18th Annual Workplace Class Action Report - 2022 Edition

588 Annual Workplace Class Action Litigation Report: 2022 Edition ‘incredibly shallow’ as to warrant exclusion.” Id. at *53. The Court, however, agreed with Defendant that Dr. Singer’s methodology was significantly flawed because his report failed to account for the fact that WSRs contained data for employees paid per-hour and per-shift. Since this wage discrepancy rendered Dr. Singer’s report unreliable, the Court granted Defendant’s motion to exclude it. In terms of Defendant’s expert reports, Plaintiffs challenged Dr. Ordover’s report on the basis that he discarded relevant data and erred in his market analysis. The Court reasoned that Dr. Ordover’s rejection of certain data points did not amount to a meaningful error, as he discarded only 34,000 inapposite data observations out of nearly 15 million total observations. The Court further held that Dr. Ordover properly analyzed the relevant product market, and that Plaintiffs’ additional challenges to specific data points in Dr. Ordover’s methodology went to the weight of his testimony, not its admissibility. Plaintiffs also argued that Dr. McCrary’s report was unreliable because it was grounded in insufficient facts. The Court again disagreed on the basis that Plaintiffs’ argument to be conclusory and one that ignored Dr. McCrary’s underlying scientific analysis. As the Court stated, “given that the bulk of his report featured an extensive discussion of labor economics and key concepts, Dr. McCrary’s testimony is neither unreliable nor unhelpful.” Id. at *73. Plaintiffs’ additional challenges to this report concerned the alleged use of improper variables, and the Court did not need to address these contentions because they related only to the weight of Dr. McCrary’s testimony. For these reasons, the Court granted Defendant’s motion to exclude and denied Plaintiffs’ motion. In Re 3M Combat Arms Earplug Products Liability Litigation, 2021 WL 684183 (N.D. Fla. Feb. 11, 2021). Plaintiffs, a group of U.S. Army service members and veterans, filed a number of separate class actions, which were eventually consolidated into the present action, claiming that Defendant supplied Army service members with defective earplugs. Plaintiffs filed suit under the False Claims Act alleging that Defendant’s earplugs did not come with accurate health warnings, and that as a result of the earplugs’ allegedly defective nature, Plaintiffs suffered tinnitus and hearing loss. As the parties prepared for trial, both Plaintiffs and Defendant filed Daubert motions seeking to exclude certain testimony by the opposing party’s expert witnesses. The Court granted in part and denied in part the motions. As to the relevant expert testimony, both parties’ expert witnesses sought to opine on the history, purpose, and implementation of the Army Hearing Program. Plaintiffs’ experts generally opined that Army personnel acted safely and complied with all requirements of the Hearing Program, while Defendant’s experts testified that the Army had a widespread practice of not wearing earplugs and ignoring hearing-related safety measures. The Court granted the parties’ Daubert motions to the extent that the expert witnesses sought to testify about the Army-wide success or failure of the Hearing Program, or about compliance issues not based in personal knowledge or experience. According to the Court, “there is no verifiable or quantifiable support for the opinion that the Army Hearing Program was a complete success or an utter failure at protecting service members from hearing loss. These experts’ broad opinions are based solely on their own generalized views, anecdotal accounts, and speculation and thus are not reliable.” Id. at *3. Outside of these generalized issues, the Court found that both Plaintiffs’ and Defendant’s expert witnesses – all of which possessed extensive credentials and more than 20 years of Army experience – were sufficiently reliable to opine on specific aspects of the Hearing Program that they personally observed. For example, the Court reasoned that, while generalized testimony was inappropriate, Plaintiffs’ expert Sergeant Major Hutson “may opine about the success of Army’s training program and how well it works to promote safety and hearing conservation based on his own personal observations .” Id. at *1. Accordingly, the Court granted the parties’ Daubert motions to the extent they sought to preclude the experts’ testimony regarding Army-wide successes and failures, but denied the motions to the extent they sought to exclude the experts’ testimony in their entirety. Id. at *6. In Re 3M Combat Arms Earplug Products Liability Litigation, 2021 U.S. Dist. LEXIS 97635 (N.D. Fla. May 11, 2021). Plaintiffs, a group of members of the U.S. military, brought consolidated class action lawsuits alleging that they suffered hearing loss as a result of Defendant’s allegedly defective military-issued earplugs. In an omnibus motion, the parties moved to exclude the expert testimony of Dr. Packer, Dr. Fagelson, and Dr. Driscoll, three experts in the case, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). Plaintiff McComb’s expert challenge was directed to the opinions of Dennis Driscoll, a mechanical engineer and board-certified noise control engineer who had obtained his master of science in mechanical engineering and worked an acoustical consultant. Driscoll opined that: (i) the named Plaintiff McCombs faced a significant risk for noise-induced hearing loss and tinnitus at the time a military truck he was on was struck by an explosive device in Afghanistan in 2009; (ii) McCombs did not have noise-induced