Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF FLORIDA
`PENSACOLA DIVISION
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`IN RE: 3M COMBAT ARMS
`EARPLUG PRODUCTS
`LIABILITY LITIGATION
`
`This Document Relates to:
`Estes, 7:20cv137
`Hacker, 7:20cv131
`Keefer, 7:20cv104
`
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` Case No. 3:19md2885
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`Judge M. Casey Rodgers
`Magistrate Judge Gary R. Jones
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`PRETRIAL ORDER NO. 64
`Trial Time Allocation For The First Bellwether Trial
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`In this order, the Court sets time limits regarding the upcoming consolidated
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`bellwether trial in the Estes, No. 7:20cv137; Hacker, No. 7:20cv131; and Keefer,
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`No. 7:20cv104, cases, which is set for trial on March 29, 2021.
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`The Court has discussed the matter of time limits for trial with counsel for the
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`parties and has decided that setting reasonable limits on the amount of time allowed
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`for the parties to present their claims and defenses will prevent delay, ensure efficient
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`presentation of the evidence and arguments, avoid unnecessary, cumulative, and
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`repetitive evidence and arguments, and minimize undue burden on the jurors. It is
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`well-established that a court has the authority to impose reasonable time limits on
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`the parties at trial. See Fed. R. Civ. P. 16(c)(2)(D) & (O); Fed. R. Evid. 611(a).
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`The Court has discussed the overall length of the trial with the parties.
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`Considering that this is the first trial of the bellwether pools and the fact that the
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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:
`Estes, 7:20cv137
`Hacker, 7:20cv131
`Keefer, 7:20cv104
`
`
` Case No. 3:19md2885
`
`
`
`
`
`Judge M. Casey Rodgers
`Magistrate Judge Gary R. Jones
`
`
`PRETRIAL ORDER NO. 64
`Trial Time Allocation For The First Bellwether Trial
`
`In this order, the Court sets time limits regarding the upcoming consolidated
`
`
`
`
`
`
`
`bellwether trial in the Estes, No. 7:20cv137; Hacker, No. 7:20cv131; and Keefer,
`
`No. 7:20cv104, cases, which is set for trial on March 29, 2021.
`
`The Court has discussed the matter of time limits for trial with counsel for the
`
`parties and has decided that setting reasonable limits on the amount of time allowed
`
`for the parties to present their claims and defenses will prevent delay, ensure efficient
`
`presentation of the evidence and arguments, avoid unnecessary, cumulative, and
`
`repetitive evidence and arguments, and minimize undue burden on the jurors. It is
`
`well-established that a court has the authority to impose reasonable time limits on
`
`the parties at trial. See Fed. R. Civ. P. 16(c)(2)(D) & (O); Fed. R. Evid. 611(a).
`
`The Court has discussed the overall length of the trial with the parties.
`
`Considering that this is the first trial of the bellwether pools and the fact that the
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 2 of 7
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`Page 2 of 7
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`Court must begin criminal trials immediately following the conclusion of this trial,
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`the Court has decided to set aside five weeks for the trial, which is a generous amount
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`of time for this trial and is likely more than is necessary to complete the trial.
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`Nonetheless, even if over generous, the Court believes allowing five weeks is
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`prudent for the reasons mentioned.
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`The length of an average trial day in trials before the undersigned is 9.5 hours,
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`with the day starting at 8AM and ending at 5:30PM. The first half hour is reserved
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`for bench discussions on matters needing resolution by the Court. The remaining
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`9 hours is jury time. After accounting for a mid-morning, mid-afternoon, and
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`lunchtime break, and allowing some additional cushion time, the actual time in trial
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`with the jury each day is 7.5 hours. The Court reserves the right to extend any trial
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`day if warranted in order to complete the trial within the trial period set.
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`In this case, 24 business calendar days have been set aside for the trial, which
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`includes time for jury selection and opening statements on the first day and
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`instructions and closing arguments on the last day. The Court does not intend to
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`include those days in the time calculation, so the actual amount of charged time is
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`22 days. Thus, the Court allocates a total of one hundred sixty-five (165) hours to
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`this trial.
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`The Court has considered the parties’ positions on how this time should be
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`allocated. Plaintiffs argue for a 60/40 split and Defendants argue for a 50/50 split.
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`Case No. 3:19md2885/MCR/GRJ
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`Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 3 of 7
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`Page 3 of 7
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`The Court has decided that the time will be split 50/50, with each side having 82.5
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`hours to try their respective case, including a rebuttal case but excluding jury
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`selection, openings, closings, and jury instruction.1 As noted, in the Court’s view,
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`this amount of time is more than sufficient. This decision is based on the Court’s
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`decision to allow five weeks for the trial, instead of four, and to add an additional
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`day to the trial. See Order Amending Order Setting Trial and Pretrial Schedule, ECF
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`No. 1639. While the Court recognizes that there are multiple plaintiffs each having
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`the burden to prove their individual claims, it is also the case that Defendants carry
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`the burden of proof on their affirmative defenses, one of which will require
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`considerable time. Also, while the Court recognizes that the science in this case is
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`complex, both sides shoulder the responsibility of educating the jury on it.
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`Time will count against a side’s allocation whenever it is questioning a
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`witness, arguing an objection or other matters to the Court, or otherwise presenting
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`its case, including motions for judgment as a matter of law. Time spent arguing
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`evidentiary or other in limine matters after the final pretrial conference, including
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`the Court’s review of written submissions on such matters, will count against a side’s
`allocation.2 The Court also reserves the right to count the time spent following the
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`1 The Court will be the official timekeeper and its clock will be the official clock. The Court will
`keep track of each side’s time and notify counsel at regular intervals of the time used by each side.
`2 Time the Court spends reviewing written in limine submissions and hearing argument on such
`matters prior to or during the final pretrial conference will not count against a party’s allocation.
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`Case No. 3:19md2885/MCR/GRJ
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`Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 4 of 7
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`Page 4 of 7
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`start of the trial arguing jury instructions; i.e. the jury charge conference.
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`If a party intends to read or play deposition testimony before the jury, this may
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`require the Court to rule on objections to designated testimony. The reading of
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`deposition testimony will, of course, constitute trial time. Time will count against a
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`side’s allocation for all testimony that side has designated to be read or played by
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`video. The parties are directed to confer prior to the presentation of any deposition
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`testimony to attempt to agree on how the time spent reading or playing the deposition
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`should be allocated as between the parties. In this regard, the Court encourages the
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`parties to do their best to pare down deposition testimony to significant and non-
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`repetitive matters. In addition, all such time the Court spends before or during trial
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`considering each party’s objections to deposition testimony is time that would be
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`spent in court were the witnesses being presented live. For this reason, that time will
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`count against the side making the objection, unless and to the extent the Court
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`determines that the party designating the objected-to testimony has designated
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`testimony that has limited probative value, is otherwise unduly repetitive or
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`cumulative, or is patently inadmissible on other grounds. In that event, the time
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`spent by the Court considering the matter will count against the party that designated
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`the testimony.
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`The allocation of 165 hours is subject to reduction based on rulings barring or
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`limiting claims, precluding opinion witness testimony, and excluding or limiting
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`Case No. 3:19md2885/MCR/GRJ
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`Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 5 of 7
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`Page 5 of 7
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`evidence via in limine rulings and rulings made during trial. Additionally, the parties
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`are forewarned that the Court may reduce a party’s allotted time for, among other
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`things, presenting unduly cumulative testimony or evidence or evidence of minimal
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`probative value, or repeatedly making unwarranted objections to testimony or
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`exhibits.
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`With regard to exhibits, the Court directs the parties to attempt to pare down
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`their exhibit lists, resolve foundational objections to exhibits by stipulation or
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`otherwise, and attempt to narrow objections to exhibits to the extent reasonably
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`possible. This is in both sides’ interest, as it will reduce the time needed for resolving
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`objections at trial. The Court reserves the right to impose an overall limit on the
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`number of exhibits introduced by each side.
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`Further particulars of the rules for time allocation may be addressed at or
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`before the trial, although the Court will not reconsider the decisions outlined in this
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`Order.
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`In addition, with one exception explained below, the Court will exercise its
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`authority pursuant to Federal Rule of Evidence 611(a) to require that each witness
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`be called only once and will not be recalled later in the case, except to rebut evidence
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`offered later that the party wishing to recall the witness could not reasonably have
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`anticipated. Consistent with this directive, there will be no restriction on the scope
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`of cross-examination of a witness called by an adverse party. In addition,
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`Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 6 of 7
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`examination of a witness beyond redirect (beyond “recross,” for a witness called by
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`an adverse party) will not be permitted absent a showing at sidebar—for which the
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`requesting party will be charged time—that the immediately preceding examination
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`by the other side raised new points that the party has been unable to adequately
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`address.
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`For any adverse witness testimony presented via deposition by one side, the
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`Court will require the “cross” (which is really direct) of that witness to be presented
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`to the jury in the other side’s case. The other side, however, may present limited
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`clarification testimony excerpts in the presenting side’s case. The matter of what
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`testimony is true “clarification” versus direct must be discussed among the parties
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`with Judge Herndon’s assistance before being brought to the Court for resolution.
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`To the extent the party seeking to admit the clarification testimony fails to abide by
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`this directive, the testimony will not be allowed. Under no circumstances will the
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`Court entertain argument on this issue at trial.
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`To minimize interruptions in the jury’s receipt of evidence, the Court will
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`limit the number and extent of sidebar conferences while the jury is present in the
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`courtroom. If a party anticipates that a matter may come up during a witness’s
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`testimony that will require discussion outside the jury’s presence, the party should
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`raise the matter beforehand at a break. Where this does not occur, and discussion
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`outside the jury’s presence is requested or is necessary, the Court may require the
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`Case 3:19-md-02885-MCR-GRJ Document 1640 Filed 01/29/21 Page 7 of 7
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`Page 7 of 7
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`testimony to proceed while holding until the next break the issue to be discussed.
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`Finally, counsel for both sides are directed to advise witnesses, in advance of
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`their testimony, of in limine rulings that may impact the witness’s testimony—in
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`particular, rulings that preclude or limit admission of evidence about which the
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`witness might otherwise testify.
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`SO ORDERED, on this 29th day of January, 2021.
`M. Casey Rodgers
`M. CASEY RODGERS
`UNITED STATES DISTRICT JUDGE
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`Case No. 3:19md2885/MCR/GRJ
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