`
`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
`
`
`
`
`
`This Order addresses the parties’ remaining expert challenges to Dr. Packer
`
`(Baker), Dr. Fagelson (McCombs), and Dr. Driscoll in (McCombs), and resolves the
`
`parties’ omnibus motions to exclude these experts under Federal Rule of Evidence
`
`702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
`
`I.
`
`
`Legal Standard
`
`Rule 702, as explained by Daubert and its progeny, governs the admissibility
`
`of expert testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).
`
`Under Rule 702 and Daubert, district courts are compelled to act as “gatekeepers”
`
`to ensure the reliability and relevancy of expert testimony. Id. (quoting Daubert,
`
`509 U.S. at 589). Expert testimony is reliable and relevant—and, therefore,
`
`admissible—when the following criteria are met: (1) the expert is sufficiently
`
`qualified to testify about the matters he intends to address; (2) the methodology used
`
`is “sufficiently reliable as determined by the sort of inquiry mandated in Daubert;
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 2 of 19
`
`Page 2 of 19
`
`and (3) the testimony assists the trier of fact, through the application of scientific,
`
`technical, or specialized expertise, to understand the evidence or to determine a fact
`
`in issue.” Id. The Eleventh Circuit refers to these criteria separately as
`
`“qualification, reliability, and helpfulness,” United States v. Frazier, 387 F.3d 1244,
`
`1260 (11th Cir. 2004), and has emphasized that they are “distinct concepts that courts
`
`and litigants must take care not to conflate,” Quiet Tech. DC-8, Inc. v. Hurel–Dubois
`
`UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). The party offering the expert has
`
`the burden of showing, by a preponderance of the evidence, that each of these
`
`requirements is met. Rink, 400 F.3d at 1292.
`
`To meet the qualification requirement, a party must show that its expert has
`
`sufficient “knowledge, skill, experience, training, or education to form a reliable
`
`opinion about an issue that is before the court.” Hendrix ex. Rel. G.P. v. Evenflo
`
`Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010) (citing Fed. R. Evid. 702) (“Hendrix
`
`II”), aff’g 255 F.R.D. 568 (N.D. Fla. 2009) (“Hendrix I”). Importantly, if a “witness
`
`is relying solely or primarily on experience, then the witness must explain how that
`
`experience leads to the conclusion reached, why that experience is a sufficient basis
`
`for the opinion, and how that experience is reliably applied to the facts.” Frazier,
`
`387 F.3d at 1261 (quoting Fed. R. Evid. 702 advisory committee’s note to 2000
`
`amendments). The qualifications standard for expert testimony is “not stringent”
`
`and “[s]o long as the witness is minimally qualified, objections to the level of [his]
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 3 of 19
`
`Page 3 of 19
`
`expertise [go] to credibility and weight, not admissibility.” Hendrix I, 255 F.R.D. at
`
`585.
`
`To meet the reliability requirement, an expert’s opinion must be based on
`
`scientifically valid principles, reasoning, and methodology that are properly applied
`
`to the facts at issue. Frazier, 387 F.3d at 1261-62. The reliability analysis is guided
`
`by several factors, including: (1) whether the scientific technique can be or has been
`
`tested; (2) whether the theory or technique has been subjected to peer review or
`
`publication; (3) whether the technique has a known or knowable rate of error; and
`
`(4) whether the technique is generally accepted in the relevant community. Daubert,
`
`509 U.S. at 593-94, 113 S.Ct. 2786. “[T]hese factors do not exhaust the universe of
`
`considerations that may bear on the reliability of a given expert opinion, and a federal
`
`court should consider any additional factors that may advance its Rule 702
`
`analysis.” Quiet Tech., 326 F.3d at 1341. The court’s focus must be on the expert’s
`
`principles and methodology, not the conclusions they generate. Daubert, 509 U.S.
`
`at 595, 113 S.Ct. 2786. The test for reliability is “flexible” and courts have “broad
`
`latitude” in determining both how and whether this requirement is met. Kumho Tire
`
`Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999).
`
`Finally, to satisfy the helpfulness requirement, expert testimony must be
`
`relevant to an issue in the case and offer insights “beyond the understanding and
`
`experience of the average citizen.” United States v. Rouco, 765 F.2d 983, 995 (11th
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 4 of 19
`
`Page 4 of 19
`
`Cir. 1985). Relevant expert testimony “logically advances a material aspect of the
`
`proposing party’s case” and “fits” the disputed facts. McDowell v. Brown, 392 F.3d
`
`1283, 1298-99 (11th Cir. 2004). Expert testimony does not “fit” when there is “too
`
`great an analytical gap” between the facts and the proffered opinion. Gen. Elec. Co.
`
`v. Joiner, 522 U.S. 136, 147 (1997).
`
`“Because of the powerful and potentially misleading effect of expert evidence,
`
`sometimes expert opinions that otherwise meet the admissibility requirements may
`
`still be excluded [under Federal Rule of Evidence] 403.” Frazier, 387 F.3d at 1263
`
`(internal citations excluded). “Exclusion under Rule 403 is appropriate if the
`
`probative value of otherwise admissible evidence is substantially outweighed by its
`
`potential to confuse or mislead the jury, or if the expert testimony is cumulative or
`
`needlessly time consuming,” or if it is otherwise unfairly prejudicial. Id. “Indeed,
`
`the judge in weighing possible prejudice against probative force under Rule 403 . . .
`
`exercises more control over experts than over lay witnesses.” Id. “Simply put,
`
`expert testimony may be assigned talismanic significance in the eyes of lay jurors,
`
`and, therefore, the districts must take care to weigh the value of such evidence
`
`against its potential to mislead or confuse.” Id.
`
`When scrutinizing the reliability, relevance, and potential prejudice of expert
`
`testimony, a court must remain mindful of the delicate balance between its role as a
`
`gatekeeper and the jury’s role as the ultimate factfinder. Frazier, 387 F.3d at 1272.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 5 of 19
`
`Page 5 of 19
`
`The court’s gatekeeping role “is not intended to supplant the adversary system or the
`
`role of the jury.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.
`
`1999). Only the jury may determine “where the truth in any case lies” and the court
`
`“may not usurp this function.” Frazier, 387 F.3d at 1272. Thus, a court may not
`
`“evaluate the credibility of opposing experts” or the persuasiveness of their
`
`conclusions, Quiet Tech., 326 F.3d at 1341; instead, its duty is limited to “ensur[ing]
`
`that the fact-finder weighs only sound and reliable evidence,” Frazier, 387 F.3d at
`
`1272.
`
`II. Defendants’ Experts
`
`Plaintiffs’ remaining expert challenge is directed to opinions of Dennis
`
`Driscoll. Driscoll is a mechanical engineer and board-certified noise control
`
`engineer. He obtained his master of science in mechanical engineering in 1980 and
`
`has worked an acoustical consultant since 1998. Driscoll Rep., ECF No. 1595-67,
`
`at 3, 12. He is currently President and Principal Consultant of his own professional
`
`acoustical engineering firm, Driscoll Acoustics, LLC, which specializes in “noise
`
`measurement, noise exposure assessment, noise control engineering, and hearing
`
`loss prevention.” Id. at 3.
`
`
`
`Driscoll offers several opinions in McCombs’ case regarding his hearing
`
`injuries and his use of hearing protection devices while in the military. More
`
`specifically, Driscoll opines that (1) McCombs faced a “significant risk” for noise-
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 6 of 19
`
`Page 6 of 19
`
`induced hearing loss and tinnitus at the time a military truck on which he was
`
`positioned as the gunner was struck by an improvised explosive device (IED) in
`
`Afghanistan in 2009; (2) McCombs does not have noise-induced hearing loss
`
`(NIHL) as a result of his military service; and (3) “[t]he audiograms of Mr.
`
`McCombs support that the hearing protection devices he used during his service
`
`protected his hearing.”1 See Driscoll Rep., ECF No. 1595-67 at 8. Plaintiff argues
`
`that Driscoll’s opinions must be excluded because he is not qualified, and he also
`
`fails to provide a reliable methodology, to support his opinion on the cause of
`
`McCombs’ tinnitus and “related injuries.” Plaintiff also argues that the remainder
`
`of Driscoll’s opinions are unhelpful to the jury.
`
`First, Driscoll will not be permitted to offer the opinion that McCombs does
`
`not have noise-induced hearing loss as a result of his military service. Driscoll is
`
`not qualified to diagnose McCombs’ hearing injuries or opine on why McCombs
`
`does not have noise-induced hearing loss because he is an engineer, not a medical
`
`doctor or audiologist, he has no medical education, training, or experience, and he
`
`has never treated or diagnosed a patient for tinnitus or hearing loss. Driscoll Dep.,
`
`
`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.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 7 of 19
`
`Page 7 of 19
`
`ECF No. 1595-68 at 3-4; see In re 3M Combat Arms Earplug Prod. Liab. Litig., No.
`
`3:19MD2885, 2021 WL 830309, at *6 (N.D. Fla. Mar. 4, 2021) (Rodgers, J.)
`
`(precluding specific causation opinions of mechanical engineer because he was not
`
`a medical doctor or audiologist); Day v. RM Trucking, Inc., No. 3:11-CV-400-J-25
`
`MCR, 2012 WL 12906568, at *1 (M.D. Fla. Aug. 31, 2012) (allowing qualified
`
`biomechanical expert to provide biomechanical testimony but not testimony “that
`
`specifically opines that the forces exerted in the crash did not cause Plaintiff’s
`
`specific injuries”); see also Lebron v. Sec’y of Fla. Dep’t of Child. & Fams., 772
`
`F.3d 1352, 1368 (11th Cir. 2014) (“Expertise in one field does not qualify a witness
`
`to testify about others.”).
`
`Even if Driscoll was qualified to offer this specific-causation opinion, Plaintiff
`
`argues that the opinion is “merely a restatement of the diagnoses made by other
`
`experts” and is not supported by a reliable methodology.2 Pls.’ Mot., ECF No. 1595
`
`at 71. The Court agrees. “A scientist, however well credentialed he may be, is not
`
`permitted to be the mouthpiece of a scientist in a different specialty.” Dura Auto.
`
`Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002); TK-7 Corp. v.
`
`Est. of Barbouti, 993 F.2d 722, 732 (10th Cir. 1993) (finding expert testimony
`
`
`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.).
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 8 of 19
`
`Page 8 of 19
`
`inadmissible where he adopted the predictions of another expert” because he “in
`
`essence assumed the very matter at issue on which he was called to express his
`
`opinion,” even though he lacked any familiarity with the methods and reasoning
`
`used by that other expert); Abrams v. Ciba Specialty Chemicals Corp., No. CIV.A.
`
`08-0068-WS-B, 2010 WL 779283, at *4 (S.D. Ala. Mar. 2, 2010) (excluding an
`
`expert’s opinions where the expert treated another expert’s opinions as his own,
`
`despite having no expertise in the field); see also Lowery v. Sanofi-Aventis LLC, No.
`
`7:18-CV-00376-RDP, 2021 WL 872620, at *15 (N.D. Ala. Mar. 9, 2021) (finding
`
`unreliable a differential diagnosis that included a “bare-bones reliance on a treating
`
`physician’s clinical impressions,” without an analysis on why it supported ruling out
`
`one diagnosis while ruling in another). Here, Driscoll generally lists “discovery
`
`documents,” McCombs’ testimony, other expert reports, OSHA and NIOSH
`
`regulations, a military database for sound pressure levels and noise exposures,
`
`scientific literature, and his education, training, and experience as the basis for all of
`
`his opinions. See Driscoll Rep., ECF 1595-67 at 8. But when asked specifically
`
`about the basis for his specific-causation opinion at his deposition, he testified that
`
`he was “citing the medical experts’ opinions” and “[r]elying on the evidence of other
`
`experts and their conclusions with regard to Mr. McCombs’ hearing status” in
`
`reaching his opinion, see Driscoll Dep., ECF 1627-51 at 9-10, instead of applying
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 9 of 19
`
`Page 9 of 19
`
`his own expertise to analyze the medical experts’ opinions and reach his own
`
`opinion.
`
`Defendants nevertheless argue that Driscoll “used [a] reliable methodology to
`
`arrive at [his] opinions,” without explaining that methodology. See Defs.’ Opp.,
`
`ECF No. 1627 at 61. To the extent Defendants believe that Driscoll employed a
`
`reliable methodology by otherwise basing his opinion on the documents he reviewed
`
`and his experience, Defendants are wrong. Experts may rely on their professional
`
`experience in offering expert testimony only if they “explain how that experience
`
`leads to the conclusion reached, why that experience is a sufficient basis for the
`
`opinion, and how that experience is reliably applied to the facts.” See Frazier, 387
`
`F.3d at 1261; see also Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cty., Fla.,
`
`402 F.3d 1092, 1111 (11th Cir. 2005) (“[A] trial court may exclude expert testimony
`
`that is ‘imprecise and unspecific,’ or whose factual basis is not adequately
`
`explained.”). Here, Driscoll failed to explain how, from the materials he reviewed
`
`and his non-medical experience, he reached the conclusion that McCombs does not
`
`have NIHL as a result of his military service. Thus, Driscoll’s opinion that
`
`McCombs does not have NIHL as a result of his military service is not supported by
`
`a reliable methodology and is inadmissible.
`
`Plaintiff challenges Driscoll’s remaining two opinions as unhelpful to the jury.
`
`More specifically, according to Plaintiff, Driscoll’s opinion that McCombs wore
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 10 of 19
`
`Page 10 of 19
`
`hearing protection devices during his military service is unhelpful because it is not
`
`an insight beyond the understanding of a juror, but rather a “personal” opinion and
`
`“assumption” he made from the factual record.3 Defendants did not respond to this
`
`challenge, and have therefore waived any argument in response. See also United
`
`States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (“The burden of establishing
`
`qualification, reliability, and helpfulness rests on the proponent of the expert
`
`opinion.”); N.D. Fla. L. R. 7.1(H) (“The Court may grant a motion by default if an
`
`opposing party does not file a memorandum.”). In any event, the Court agrees that
`
`this opinion is not helpful to the jury. For an expert’s testimony to be helpful under
`
`Rule 702 and Daubert, it must be relevant to an issue in the case and offer insights
`
`“beyond the understanding and experience of the average citizen.” Rouco, 765 F.2d
`
`at 995. According to Driscoll’s report and deposition testimony, his opinion that
`
`McCombs’ use of hearing protection devices protected his hearing is based entirely
`
`on McCombs’ audiograms. See Driscoll Rep., ECF No. 1595-67 at 8. Yet,
`
`according to Driscoll, he is not “interpret[ing] the results” of any audiograms4; he is
`
`
`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.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 11 of 19
`
`Page 11 of 19
`
`merely “read[ing] the report and what the audiologist or medical person reported.”
`
`Driscoll Dep., ECF No. 1595-68 at 4-5. Merely restating what is reported in
`
`audiograms is not helpful to the jury because it does not provide any insight or
`
`analysis beyond what the jury can read from the audiogram themselves with the
`
`assistance of a qualified audiologist or ENT. Moreover, the probative value of
`
`Driscoll’s opinion, which is nothing more than lay opinion testimony disguised as
`
`“expert” testimony, is substantially outweighed by a risk that his testimony will
`
`confuse or mislead the jury, and is cumulative of the testimony of other experts who
`
`are qualified to actually interpret McCombs’ audiograms. See Fed. R. Civ. P. 403;
`
`Frazier, 387 F.3d at 1263 (“Exclusion under Rule 403 is appropriate . . . if the expert
`
`testimony is cumulative or needlessly time consuming.”). Accordingly, Driscoll’s
`
`opinion that “[t]he audiograms of Mr. McCombs support that the hearing protection
`
`devices he used during his service protected his hearing” is unhelpful and
`
`inadmissible under Rules 403 and 702.5
`
`Plaintiff also argues that Driscoll’s opinion regarding McCombs’ risk of
`
`hearing injury in Afghanistan at the time his truck was struck by an IED is unhelpful
`
`to the jury because it is contradictory. More specifically, Driscoll opines that “even
`
`with the green end of the CAEv2 tightly inserted and sealed again [sic] the entrance
`
`
`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.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 12 of 19
`
`Page 12 of 19
`
`of the ear canal,” McCombs would have faced a peak sound pressure level of 173
`
`dB during the 2009 IED blast in Afghanistan when applying a “real-world” NRR of
`
`7, instead of the 22 NRR on the label, to the green end. See Driscoll Rep., ECF No.
`
`1595-67 at 8. Plaintiff argues that this statement contradicts Driscoll’s own
`
`definition of the “real-world” NRR valuation because the real-world value accounts
`
`for all user-related issues and does not presume a tight and proper seal. See Pl.’s
`
`Mot., ECF No. 1595 at 72. To the extent this is contradictory, the Court disagrees
`
`that it renders Driscoll’s opinion inadmissible. “The fact that [an expert] arguably
`
`contradicted himself . . . does not bear upon the admissibility of his testimony, but
`
`upon his credibility, which is a jury determination.” Gonzalez v. Inman Trucking,
`
`Inc., No. EP-16-CV-6-PRM, 2017 WL 7905499, at *5 (W.D. Tex. June 20, 2017);
`
`In re 3M, No. 3:19MD2885, 2021 WL 765019, at *26 (N.D. Fla. Feb. 28, 2021)
`
`(Rodgers, J.) (“To the extent [the expert’s] actual deposition testimony can be
`
`viewed as conflicting with his previously given opinions . . . that is a matter affecting
`
`the weight and credibility of his opinion, not its admissibility.”); see also United
`
`States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003) (“[B]y concentrating on [the
`
`expert’s] contradictory, evasive, and ‘speculative’ responses, the district court
`
`erroneously shifted the focus of its [Daubert] inquiry to the credibility of [the expert]
`
`as a witness.”). Thus, Plaintiff’s objections to Driscoll’s opinion in this regard go to
`
`weight, not admissibility.
`
`
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 13 of 19
`
`Page 13 of 19
`
`III. Plaintiffs’ Experts
`
`Defendants’ remaining expert challenges are directed at Dr. Mark Parker’s
`
`opinions related to Baker’s post-traumatic stress disorder (PTSD)6 and Dr. Marc
`
`Fagelson’s opinions related to McCombs’ PTSD and sleep disorder.
`
`a. Dr. Mark Packer
`
`Dr. Packer is board-certified in otolaryngology, otology, and neurotology, and
`
`currently serves as the Medical Director of Neurotology at Mercy Hospital in St.
`
`Louis. He previously served in the United States Air Force, and spent seven years
`
`as the Interim, and then Executive, Director of the Department of Defense Hearing
`
`Center of Excellence. See Packer Rep., ECF No. 1606-12 at 2, 5-11. Dr. Packer
`
`offers an opinion in Baker’s case that “[h]earing loss may also impact on PTSD as
`
`an additive factor in the anxiety and depression that often develops as a consequence
`
`of these injuries.” Packer Rep. ECF No. 1606-12 at 28. At his deposition, Dr. Packer
`
`further explained that “[Baker] is at increased risk for . . . the noise-induced hearing
`
`loss and tinnitus, potentially exacerbating his now-in-remission PTSD, and/or that if
`
`his PTSD recurs and becomes worse, that that could aggravate and make his tinnitus
`
`worse specifically.” Packer Dep., ECF No. 1606-9 at 32-33. Defendants argue that
`
`
`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.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 14 of 19
`
`Page 14 of 19
`
`Dr. Packer’s opinion is speculative because he opines that hearing loss or tinnitus
`
`“may” affect Baker’s PTSD.7
`
`The Court disagrees. First, Dr. Packer’s opinion is not speculative because he
`
`is not offering the opinion that Baker’s hearing loss or tinnitus may lead to a possible
`
`future PTSD diagnosis. According to Baker’s medical records, on which Dr. Packer
`
`relied, Baker was diagnosed with PTSD in 2015, and Dr. Packer properly relied on
`
`that diagnosis as a factual basis for his opinion on the relationship between
`
`McCombs’ tinnitus and PTSD. See Packer Rep. (McCombs), ECF No. 1606-12 at
`
`25-26; Geyer v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1212, 1217 (S.D. Fla. 2016)
`
`(finding expert testimony based on 26-year experience as an orthopedic surgeon and
`
`review of plaintiff’s medical records admissible); Milbrath v. NCL (Bahamas) Ltd.,
`
`No. 17-CV-22071, 2018 WL 2291307, at *2 (S.D. Fla. May 18, 2018) (finding
`
`expert opinion based on plaintiff’s medical records, deposition testimony, and
`
`expert’s two decades of experience as a board-certified neurologist reliable); see also
`
`Haller v. AstraZeneca Pharms. LP, 598 F. Supp. 2d 1271, 1295 (M.D. Fla. 2009)
`
`(“[T]he Court does not deem it necessarily fatal that an expert medical witness has
`
`relied on medical records alone to reach a specific causation opinion.”).
`
`
`7 Defendants do not challenge Dr. Packer’s opinion on qualifications grounds.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 15 of 19
`
`Page 15 of 19
`
`Also, Dr. Packer’s opinion is not devoid of any analysis. As he explained in
`
`his general report8, “[n]oise induced hearing loss and tinnitus have long been
`
`associated with co-morbid psychiatric conditions,” and in fact, “[s]everal systematic
`
`reviews of the literature have linked tinnitus to psychiatric disorders, with a high
`
`prevalence of anxiety and depression seen.” Packer Rep., ECF No. 1631-23 at 40-
`
`41; see also id. at 42 (“The association of hearing loss in general and noise-induced
`
`hearing loss and tinnitus specifically and their association with depression, anxiety .
`
`. . is well recognized.”).
`
`Moreover, Dr. Packer’s experience in psychology and extensive experience
`
`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
`
`
`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
`
`a Ph.D. in Hearing Sciences, and is now a professor in the Department of Audiology
`
`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
`
`Rep., ECF No. 1606-46 at 17, and specifically with respect to McCombs, that his
`
`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
`
`or opine on PTSD and sleep disorder because he is not a psychiatrist or psychologist
`
`and does not hold a medical degree or license.
`
`The Court agrees that Dr. Fagelson is not qualified to diagnose PTSD since
`
`he is not a psychiatrist, psychologist, or medical doctor. See United States v. Crosby,
`
`713 F.2d 1066, 1077 (5th Cir. 1983) (finding trial court properly refused to qualify
`
`a counselor at Veterans’ Outreach Center as a diagnostic expert on PTSD).
`
`However, Dr. Fagelson is not diagnosing McCombs’ PTSD. Instead, like Dr.
`
`Packer, he relied on McCombs’ medical records reflecting a PTSD diagnosis, see
`
`Fagelson Dep., ECF No. 1630-49 at 10, and offers an opinion regarding the
`
`relationship between McCombs’ tinnitus and PTSD, specifically, “McCombs’
`
`tinnitus is a substantial factor that exacerbates his PTSD,” see Fagelson Rep.
`
`(McCombs), ECF No. 1606-47 at 9. Moreover, the standard for qualification under
`
`Rule 702 is “not stringent,” and requires an expert to be “minimally qualified” based
`
`on his knowledge, skill, experience, education, or training. See Navelski, 244 F.
`
`
`
`Case 3:19-md-02885-MCR-GRJ Document 1780 Filed 05/11/21 Page 18 of 19
`
`Page 18 of 19
`
`Supp. 3d at 1293 (citations omitted). Here, Dr. Fagelson has treated patients with
`
`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
`
`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
`
`Page 19 of 19
`
`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
`
`opinion. See Fagelson Dep., ECF No.1606-45 at 6-8.
`
`Based on the foregoing, the parties’ omnibus motions to exclude expert
`
`opinions under Rule 702 and Daubert, ECF Nos. 1595 and 1605, are granted in part
`
`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
`
`disorder opinion in McCombs.
`
`SO ORDERED, on this 11th day of May, 2021.
`
`M. Casey Rodgers
`M. CASEY RODGERS
`UNITED STATES DISTRICT JUDGE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`