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: 

Baker, 7:20cv39

Estes, 7:20cv137

Hacker, 7:20cv131

Keefer, 7:20cv104

McCombs, 7:20cv94

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

Numerous expert challenges are pending before the Court, several of which 

relate to anticipated expert testimony regarding the Army Safety Program and, more 

specifically, the Army Hearing Program. Plaintiffs proffer two experts on the 

subject, Brigadier General (Retired) Timothy J. Edens and Sergeant Major (Retired) 

Blaine Huston,1 and Defendants proffer five, Dr. Eric Fallon, Lieutenant Colonel

(Retired) Vickie Tuten, Dr. James V. Crawford, Dr. Richard Neitzel, and Jennifer 

Sahmel.

2 Both sets of experts opine, based on their knowledge and experience, on 

the history, purpose, intent, and implementation of the programs. The experts also 

1 Plaintiffs do not intend to call their third “military” expert, SGM (Retired) Christopher 

Marshall, to testify at trial. Accordingly, this Order does not address SGM Marshall’s testimony.

2 Plaintiffs’ challenges to Dr. Neitzel and Jennifer Sahmel will be addressed by separate 

order.

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opine on the success (Plaintiffs) or failure (Defendants) of the Army’s hearing 

conservation efforts and on a purported “culture” of compliance (Plaintiffs) or 

non-compliance (Defendants) with the Army’s programs and regulations governing 

safety and hearing protection. Not surprisingly, both sides’ primary objections to the 

other’s experts are mirror images. Each argues that the other’s experts’ opinions are

not reliable because they are based on their limited and unquantifiable personal

experiences. In light of these parallel arguments, the Court finds it is appropriate to 

generally address the proper scope of these experts’ testimony before addressing 

particular expert-specific issues.

As a general matter, these experts’ testimony regarding the history, purpose, 

intent, and implementation of the Army Safety Program and Army Hearing Program

is proper to the extent it is reliably based on their experience with and knowledge of 

the programs. While none of the experts tie their opinions to any specific Plaintiff in 

this case, this portion of their testimony will be helpful in assisting the jury with 

understanding the Army’s safety and hearing conservation programs, which are 

relevant. For example, General Edens may opine on “organizational apparatus, 

regulations and policies” and explain why the prevention of hearing loss is “of 

particular importance to the Army” and how the Army seeks to implement the 

programs. See Edens Report at 2. Sergeant Major Hutson may opine about the 

success of Army’s training program and how well it works to promote safety and 

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hearing conservation based on his own personal observations. Similarly, LTC Tuten 

may opine on how her “personal experience as an audiologist revealed that there 

was a significant disconnect between what was required by regulation and what I 

was seeing done and complied with in practice.” See Tuten Report at 13 (emphasis 

added). Dr. Fallon and Dr. Crawford may also testify to a tension between combat 

readiness and hearing conservation to the extent the testimony is based on their own 

personal observations, experiences, or empirical research and not on speculation or 

on something relayed to them by others. See United States v. Frazier, 387 F.3d 

1244, 1262 (11th Cir. 2004) (emphasizing that an expert’s testimony must be 

“properly grounded, well-reasoned, and not speculative before it can be admitted” 

(quoting Fed. R. Evid. 702 advisory committee’s note to 2000 amendments)). 

However, the experts’ opinions regarding the Army-wide success or failure of 

hearing conservation efforts or a purported “widespread” culture of compliance or 

non-compliance with Army safety and hearing conservation program requirements 

is improper and will not be allowed.

For example,3 Plaintiffs’ experts opine that “all Soldiers and civilian 

personnel in the Army practice the culture of safety (including with respect to 

hearing protection),” see Edens Report at 2 (emphasis added), and that “the [Army 

3 The Court declines to parse each expert’s report and deposition to compile an exhaustive 

list of improper testimony that falls within this category. The following illustrative examples 

should suffice to enable counsel on both sides to tailor expert testimony at trial.

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Hearing Program] is very effective and is followed strictly across the Army,” see 

Huston Report at 14 (emphasis added). Defendants’ experts opine “as to the 

widespread non-use of hearing protection devices within the military,” see Fallon 

Notice at 9 (emphasis added), that “the [Army Hearing Program] was not 

implemented consistently across installations,” see Tuten Report at 5, and that the

entire Army “fell short” and “did not accomplish the task” of preventing hearing 

loss and protecting servicemembers’ hearing, see Crawford Report at 1. These 

witnesses fail to explain how their experiences (e.g., serving at specific military 

installations during certain periods of time or even as a Hearing Program Manager) 

or their methodologies (e.g., drawing broad conclusions about the entire Army based 

on their experience and at most a review of a handful of case depositions and expert 

reports) constitute a sufficiently reliable basis for their sweeping opinions of Armywide success, failure, compliance, or non-compliance.

4 See Frazier, 387 F.3d at

4 The cases cited by the parties in support of their arguments are distinguishable. Plaintiffs 

cite United States v. Colonial Pipeline Co., No. 1:00-CV-3142, 2003 WL 26131791 (N.D. Ga. Jan. 

14, 2003) and Mamani v. Berzaín, No. 08-21063, 2018 WL 1010582 (S.D. Fla. Feb. 22, 2018). In 

Colonial, the parties disputed the expert’s qualifications, not the reliability of his testimony. See 

2003 WL26131791, at *1. In Mamani, the court found that a cultural anthropologist’s opinion 

based on his years of study and research on Bolivian culture “(barely) pass[ed] muster under the 

Daubert standard.” 2018 WL 1010582, at *5. While a cultural anthropologist’s years of studying 

and researching a particular country’s culture may suffice to ensure the reliability of his opinions 

about that culture, the Court does not agree that the same can be said of these experts’ opinions

about the Army’s culture, something none of them have studied. Defendants cite Superior 

Consulting Services v. Shaklee Corp., No. 6:16-cv-2001, 2018 WL 3059995 (M.D. Fla. May 31, 

2018), Washington v. City of Waldo, Fla., No. 1:15CV73, 2016 WL 3545909 (N.D. Fla. Mar. 1, 

2016), and Allmond v. Akal Security, Inc., No. 4:05-cv-96, 2007 WL 988757 (M.D. Ga. Mar. 29, 

2007). The experts in those cases opined on limited issues such as a single business’s practices, 

see Superior Consulting, 2018 WL 3059995, at *5, a police department’s hiring of an officer, see 

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1261 (“[I]f the witness is relying solely or primarily on experience, then the witness 

must explain how that experience leads to the conclusions reached, why that 

experience is a sufficient basis for the opinion, and how that experience is reliably 

applied to the facts.”) (quoting Fed. R. Evid. 702 advisory committee’s note to 2000 

amendments)). In many instances, the opinions are based on unspecified

conversations with unidentified servicemembers and audiologists, see, e.g., Tuten

Report at 16, 18 (opining on the “frustrations expressed” by unidentified “military 

audiologists” and “anecdotal information relayed to me” by “soldiers”). There is no 

showing that these are sources of information “of a type reasonably relied on by 

experts in forming opinions or inferences” about the Army-wide level of success of 

a program or a purported Army-wide culture.

5 See United States v. Williams, 447 

F.2d 1285, 1291 (5th Cir. 1971). Allowing these experts to opine about 

circumstances throughout the entire Army based on limited personal accounts and 

Washington, 2016 WL 3545909, at *2–3, and the U.S. Marshals Service’s policy regarding hearing 

aids, see Allmond, 2007 WL 988757, at *4. While those experts’ experiences may have made their 

testimony regarding such limited issues sufficiently reliable, the Court finds that the parties’ 

experts’ experiences do not suffice to ensure the reliability of their opinions about Army-wide 

levels of success or compliance with hearing conservation efforts.

5 The Court recognizes that, in some fields of expertise, drawing conclusions based on the 

gathering, analyzing, and synthesizing of hearsay accounts may be a generally accepted 

methodology. See, e.g., United States v. Kantengwa, 781 F.3d 545, 561–62 (1st Cir. 2015) (finding 

that an expert’s method of drawing conclusions “based in part on the consistency of the accounts” 

he gathered regarding a historical fact was “consistent with generally accepted historical 

methodology”). But there is no indication that these experts’ reliance on hearsay in forming their 

opinions is a generally accepted methodology in any field of expertise, let alone in the fields of 

audiology or Army safety and hearing requirements.

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information relayed to them by an unspecified number of third parties would be to 

sanction their use as a vehicle for introducing hearsay testimony. See Marvel 

Characters Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013) (“[A] party cannot call 

an expert simply as a conduit for introducing hearsay under the guise that the 

testifying expert used the hearsay as the basis of his testimony.” (citation omitted)). 

Like the inadmissible expert testimony in Marvel, these portions of the parties’ 

experts’ opinions “do not bring their expertise to bear” because they are based on 

inferences that “are by and large undergirded by hearsay statements.” See id.; see 

also United States v. Pablo, 696 F.3d 1280, 1288 (10th Cir. 2012) (“If an expert 

simply parrots another individual’s out-of-court statement, rather than conveying an 

independent judgment that only incidentally discloses the statement to assist the jury 

in evaluating the expert’s opinion, then . . . the expert thereby becomes little more 

than a backdoor conduit for an otherwise inadmissible statement.”); Companhia 

Energetica Potiguar v. Caterpillar Inc., No. 14-24277, 2017 WL 10775768, at *30 

(S.D. Fla. June 12, 2017) (“Although an expert’s opinion is not subject to exclusion 

merely because the expert considered hearsay information, [the expert’s] opinions 

on these [hearsay statements] are not actually opinions – they are merely an attempt 

to focus on, and emphasize, certain facts which were developed.”), report and 

recommendation adopted, 2017 WL 10775767 (S.D. Fla. Dec. 14, 2017); Bowe v. 

Pub. Storage, No. 1:14-cv-21559, 2015 WL 10857339, at *8 (S.D. Fla. June 2, 2015) 

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(excluding portions of expert’s opinion that were “not based on his expertise and 

instead constitute a presentation of other evidence in the guise of an expert opinion” 

and were therefore “an improper presentation of hearsay evidence”).

The “relaxation of the usual requirement of firsthand knowledge” is 

“premised on an assumption that the expert’s opinion will have a reliable basis in 

the knowledge and experience of his discipline.” See Daubert v. Merrell Dow 

Pharm., Inc., 509 U.S. 579, 592 (1993). Here, the parties ask the Court to simply 

accept the experts’ opinions as reliable because the experts are experienced. This 

runs counter to Frazier and Daubert and is akin to asking the Court to accept the 

expert’s ipse dixit. See Frazier, 387 F.3d at 1261 (“If admissibility could be 

established merely by the ipse dixit of an admittedly qualified expert, the reliability 

prong would be, for all practical purposes, subsumed by the qualification prong.”). 

The bottom line is that there is no verifiable or quantifiable support for the opinion 

that the Army Hearing Program was a complete success or an utter failure at 

protecting servicemembers from hearing loss.6 These experts’ broad opinions are 

based solely on their own generalized views, anecdotal accounts, and speculation

and thus are not reliable. See id. at 1260.

6 To be sure, other than Department of Defense (“DoD”) regulations and Army guidance, 

which the experts merely recite, none of the experts addressed in this Order cite to or rely on any 

empirical evidence to support their opinion that the Army Hearing Program was a success or failure

during the relevant time frame.

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Accordingly, the parties’ Daubert motions are granted to the extent they seek 

to exclude expert testimony regarding Army-wide success, failure, compliance, or 

non-compliance with safety and hearing protection requirements.

A. Plaintiffs’ Experts

i. BG Edens

General Edens graduated from the United States Military Academy and 

served in the Army for thirty-three years, including as the Commanding General and 

Director of Army Safety, United States Army Combat Readiness/Safety Center. He 

directed the Army Safety Program, which encompassed hearing readiness and 

conservation. As previously stated, the Court finds that General Edens’ extensive 

experience and expertise in the Army Safety Program is a sufficiently reliable basis 

for his opinions and explanations regarding the operational apparatus, regulations 

and policies that form the program, the intent of the program, and how the Army 

sought to implement the program. Defendants’ objections that General Edens’ 

opinion is “contradicted by military data and record evidence that [he] did not 

consider” and that his command experience is limited to aviation soldiers goes to the 

weight of his testimony rather than its admissibility.

ii. SGM Huston

Sergeant Major Huston served in the Army for twenty-eight years. During his 

career, he served as an Infantry Drill Sergeant and trained thousands of 

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servicemembers regarding the circumstances under which they should use their 

assigned hearing protection devices. He also served as the Deputy Commandant of 

the United States Drill Sergeant School from 2012 to 2014, where he trained other

Army drill sergeants. The Court finds that Sergeant Major Huston’s extensive 

experience in the Army’s training of infantrymen and drill sergeants is a sufficiently 

reliable basis for his opinions and explanations regarding how the Army educates 

soldiers about hearing conservation and enforces compliance with hearing protection 

requirements. Defendants’ objections that Sergeant Major Huston’s opinion is 

“contradicted by military data and record evidence that [he] did not consider” and 

that his enforcement of hearing protection requirements did not entail verifying that 

soldiers’ earplugs were fitted properly goes to the weight of his testimony rather than 

its admissibility.

B. Defendants’ Experts

i. Dr. Fallon7

7 Defendants initially disclosed Dr. Fallon to Plaintiffs as a “3M employee with knowledge 

of 3M business operations and Combat Arms marketing, including to U.S. government 

customers.” See Def. Initial Disc., ECF No. 1560-4 at 2. Following his deposition testimony, 

Defendants subsequently disclosed Dr. Fallon as a hybrid witness “who may also provide expert 

testimony at trial.” See Emergency Mot. Protective Ord., ECF No. 1558-1 at 1–2. Defendants 

asserted that this testimony will be based on “’direct and personal knowledge’ that [Fallon] 

acquired about the CAEv2 and the military’s use of hearing protection” in the ordinary course of 

his job function. See id. at 2. Defendants have not submitted a Rule 26(a)(2)(B) expert witness 

report for Dr. Fallon and have instead submitted a Rule 26(a)(2)(C) disclosure. Plaintiffs do not 

challenge Dr. Fallon’s designation as a “hybrid witness.” As the Court indicated at the February 

5, 2021 hearing, Dr. Fallon’s fact testimony and expert opinion testimony will be clearly 

differentiated at trial. To the extent he purports to provide expert testimony, his testimony “must 

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Dr. Fallon served in the Army for twenty-four years, including as an 

audiologist, as the Hearing Conservation Program Manager at the United States 

Army Center for Health Promotion and Preventive Medicine (CHPPM), and as the 

Director of Audiology and Speech at the Walter Reed National Military Medical 

Center. Dr. Fallon was also involved in training Army medical personnel on fit and 

use of hearing protection devices, including the CAEV2. Based on his personal 

knowledge and experience, Dr. Fallon is expected to provide expert testimony on 

four primary topics: (1) the DoD’s and Army Hearing Program’s requirements and 

guidance as it relates to hearing conservation,8 (2) the manner in which this guidance 

was or was not implemented, (3) the use of the CAEv2 in the Army, and (4) “the 

widespread non-use of hearing protection devices within the military.”

The Court finds that Dr. Fallon’s experience as an Army audiologist and as 

Program Manager for the Army Hearing Program is a sufficiently reliable basis for 

his opinions and explanations regarding the operational apparatus, regulations and 

policies that form the program, the intent and purpose of the program, and how the 

Army sought to implement the program. Dr. Fallon may also opine as to his personal 

observations of how the Army Hearing Program was implemented at certain Army 

comply with the requirements of Rule 702 and the strictures of Daubert.” Williams v. Mast 

Biosurgery USA, Inc., 644 F.3d 1312, 1317–18 (11th Cir. 2011).

8 See DoD Instruction 6055.12 and the Department of the Army Pamphlet 40-501 (DA 

PAM 40-501).

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installations and whether the program’s requirements were followed at those 

installations to the extent of his personal knowledge. He can also testify to challenges 

he encountered as the Hearing Program Manager and program deficiencies he 

personally observed or experienced. However, Dr. Fallon’s personal experiences 

and knowledge as an audiologist and even as the Hearing Program Manager do not 

provide a reliable basis from which he can extrapolate sweeping expert opinions 

about the deficiencies in the implementation of the Army Hearing Program 

throughout the entire Army and the impact of those deficiencies on servicemembers 

as a whole. See Frazier, 387 F.3d at 1261. Dr. Fallon has no quantifiable or 

verifiable support for that broad opinion.

Also, while Dr. Fallon may explain how he personally trained and instructed 

Army medical personnel on the use of the CAEv2, he may not opine on what was 

“understood” or “well-known” by “the military” or “the military audiology 

community” regarding hearing protection in general or the CAEv2 more 

specifically. See Bartlett v. Mut. Pharm. Co., Inc., 742 F. Supp. 2d 182, 195 (D.N.H. 

2010) (“[M]ost courts have prohibited experts from testifying . . . about ‘what 

doctors generally think,’ unless the testimony is based on something more reliable 

than simply the expert’s own experience as a doctor.”). Dr. Fallon states as support 

for his opinion that at least one other audiologist, i.e., Lieutenant Colonel Kathy 

Gates, knew that the CAEv2 was not a “one-size-fits-all-hearing-protector;” 

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however, Dr. Fallon has not provided any other basis, such as a survey or a widely 

distributed publication or even an email, to support the extrapolation of this 

knowledge to the entire military audiology community. Furthermore, while training 

materials and the wallet card do state that fit may be achieved for those with “very 

large” or “exceptionally large” ear canals by folding back the opposing flange of the 

CAEv2, this does not show knowledge by the entire Army audiology community of 

the instruction.9

 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“Trained 

experts commonly extrapolate from existing data. But nothing in either Daubert or 

the Federal Rules of Evidence requires a district court to admit opinion evidence that 

is connected to existing data only by the ipse dixit of the expert.”). Defendants have 

not provided evidence for the number of audiologists who received the training or 

the wallet card. Likewise, they have not provided any verifiable or quantifiable 

support for Dr. Fallon’s expert opinion that “a very low percentage of 

servicemembers were required to roll back [the] opposing flange of the CAEv2 to 

obtain adequate fit . . . .” See Fallon Notice at 8–9. While Dr. Fallon may give an 

estimate for the percentage of servicemembers he personally fit with the CAEv2 who 

9 The training and reference materials include PowerPoint presentations and wallet cards 

that include the terminology, “[f]or very large ear canals, fold the opposing plug back.” The

training materials and wallet card are admissible. The opinion that every audiologist in the Army 

knew of the fold-back instruction is not.

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did not need to roll back the opposing flange, he cannot speak in generalities about 

all servicemembers.

Similarly, Dr. Fallon’s limited personal experiences do not provide a basis for 

a reliable expert opinion on how “the military tend[s] to test our products and make 

their own determinations about how a product performs and how to use the product.” 

See, e.g., Fallon Depo. Tr. (12/20/2020) at 115:4–11 (“I really can’t speak to what 

they did to test the [CAEv2]. . . . I have a – a vague memory of the Army Research 

Lab doing some attenuation testing [of the CAEv2], but I – I really don’t know any 

more specifics of it other than that.”), 127:1–18 (“I honestly don’t have an opinion 

on who should provide those instructions [for the CAEv2] . . . I do not have 

knowledge of that. I was not part of that contract with the manufacturer.”). Notably, 

Dr. Fallon joined CHPPM after the CAEv2 has already been purchased by the Army. 

See Fallon Depo. Tr. (09/04/2020) at 873:3–8 (testifying that he was not part of the 

evaluation the CAEv2 before it was approved); Fallon Depo. Tr. (12/22/20) at 

116:25-117:6 (acknowledging he was not stationed at CHPPM prior to 2003).

Additionally, while Dr. Fallon may testify as to his personal observations of 

servicemembers’ use of hearing protection devices, he may not testify as to 

“widespread” practices based solely on his observation of “at least one example in 

Iraq” of an unspecified unit. See Fallon Depo. Tr. (12/20/2020) at 60:8–24. 

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Finally, Dr. Fallon also may not testify that “better deaf than dead” was a 

“commonly used phrase within the military.” To the extent Defendants’ contend this 

is “expert” testimony, it is due to be excluded under Rule 403. The testimony is of 

little, if any, probative value because there is no evidence that any Plaintiff used the 

phrase and any probative value is substantially outweighed by the danger of unfair 

prejudice. See Frazier, 387 F.3d at 1263 (“[T]he judge in weighing possible 

prejudice against probative force under Rule 403 . . . exercises more control over 

experts than over lay witnesses.” (citation omitted)).10

ii. LTC Tuten

LTC Tuten served for approximately twenty-seven years as an audiologist in 

the Army, including as the Chief of Audiology at Brooke Army Medical Center and 

the Chief of Hearing Conservation at Fort Hood and Fort Bragg. The Court finds 

that LTC Tuten’s experience as an Army audiologist and Chief of Hearing 

Conservation at various installations provides a sufficiently reliable basis for her 

opinions and explanations regarding the DoD’s and Army Hearing Program’s 

regulations and requirements. She may also testify as to her personal experiences 

and observations of the Army Hearing Program’s implementation, including a 

perceived lack of resources and support from medical and operational resources at 

10 Even if this were within the bounds of Dr. Fallon’s “fact” testimony, it is due to be 

excluded as inadmissible hearsay. 

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installations where she was stationed or installations she otherwise has personal 

knowledge of. LTC Tuten may not, however, testify that any lack of resources 

and/or operational support constituted a failure of the Army Hearing Program

Army-wide and led to hearing injuries in servicemembers as a whole. She has no 

quantifiable or verifiable support for that broad opinion. Similarly, LTC Tuten may 

not testify that she “understand[s] that information was provided by the Army Public 

Health Command regarding a recommendation to roll the last flange back to get a 

better insertion of the CAEv2” or that “anecdotal information relayed to me was that 

no instruction was provided by the military staff handing out the CAEv2.” See Tuten 

Report at 17, 18. Such speculation is wholly improper from any witness, much less 

an expert.

iii. Dr. Crawford

Dr. Crawford is board-certified in Otolaryngology and Neurotology and 

served in the Army for twenty-four years. He was the Chief of Otology/Neurotology 

at the Madigan Army Medical Center and represented the Army on the Executive 

Committee of the Hearing Center of Excellence. Based on his experience, Dr. 

Crawford intends to opine “about the regulations governing the Army Hearing 

Program and areas in which the Army fell short of implementing those regulations 

and did not accomplish the task of preventing hearing loss and protecting 

Servicemembers’ hearing.” See Crawford Report at 1.

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First, the Court finds that Dr. Crawford’s experience is a sufficiently reliable 

basis for his opinions and explanations of the Hearing Center of Excellence, the 

regulations governing the Army Hearing Program, and the importance of training 

and instruction relating to, and fitting of, hearing protection devices. Dr. Crawford 

may also opine on “the fact that medical readiness and hearing conservation are 

distinct” and testify about his personal experiences and observations of the 

“significant gaps in the training and fitting of hearing protection devices.” However, 

Crawford provides no factual basis for his “understanding that Servicemembers were 

often provided hearing protection . . . without instruction or individual fitting.” See 

Crawford Depo. Tr. at 172:23–173:4 (“Q: Okay. So you don’t have any evidence, 

other than anecdotal statements or hearsay conversations with people; correct? 

[objection omitted] A: Correct.”). He has no research study, no data—nothing—to 

substantiate this sweeping statement. While Dr. Crawford can testify to what a 

particular servicemember told him about hearing protection to the extent it relates to 

diagnosis or treatment, he cannot generalize about all servicemembers often not 

receiving instruction and fitting with their hearing protection devices. Similarly, Dr. 

Crawford provides no reliable factual basisfor his opinion on what was “well-known 

within the military audiologist community and among relevant medical staff” or 

what was “understood within the military.” See Bartlett, 742 F. Supp. 2d at 195. This 

is pure speculation and, again, improper, especially from an expert witness. And 

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like Dr. Fallon and LTC Tuten, Dr. Crawford has no quantifiable or verifiable 

support for the opinion “that the Army fell short of implementing [its] regulations 

and did not accomplish the task of preventing hearing loss and protecting 

Servicemembers’ hearing” and thus he may not offer it. 

Several of Dr. Crawford’s other opinions are also unreliable ipse dixit. See 

Frazier, 387 F.3d at 1261. First, Dr. Crawford opines that “in [his] experience . . . 

the military placed greater emphasis on its own testing over [Noise Reduction 

Rating] values.” Second, he opines that “it has been [his] experience” that the 

military undertook responsibility for providing instruction and training on the use of 

military protection and did not rely on the instructions or training from the 

manufacturer.11 Third, Dr. Crawford intends to suggest to the jury that the Army 

should have done more than the DoD regulations and Army guidance required by 

using “individual fit testing” and personal attenuation ratings for servicemembers; 

however, he concedes these are merely best practices suggested by the Center of 

Hearing Excellence and not the standard of care in either the military, federal 

11 Citing their deposition testimony, Dr. Crawford claims that his “experience is consistent 

with that of” Dr. Fallon and two fact witnesses. But none of these other witnesses are qualified to 

opine on this subject. Indeed, as noted, Dr. Fallon conceded in his deposition that he did not know 

whether Aero was required by the contracting documents to provide the CAEv2 training materials 

to the military and he only assumed the military would have created its own materials. See Fallon 

Depo. Tr. (12/20/2020) at 127:1–18. And even assuming they were qualified, none reached their 

conclusion using a reliable methodology. See Hendrix v. Evenflo Co., Inc., 255 F.R.D. 568, 607 

n.75 (N.D. Fla. 2009) (“Experts may not . . . simply repeat or adopt the findings of other experts 

without investigating them.”), aff’d, 609 F.3d 1183 (11th Cir. 2010).

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government, or private sectors. See Crawford Depo. Tr. at 254:11–255:8, 263:5–17.

It would be improper for Dr. Crawford to suggest to the jury that the Army failed its 

servicemembers by not following an aspirational protocol.

Finally, Dr. Crawford opines that “[m]ore recently,” the HCE developed a set 

of training materials called “HEAR.” Neither Defendants nor Dr. Crawford indicate 

that the HEAR training materials were in place for any Plaintiff in this case. 

Accordingly, this testimony is excluded because it will not be helpful to the jury. See 

McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (explaining that expert 

testimony is unhelpful to the trier of fact unless a “fit” exists between the “offered 

opinion and the facts of the case”).

Accordingly, 

1. The parties’ Daubert motions, ECF Nos. 1595 & 1605, are GRANTED in 

part and DENIED in part. 

2. The motions are GRANTED to the extent they seek to exclude the 

portions of General Edens’, Sergeant Major Huston’s, Dr. Fallon’s, LTC 

Tuten’s, and Dr. Crawford’s expert opinions identified as unreliable, 

unhelpful, or unduly prejudicial in this Order. 

Case 7:20-cv-00137-MCR-GRJ Document 60 Filed 02/11/21 Page 18 of 19
Page 19 of 19

CASE NO. 3:19-md-02885/MCR/GRJ

3. The motions are DENIED to the extent they seek to exclude these experts’ 

opinions in their entirety.

DONE AND ORDERED this 11th day of February 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case 7:20-cv-00137-MCR-GRJ Document 60 Filed 02/11/21 Page 19 of 19