PENSACOLA, Fla. (Legal Newsline) – 3M won’t get its wish to get a Department of Defense employee’s deposition as it fights hundreds of thousands of claims that the ear plugs it sold to the U.S. military caused hearing loss.
Florida federal judge Gary Jones on Jan. 19 granted the U.S. government’s request to quash the subpoena issued to Lt. Col. Theresa Schulz, who would’ve testified regarding the military’s role in the design and development of the Combat Arms Earplugs.
But the DOD says personnel are not allowed to testify without prior written approval and that it can refuse to grant permission on at least six grounds, including whether it would compromise ongoing enforcement proceedings or constitutional rights or disclose trade secrets.
In this case, Schulz’s testimony would be irrelevant in light of Jones deciding 3M could not use a government contractor defense, the U.S. says. It also says Schulz has limited relevant knowledge.
Jones is handling the multidistrict litigation proceeding in which more than 200,000 ear plug claims are consolidated.
“Defendants improperly attempt to refashion the administrative record before the Court (and on which the Department’s decision rested) in the hope of showing that LTC Schulz’s testimony is still relevant,” Jones wrote.
“For example, they say their initial December 2, 2019, Touhy request included an assertion that ‘LTC Schulz participated in the crucial meeting with representatives from Aearo where Doug Ohlin opted for a dual-ended product.’
“It did not. Defendants also aver that LTC Schulz may ‘provide unique testimony regarding the military’s development of training materials for the CAEv2,’ and they provide a 2005 email by LTC Schulz as an exhibit in support of that assertion.
“Defendants, however, did not request to depose LTC Schulz on this topic.”
3M is currently fighting the rejection of another of its demands for information, as it seeks answers from a website that places readers and potential plaintiffs in contact with law firms that handle ear plug cases.