PENSACOLA (LN) — U.S. District Judge M. Casey Rodgers denied a motion to recuse himself on May 17 in a pro se lawsuit brought by a 3M Combat Arms earplug MDL opt-out plaintiff against the litigation’s leadership counsel.

Brandon Canup sued Bryan Aylstock, Bobby Bradford, and Michael Burns, alleging professional negligence, fraud, breach of fiduciary duty, and civil conspiracy arising from their conduct in the multidistrict litigation.

Canup argued that Rodgers’ impartiality might reasonably be questioned under 28 U.S.C. § 455 because the judge had previously commended the leadership teams and required them to attend opt-out hearings.

Rodgers rejected the argument, noting that his prior comments were general commendations of the leadership’s professionalism in negotiating a $6 billion global settlement, not prejudgments of specific legal claims.

The judge explained that he required all 160 opt-out plaintiffs to attend individual hearings where leadership counsel and 3M attorneys were present to explain the settlement benefits and litigation risks.

At Canup’s March 13, 2024 hearing, Rodgers explained on the record that he felt it would be important to afford the plaintiff a final opportunity to participate in the settlement and to have leadership counsel present to answer questions.

Canup also pointed to a prior case, Kelly v. Aylstock, in which Rodgers recused himself after commenting on the quality of representation by a retained attorney.

Rodgers distinguished that case, noting that in Kelly, he had made specific comments about the retained counsel’s handling of the client’s case after an ex parte hearing regarding a withdrawal motion.

In contrast, Rodgers said his comments in the 3M MDL were directed at the leadership teams as a whole and did not reflect deep-seated favoritism or antagonism toward any particular litigant.

The judge cited Supreme Court precedent stating that opinions formed on the basis of facts introduced in prior proceedings do not constitute a basis for bias unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Canup, who opted out of the global settlement and later negotiated his own resolution with 3M, filed the suit in Texas state court. The case was removed to federal court and transferred to the Northern District of Florida as a tag-along case.

The 3M Combat Arms earplug litigation involved 400,000 plaintiffs and was the largest MDL in federal history.