CANUP

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BRANDON CANUP,

Plaintiff,

v. CASE NO. 3:26cv3359-MCR-ZCB

BRYAN F AYLSTOCK, et al.,

Defendants.

_________________________________/

ORDER

Plaintiff Brandon Canup has filed a Motion for Recusal and Disqualification

pursuant to 28 U.S.C. § 455(a), (b)(1), ECF No. 37, which Defendants oppose, ECF

Nos. 51, 52. Having fully reviewed the arguments, I find no grounds to justify

recusal.

By way of background, Canup filed a products liability action against the 3M

Company that was part of a multidistrict litigation (“MDL”) proceeding consolidated

in this Court by the Judicial Panel on Multidistrict Litigation (“JPML”), pursuant to

28 U.S.C. § 1407. See In re 3M Combat Arms Earplug Products Liability Litigation,

MDL No. 2885; Canup v. 3M, Member Case No. 8:20-cv-14021-MCR-HTC (N.D.

Fla.). This was by far the largest MDL in the federal judiciary’s history. Weighing

in at 400,000 plaintiffs represented by some 500 different law firms, this behemoth

comprised one-third of the judiciary’s entire civil docket for more than two years.

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At the outset of the litigation, I appointed leadership counsel for the universe of

plaintiffs, to shepherd all cases through the coordinated MDL proceedings.

Leadership counsel expended enormous resources and extraordinary efforts on

behalf of all plaintiffs, including conducting extremely complex discovery involving

not only the defendants but also the Department of Defense, the Department of

Justice, and the Veterans Administration; retaining and deposing dozens of experts

on topics ranging from the science of hearing and sound to the design and testing of

hearing devices to military rules and regulations to military weaponry and ballistics,

and beyond; engaging in complex motion practice; successfully fighting a

bankruptcy along the way; and trying 16 bellwether cases in a period of 14 months.

These efforts were conducted on behalf of all plaintiffs and all plaintiffs benefited

when leadership successfully negotiated a $6 billion global settlement. Shortly after

the settlement was reached, I held a hearing to outline the settlement terms and thank

everyone involved for their outstanding service in the litigation—plaintiffs’

leadership counsel, defense counsel, my staff, clerk’s office staff, and others. In re

3M Combat Arms Earplug Products Liability Litigation, 3:19-md-2885-MCR-HTC,

Master Docket, ECF No. 3862 (Transcript) (N.D. Fla. Sept. 8, 2023).

Defendant Gregory Brown of Fleming Nolen & Jez LLP (“FNJ”) represented

Canup in his member case until the global settlement was reached and Canup elected

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not to participate in the settlement benefits program, at which time Brown withdrew.

After opting out of the global settlement, Canup retained new counsel, David

Gamble. I required every opt-out plaintiff to attend an in-person hearing before

continuing to litigate their individual case, at which I discussed the settlement

program and its benefits as well as the risks of going forward individually, provided

a final opportunity for the plaintiff to participate in the settlement program, and

verified that the plaintiff was fully informed before proceeding further. Canup was

no exception. He and Gamble attended such a hearing on March 13, 2024. Also in

attendance were counsel for 3M and three court-appointed MDL plaintiffs’

leadership attorneys, namely Defendants Bryan Aylstock and Bobby Bradford of

Aylstock Witkin Kreis & Overholtz PLLC (the “Aylstock Defendants”) and Michael

Burns of Mostyn Law.

At Canup’s hearing, as was my practice, I discussed the settlement program,

all the benefits that had been conferred on all plaintiffs by leadership, as well as the

risks of litigating an individual claim on remand. Leadership counsel were present

to offer details about the settlement program and answer questions. I made certain

that Canup was fully informed, and I made clear that whether he chose to participate

or opt out of the settlement was his decision. Canup was then given one final

opportunity to participate in the global settlement, which he declined, as was his

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right to do. Still, with the assistance of his new attorney, Gamble, he then satisfied

the MDL requirements to proceed with his individual opt-out case. He later attended

court-assisted mediation with his counsel, through which he negotiated his own

settlement with 3M outside of the settlement program.

Canup then filed the instant pro se suit in Texas state court against his original

MDL attorneys and the MDL leadership counsel who attended the March 13, 2024

hearing, alleging claims of professional negligence, fraud, breach of fiduciary duty,

and civil conspiracy arising out of their conduct in the MDL. Brown removed the

case to federal court, and the Aylstock Defendants filed a motion with the JPML,

requesting that the case be transferred to this Court as a tag-along case in the MDL.1

After an opportunity for briefing, the JPML granted the request and transferred the

case to this Court on April 2, 2026. The JPML concluded that Canup’s case involves

common questions of fact with the MDL, that this Court (the transferee court)

retained jurisdiction over miscellaneous issues necessary to complete the

administration of the MDL cases, and that Canup’s claims against his counsel arise

1 After the global settlement was reached, the undersigned retained jurisdiction over the settlement

administration, enforcement of orders, and all miscellaneous issues related to the MDL. The JPML

has since reopened the MDL on the transfer of additional actions.

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out of the settlement program and related orders regarding case management,

common benefit, and the appointment of leadership counsel in the MDL.

Canup seeks my disqualification under 28 U.S.C. § 455(a) and (b)(1). Under

§ 455(a), a judge must recuse herself from any proceeding in which her “impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a). Determining whether there

is an appearance of impropriety involves consideration of “whether an objective,

disinterested, lay observer fully informed of the facts underlying the grounds on

which recusal was sought would entertain a significant doubt about the judge’s

impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal

quotations omitted) (noting also that any doubts should be resolved in favor of

recusal). Recusal is mandatory under subsection (b) if the judge “has a personal bias

or prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding.” 28 U.S.C. § 455(b)(1).

Canup argues that bias, an appearance of impropriety, and extra-judicial

communications/knowledge require my disqualification. I disagree. He points first

to the fact that leadership counsel were present at a hearing held on March 13, 2024,

and suggests impropriety because the request for leadership to attend does not appear

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on the public docket in advance of the hearing.2 Canup also suggests that the reason

leadership was present and whether the undersigned requested their presence is a

disputed fact in this litigation. Neither assertion is correct. The record clearly

reflects that all 160 opt-out plaintiffs were required to attend a hearing, and that at

each hearing held, I requested leadership counsel to be present, along with 3M’s

counsel, for the individual plaintiff’s (in this case Canup’s) benefit—so that the

individual plaintiff could hear the pros and cons of settling or continuing to litigate

and ask any questions before making a final decision on whether to participate in the

settlement program. This purpose was outlined in the order setting each hearing,

including Canup’s.3 And, as shown in the hearing transcript from Canup’s March

13, 2024 hearing, I explained on the record that I felt it would be important to afford

him one final opportunity to participate in the settlement, to ask me any questions,

and also to have leadership counsel from both sides present to answer questions.

2 Canup’s argument is grounded in statements within the affidavit of Defendant Bryan Aylstock,

submitted with a now-moot motion to dismiss, stating that Aylstock and Bradford attended a

hearing on March 13, 2024, on behalf of leadership, as “requested by Judge Rodgers,” and that

Bradford communicated with Canup’s counsel, Gamble, in advance of the hearing on behalf of

leadership and “at the MDL Court’s request.” ECF No. 27–1 (Aylstock Affidavit).

3 While the order setting the March 13, 2024 hearing did not expressly state that leadership counsel

must be present, it did require Canup and his attorney to appear and be prepared to discuss not

only his continued obligations for litigating a claim but also the benefits of participating in the

settlement program. Member Case No. 8:20cv14021-MCR-HTC, ECF No. 6 (Order, Feb. 5,

2024).

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Member Case No. 8:20cv14021-MCR-HTC, ECF No. 59 at 4. At the hearing,

plaintiffs’ leadership counsel and 3M’s counsel were invited to make remarks about

the challenges of the MDL, the benefits of the settlement, and the litigation

obligations and obstacles going forward. Nothing about this is in dispute or suggests

any personal bias, extra-judicial knowledge, or a basis on which a fully informed

observer would question my impartiality in the instant case. See 28 U.S.C. § 455(a),

(b)(1). While judges should err on the side of recusal if potential conflicts exist,

recusal is not warranted for “imaginary reasons.” Murray v. Scott, 253 F.3d 1308,

1313 (11th Cir. 2001).

Canup also argues that I made prior statements to all plaintiffs, including him,

about the adequacy of representation provided by leadership counsel that a neutral

observer would see as reflecting a prejudgment of issues in dispute in this case.

Again, I disagree. The record reflects that after the global settlement was reached, I

made general comments on the record commending the professionalism and efforts

of the MDL leadership on both sides and thanking them for their hard work that

ultimately resolved the MDL in a global settlement. I also assured all plaintiffs that

they had been well represented by leadership counsel, who had vigorously pursued

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a fair resolution for plaintiffs as a whole.4 Contrary to Canup’s suggestion, these

were general comments about how leadership on both sides of the aisle conducted

the MDL and the settlement negotiations and could not be viewed as favoritism or

as a comment on the performance of every retained attorney.

As the Supreme Court has stated, “opinions formed by the judge on the basis

of facts introduced or events occurring in the course of the current proceedings, or

of prior proceedings, do not constitute a basis for a bias or partiality motion unless

they display a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994) (discussing § 455(a)

and (b)(1)). My prior comments do not display the type of deep-seated favoritism

that “would make fair judgment impossible,” id., or that could raise a “significant

doubt” about my impartiality, Patti, 337 F.3d at 1321. And I have no bias or personal

knowledge of any disputed facts in this case––the only facts within my knowledge

are those learned through the course of the MDL, which is not a basis for bias or

recusal.

4 I stated that “in my view, the leadership teams on both sides really do exemplify the very best of

the legal profession” and that the 250,000 plaintiffs were “represented very well.” In re 3M

Combat Arms Earplug Products Liability Litigation, 3:19-md-2885-MCR-HTC, ECF No. 3862 at

13 (Hearing Tr. Sept. 8, 2023). Over fifty attorneys participated in plaintiff leadership roles.

Again, at its height, the MDL involved 500 law firms with over 400,000 plaintiffs.

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Canup’s final argument is that because I recused myself in another “materially

similar” case, this bolsters his argument for recusal here. But the case Canup

references, Kelly v. Aylstock, Case No. 3:25cv1947-TKW-ZCB (N.D. Fla.), is not

“materially similar.” Kelly’s suit alleges professional negligence by Bryan Aylstock

in his capacity as Kelly’s retained attorney in the MDL. This is a material difference

from the instant case. Not one of the leadership attorneys Canup sues in this suit

was retained to represent him in the MDL. Moreover, in Kelly, when Aylstock (his

retained attorney) moved to withdraw, Kelly objected, and I held an ex parte hearing.

See Kelly v. 3M, Member Case No. 7:20-cv-36595-MCR-GRJ, ECF No. 15 (N.D.

Fla. Mar. 13, 2024). In the subsequent order granting the motion to withdraw, which

is filed under seal, I explained the basis for withdrawal (a fundamental disagreement

with counsel) and made comments directly about Aylstock’s handling of Kelly’s

case. Because my remarks commenting on the quality of representation by Kelly’s

retained counsel could have been viewed as prejudgment of an issue that would be

presented in Kelly’s professional negligence case, I recused. By contrast, my

comments on the record commending the efforts and professionalism of leadership

counsel as a whole during the MDL are entirely different and do not reflect any

prejudgment on my part about leadership counsel’s conduct toward any particular

litigant who might have retained them. I recused myself in Kelly not out of any

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personal bias or extra-judicial knowledge of facts but because leadership counsel

served also as Kelly’s retained counsel and, most importantly, I had commented

directly on the quality of that representation. That simply is not the case here.

Accordingly, Canup’s Motion for Recusal and Disqualification, ECF No. 37,

is DENIED.

DONE AND ORDERED this 17th day of May 2026.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

CASE NO: 3:26cv3359-MCR-ZCB