throbber
Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 1 of 19
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`IN RE: 3M COMBAT ARMS
`EARPLUG PRODUCTS
`LIABILITY LITIGATION
`
`This Document Relates to:
`McCombs, 7:20cv94
`Baker, 7:20cv39
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF FLORIDA
`PENSACOLA DIVISION
`
`
` Case No. 3:19md2885
`
`
`
`
`
`Judge M. Casey Rodgers
`Magistrate Judge Gary R. Jones
`
`
`ORDER
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`
`
`
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`This Order addresses the parties’ remaining expert challenges to Dr. Packer
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`(Baker), Dr. Fagelson (McCombs), and Dr. Driscoll in (McCombs), and resolves the
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`parties’ omnibus motions to exclude these experts under Federal Rule of Evidence
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`702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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`I.
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`Legal Standard
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`Rule 702, as explained by Daubert and its progeny, governs the admissibility
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`of expert testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).
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`Under Rule 702 and Daubert, district courts are compelled to act as “gatekeepers”
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`to ensure the reliability and relevancy of expert testimony. Id. (quoting Daubert,
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`509 U.S. at 589). Expert testimony is reliable and relevant—and, therefore,
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`admissible—when the following criteria are met: (1) the expert is sufficiently
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`qualified to testify about the matters he intends to address; (2) the methodology used
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`is “sufficiently reliable as determined by the sort of inquiry mandated in Daubert;
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`and (3) the testimony assists the trier of fact, through the application of scientific,
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`technical, or specialized expertise, to understand the evidence or to determine a fact
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`in issue.” Id. The Eleventh Circuit refers to these criteria separately as
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`“qualification, reliability, and helpfulness,” United States v. Frazier, 387 F.3d 1244,
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`1260 (11th Cir. 2004), and has emphasized that they are “distinct concepts that courts
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`and litigants must take care not to conflate,” Quiet Tech. DC-8, Inc. v. Hurel–Dubois
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`UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). The party offering the expert has
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`the burden of showing, by a preponderance of the evidence, that each of these
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`requirements is met. Rink, 400 F.3d at 1292.
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`To meet the qualification requirement, a party must show that its expert has
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`sufficient “knowledge, skill, experience, training, or education to form a reliable
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`opinion about an issue that is before the court.” Hendrix ex. Rel. G.P. v. Evenflo
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`Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010) (citing Fed. R. Evid. 702) (“Hendrix
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`II”), aff’g 255 F.R.D. 568 (N.D. Fla. 2009) (“Hendrix I”). Importantly, if a “witness
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`is relying solely or primarily on experience, then the witness must explain how that
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`experience leads to the conclusion reached, why that experience is a sufficient basis
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`for the opinion, and how that experience is reliably applied to the facts.” Frazier,
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`387 F.3d at 1261 (quoting Fed. R. Evid. 702 advisory committee’s note to 2000
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`amendments). The qualifications standard for expert testimony is “not stringent”
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`and “[s]o long as the witness is minimally qualified, objections to the level of [his]
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`expertise [go] to credibility and weight, not admissibility.” Hendrix I, 255 F.R.D. at
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`585.
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`To meet the reliability requirement, an expert’s opinion must be based on
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`scientifically valid principles, reasoning, and methodology that are properly applied
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`to the facts at issue. Frazier, 387 F.3d at 1261-62. The reliability analysis is guided
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`by several factors, including: (1) whether the scientific technique can be or has been
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`tested; (2) whether the theory or technique has been subjected to peer review or
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`publication; (3) whether the technique has a known or knowable rate of error; and
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`(4) whether the technique is generally accepted in the relevant community. Daubert,
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`509 U.S. at 593-94, 113 S.Ct. 2786. “[T]hese factors do not exhaust the universe of
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`considerations that may bear on the reliability of a given expert opinion, and a federal
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`court should consider any additional factors that may advance its Rule 702
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`analysis.” Quiet Tech., 326 F.3d at 1341. The court’s focus must be on the expert’s
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`principles and methodology, not the conclusions they generate. Daubert, 509 U.S.
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`at 595, 113 S.Ct. 2786. The test for reliability is “flexible” and courts have “broad
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`latitude” in determining both how and whether this requirement is met. Kumho Tire
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`Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999).
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`Finally, to satisfy the helpfulness requirement, expert testimony must be
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`relevant to an issue in the case and offer insights “beyond the understanding and
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`experience of the average citizen.” United States v. Rouco, 765 F.2d 983, 995 (11th
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`Cir. 1985). Relevant expert testimony “logically advances a material aspect of the
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`proposing party’s case” and “fits” the disputed facts. McDowell v. Brown, 392 F.3d
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`1283, 1298-99 (11th Cir. 2004). Expert testimony does not “fit” when there is “too
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`great an analytical gap” between the facts and the proffered opinion. Gen. Elec. Co.
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`v. Joiner, 522 U.S. 136, 147 (1997).
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`“Because of the powerful and potentially misleading effect of expert evidence,
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`sometimes expert opinions that otherwise meet the admissibility requirements may
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`still be excluded [under Federal Rule of Evidence] 403.” Frazier, 387 F.3d at 1263
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`(internal citations excluded). “Exclusion under Rule 403 is appropriate if the
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`probative value of otherwise admissible evidence is substantially outweighed by its
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`potential to confuse or mislead the jury, or if the expert testimony is cumulative or
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`needlessly time consuming,” or if it is otherwise unfairly prejudicial. Id. “Indeed,
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`the judge in weighing possible prejudice against probative force under Rule 403 . . .
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`exercises more control over experts than over lay witnesses.” Id. “Simply put,
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`expert testimony may be assigned talismanic significance in the eyes of lay jurors,
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`and, therefore, the districts must take care to weigh the value of such evidence
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`against its potential to mislead or confuse.” Id.
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`When scrutinizing the reliability, relevance, and potential prejudice of expert
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`testimony, a court must remain mindful of the delicate balance between its role as a
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`gatekeeper and the jury’s role as the ultimate factfinder. Frazier, 387 F.3d at 1272.
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`The court’s gatekeeping role “is not intended to supplant the adversary system or the
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`role of the jury.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.
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`1999). Only the jury may determine “where the truth in any case lies” and the court
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`“may not usurp this function.” Frazier, 387 F.3d at 1272. Thus, a court may not
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`“evaluate the credibility of opposing experts” or the persuasiveness of their
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`conclusions, Quiet Tech., 326 F.3d at 1341; instead, its duty is limited to “ensur[ing]
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`that the fact-finder weighs only sound and reliable evidence,” Frazier, 387 F.3d at
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`1272.
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`II. Defendants’ Experts
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`Plaintiffs’ remaining expert challenge is directed to opinions of Dennis
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`Driscoll. Driscoll is a mechanical engineer and board-certified noise control
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`engineer. He obtained his master of science in mechanical engineering in 1980 and
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`has worked an acoustical consultant since 1998. Driscoll Rep., ECF No. 1595-67,
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`at 3, 12. He is currently President and Principal Consultant of his own professional
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`acoustical engineering firm, Driscoll Acoustics, LLC, which specializes in “noise
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`measurement, noise exposure assessment, noise control engineering, and hearing
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`loss prevention.” Id. at 3.
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`
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`Driscoll offers several opinions in McCombs’ case regarding his hearing
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`injuries and his use of hearing protection devices while in the military. More
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`specifically, Driscoll opines that (1) McCombs faced a “significant risk” for noise-
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`induced hearing loss and tinnitus at the time a military truck on which he was
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`positioned as the gunner was struck by an improvised explosive device (IED) in
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`Afghanistan in 2009; (2) McCombs does not have noise-induced hearing loss
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`(NIHL) as a result of his military service; and (3) “[t]he audiograms of Mr.
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`McCombs support that the hearing protection devices he used during his service
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`protected his hearing.”1 See Driscoll Rep., ECF No. 1595-67 at 8. Plaintiff argues
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`that Driscoll’s opinions must be excluded because he is not qualified, and he also
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`fails to provide a reliable methodology, to support his opinion on the cause of
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`McCombs’ tinnitus and “related injuries.” Plaintiff also argues that the remainder
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`of Driscoll’s opinions are unhelpful to the jury.
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`First, Driscoll will not be permitted to offer the opinion that McCombs does
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`not have noise-induced hearing loss as a result of his military service. Driscoll is
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`not qualified to diagnose McCombs’ hearing injuries or opine on why McCombs
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`does not have noise-induced hearing loss because he is an engineer, not a medical
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`doctor or audiologist, he has no medical education, training, or experience, and he
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`has never treated or diagnosed a patient for tinnitus or hearing loss. Driscoll Dep.,
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`1 Defendants argue that Driscoll offers only two opinions, not three, as set out in his report.
`According to Defendants, Driscoll’s conclusion that McCombs does not have noise-induced
`hearing loss from his Army service is merely an assumption on which Driscoll may rely for the
`basis of one of his other opinions. See Defs.’ Resp., ECF No. 1627 at 62. But at his deposition,
`Driscoll testified that this conclusion is specifically “not an assumption,” but rather a separate
`expert opinion he is offering in McCombs’ case. See Driscoll Dep., ECF 1627-51 at 5-6, 8.
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`ECF No. 1595-68 at 3-4; see In re 3M Combat Arms Earplug Prod. Liab. Litig., No.
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`3:19MD2885, 2021 WL 830309, at *6 (N.D. Fla. Mar. 4, 2021) (Rodgers, J.)
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`(precluding specific causation opinions of mechanical engineer because he was not
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`a medical doctor or audiologist); Day v. RM Trucking, Inc., No. 3:11-CV-400-J-25
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`MCR, 2012 WL 12906568, at *1 (M.D. Fla. Aug. 31, 2012) (allowing qualified
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`biomechanical expert to provide biomechanical testimony but not testimony “that
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`specifically opines that the forces exerted in the crash did not cause Plaintiff’s
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`specific injuries”); see also Lebron v. Sec’y of Fla. Dep’t of Child. & Fams., 772
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`F.3d 1352, 1368 (11th Cir. 2014) (“Expertise in one field does not qualify a witness
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`to testify about others.”).
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`Even if Driscoll was qualified to offer this specific-causation opinion, Plaintiff
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`argues that the opinion is “merely a restatement of the diagnoses made by other
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`experts” and is not supported by a reliable methodology.2 Pls.’ Mot., ECF No. 1595
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`at 71. The Court agrees. “A scientist, however well credentialed he may be, is not
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`permitted to be the mouthpiece of a scientist in a different specialty.” Dura Auto.
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`Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002); TK-7 Corp. v.
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`Est. of Barbouti, 993 F.2d 722, 732 (10th Cir. 1993) (finding expert testimony
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`2 Plaintiff also argues that Driscoll’s opinion is unreliable because it is not supported by a
`differential diagnosis. But as this Court previously held, an expert’s failure to perform a
`differential diagnosis in rendering a specific causation opinion alone does not compel exclusion of
`the expert’s testimony if the opinion is otherwise reliable. In re 3M, No. 3:19MD2885, 2021 WL
`830309, at *5 (N.D. Fla. Mar. 4, 2021) (Rodgers, J.).
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`inadmissible where he adopted the predictions of another expert” because he “in
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`essence assumed the very matter at issue on which he was called to express his
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`opinion,” even though he lacked any familiarity with the methods and reasoning
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`used by that other expert); Abrams v. Ciba Specialty Chemicals Corp., No. CIV.A.
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`08-0068-WS-B, 2010 WL 779283, at *4 (S.D. Ala. Mar. 2, 2010) (excluding an
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`expert’s opinions where the expert treated another expert’s opinions as his own,
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`despite having no expertise in the field); see also Lowery v. Sanofi-Aventis LLC, No.
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`7:18-CV-00376-RDP, 2021 WL 872620, at *15 (N.D. Ala. Mar. 9, 2021) (finding
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`unreliable a differential diagnosis that included a “bare-bones reliance on a treating
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`physician’s clinical impressions,” without an analysis on why it supported ruling out
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`one diagnosis while ruling in another). Here, Driscoll generally lists “discovery
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`documents,” McCombs’ testimony, other expert reports, OSHA and NIOSH
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`regulations, a military database for sound pressure levels and noise exposures,
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`scientific literature, and his education, training, and experience as the basis for all of
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`his opinions. See Driscoll Rep., ECF 1595-67 at 8. But when asked specifically
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`about the basis for his specific-causation opinion at his deposition, he testified that
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`he was “citing the medical experts’ opinions” and “[r]elying on the evidence of other
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`experts and their conclusions with regard to Mr. McCombs’ hearing status” in
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`reaching his opinion, see Driscoll Dep., ECF 1627-51 at 9-10, instead of applying
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`his own expertise to analyze the medical experts’ opinions and reach his own
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`opinion.
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`Defendants nevertheless argue that Driscoll “used [a] reliable methodology to
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`arrive at [his] opinions,” without explaining that methodology. See Defs.’ Opp.,
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`ECF No. 1627 at 61. To the extent Defendants believe that Driscoll employed a
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`reliable methodology by otherwise basing his opinion on the documents he reviewed
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`and his experience, Defendants are wrong. Experts may rely on their professional
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`experience in offering expert testimony only if they “explain how that experience
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`leads to the conclusion reached, why that experience is a sufficient basis for the
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`opinion, and how that experience is reliably applied to the facts.” See Frazier, 387
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`F.3d at 1261; see also Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cty., Fla.,
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`402 F.3d 1092, 1111 (11th Cir. 2005) (“[A] trial court may exclude expert testimony
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`that is ‘imprecise and unspecific,’ or whose factual basis is not adequately
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`explained.”). Here, Driscoll failed to explain how, from the materials he reviewed
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`and his non-medical experience, he reached the conclusion that McCombs does not
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`have NIHL as a result of his military service. Thus, Driscoll’s opinion that
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`McCombs does not have NIHL as a result of his military service is not supported by
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`a reliable methodology and is inadmissible.
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`Plaintiff challenges Driscoll’s remaining two opinions as unhelpful to the jury.
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`More specifically, according to Plaintiff, Driscoll’s opinion that McCombs wore
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`hearing protection devices during his military service is unhelpful because it is not
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`an insight beyond the understanding of a juror, but rather a “personal” opinion and
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`“assumption” he made from the factual record.3 Defendants did not respond to this
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`challenge, and have therefore waived any argument in response. See also United
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`States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (“The burden of establishing
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`qualification, reliability, and helpfulness rests on the proponent of the expert
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`opinion.”); N.D. Fla. L. R. 7.1(H) (“The Court may grant a motion by default if an
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`opposing party does not file a memorandum.”). In any event, the Court agrees that
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`this opinion is not helpful to the jury. For an expert’s testimony to be helpful under
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`Rule 702 and Daubert, it must be relevant to an issue in the case and offer insights
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`“beyond the understanding and experience of the average citizen.” Rouco, 765 F.2d
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`at 995. According to Driscoll’s report and deposition testimony, his opinion that
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`McCombs’ use of hearing protection devices protected his hearing is based entirely
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`on McCombs’ audiograms. See Driscoll Rep., ECF No. 1595-67 at 8. Yet,
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`according to Driscoll, he is not “interpret[ing] the results” of any audiograms4; he is
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`3 At his deposition, Driscoll testified that he was “not going to offer an opinion” on
`“whether the evidence is conflicting regarding Mr. McCombs’s CAEv2 use at the time of an IED
`attack in April 2009” in forming his opinion on the risks of noise-induced hearing injury at that
`time. Driscoll Dep., ECF No. 1595-68 at 14. Thus, Driscoll’s opinion that McCombs wore hearing
`protection devices during his military service pertains only to the conclusion that those hearing
`protection devices protected McCombs’ hearing.
`4 For sure, Driscoll is not qualified to interpret audiogram results, given his lack of any
`medical or audiological experience. See supra at 6-7.
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`merely “read[ing] the report and what the audiologist or medical person reported.”
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`Driscoll Dep., ECF No. 1595-68 at 4-5. Merely restating what is reported in
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`audiograms is not helpful to the jury because it does not provide any insight or
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`analysis beyond what the jury can read from the audiogram themselves with the
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`assistance of a qualified audiologist or ENT. Moreover, the probative value of
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`Driscoll’s opinion, which is nothing more than lay opinion testimony disguised as
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`“expert” testimony, is substantially outweighed by a risk that his testimony will
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`confuse or mislead the jury, and is cumulative of the testimony of other experts who
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`are qualified to actually interpret McCombs’ audiograms. See Fed. R. Civ. P. 403;
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`Frazier, 387 F.3d at 1263 (“Exclusion under Rule 403 is appropriate . . . if the expert
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`testimony is cumulative or needlessly time consuming.”). Accordingly, Driscoll’s
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`opinion that “[t]he audiograms of Mr. McCombs support that the hearing protection
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`devices he used during his service protected his hearing” is unhelpful and
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`inadmissible under Rules 403 and 702.5
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`Plaintiff also argues that Driscoll’s opinion regarding McCombs’ risk of
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`hearing injury in Afghanistan at the time his truck was struck by an IED is unhelpful
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`to the jury because it is contradictory. More specifically, Driscoll opines that “even
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`with the green end of the CAEv2 tightly inserted and sealed again [sic] the entrance
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`5 To the extent this opinion amounts to a specific-causation opinion, it is inadmissible for
`the same reasons Driscoll’s opinion that McCombs does not have NIHL as a result of his military
`service is inadmissible. See supra at 7-9.
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`of the ear canal,” McCombs would have faced a peak sound pressure level of 173
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`dB during the 2009 IED blast in Afghanistan when applying a “real-world” NRR of
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`7, instead of the 22 NRR on the label, to the green end. See Driscoll Rep., ECF No.
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`1595-67 at 8. Plaintiff argues that this statement contradicts Driscoll’s own
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`definition of the “real-world” NRR valuation because the real-world value accounts
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`for all user-related issues and does not presume a tight and proper seal. See Pl.’s
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`Mot., ECF No. 1595 at 72. To the extent this is contradictory, the Court disagrees
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`that it renders Driscoll’s opinion inadmissible. “The fact that [an expert] arguably
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`contradicted himself . . . does not bear upon the admissibility of his testimony, but
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`upon his credibility, which is a jury determination.” Gonzalez v. Inman Trucking,
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`Inc., No. EP-16-CV-6-PRM, 2017 WL 7905499, at *5 (W.D. Tex. June 20, 2017);
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`In re 3M, No. 3:19MD2885, 2021 WL 765019, at *26 (N.D. Fla. Feb. 28, 2021)
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`(Rodgers, J.) (“To the extent [the expert’s] actual deposition testimony can be
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`viewed as conflicting with his previously given opinions . . . that is a matter affecting
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`the weight and credibility of his opinion, not its admissibility.”); see also United
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`States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003) (“[B]y concentrating on [the
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`expert’s] contradictory, evasive, and ‘speculative’ responses, the district court
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`erroneously shifted the focus of its [Daubert] inquiry to the credibility of [the expert]
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`as a witness.”). Thus, Plaintiff’s objections to Driscoll’s opinion in this regard go to
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`weight, not admissibility.
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`III. Plaintiffs’ Experts
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`Defendants’ remaining expert challenges are directed at Dr. Mark Parker’s
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`opinions related to Baker’s post-traumatic stress disorder (PTSD)6 and Dr. Marc
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`Fagelson’s opinions related to McCombs’ PTSD and sleep disorder.
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`a. Dr. Mark Packer
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`Dr. Packer is board-certified in otolaryngology, otology, and neurotology, and
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`currently serves as the Medical Director of Neurotology at Mercy Hospital in St.
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`Louis. He previously served in the United States Air Force, and spent seven years
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`as the Interim, and then Executive, Director of the Department of Defense Hearing
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`Center of Excellence. See Packer Rep., ECF No. 1606-12 at 2, 5-11. Dr. Packer
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`offers an opinion in Baker’s case that “[h]earing loss may also impact on PTSD as
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`an additive factor in the anxiety and depression that often develops as a consequence
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`of these injuries.” Packer Rep. ECF No. 1606-12 at 28. At his deposition, Dr. Packer
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`further explained that “[Baker] is at increased risk for . . . the noise-induced hearing
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`loss and tinnitus, potentially exacerbating his now-in-remission PTSD, and/or that if
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`his PTSD recurs and becomes worse, that that could aggravate and make his tinnitus
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`worse specifically.” Packer Dep., ECF No. 1606-9 at 32-33. Defendants argue that
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`6 Defendants also moved separately on non-Daubert grounds to preclude all testimony or
`evidence relating to Baker’s mental health, to include Dr. Packer’s testimony. See Baker, ECF
`No. 51. The Court denied the motion. See Baker, ECF No. 73 at 8-12.
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`

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`Dr. Packer’s opinion is speculative because he opines that hearing loss or tinnitus
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`“may” affect Baker’s PTSD.7
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`The Court disagrees. First, Dr. Packer’s opinion is not speculative because he
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`is not offering the opinion that Baker’s hearing loss or tinnitus may lead to a possible
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`future PTSD diagnosis. According to Baker’s medical records, on which Dr. Packer
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`relied, Baker was diagnosed with PTSD in 2015, and Dr. Packer properly relied on
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`that diagnosis as a factual basis for his opinion on the relationship between
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`McCombs’ tinnitus and PTSD. See Packer Rep. (McCombs), ECF No. 1606-12 at
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`25-26; Geyer v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1212, 1217 (S.D. Fla. 2016)
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`(finding expert testimony based on 26-year experience as an orthopedic surgeon and
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`review of plaintiff’s medical records admissible); Milbrath v. NCL (Bahamas) Ltd.,
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`No. 17-CV-22071, 2018 WL 2291307, at *2 (S.D. Fla. May 18, 2018) (finding
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`expert opinion based on plaintiff’s medical records, deposition testimony, and
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`expert’s two decades of experience as a board-certified neurologist reliable); see also
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`Haller v. AstraZeneca Pharms. LP, 598 F. Supp. 2d 1271, 1295 (M.D. Fla. 2009)
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`(“[T]he Court does not deem it necessarily fatal that an expert medical witness has
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`relied on medical records alone to reach a specific causation opinion.”).
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`7 Defendants do not challenge Dr. Packer’s opinion on qualifications grounds.
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`Also, Dr. Packer’s opinion is not devoid of any analysis. As he explained in
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`his general report8, “[n]oise induced hearing loss and tinnitus have long been
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`associated with co-morbid psychiatric conditions,” and in fact, “[s]everal systematic
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`reviews of the literature have linked tinnitus to psychiatric disorders, with a high
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`prevalence of anxiety and depression seen.” Packer Rep., ECF No. 1631-23 at 40-
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`41; see also id. at 42 (“The association of hearing loss in general and noise-induced
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`hearing loss and tinnitus specifically and their association with depression, anxiety .
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`. . is well recognized.”).
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`Moreover, Dr. Packer’s experience in psychology and extensive experience
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`in otology and neurotology, together with his explanation of how that experience
`
`informed his PTSD opinion, provides a reliable basis for his opinion. See Frazier,
`
`387 F.3d at 1261 (finding experts relying on their experience must explain “how that
`
`experience is reliable applied to the facts”). For his opinion, Dr. Packer relied on
`
`his “experience, training, background and associations and searches of the literature,
`
`[and his] understanding of the progression of . . . noise-induced hearing loss and
`
`tinnitus, and psych health issues, including PTSD. Packer Dep., ECF No. 1606-9 at
`
`32. That experience includes his degree in psychology, experience at psychiatric
`
`hospitals, his examination and treatment of patients with PTSD and patients with
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`8 In his case-specific report, Dr. Packer references his general report as a reliance material.
`See Packer Rep. (McCombs), ECF No. 1606-12 at 2.
`
`

`

`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 16 of 19
`
`Page 16 of 19
`
`hearing loss and tinnitus who also have depression, and his experience at the Hearing
`
`Center of Excellence looking at associations between psychological health issues
`
`and hearing loss and tinnitus. Id. at 30-31; Packer Rep. (McCombs), ECF No. 1606-
`
`12 at 12. This is sufficient under Daubert. See United States Sec. & Exch. Comm’n
`
`v. Spartan Sec. Grp., Ltd, No. 8:19-CV-448-T-33CPT, 2020 WL 7024885, at *4
`
`(M.D. Fla. Nov. 30, 2020) (finding expert’s extensive professional experience,
`
`review of the relevant documents, and explanation of how his experience supports
`
`his opinion satisfied the reliability requirement under Rule 702 and Daubert);
`
`Williams v. Tristar Prod., Inc., 418 F. Supp. 3d 1212, 1222-23 (M.D. Ga. 2019)
`
`(similar). The fact that Dr. Packer did not review all of Baker’s psychology records
`
`or examine his cortisol levels goes to the weight and not admissibility. See, e.g.,
`
`Garcia v. Scottsdale Ins. Co., No. CV 18-20509-CIV, 2019 WL 1318090, at *2 (S.D.
`
`Fla. Mar. 22, 2019); In re Disposable Contact Lens Antitrust, 329 F.R.D. 336, 372
`
`(M.D. Fla. 2018) (“If [d]efendants believe that the basis for [the expert's] opinions
`
`is insufficient, they can explore that with [the expert] on cross examination and
`
`argument for the benefit of the trier of fact.”).
`
`b. Dr. Marc Fagelson
`
`Dr. Fagelson is an audiologist with over 25 years of clinical experience,
`
`including treatment of patients at Veterans’ Affairs clinics. Fagelson Rep.
`
`(McCombs), ECF No. 1606-47 at 3-4. He has a Master of Science in Audiology and
`
`

`

`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 17 of 19
`
`Page 17 of 19
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`a Ph.D. in Hearing Sciences, and is now a professor in the Department of Audiology
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`and Speech Language Pathology at East Tennessee State University. Id. at 2-3. Dr.
`
`Fagelson offers the general opinion that tinnitus may exacerbate PTSD, see Fagelson
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`Rep., ECF No. 1606-46 at 17, and specifically with respect to McCombs, that his
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`tinnitus exacerbates his PTSD and sleep disorder, see Fagelson Rep. (McCombs),
`
`ECF No. 1606-47 at 9. Defendants argue that Fagelson is not qualified to diagnose
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`or opine on PTSD and sleep disorder because he is not a psychiatrist or psychologist
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`and does not hold a medical degree or license.
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`The Court agrees that Dr. Fagelson is not qualified to diagnose PTSD since
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`he is not a psychiatrist, psychologist, or medical doctor. See United States v. Crosby,
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`713 F.2d 1066, 1077 (5th Cir. 1983) (finding trial court properly refused to qualify
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`a counselor at Veterans’ Outreach Center as a diagnostic expert on PTSD).
`
`However, Dr. Fagelson is not diagnosing McCombs’ PTSD. Instead, like Dr.
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`Packer, he relied on McCombs’ medical records reflecting a PTSD diagnosis, see
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`Fagelson Dep., ECF No. 1630-49 at 10, and offers an opinion regarding the
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`relationship between McCombs’ tinnitus and PTSD, specifically, “McCombs’
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`tinnitus is a substantial factor that exacerbates his PTSD,” see Fagelson Rep.
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`(McCombs), ECF No. 1606-47 at 9. Moreover, the standard for qualification under
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`Rule 702 is “not stringent,” and requires an expert to be “minimally qualified” based
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`on his knowledge, skill, experience, education, or training. See Navelski, 244 F.
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`

`

`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 18 of 19
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`Page 18 of 19
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`Supp. 3d at 1293 (citations omitted). Here, Dr. Fagelson has treated patients with
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`tinnitus and PTSD symptoms at VA clinics, see Fagelson Dep., ECF No. 1630-49 at
`
`28-29, has presented research on “the bi-directional influences of tinnitus and
`
`PTSD,” and is currently co-investigator on a study investigating preferences for
`
`hearing aid characteristics among patients who carry a service connection in the VA
`
`for PTSD, see Fagelson Rep. (McCombs), ECF No. 1606-47 at 4-6. Thus, the Court
`
`concludes that Dr. Fagelson’s clinical and research experience qualifies him to offer
`
`his general opinion that tinnitus may exacerbate tinnitus and his specific opinion
`
`regarding the relationship between McCombs’ tinnitus and PTSD. Any objections
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`to his level of expertise go to weight, not admissibility. See Hendrix I, 255 F.R.D.
`
`at 585.
`
`With respect to Dr. Fagelson’s opinion on the relationship between
`
`McCombs’ tinnitus and his sleep disorder, Dr. Fagelson is not qualified to diagnose
`
`McCombs’ sleep disorder for the same reasons he is not qualified to diagnose PTSD.
`
`See supra at 17. However, it is not clear from the record that Dr. Fagelson is relying
`
`on a separate sleep disorder diagnosis in reaching his opinion.9 To the extent Dr.
`
`Fagelson’s opinion is a sleep disorder diagnosis, he is not qualified to offer that
`
`opinion, and it would be excluded. But to the extent Dr. Fagelson is offering an
`
`
`9 Plaintiff argues that Dr. Fagelson relied on McCombs’ medical records as the factual
`basis for his medical conditions, see Pl.’s Opp., ECF No. 1630 at 119 n. 438, but neither Plaintiff
`nor Dr. Fagelson point to a specific record showing a sleep disorder diagnosis.
`
`

`

`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 19 of 19
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`Page 19 of 19
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`opinion that McCombs’ tinnitus could affect his ability to sleep or the quality of his
`
`sleep, the Court concludes that his clinical experience treating tinnitus patients and
`
`managing related symptoms, as well as his experience identifying opportunities to
`
`help patients improve their sleep, make him minimally competent to offer that
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`opinion. See Fagelson Dep., ECF No.1606-45 at 6-8.
`
`Based on the foregoing, the parties’ omnibus motions to exclude expert
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`opinions under Rule 702 and Daubert, ECF Nos. 1595 and 1605, are granted in part
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`and denied in part, consistent with this Order, with respect to Dennis Driscoll, Dr.
`
`Mark Packer’s PTSD opinion in Baker, and Dr. Marc Fagelson’s PTSD and sleep
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`disorder opinion in McCombs.
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`SO ORDERED, on this 11th day of May, 2021.
`
`M. Casey Rodgers
`M. CASEY RODGERS
`UNITED STATES DISTRICT JUDGE
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