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:

Vaughn, 7:20cv134

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Defendants’ Motion for Remote Testimony, 

seeking to present the trial testimony of two third-party witnesses, Damon Chatterton 

and Tarrah Schubert, by way of videoconference due to personal, childcare, and/or

school-related conflicts that “prevent” these witnesses from traveling to Florida to 

testify in person. See ECF No. 135 at 1. On consideration, the motion is denied.

Trial testimony “must be taken in open court” unless a federal statute or rule 

provides otherwise. See Fed. R. Civ. P. 43(a). Federal Rule of Civil Procedure 43(a)

vests district courts with discretion to allow remote testimony on a showing of “good 

cause in compelling circumstances and with appropriate safeguards.” See Toland v. 

Phoenix Ins. Co., 855 F. App’x 486, 491 (11th Cir. 2021). This standard is “most

persuasive[ly]” met where “unexpected reasons, such as accident or illness,” prevent 

a witness from attending trial in person, and most easily if both sides agree to remote 

testimony. See Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment. 

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Other possible justifications, however, “must be approached cautiously,” and “a

party who could reasonably foresee the circumstances offered to justify [remote] 

testimony will have special difficulty in showing good cause and the compelling 

nature of the circumstances.” Id. Mere inconvenience or logical difficulties cannot 

satisfy the standard. Id.; Novello v. Progressive Express Ins. Co., No. 8:19cv1618, 

2021 WL 1751351, at 2 (M.D. Fla. May 4, 2021). 

Here, the trial has been set to proceed in Gainesville, Florida for more than 

six months, since October 5, 2021. See ECF No. 20. Defendants have known of the

nature and apparent centrality of Chatterton and Schubert’s testimony to their case 

for nearly that long, if not longer.

1

 The witnesses’ presence in distant locations is 

not a surprise, no accident or illness has constrained either witness’s ability to travel, 

and their childcare and school-related issues clearly are not unique, sudden or

unforeseeable.2

 Defendants have not explained what alternative arrangements were 

explored in advance of trial or why they waited until the eleventh hour to raise this 

issue.3

 Nor have they offered any explanation for why they did not obtain

1 Schubert was deposed on November 19, 2021. See ECF No. 88-7 at 2. Chatterton’s 

affidavits are dated December 31, 2021. See ECF Nos. 88-5 at 4 & 88-6 at 4.

2 This distinguishes Chatterton and Schubert’s testimony from that of Michelle Blum, who 

ultimately testified in person, but who would have been permitted to testify remotely because she 

was unable to find long-term care (i.e., several weeks) for her dependent autistic son. 

3 See Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment (“Notice of a

desire to transmit testimony from a different location should be given as soon as the reasons are 

known, to enable other parties to arrange a deposition, or to secure an advance ruling on 

transmission so as to know whether to prepare to be present with the witness while testifying.”). 

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Chatterton’s testimony during discovery and preserve it for trial, or why Schubert’s 

deposition testimony will not suffice. 

The significance of Chatterton and Schubert’s live testimony in the context of 

this case cannot be overstated. “Vaughn’s credibility is the central issue in this trial,”

according to Defendants, see ECF No. 103-11 at 1, and these two witnesses will 

provide the only direct evidence (in the form of opinion testimony) on that “central”

issue. The witnesses may also have personal knowledge of some relevant facts, but 

it is clear from the pretrial briefing that any minimal import of their factual testimony 

will be far overshadowed by their personal opinions that Vaughn is a liar.

4

 In this 

Court’s view, absent the most compelling and unforeseeable of circumstances, 

opinion testimony of that nature demands a live, in-person presentation of both direct 

and cross-examination. See Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 

amendment (“The importance of presenting live testimony in court cannot be 

forgotten. The very ceremony of trial and the presence of the factfinder may exert a 

powerful force for truthtelling. The opportunity to judge the demeanor of a witness 

face-to-face is accorded great value in our tradition.”); Ballesteros v. Wal-Mart 

Stores, LP, No. 2:19cv881, 2021 WL 2917553, at 1 (M.D. Fla. July 12, 2021) 

(“There is no technology to date that can substitute for a juror looking a witness in 

4 This distinguishes Chatterton and Schubert’s testimony from that Sergeant Milton Moody 

in Adkins. Moody gave only basic fact testimony about Adkins’ service and, in any event, 

Defendants had no objection to remote testimony from Moody. 

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the eyes”). And as already discussed, Defendants’ proffered justifications for remote 

testimony are neither compelling nor unforeseeable. 

In short, Defendants have failed to show “good cause in compelling 

circumstances” to justify the relief sought. Accordingly, their motion for remote 

testimony, ECF No. 135, is DENIED.

SO ORDERED, on this 18th day of April, 2022.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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