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

Pending before the Court is Defendants’ Motion to Compel Plaintiff 

William Wayman to Complete his [Defense1 Medical Examination]. ECF 

No. 19. Plaintiff Wayman has filed a response in opposition. ECF No. 21. 

The instant motion, therefore, is ripe for consideration.

Plaintiff Wayman is a Bellwether Plaintiff in Trial Group B, subject to 

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

ECF No. 1295. Moreover, Plaintiff Wayman has agreed to submit to a 

1 Defendants use the term “independent medical examination” or, for short, “IME,” but this 

is a misnomer because Defendants’ medical examinations of the Bellwether Plaintiffs are 

“‘inextricably intertwined with the adversarial process.’” Davanzo v. Carnival Cruise 

Lines, No. 14-20153-CIV, 2014 WL 1385729, at *2 (S.D. Fla. Apr. 9, 2014) (quoting 

Goggins v. State Farm Mut. Auto. Ins. Co., No. 3:10-cv-826-J-20JBT, 2011 WL 1660609, 

at *3 (M.D. Fla. May 3, 2011)); see also Zabkowicz v. West Bend Co., 585 F. Supp. 635, 

636 (E.D. Wis. 1984) (“The defendants' expert is being engaged to advance the interests 

of the defendants; clearly, the doctor cannot be considered a neutral in the case.”).

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defense medical examination in lieu of a court-ordered physical 

examination contemplated by Federal Rule of Civil Procedure 35. MDL 

ECF No. 1477 (Pretrial Order No. 56).2 Pretrial Order No. 56 sets forth the 

protocol for the examinations of Bellwether Plaintiffs in the four trial groups, 

including Defendants’ selection from 15 appropriate tests for alleged 

hearing loss or tinnitus and a deadline to produce the test results to the 

Bellwether Plaintiffs (within one week of the examination). Id. The defense 

examinations of the Trial Group A Bellwether Plaintiffs occurred after the 

fact discovery deadline and during the expert discovery period. The Trial 

Group B Bellwether Plaintiffs have followed that same schedule.

Here, the parties scheduled Plaintiff Wayman’s defense examination 

for December 28, 2020, at a clinic in Colorado within driving distance of his 

home. ECF No. 19 at 1; ECF No. 21 at 2. The day before the examination, 

Defendants advised Plaintiff Wayman that their expert intended to conduct 

12 tests from Pretrial Order No. 56 but “reserve[d] the right to not have 

certain of the tests administered based on the course of the examination.” 

ECF No. 19-1 at 2.

2 Pretrial Order No. 56 states that it applies only to Trial Group A, but the Court assumes 

the parties will utilize this agreed-upon protocol during the DMEs for the Bellwether 

Plaintiffs in Trial Groups B, C, and D.

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Plaintiff Wayman attended his defense examination with paralegal 

Kevin Rowe (Andrus Wagstaff P.C.). Prior to Plaintiff Wayman’s arrival, Dr. 

J. Eric Lupo informed his staff that Plaintiff Wayman “would have 

audiological testing done in the morning” and that Dr. Lupo “would see 

[Plaintiff Wayman] at [1:00 p.m.] to conduct the otoscopy[.]” ECF No. 19-3 

at 2. Dr. Lupo says that his audiologist greeted Plaintiff Wayman that 

morning and informed him Dr. Lupo would examine him at 1:00 p.m. Id. at 

3. Beginning at 9:30 a.m., a technician, Paige, conducted a series of tests 

on Plaintiff Wayman. ECF No. 21-2 at 2. Those tests lasted two hours, 

until 11:30 a.m., at which time Plaintiff Wayman and Mr. Rowe were told 

“that the necessary testing portion was complete.” Id. Paige, nevertheless, 

asked Plaintiff Wayman to return at 1:00 p.m. Id. at 3.

Mr. Rowe asked the “front desk staff at the clinic” to “check with”

Paige as to why Plaintiff Wayman needed to return if testing was complete. 

Id. The front desk staff clarified with Mr. Rowe that Plaintiff Wayman 

“needed to come back to go over the results.” Id. Mr. Rowe contacted 

Plaintiffs’ Leadership Counsel, Amanda Hunt (Clark, Love & Hutson, 

PLLC), to confirm whether Plaintiff Wayman was required to stay until 1:00 

p.m. (or return at that time). Id.; see also ECF No. 21-1 at 3. Ms. Hunt, in 

turn, conferred by email with Defendants’ counsel, Mary Kim (Dechert 

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LLP). ECF No. 19-2 at 2–3. Ms. Kim advised Ms. Hunt that Plaintiff 

Wayman did “not need to return to go over his results” and that she would

so inform Dr. Lupo. Id. at 2. At 12:30 p.m., Ms. Hunt contacted Mr. Rowe, 

who then told Plaintiff Wayman he may leave. ECF No. 21-2 at 3.

At 1:00 p.m., Dr. Lupo went to retrieve Plaintiff Wayman from the 

clinic waiting room, but Plaintiff Wayman was not there. ECF No. 19-3 at 3. 

Dr. Lupo called Plaintiff Wayman, who told Dr. Lupo that Mr. Rowe advised 

him he could leave. Id. Dr. Lupo says that he is “not aware of any of [his] 

staff telling [Plaintiff] Wayman that the testing was done for the day.” Id.

Defendants ask the Court to compel Plaintiff Wayman “to return to the 

clinic for approximately 10 minutes so that the otoscopy can be completed 

in accordance with [Pretrial Order No.] 56” and offer to accommodate 

Plaintiff Wayman’s scheduling constraints. ECF No. 19 at 5. It is wellestablished 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). 

Defendants fail to demonstrate that the Court should exercise this 

power to require a continued or follow-up examination. For starters, it is 

undisputed Plaintiff Wayman attended and participated in his defense 

examination in good faith. The only evidence Defendants rely on to 

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suggest otherwise is Dr. Lupo’s declaration, but that is insufficient for the 

reasons argued in Plaintiff’s response. ECF No. 21 at 4. Indeed, 

conspicuously absent from the record is any declaration by Dr. Lupo’s 

“front desk staff” or his technician, Paige, that they did not tell Plaintiff 

Wayman or Mr. Rowe that testing was complete before he left. Because 

Plaintiff Wayman and Mr. Rowe were instructed by Dr. Lupo’s staff that his 

testing was finished and by Defendants’ counsel that he did not need to 

stay until 1:00 p.m. to review his results, the Court cannot conclude Plaintiff 

Wayman violated either the letter or spirit of Pretrial Order No. 56.

What’s more, any confusion that may have resulted in the early 

termination of Plaintiff Wayman’s defense examination was caused by

Defendants’ reservation of the “right to not have certain of the tests 

administered.” This made it impossible for Plaintiff Wayman, Mr. Rowe, or 

Plaintiffs’ Leadership Counsel to independently determine when the 

examination was complete. For example, even if, as Dr. Lupo states, an

audiologist informed Plaintiff Wayman that Dr. Lupo would examine him at 

1:00 p.m., it was reasonable for Plaintiff Wayman, Mr. Rowe, or Plaintiffs’ 

Leadership Counsel to conclude that Dr. Lupo’s plan changed after Paige 

completed her testing and Plaintiff Wayman was informed his testing was 

finished.

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Finally, any continued or follow-up examination would impose an 

undue burden on Plaintiff Wayman. Plaintiff Wayman is the sole income 

provider in his family, works normal business hours on weekdays, and 

suggests he would still miss hours of work to travel to and from the clinic 

again. Plaintiff Wayman also attempts to avoid “COVID-related risks” so he 

does not endanger the health of himself and his family, including his elderly 

mother-in-law. Although Defendants offer to accommodate Plaintiff

Wayman’s work schedule, they fail to raise any argument (or offer any 

evidence) to say that the proposed otoscopy is necessary in view of the 

other tests conducted during Plaintiff Wayman’s defense examination. The 

Court concludes, therefore, that Plaintiff should not shoulder any burden for 

Defendants’ mistake.

Accordingly, it is ORDERED that Defendants’ Motion to Compel, ECF 

No. 19, is DENIED.

DONE AND ORDERED this 11th day of January 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge 

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