL 532102, at *3 (rejecting 

concerns of difficulty with exhibits). “[M]odern videoconferencing technology 

allows for near instantaneous transmission of testimony with no discernible 

difference between it and ‘live’ testimony.” Kieffaber v. Ethicon, Inc., 2021 WL 

425822, at *3 (D. Kan. Feb. 8, 2021) (collecting cases). 

Indeed, the COVID-19 pandemic has illustrated—and increased—the 

availability of reliable testimony via remote means. See, e.g., Wood v. Paccar, Inc., 

2020 WL 6387374, at *2-3 (N.D. Iowa Oct. 8, 2020) (noting the ongoing pandemic 

and finding good cause under Rule 43(a) for three witnesses to testify at trial “via 

video link”); Gould Elecs. Inc. v. Livingston Cty. Rd. Comm’n, 2020 WL 3717792, 

at *4 (E.D. Mich. June 30, 2020) (same); In re RFC & ResCap Liquidating Trust 

Action, 2020 WL 1280931, at *2, *4 (D. Minn. Mar. 13, 2020) (same).3

CONCLUSION

For the aforementioned reasons, the Court should authorize remote testimony 

by Elliott Berger pursuant to Rule 43(a).

 3 Plaintiffs’ motion seeks permission for remote testimony pursuant to Rule 43(a). 

Should the motion be granted, each plaintiff may subpoena Berger as their trial 

strategy requires. 

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DATED: February 2, 2022 /s/ Bryan F. Aylstock

Bryan F. Aylstock, Lead Counsel

Florida State Bar No. 078263

Aylstock, Witkin, Kreis & Overholtz, 

PLLC

17 East Main Street, Suite 200

Pensacola, FL 32502

Tel.: (850) 202-1010

baylstock@awkolaw.com

Christopher A. Seeger, Co-Lead 

Counsel

(Admitted Pro Hac Vice)

New Jersey State Bar No. 042631990

David R. Buchanan

(Admitted Pro Hac Vice)

New Jersey State Bar No. 042741993

Caleb A. Seeley

(Admitted Pro Hac Vice)

New Jersey State Bar No. 303522019 

Seeger Weiss LLP

55 Challenger Road 6th Floor

Ridgefield Park, NJ 07660

Tel.: (212) 584-0700

cseeger@seegerweiss.com

Shelley V. Hutson, Co-Lead Counsel

(Admitted Pro Hac Vice)

Texas State Bar No. 00788878

Clark, Love & Hutson, GP

440 Louisiana Street

Suite 1600

Houston, TX 77002

Tel.: (713) 757-1400

shutson@triallawfirm.com

Counsel for Plaintiffs

Case 7:20-cv-00153-MCR-GRJ Document 33 Filed 02/02/22 Page 15 of 16
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CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(F)

I hereby certify that this memorandum complies with the word limit of Local 

Rules 7.1(F) and contains 3,341 words. 

/s/ Bryan F. Aylstock

CERTIFICATE OF CONFERENCE

I certify that Plaintiffs have complied with the conference requirement 

pursuant to the Court’s Local Rule 7.1(B). A telephonic meet and confer was 

conducted February 1, 2022, with Plaintiffs’ counsel, Defense counsel and Mr. 

Berger’s counsel but no agreement was reached.

CERTIFICATE OF SERVICE

I hereby certify that on February 2, 2022, I caused a copy of the foregoing

to be filed through the Court’s CM/ECF system, which will serve all counsel of

record.

/s/ Bryan F. Aylstock

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