KELLEY v. 3M COMPANY
7:20-cv-00153
N.D. Fla.Feb 18, 2022Background
- MDL bellwether group D includes five trials scheduled March–May 2022; Plaintiffs sought authorization under Fed. R. Civ. P. 43(a) to subpoena Elliott Berger for live remote testimony.
- Elliott Berger: former 3M employee, paid consultant who drafted the Flange report and helped develop/defend the CAEv2; he has testified (including remotely) in multiple prior bellwether trials.
- Court previously authorized Berger’s remote live testimony in several bellwether trials and has observed his remote testimony in ten trials.
- Defendants opposed repeating remote compulsion, arguing Berger has already testified many times and that any authorization should be symmetrical.
- Court found compelling circumstances under Rule 43(a) and read Rules 43(a) and 45 together (place of compliance limits), granted Plaintiffs’ motions, and also allowed Defendants to subpoena Berger remotely.
- Court imposed safeguards and conditions: live videoconferencing (ZoomGov), vendor at remote site, attorney at remote site to manage exhibits, coordinated schedule, and a rule that Berger testify only once per case with both parties’ examinations contiguous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 43(a) permits compelling Berger’s live remote testimony | Compelling circumstances exist: Berger is a key witness, live remote provides better evidence than videotapes, bellwether value requires live testimony | Berger has already testified at many trials; should not be compelled repeatedly; fairness concerns | Granted: Court found compelling circumstances and authorized subpoenas for the remaining five bellwether trials |
| Whether Rule 45 geographic limits bar remote subpoenas | Rules 43(a) and 45 are read together; place of compliance governs 100-mile limit, so remote testimony can be compelled if compliance location falls within Rule 45(c) | Argues prior rulings should not control or that geographic limits restrict compulsion | Held that Rule 45’s geographic limitation concerns place of compliance; courts may compel remote testimony consistent with Rule 45(c) |
| Whether compelling Berger prejudices defendants or Berger | Plaintiffs: minimal additional burden; prior extensive preparation reduces incremental burden; jury needs live testimony for credibility | Defendants/Berger: prejudice from repeated preparation and testimony; burden on Berger who is retired | Court found prejudice insufficient: prior preparation, ability to schedule remotely, and importance to plaintiffs outweigh claimed prejudice |
| What safeguards are required for remote testimony under Rule 43(a) | Use contemporaneous videoconferencing, ensure cross-examination ability and credibility assessment | Seek parity and protections against technological/exhibit issues | Court required ZoomGov, vendor present at remote site, attorney at remote site to manage exhibits, coordinated scheduling, contiguous examinations, and limited single testimony per case |
Key Cases Cited
- In re Vioxx Prod. Liab. Litig., 439 F. Supp. 2d 640 (E.D. La. 2006) (endorses five-factor test for authorizing remote testimony and recognizes value of videoconferencing).
- In re Newbrook Shipping Corp., 498 F. Supp. 3d 807 (D. Md. 2020) (supports reading Rule 45’s geographic limitation as relating to the place of compliance for remote testimony).