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 Order addresses Plaintiffs’ motions in limine in Jonathan Vaughn’s 

case.1

 See ECF No. 91. 

1. Vaughn’s VA/DoD Joint Disability Evaluation Board Claim

DEFER RULING. Separate order to follow.

2. VA C&P Materials

GRANTED IN PART and DENIED IN PART. GRANTED, as to 

evidence regarding documents related solely to VA compensation and pension 

applications, disability benefits questionnaires, and benefits determinations. These 

materials are generally inadmissible, consistent with the Court’s prior rulings on this 

issue, which are incorporated by reference. See Montero v. 3M, No. 7:20cv067, ECF 

No. 78 at 2 (collecting prior rulings). GRANTED, also consistent with prior rulings, 

as to statements not authored by Vaughn.

1 Defendants did not file motions in limine in Vaughn’s case. 

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DENIED, as to audiometric test data set forth in Vaughn’s C&P materials. 

Medical/audiological experts may cite and discuss the results of certain objective 

tests conducted by or for the VA, including audiograms, to the extent that the experts 

relied on the tests in reaching their respective opinions. However, the tests 

themselves will not be admitted into evidence, no VA personnel or contractors may 

testify about the tests or the agency’s administrative decisions, and no reference the 

VA C&P process will be permitted.

DENIED, as to the use of certain plaintiff-authored statements to the VA for 

impeachment purposes. Defendants have identified one C&P document with 

statements that they intend to use in this manner at trial. The Court’s rulings as to 

those statements are provided below. To be clear, the admissibility of any plaintiffauthored statement to the VA will depend on Vaughn’s testimony at trial. If Vaughn 

does not deny making the statements, then Defendants will not be permitted to use 

the statements at all. See, e.g., Finley, No. 7:20cv170, ECF No. 85 at 8-9. However, 

if Vaughn denies making a statement or does not remember it, Defendants will be 

permitted to use the statement solely for impeachment purposes. See id. Should 

Vaughn open the door to impeachment by contradiction, Defendants may only use 

the single specific statement(s) on the applicable VA form and the additional 

information indicated below. All other information on the form must be redacted 

and the context must be referred to only as a prior statement to a health care 

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professional for the VA. No other information from the form, and no information 

about Vaughn’s VA claim, is relevant for impeachment. This does not open the door 

to any and all potential impeachment information in any VA disability record, for 

any case. For Vaughn’s case, the only such information that the Court will consider 

for impeachment purposes are the materials identified below. Defendants are 

precluded from citing additional materials from the VA C&P records at trial. 

Additionally, Defendants are on notice that, even with redactions, use of the below 

exhibits may open the door to testimony from Vaughn explaining the broader context 

of the statements on redirect, which will be accompanied by a limiting instruction 

from the Court regarding the VA benefits process.

Highlighted Statements Rulings Additional Information

Name, signature and date blocks, 

ECF No. 88-13 at 2, 5

May be shown if one or more of 

the below statements is used for 

impeachment purposes

Civilian and military work history, 

ECF No. 88-13 at 2-3

Impeachment only

Explanation of current difficulties, 

ECF No. 88-13 at 5

Impeachment only Must redact the phrase “WITH ANY OF 

YOUR DISABILITIES” from the 

header

Medical treatment received or 

receiving, ECF No. 88-13 at 5

Impeachment only

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3. Improper Character Evidence and/or Alleged Bad Acts

GRANTED, as to general “employment reviews, [alleged] inadequate work 

practices or improper prescribed work methods (including the accident that result in 

finger injury), the alleged basis for [Vaughn’s] termination from Progress Rail, and 

the resulting employment action.” See Pl. Mot., ECF No. 91-19 at 5. This includes 

the letter allegedly authored by Lonnie Stanfield, which is irrelevant hearsay and 

substantially more prejudicial than probative.

DENIED, as to the portions of the 2004 Progress Rail Services Health History 

form where Vaughn noted “RINGING IN EARS,” see ECF No. 91-13 at 3, and 

“Ringing in ears sometimes” and “No hearing problems,” see id. at 5. These 

notations are probative of Vaughn’s alleged history of auditory symptoms. 

4. Social Security Applications, Claims and/or Benefits

GRANTED IN PART and DENIED IN PART, consistent with the Court’s 

prior rulings on this issue, which are incorporated by reference. See Adkins, 

7:20cv012, ECF No. 91 at 1-2. Vaughn is not claiming diminished earnings or 

employability; therefore, the contents of his social security applications are only 

marginally relevant in this case, if at all. Further, he did not make statements 

denying his tinnitus or hearing issues in connection with those benefits applications, 

and the absence of a reference to tinnitus and hearing issues is irrelevant. See id. at 

2 n.1. Any nominal probative value of those applications is outweighed by 

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substantial risk of unfair prejudice and juror confusion; therefore, they may not be 

offered as substantive evidence.

Defendants also seek to use certain plaintiff-authored statements in the social 

security applications for impeachment purposes. If Vaughn’s wife testifies, 

Defendants seek to use her written statements to the SSA for impeachment purposes

on cross-examination. The Court’s rulings as to the statements cited and highlighted

in Defendants’ briefing are provided below. To be clear, the use of these reported 

statements for impeachment is governed by the same rules as plaintiff-authored 

statements to the VA (outlined above in the Court’s ruling on Vaughn’s MIL No. 3). 

Highlighted Statements Rulings Additional Information

Personal Pain Questionnaire, ECF 

No. 88-17 at 4-5

Impeachment only In addition to the highlighted statements 

(and corresponding questions), only the 

name, signature and date blocks may be 

shown. All other information must be 

redacted.

Headache Questionnaire, ECF No. 

88-17 at 6-7

Impeachment only Same as above

Function Report-Adult, ECF No. 

88-18

Impeachment only Same as above

Independent Living Needs 

Interview Guide, ECF No. 88-19

Impeachment only Same as above

Function Report-Adult-Third 

Party (Vaughn’s wife), ECF No. 

88-20 

Impeachment only (Vaughn’s wife

only)

Same as above

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5. Marijuana, Alcohol, Tobacco, and/or Non-Ototoxic Drugs

GRANTED, as unopposed, regarding marijuana, vaping, tobacco, and 

alcohol use.

GRANTED, as to evidence or argument that medications used by Vaughn, or 

chemical substances (including welding fumes/gases) to which he was exposed, are 

ototoxic. As to the former, Dr. Dennis Pappas, Defendants’ case-specific expert, 

concluded that is “unlikely” that Vaughn’s hearing difficulties and tinnitus are due 

to ototoxic medications; therefore, references to the potential ototoxicity of 

Vaughn’s medications are excluded on relevance and 403 grounds. See Pappas Rep., 

ECF No. 2716-28 at 42, 51. This ruling does not preclude references to a particular 

medication for another permissible purpose (e.g., Percocet for chronic pain has side 

effects that Defendants maintain bear on Vaughn’s quality of life claims). As to 

other chemical substances, no evidence has been presented in this litigation 

establishing a causal relationship between welding fume exposure and auditory 

injuries; therefore, references to any potential ototoxicity of welding fumes/gases is 

excluded on reliability and 403 grounds. 

6. 3M’s Witness List

GRANTED, as to Eileen Kline and Kevin Michael. See In re 3M, No. 

3:19md2885, ECF No. 2244; Adkins, No. 7:20cv012, ECF No. 91 at 5.

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GRANTED, as to the Curry-Mathis “study” about CAEv2 sizing, the 

“survey” on soldier feedback, and anecdotal testimony about the CAEv2’s efficacy. 

See Sloan, No. 7:20cv001, ECF No. 109 at 9. 

DENIED AS MOOT, regarding general testimony from Curry-Mathis, based 

on Defendants’ representation that they will not call her at trial “absent dooropening.” To the extent Defendants believe the door has been opened, they must 

seek leave of court outside the presence of the jury before offering Curry-Mathis’s

testimony.

SO ORDERED this 5th day of April, 2022.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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