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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS

LIABILITY LITIGATION

This Document Relates to:

Baker v. 3M Co.

Case No. 7:20-cv-39

Case No. 3:19-md-2885

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

PLAINTIFF’S BRIEF ON INADMISSIBILITY OF CHERYL PARKER’S

DEPOSITION TESTIMONY AND C&P REPORT

Cheryl Parker is a clinical audiologist at the Department of Veterans Affairs 

who conducted a compensation and pension examination of Lloyd Baker on October 

16, 2009. Pursuant to the Federal Rules of Evidence and this Court’s prior orders,

Ms. Parker’s deposition testimony should be excluded in its entirety, and use of the

Compensation and Pension Exam Report (“the C&P Report”), Ex. 1 (D-BAKER26) should be limited to proper impeachment.1

I. Cheryl Parker’s Deposition Testimony Should Be Excluded.

Whether testimony from a VA clinician who conducted a C&P evaluation of 

a Plaintiff is admissible does not arise on a blank slate. The Court previously 

concluded that because “[t]he purpose of C&P exams is to determine disability status 

1 On Monday, May 17, Defendants informed Plaintiff that they intended to file a 

brief in support of the admissibility of both the C&P record and Parker’s 

testimony—despite the Court’s related orders in EHK and McCombs, see infra.

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and benefit eligibility, not to render substantive medical care or treatment . . . any 

VA determination [would] be highly prejudicial and confusing to the jury.” ECF 

No. 1729 at 4-5. Applying that order in McCombs, in the context of deposition 

testimony relating to a VA disability determination, the Court excluded the entirety 

of the VA evaluator’s testimony “because it is inextricably intertwined with the 

[VA’s] disability determination and service-related conclusions.” McCombs, ECF 

No. 99 at 1. At that time, the Court made clear that “such evidence is inadmissible 

as prejudicial and confusing under Fed. R. Evid. 403.” Id.

For the same reasons that Dr. Donaldson’s testimony was excluded in its 

entirety in McCombs, Ms. Parker’s deposition testimony should be excluded 

wholesale in Baker. Ms. Parker’s only interaction with Mr. Baker was an evaluation 

conducted exclusively for disability benefits purposes, and Defendants designated 

testimony is not just intertwined with the VA’s disability determination and servicerelated conclusions, but relates exclusively to that prejudicial and confusing context.

II. Use of the C&P Report Should Be Limited to Proper Impeachment.

The C&P Report contains the following statements:

IS THERE CLAIM FOR TINNITUS? Yes

IS THERE CURRENT COMPLAINT OF TINNITUS? Yes

LOCATION OF TINNITUS: Bilateral

DATE AND CIRCUMSTANCES OF TINNITUS ONSET: “When 

got back from Iraq last year.”

IS TINNITUS CONSTANT? Yes

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Ex. 1 at 2. During the meet and confer process, Defendants represented that they 

intend to argue that the onset statement should not be solely admissible for 

impeachment, but rather that they seek full admission of a redacted version of the 

C&P record. However, under this Court’s prior rulings, the C&P Report itself is 

inadmissible under Rule 403. See McCombs, ECF No. 113 at 2. No redactions can 

cure the prejudice and confusion that will result from the admission of pieces of an 

exam conducted for the sole purpose of determining disability status and benefit 

eligibility, not for substantive medical care or treatment. See ECF No. 1729 at 4-5.

Assuming arguendo that Baker denies the statement at trial, the use of DBAKER-26 should be limited, useable only for impeachment consistent with the 

Court’s prior orders.2 ECF No. 1729 at 4. If, however, Mr. Baker offers testimony 

consistent with the statement, the C&P Record will have no valid impeachment 

purpose, and the should not be useable.

3

 See id.

2 Should D-BAKER-26 be proper impeachment, Plaintiff proposes as Exhibit 2 to 

this motion additional redactions necessary to minimize the prejudice and 

confusion. See Ex. 2 (D-BAKER-26).

3 Also on May 17, two months after the deadline for the parties’ to exchange 

objections to each other’s exhibits, Defendants indicated that they planned to include 

in the same trial brief an unrelated argument that the Air Force memorandum and 

emails (P-GEN-02586, P-GEN-2602, and P-GEN-2660) should be excluded in 

Baker due to the absence of a punitive-damages claim. The admissibility of those 

documents has never been premised on the existence of a punitive-damages claim. 

As the Court has stated: “So long as Defendants intend to suggest to the jury that the 

military was aware of issues or problems associated with the CAEv2, evidence of 

what the military knew or believed about the earplug is highly probative.” 

McCombs, 20-cv-94, ECF No. 120. For the same reasons the documents were 

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CONCLUSION

For the foregoing reasons, the deposition testimony of Cheryl Parker should 

be excluded in its entirety, and D-BAKER-26 should be useable only as previously 

set forth in ECF No. 1729. 

Date: May 19, 2021 Respectfully submitted:

/s/ Sean P. Tracey

Sean P. Tracey 

(Admitted Pro Hac Vice)

Texas Bar No. 20176500

Shawn P. Fox 

(Admitted Pro Hac Vice)

Texas Bar No. 24040926

TRACEY FOX KING & WALTERS

440 Louisiana St., Suite 1901

Houston, TX 77002

Tel.: (713) 495-2333

stracey@traceylawfirm.com

sfox@traceylawfirm.com

Counsel for Plaintiff Lloyd Baker 

admitted in EHK and McCombs, Defendants’ objections to the admissibility of those 

documents should be overruled.

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(B), (C)

Pursuant to Local Rule 7.1(B), counsel for Plaintiffs certify that they 

conferred with Defendants’ counsel on May 17, 2021 regarding the foregoing 

motion but were unable to resolve the issues herein. Pursuant to Pretrial Order No. 

63, ECF No. 1612, the parties made a good faith effort to resolve the underlying 

dispute with Judge Herndon but were unsuccessful.

/s/ Sean Patrick Tracey

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CERTIFICATE OF SERVICE

I hereby certify that on May 19, 2021, I caused a copy of the foregoing

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

of record.

/s/ Sean Patrick Tracey

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