Case 7:20-cv-00137-MCR-GRJ Document 22 Filed 01/05/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF FLORIDA
`PENSACOLA DIVISION
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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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`IN RE: 3M COMBAT ARMS
`EARPLUG PRODUCTS
`LIABILITY LITIGATION
`
`This Document Relates to:
`Baker, 7:20cv39
`Estes, 7:20cv137
`Hacker, 7:20cv131
`Keefer, 7:20cv104
`McCombs, 7:20cv94
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`ORDER
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`This matter is before the Court on Plaintiffs’ motion to consolidate the above-
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`referenced cases for trial. See ECF No. 1551. On consideration, the motion is granted
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`with respect to Plaintiffs Luke and Jennifer Estes, Lewis Keefer and Stephen Hacker.
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`Plaintiffs Dustin McCombs and Lloyd Baker will be tried separately and individually.
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`Under Federal Rule of Civil Procedure 42(a), a district court may consolidate
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`multiple cases involving “common question[s] of law or fact” for trial. A court has
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`broad discretion to determine whether and to what extent consolidation is appropriate.
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`See Eghnayem v. Boston Sci. Corp., 873 F.3d 1304, 1313 (11th Cir. 2017). In
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`exercising that discretion, the court must consider the following factors: (1) whether
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`the specific risks of prejudice and possible confusion are overborne by the risk of
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`inconsistent adjudications of common factual and legal issues; (2) the burden on
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`parties, witnesses and available judicial resources posed by multiple lawsuits; (3) the
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF FLORIDA
`PENSACOLA DIVISION
`
` Case No. 3:19md2885
`
`
`
`
`Judge M. Casey Rodgers
`Magistrate Judge Gary R. Jones
`
`
`IN RE: 3M COMBAT ARMS
`EARPLUG PRODUCTS
`LIABILITY LITIGATION
`
`This Document Relates to:
`Baker, 7:20cv39
`Estes, 7:20cv137
`Hacker, 7:20cv131
`Keefer, 7:20cv104
`McCombs, 7:20cv94
`
`
`ORDER
`
`This matter is before the Court on Plaintiffs’ motion to consolidate the above-
`
`
`
`
`
`
`
`referenced cases for trial. See ECF No. 1551. On consideration, the motion is granted
`
`with respect to Plaintiffs Luke and Jennifer Estes, Lewis Keefer and Stephen Hacker.
`
`Plaintiffs Dustin McCombs and Lloyd Baker will be tried separately and individually.
`
`Under Federal Rule of Civil Procedure 42(a), a district court may consolidate
`
`multiple cases involving “common question[s] of law or fact” for trial. A court has
`
`broad discretion to determine whether and to what extent consolidation is appropriate.
`
`See Eghnayem v. Boston Sci. Corp., 873 F.3d 1304, 1313 (11th Cir. 2017). In
`
`exercising that discretion, the court must consider the following factors: (1) whether
`
`the specific risks of prejudice and possible confusion are overborne by the risk of
`
`inconsistent adjudications of common factual and legal issues; (2) the burden on
`
`parties, witnesses and available judicial resources posed by multiple lawsuits; (3) the
`
`
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`Case 7:20-cv-00137-MCR-GRJ Document 22 Filed 01/05/21 Page 2 of 4
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`length of time required to conclude multiple suits as against a single one; and (4) the
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`Page 2 of 4
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`relative expense to all concerned of the single-trial, multiple-trial alternatives. Id. “A
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`joint trial is appropriate where there is clearly substantial overlap in the issues, facts,
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`evidence, and witnesses required for claims against multiple defendants.”1 Id. at 1314.
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`While considerations of prejudice to a party or the likelihood of jury confusion may be
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`sufficient to deny consolidation, the court should also determine whether those risks
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`“can be alleviated by utilizing cautionary [jury] instructions” and “controlling the
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`manner in which [the parties’ claims and defenses] are submitted to the jury for
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`deliberation.” Id. at 1313-14. In the Eleventh Circuit, district courts are “urged to
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`make good use of Rule 42(a) in order to expedite the trial and eliminate unnecessary
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`repetition and confusion.” Id. at 1314.
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`The Court has carefully considered the above standard in light of the parties’
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`arguments and finds that the efficiencies to be gained by consolidation of Estes, Keefer,
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`and Hacker’s cases for trial far outweigh any potential prejudice to Defendants or
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`potential risk of jury confusion, given the substantial overlap in the issues, facts,
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`witnesses, and other evidence, as well as the potential similarities in the state laws
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`applicable to their claims.2 “Although each plaintiff’s proof of causation [will be]
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`1 As observed by the Fourth Circuit, “[c]onsolidation does not alter the basic standard of care
`required of manufacturers, and its benefits would seem to run to both plaintiffs and defendants. It is
`not the tool itself, but how it is utilized.” See Campbell v. Boston Sci. Corp., 882 F.3d 70, 76 (4th
`Cir. 2018).
`2 Although the Court has not yet ruled on the choice-of-law issues in the Trial Group A cases,
`that ruling will not impact this consolidation decision.
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`Case No. 3:19md2885/MCR/GRJ
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`Case 7:20-cv-00137-MCR-GRJ Document 22 Filed 01/05/21 Page 3 of 4
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`necessarily [individualized and] different, generally differences in causation are not
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`Page 3 of 4
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`enough, standing alone, to bar consolidation of products liability claims.” See id. To
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`the extent any risk of prejudice or juror confusion remains, it will be ameliorated
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`through prudent trial management and the use of carefully crafted jury instructions.
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`In any event, Defendants’ “central argument” is related to the bellwether process
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`and not prejudice. While the Court appreciates the practicality of Defendants’
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`argument, it cannot overcome the need for efficiency in the trial process. Indeed,
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`separate trials in these three cases would be largely repetitive and thus would implicate
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`the great many burdens, delays, and expenses that consolidation is designed to mitigate.
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`With that said, the Court recognizes the benefit to trying some individual cases for the
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`practical reasons Defendants point to. For that reason, the Court has decided to try two
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`of the five cases individually.
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`Accordingly:
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`1.
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`Case No. 3:19md2885/MCR/GRJ
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`Plaintiffs’ motion, ECF No. 1551, is GRANTED with respect to Case
`Nos. 7:20cv137 (Luke and Jennifer Estes); 7:20cv104 (Lewis Keefer);
`and 7:20cv131 (Stephen Hacker). The consolidated trial will proceed
`first, and thus is currently set for April 5-30, 2021. If additional time will
`be required to accommodate the consolidation, then the trial may instead
`begin on March 29, 2021. The parties are directed to confer on this issue
`and advise the Court of whether an additional trial week is needed by
`January 8, 2021.
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`The individual trial in Case No. 7:20cv94 (Dustin McCombs) will be set
`for May 17-28, 2021.
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`The individual trial in Case No. 7:20cv39 (Lloyd Baker) will be set for
`June 7-18, 2021.
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`2.
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`3.
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`Case 7:20-cv-00137-MCR-GRJ Document 22 Filed 01/05/21 Page 4 of 4
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`Page 4 of 4
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`4.
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`The combined pretrial conference for all Trial Group A cases will proceed
`the week of March 15, 2021.
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`SO ORDERED, on this 30th day of December, 2020.
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`
`M. Casey Rodgers
`M. CASEY RODGERS
`UNITED STATES DISTRICT JUDGE
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`Case No. 3:19md2885/MCR/GRJ
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