Florida federal judge on Tuesday excluded opinions from one of 3M’s expert witnesses in an upcoming bellwether trial over whether its combat arms CAEv2s earplugs were defective and caused damage to a veteran’s hearing, saying the expert cannot base his opinion entirely on other experts’ findings.
U.S. District Judge M. Casey Rodgers found Dennis Driscoll, a mechanical engineer and noise control engineer, was not qualified to offer an opinion on whether Dustin McCombs had suffered hearing loss, as he is not a doctor but an engineer, and has never treated or diagnosed tinnitus or hearing loss.
According to the judge, Driscoll’s opinion is a restatement of diagnoses made by other experts, and Driscoll was unable to state how he arrived at his conclusions himself, instead saying he relied on other expert; in addition, 3M never explained what methodology Driscoll used in reaching his opinions, calling those opinions “nothing more than a lay opinion disguised as an ‘expert’ opinion” that could confuse or mislead the jury.
In the same order, Judge Rodgers addressed 3M’s bid to have Dr. Mark Packer, a neurotologist and ear-nose-and-throat specialist, excluded from the bellwether trial of Lloyd Baker, which is slated to start June 7.
In April, 3M lost a bellwether in the MDL after a Florida federal jury hit it with a $7.1 million verdict, mostly punitive damages, siding with three former service members who said 3M and a predecessor, Aearo LLC, supplied combat arms earplugs that failed to protect against tinnitus and hearing loss from battlefield and training noise.