In re 3M Combat Arms Earplug Prods. Liab. Litig.

• Decision Date: 18 February 2022
• Docket Number: 7:20-cv-00006,3:19-md-2885
• Parties: IN RE 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, This Document Relates to Beal, 7:20-cv-00006 Kelley, 7:20-cv-00153 Vaughn, 7:20-cv-00134 Vilsmeyer, 7:20-cv-00113 Wilkerson, 7:20-cv-00035
• Court: U.S. District Court — Northern District of Florida

IN RE 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION, This Document Relates to Kelley, 7:20-cv-00153 Vaughn, 7:20-cv-00134 Vilsmeyer, 7:20-cv-00113 Wilkerson, 7:20-cv-00035

Beal, 7:20-cv-00006

No. 3:19-md-2885

No. 7:20-cv-00006

United States District Court, N.D. Florida, Pensacola Division

February 18, 2022

Judge M. Casey Rodgers

ORDER

GARY R. JONES, JUDGE

Pending before the Court are Plaintiffs' Motions to Authorize Remote Testimony Pursuant to Rule 43(a) From Elliott Berger. Master Docket ECF No. 2679.^[1] Defendants have filed responses to the motions in each of the cases.^[2] Although Elliott Berger-a non-party witness-filed in each of the cases a response in the form of an opposition to Plaintiffs' motions and a

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motion for protective order, Mr. Berger is not a party in these cases.^[3]Because Mr. Berger is not a party in any of these cases and has filed a miscellaneous action in which he advances his motion for protective order, see, case no. 3:22-mc-8-MCR-GRJ, to the extent that Mr. Berger's filings in the above referenced cases are considered motions for protective order the motions are denied.

For the reasons explained below, Plaintiffs' Motions to Authorize Remote Testimony Pursuant to Rule 43(a) from Elliott Berger are due to be granted. Plaintiffs will be permitted to subpoena Elliott Berger for remote live testimony in these five group D bellwether cases.

I. BACKGROUND

The five (5) bellwether trials in Group D are scheduled to take place between March and May 2022. For each of these trials Plaintiffs request authorization under Rule 43(a) of the Federal Rules of Civil procedure to obtain the testimony of Elliott Berger-a former 3M employee and current paid consultant-in open court by contemporaneous transmission from a location outside this district.

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This is not the first time the Court has been called upon to address this identical issue. In Baker v. 3M, case no. 7:20-cv-39-MCR-GRJ the Court there found that there were compelling circumstances under Rule 43(a) to permit the live remote transmission of Mr. Berger's testimony at trial. Baker, ECF No. 133. Similarly, on October 28, 2021, the Court granted an identical motion filed on behalf of eight bellwether plaintiffs, authorizing each of the eight bellwether plaintiffs to subpoena Mr. Berger to testify remotely by contemporaneous transmission. MDL ECF No. 2247. There, the Court concluded that compelling circumstances existed to permit remote testimony of Mr. Berger at the bellwether trials.

In the present case, Plaintiffs advance similar arguments previously presented to the Court in support of their request. Although Defendants recognize that the Court already has addressed this issue, they say the circumstances are now different because Mr. Berger has now testified at ten trials and, therefore, the Court should not permit Plaintiffs to subpoena Mr. Berger to testify ad infinitum. Alternatively, Defendants request that if the Court grants the motion the Court's ruling should apply equally to both parties so that Defendants will also have the right to compel Mr. Berger's live testimony under Rule 43(a).

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II. DISCUSSION

A witness's testimony at trial must be taken in open court unless a federal rule or statute allows otherwise. Fed.R.Civ.P. 43(a). When a party presents “good cause in compelling circumstances” and assures the Court of “appropriate safeguards, ” the Court “may permit testimony in open court by contemporaneous transmission from a different location.” Fed.R.Civ.P. 43(a).

An overwhelming consensus of federal courts, including MDL courts, have held that Rules 43(a) and 45 should be read in tandem. See, e.g., In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2017 WL 2311719, at *4 (E.D. La. May 25, 2017) (holding the MDL Plaintiffs' subpoena compelling a witness to testify by contemporaneous transmission “within 50 miles from his home and place of business” is “within the bounds of” Rule 45(c)); In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods. Liab. Litig., No. 3:11-md-2244-K, 2016 WL 9776572, at **1-2 (N.D. Tex. Sept. 20, 2016) (granting leave of court for the MDL Plaintiffs to “present testimony via contemporaneous video transmission for certain witnesses under Defendants' control that are unavailable to testify in the Northern District of Texas”); In re Actos (Pioglitazone) Prods. Liab. Litig., No. 6:11-md-2299, 2014 WL 107153, at *9 (W.D. La. Jan. 8, 2014) (“[T]he two Rules

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embrace and address the concept of appearance at ‘trial' to include contemporaneous live transmission from another location at the location of the Court.”).

Thus, as the Court previously found, a party may use a Rule 45 subpoena to compel remote testimony by a witness from anywhere so long as the place of compliance (where the testimony will be given by the witness and not where the trial will take place) is within the geographic limitations of Rule 45(c). This is because “the 100-mile limitation now found in Rule 45(c) has to do with the place of compliance; not the location of the court from which the subpoena issued.” Int'l Seaway Trading...