EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 1 of 179
PLAINTIFF'S AFFIRMATIVE 

DESIGNATIONS 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 2 of 179
Cimino, Mike 12/11/2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 3 of 179
Cimino, Mike 12/11/2019 rev. report 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

7:8 - 7:13 Cimino, Mike 12/11/2019 rev. report

 7 8 Q. Would you please state your full name for

 7 9 the record?

 7 10 A. My full name is Mike Cimino.

 7 11 Q. Good morning, Mr. Cimino. My name is Tom

 7 12 Cartmell. It is nice to meet you.

 7 13 A. Nice to meet you.

8:23 - 9:2 Cimino, Mike 12/11/2019 rev. report

 8 23 Who are you currently employed by, sir?

 8 24 A. 3M.

 8 25 Q. And what is your current position at 3M?

 9 1 A. Currently I'm a -- a business development

 9 2 leader.

9:3 - 9:5 Cimino, Mike 12/11/2019 rev. report

 9 3 Q. Is it true that you've worked for 3M or

 9 4 its predecessor, the Aearo Technology Company for

 9 5 approximately 20 years?

Re: [9:3-9:5]

Def Objection - Compound 

(611, 403)

Re: [9:3-9:5]

Def Objection -

Compound (611, 

403)

Overruled

9:8 - 9:11 Cimino, Mike 12/11/2019 rev. report

 9 8 A. So I've worked with 3M company since 2008

 9 9 when they purchased Aearo company. With Aearo 

company

 9 10 I was there starting back in April -- actually, Aearo

 9 11 started back in January '99. Yeah, January '99.

Re: [9:8-9:11]

Def Objection - Compound 

(611, 403)

Re: [9:8-9:11]

Def Objection -

Compound (611, 

403)

Overruled

9:18 - 9:22 Cimino, Mike 12/11/2019 rev. report

 9 18 Q. Okay. And during that entire 20-year

 9 19 period of time, have you been working in the 

marketing

 9 20 department or the business side of the companies?

 9 21 A. Yeah, I've been on the customer-facing,

 9 22 either marketing or sales side.

10:15 - 10:24 Cimino, Mike 12/11/2019 rev. report

 10 15 I've marked as Exhibit 1 a copy of your

 10 16 resume. Let me ask you, did you prepare this resume

 10 17 for this litigation?

 10 18 A. No.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 4 of 179
Cimino, Mike 12/11/2019 rev. report 3

 10 19 Q. This is a resume that you prepared when?

 10 20 A. So this would have been one that I would

 10 21 have picked up -- so this would have been one that I

 10 22 would have picked up as a result of having applied to

 10 23 other jobs within 3M. So it's -- it's a consolidated

 10 24 CV.

11:3 - 12:15 Cimino, Mike 12/11/2019 rev. report

 11 3 Q. So let me ask it, just to summarize for

 11 4 the jury, because I want to give them some idea who

 11 5 you are.

 11 6 But when you started at Aearo

 11 7 Technologies, it looks like you were a marketing

 11 8 director in -- in 1999, correct?

 11 9 A. Correct.

 11 10 Q. And then you received a promotion to

 11 11 business manager in October of 2006, is that correct?

 11 12 A. Correct.

 11 13 Q. Okay. After that, according to your CV,

 11 14 you became a business leader, tactical PPE military

 11 15 markets in April of 2008, right?

 11 16 A. Correct.

 11 17 Q. And PPE stands for personal protection

 11 18 equipment, is that right?

 11 19 A. Correct.

 11 20 Q. Okay. You then became a product marketing

 11 21 manager in January 2012 for active hearing, correct?

 11 22 A. Correct.

 11 23 Q. And we'll go back and talk about some of

 11 24 these, but if you go to the front -- the front page,

 11 25 just real quickly, in 2013 you were a product --

 12 1 product marketing manager, in 2014 you were a 

national

 12 2 accounts manager, in 2015 you were a regional sales

 12 3 manager, and in 2006 -- excuse me -- '18 you became

 12 4 your current -- or you started working in your current

 12 5 position, business development leader, is that

 12 6 correct?

 12 7 A. Correct.

 12 8 Q. All right. So, we've talked about all of

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 5 of 179
Cimino, Mike 12/11/2019 rev. report 4

 12 9 those positions that you've had.

 12 10 Have those been promotions through the

 12 11 company primarily over those 20-some years?

 12 12 A. I would say they've been roles of

 12 13 escalating responsibility and not all promotions.

 12 14 Q. Some of them lateral moves?

 12 15 A. Yes.

13:3 - 13:6 Cimino, Mike 12/11/2019 rev. report

 13 3 BY MR. CARTMELL:

 13 4 Q. Yeah. So as far as a -- you're a

 13 5 marketing person, you are either in marketing or sales

 13 6 for the company, correct?

Re: [13:3-13:6]

Improper Counter Designation, 

401/402, Cumulative

OVERRULED

13:8 - 13:12 Cimino, Mike 12/11/2019 rev. report

 13 8 BY THE WITNESS:

 13 9 A. So I was a marketing leader. In marketing

 13 10 you're -- you're responsible for a -- a product mix or

 13 11 a basket of products within your pert -- your port --

 13 12 your portfolio of products.

Re: [13:8-13:12]

Improper Counter Designation, 

401/402, Cumulative

OVERRULED

21:11 - 21:15 Cimino, Mike 12/11/2019 rev. report

 21 11 Q. You understand you are a witness in this

 21 12 case because you were in marketing and in 

management

 21 13 over, for a period of time, a product, an earplug

 21 14 product called the Combat Arms Earplug, is that fair?

 21 15 A. Yeah.

Re: [21:11-21:15]

Def Objection - Compound; 

Vague (611, 403)

Re: [21:11-

21:15]

Def Objection -

Compound; 

Vague (611, 403)

Overruled

24:8 - 24:13 Cimino, Mike 12/11/2019 rev. report

 24 8 Q. Did you have any involvement with this

 24 9 product, the Version 2 dual-ended Combat Arms 

Earplug,

 24 10 prior to 2006, whether it be related to marketing or

 24 11 sales?

 24 12 A. I would have known about it, but I didn't

 24 13 have any responsibility for it.

Re: [24:8-24:13]

Improper Counter Designation, 

401/402

OVERRULED

36:2 - 36:13 Cimino, Mike 12/11/2019 rev. report

 36 2 You stated previously that you were first

 36 3 involved with the Combat Arms Earplugs in 2006, 

right?

 36 4 A. As part of my product portfolio

 36 5 responsibility, correct.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 6 of 179
Cimino, Mike 12/11/2019 rev. report 5

 36 6 Q. And then tell the jury how long it was

 36 7 after that that you were involved from a marketing

 36 8 standpoint with the Combat Arms Version 2 earplug?

 36 9 A. So I don't remember exactly, but it would

 36 10 have been -- it would have been in my product mix

 36 11 through December 2011 as part of my responsibility 

as

 36 12 the business leader for the military market. So that

 36 13 would have been part of our product mix at the time.

36:14 - 36:19 Cimino, Mike 12/11/2019 rev. report

 36 14 Q. So is it fair to say that for purposes

 36 15 of -- of this deposition, the time period for which

 36 16 you were in a marketing management role related to 

the

 36 17 Combat Arms Version 2 earplug would have been 

from

 36 18 2006 through a portion of 2011?

 36 19 A. Correct.

Re: [36:14-36:19]

Improper Counter Designation

OVERRULED

36:20 - 36:23 Cimino, Mike 12/11/2019 rev. report

 36 20 Q. Do you think you had any responsibility

 36 21 related to Version 2, the Combat Arms Earplug, after

 36 22 2011?

 36 23 A. I did not.

Re: [36:20-36:23]

Improper Counter Designation

OVERRULED

36:24 - 37:8 Cimino, Mike 12/11/2019 rev. report

 36 24 Q. Okay. So for that five years that you

 36 25 were in marketing management, tell us primary -- tell

 37 1 us what your responsibilities were with respect to

 37 2 marketing or the sales of the Combat Arms Earplug?

 37 3 A. So my responsibility was primarily as a --

 37 4 as a market-facing business leader focused on the

 37 5 military and tactical markets. So what -- what -- in

 37 6 other words, sales and marketing functions directed at

 37 7 this particular segment of -- of the market would have

 37 8 fallen under my responsibility.

41:4 - 41:18 Cimino, Mike 12/11/2019 rev. report

 41 4 (WHEREUPON, a certain document was

 41 5 marked Mike Cimino Deposition Exhibit

 41 6 No. 4, for identification, as of

 41 7 12/11/2019.)

Re: [41:4-41:18]

Def Objection - Foundation 

(602)

Re: [41:4-41:18]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 7 of 179
Cimino, Mike 12/11/2019 rev. report 6

 41 8 BY MR. CARTMELL:

 41 9 Q. I'm going to hand you what's been marked

 41 10 as Exhibit 4.

 41 11 Mr. Cimino, I've handed you Exhibit 4,

 41 12 which is an e-mail and attachment that came from 

3M's

 41 13 files in this case, and I want to ask you a few

 41 14 questions about this.

 41 15 You see from the e-mail that this is an

 41 16 e-mail from Doug Moses to Jason Jones and Eric 

Fallon.

 41 17 Do you see that?

 41 18 A. I do.

WITHDRAWN 

[41:4-41:18], 

3/12/2021

42:14 - 44:4 Cimino, Mike 12/11/2019 rev. report

 42 14 Q. Okay. You see that there is a document

 42 15 forwarded by Mr. Moses that talks about military

 42 16 timelines or a military milestones and time -- and a

 42 17 timeline.

 42 18 Do you see that?

 42 19 A. The Historical Timeline chart, yes.

 42 20 Q. Okay. Let's take a look at that. I want

 42 21 to give the jury some perspective as far as what is

 42 22 going on during the periods of time that the Combat

 42 23 Arms Earplugs Version 2 was being sold.

 42 24 And you see that this Historical Timeline

 42 25 has US military activity that is occurring from 1999

 43 1 through 2004, do you see that?

 43 2 A. Um-hum.

 43 3 Q. And, for example, in 2001, that's when the

 43 4 Afghan -- Afghanistan deployments began, right?

 43 5 A. Yes.

 43 6 Q. In 2003 the Iraqi war began. Is that

 43 7 consistent with your recollection?

 43 8 A. Correct.

 43 9 Q. And thereafter, you'll see in 2004,

 43 10 shortly after the Iraqi war began, the Generation 2

 43 11 Combat Arms Earplug was launched.

 43 12 Is that consistent with your memory?

 43 13 A. I'd have to assume this is correct. I --

Re: [42:14-43:24]

Def Objection - Foundation 

(602)

Re: [43:25-44:4]

Def Objection - Comopund; 

Misstates (611, 403) ; 

Foundation (602)

Re: [42:14-

43:24]

Def Objection -

Foundation (602)

44267

Re: [43:25-44:4]

Def Objection -

Compound; 

Misstates (611, 

403) ; 

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 8 of 179
Cimino, Mike 12/11/2019 rev. report 7

 43 14 I wasn't -- I don't remember when Gen 2 was 

officially

 43 15 launched.

 43 16 Q. I see. You know it was launched and had

 43 17 been on the market for a period of time prior to you

 43 18 taking over responsibility for it?

 43 19 A. Yes.

 43 20 Q. And then you mentioned just a second ago

 43 21 that there was a lot of activity and a lot of money

 43 22 being spent by the military when you took over in

 43 23 2006, correct?

 43 24 A. Correct.

 43 25 Q. And that was because, as we've -- as this

 44 1 timeline shows, there were two wars that had been

 44 2 started by that time and, I take it, tens of thousands

 44 3 of soldiers had been deployed overseas into combat, is

 44 4 that -- is that correct?

44:7 - 44:24 Cimino, Mike 12/11/2019 rev. report

 44 7 A. So there was certainly surge deployments

 44 8 at that time. I -- I don't recall the exact numbers.

 44 9 BY MR. CARTMELL:

 44 10 Q. Okay. But as there are more soldiers who

 44 11 are deployed over into combat or overseas into wars,

 44 12 obviously the military is going to have a greater need

 44 13 for personal protection equipment like earplugs or

 44 14 earmuffs, that sort of thing, correct?

 44 15 A. Well, with more people there is more --

 44 16 more consumption.

 44 17 Q. Okay. And -- and you can see from this

 44 18 timeline that in 2006, around the time you were

 44 19 appointed to lead the strategic business unit that

 44 20 included the Combat Arms Earplug, one million pair 

of

 44 21 Generation 2 Combat Arms Earplugs were purchased 

by or

 44 22 ordered by the DLA.

 44 23 Do you see that?

 44 24 A. I do.

Re: [44:7-44:8]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602)

Re: [44:9-44:24]

Def Objection - Foundation 

(602)

Re: [44:7-44:8]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602)

Overruled

Re: [44:9-44:24]

Def Objection -

Foundation (602)

44267

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 9 of 179
Cimino, Mike 12/11/2019 rev. report 8

62:24 - 63:8 Cimino, Mike 12/11/2019 rev. report

 62 24 So, were you involved in day-to-day sort

 62 25 of business development activities related to the

 63 1 Combat Arms Earplug?

 63 2 A. I would -- I would not have been, no.

 63 3 Q. So as far as like going to meetings with

 63 4 military audiologists, for example, in order -- in

 63 5 order to discuss the Combat Arms Earplug with them,

 63 6 that sort of thing, that was not you who was doing

 63 7 that?

 63 8 A. No.

Re: [62:24-63:8]

Improper Counter Designation

SUSTAINED

67:6 - 67:11 Cimino, Mike 12/11/2019 rev. report

 67 6 Q. What about creating advertisements,

 67 7 brochures, catalogs, things like that, were you

 67 8 involved at all in the creation of those types of

 67 9 marketing materials related to the Combat Arms

 67 10 Earplugs?

 67 11 A. No.

Re: [67:6-67:11]

Improper Counter Designation

SUSTAINED

83:2 - 83:8 Cimino, Mike 12/11/2019 rev. report

 83 2 BY MR. CARTMELL:

 83 3 Q. Well, you had an understanding when you

 83 4 took over this product, did you not, that before this

 83 5 earplug could ever reach the market and be launched

 83 6 onto the market to be sold, it needed to be tested in

 83 7 the laboratory.

 83 8 You knew that, didn't you?

83:11 - 83:14 Cimino, Mike 12/11/2019 rev. report

 83 11 BY THE WITNESS:

 83 12 A. So, I don't know what testing protocol or

 83 13 technical or development was done as it relates to

 83 14 that Combat Arms deal.

91:10 - 91:12 Cimino, Mike 12/11/2019 rev. report

 91 10 Did you figure out whether or not this

 91 11 earplug had met the requirements of the EPA at the

 91 12 time you took over the product?

Re: [91:10-91:12]

Improper Counter Designation

SUSTAINED

91:14 - 91:19 Cimino, Mike 12/11/2019 rev. report

 91 14 BY THE WITNESS:

 91 15 A. So when that product came into my

 91 16 responsibility, it would have already been -- gone

Re: [91:14-91:19]

Improper Counter Designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 10 of 179
Cimino, Mike 12/11/2019 rev. report 9

 91 17 through all of the appropriate development

 91 18 specifications and processes. So as it came into my

 91 19 portfolio, that's what it would have been.

95:6 - 95:11 Cimino, Mike 12/11/2019 rev. report

 95 6 BY MR. CARTMELL:

 95 7 Q. Do you recall any conversations with

 95 8 Elliott about the testing that was done on this Combat

 95 9 Arms Earplug?

 95 10 A. No, no.

 95 11 Q. Okay.

Re: [95:6-95:11]

Improper Counter Designation, 

602, 401/402

SUSTAINED

97:13 - 97:17 Cimino, Mike 12/11/2019 rev. report

 97 13 Q. Okay. So let's look at this. This --

 97 14 these are the noise reduction ratings for the Combat

 97 15 Arms Earplugs Version 2.

 97 16 The 22 on the left side is for the green

 97 17 end, correct?

Re: [97:13-97:17]

Improper Counter Designation, 

602

SUSTAINED

97:20 - 97:21 Cimino, Mike 12/11/2019 rev. report

 97 20 A. I don't know what -- I don't know what

 97 21 that was tested, how it was tested.

Re: [97:20-97:21]

Improper Counter Designation, 

602

SUSTAINED

98:8 - 98:10 Cimino, Mike 12/11/2019 rev. report

 98 8 Q. Right. So do you have any reason to

 98 9 dispute that?

 98 10 A. I don't. I don't have any reason.

Re: [98:8-98:10]

Improper Counter Designation, 

cumulative

SUSTAINED

99:3 - 99:7 Cimino, Mike 12/11/2019 rev. report

 99 3 Q. Okay. Now, we've talked about these noise

 99 4 reduction ratings, and as you said, you understood at

 99 5 the time you took over this product that these ratings

 99 6 would be the result of a test that would be performed

 99 7 in Aearo's laboratory, correct?

99:9 - 99:12 Cimino, Mike 12/11/2019 rev. report

 99 9 BY THE WITNESS:

 99 10 A. So these -- these -- these would have been

 99 11 as a result of tests, yes.

 99 12 BY MR. CARTMELL:

107:14 - 107:17 Cimino, Mike 12/11/2019 rev. report

 107 14 Q. Elliott Berger was the individual

 107 15 scientist or researcher at the laboratory at Aearo

Re: [107:14-107:17]

Improper Counter Designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 11 of 179
Cimino, Mike 12/11/2019 rev. report 10

 107 16 Technologies that would test hearing protective

 107 17 devices like the Combat Arms Earplugs, correct?

107:19 - 107:22 Cimino, Mike 12/11/2019 rev. report

 107 19 BY THE WITNESS:

 107 20 A. I don't recall his entire scope, but I

 107 21 remember him being at the lab, yes.

 107 22 BY MR. CARTMELL:

Re: [107:19-107:22]

Improper Counter Designation

SUSTAINED

108:4 - 108:8 Cimino, Mike 12/11/2019 rev. report

 108 4 Q. And you understood at that time that there

 108 5 would be a testing process for those hearing

 108 6 protective devices, that Elliott Berger would be

 108 7 involved in testing those in order to obtain a noise

 108 8 reduction rating for those products, correct?

Re: [108:4-108:8]

Improper Counter Designation

SUSTAINED

108:10 - 108:13 Cimino, Mike 12/11/2019 rev. report

 108 10 BY THE WITNESS:

 108 11 A. So Elliott would have been the lead at the

 108 12 lab that we worked through V�rnamo and the 

project

 108 13 managers out of V�rnamo for this type of testing.

Re: [108:10-108:13]

Improper Counter Designation

SUSTAINED

108:21 - 108:25 Cimino, Mike 12/11/2019 rev. report

 108 21 answer to my prior question, you understand as of 

2004

 108 22 that products would be tested by Elliott Berger and

 108 23 others in the laboratory at Aearo Technologies in

 108 24 order to get a noise reduction rating for the product,

 108 25 correct?

Re: [108:21-108:25]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [108:21-

108:25]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

109:4 - 109:10 Cimino, Mike 12/11/2019 rev. report

 109 4 A. So I know and knew that the lab in

 109 5 Indianapolis did testing for NRR for our products.

 109 6 BY MR. CARTMELL:

 109 7 Q. And if you were responsible for that

 109 8 product, in other words, if it was a product in your

 109 9 portfolio, you were very interested in that NRR rating

 109 10 from a marketing perspective, correct?

Re: [109:4-109:5]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [109:7-109:10]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [109:4-

109:5]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

Re: [109:7-

109:10]

Def Objection -

Compound; 

Vague (611, 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 12 of 179
Cimino, Mike 12/11/2019 rev. report 11

403); Foundation 

(602)

Overruled

109:13 - 109:15 Cimino, Mike 12/11/2019 rev. report

 109 13 A. So within the project scope, there would

 109 14 have been -- yeah, there would have been a -- an 

NRR

 109 15 target.

Re: [109:13-109:15]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [109:13-

109:15]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

109:24 - 110:1 Cimino, Mike 12/11/2019 rev. report

 109 24 Q. Well, you had -- you had your desires from

 109 25 a marketing perspective of where you wanted to see 

the

 110 1 NRR for your products, correct?

Re: [109:24-110:1]

Def Objection - Compound; 

Vague(611, 403); Foundation 

(602)

Re: [109:24-

110:1]

Def Objection -

Compound; 

Vague(611, 403); 

Foundation (602)

Overruled

110:4 - 110:9 Cimino, Mike 12/11/2019 rev. report

 110 4 A. There would have been a target goal.

 110 5 BY MR. CARTMELL:

 110 6 Q. Right. And that's because you are going

 110 7 to use that NRR as a marketing person to go market 

to

 110 8 customers about your product and the noise reduction

 110 9 capabilities of those products, right?

Re: [110:4-110:4]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [110:6-110:9]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [110:4-

110:4]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

Re: [110:6-

110:9]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

110:12 - 110:22 Cimino, Mike 12/11/2019 rev. report

 110 12 A. We would have had a -- we would have had

 110 13 an NRR associated with the product, yes, and a 

target

 110 14 NRR as part of the project specification.

Re: [110:12-110:14]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [110:12-

110:14]

Def Objection -

Compound; 

Vague (611, 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 13 of 179
Cimino, Mike 12/11/2019 rev. report 12

 110 15 BY MR. CARTMELL:

 110 16 Q. Right. So this e-mail string is talking

 110 17 about a product that is being tested.

 110 18 A. Uh-huh.

 110 19 Q. You have responsibility as the marketing

 110 20 person for that, you know it's going to be tested by

 110 21 Elliott in the lab and so you reach out to Elliott, do

 110 22 you not?

Re: [110:19-110:22]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

403); Foundation 

(602)

Overruled

Re: [110:19-

110:22]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

110:25 - 111:1 Cimino, Mike 12/11/2019 rev. report

 110 25 A. I've reached out to Elliott in this

 111 1 e-mail.

Re: [110:25-111:1]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [110:25-

111:1]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

117:10 - 117:16 Cimino, Mike 12/11/2019 rev. report

 117 10 Q. And this mentions "the 8th and 9th

 117 11 person." I think I asked you this before, but you

 117 12 understood that the testing for NRR testing or the

 117 13 REAT testing would include testing of ten subjects,

 117 14 correct?

 117 15 A. I don't recall what the details of a REAT

 117 16 test are.

Re: [117:10-117:16]

Improper Counter Designation, 

602

SUSTAINED

118:20 - 119:5 Cimino, Mike 12/11/2019 rev. report

 118 20 Q. Mr. Cimino, we are back on the record

 118 21 after a short break. Are you ready to proceed?

 118 22 A. I am.

 118 23 Q. Now, we were talking about NRRs, or noise

 118 24 reduction ratings, and we've established that this is

 118 25 the noise reduction rating that is affixed to the

 119 1 label for the Combat Arms Earplug Version 2.

 119 2 On the left, the 22 is for the green side

 119 3 or the closed end and on the right is the yellow end

 119 4 which is a 0, correct?

 119 5 A. That's what I see, yes.

Re: [118:20-119:5]

Def Objection - Foundation 

(602)

Re: [118:20-

119:5]

Def Objection -

Foundation (602)

DESIGNATION 

WITHDRAWN, 

3/12/2021; 

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 14 of 179
Cimino, Mike 12/11/2019 rev. report 13

121:7 - 121:11 Cimino, Mike 12/11/2019 rev. report

 121 7 Q. I'm going to hand you Exhibit 9.

 121 8 (WHEREUPON, a certain document was

 121 9 marked Mike Cimino Deposition Exhibit

 121 10 No. 9, for identification, as of

 121 11 12/11/2019.)

121:15 - 122:4 Cimino, Mike 12/11/2019 rev. report

 121 15 Q. Mr. Cimino, this is a report that was

 121 16 provided to us from 3M's files in this litigation, and

 121 17 I want to ask you some questions. It's dated

 121 18 July 10th of 2000.

 121 19 Do you see that?

 121 20 A. I do.

 121 21 Q. It's titled: How Folding the Flanges Back

 121 22 Affects REAT Results of the UltraFit Earplug End 

of

 121 23 the Combat Arms Plug.

 121 24 Do you see that?

 121 25 A. I see that.

 122 1 Q. Now, the authors of this are R. W. Kieper,

 122 2 B.S. and E. H. Berger, M.S.

 122 3 Do you see that?

 122 4 A. I do.

Re: [121:15-122:4]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [121:15-

122:4]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

OVERRULED 

AS TO 401, 402, 

AND 403 

OBJECTIONS; 

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

136:18 - 137:2 Cimino, Mike 12/11/2019 rev. report

 136 18 Q. Okay. Now, had you ever been told about

 136 19 this report or any of its findings?

 136 20 A. I don't recall this report at all.

 136 21 Q. Just to make it clear, you had never been

 136 22 told by anyone at the company, Elliott Berger, Ron

 136 23 Kieper, or anyone else when you took over

 136 24 responsibility for marketing this product, that they

 136 25 did an initial test on the product and they had to

 137 1 stop the test after eight subjects.

 137 2 You were never told that, correct?

Re: [136:18-136:20]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [136:21-137:2]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [136:18-

136:20]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

Re: [136:21-

137:2]

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 15 of 179
Cimino, Mike 12/11/2019 rev. report 14

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

137:5 - 137:6 Cimino, Mike 12/11/2019 rev. report

 137 5 A. I don't ever recall either this report or

 137 6 being told.

Re: [137:5-137:6]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [137:5-

137:6]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

138:17 - 138:19 Cimino, Mike 12/11/2019 rev. report

 138 17 BY MR. CARTMELL:

 138 18 Q. Would -- would you have wanted to know

 138 19 this in retrospect?

Re: [138:17-138:19]

Improper Counter Designation, 

602

SUSTAINED

138:21 - 138:24 Cimino, Mike 12/11/2019 rev. report

 138 21 BY THE WITNESS:

 138 22 A. It -- this was done six years prior to me

 138 23 taking over, so at that point, no, I -- I don't -- it

 138 24 was already being sold at that time.

Re: [138:21-138:24]

Improper Counter Designation

SUSTAINED

139:21 - 139:22 Cimino, Mike 12/11/2019 rev. report

 139 21 Q. And you don't think it was important for

 139 22 you to be made aware of?

Re: [139:21-139:22]

Def Objection - Vague (611, 

403); Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [139:21-

139:22]

Def Objection -

Vague (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

139:25 - 140:1 Cimino, Mike 12/11/2019 rev. report

 139 25 A. Again, I wasn't -- I just wasn't aware of

 140 1 this report.

Re: [139:25-140:1]

Def Objection - Vague (611, 

403); Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [139:25-

140:1]

Def Objection -

Vague (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 16 of 179
Cimino, Mike 12/11/2019 rev. report 15

Prejudice (403)

Overruled

141:23 - 142:1 Cimino, Mike 12/11/2019 rev. report

 141 23 BY MR. CARTMELL:

 141 24 Q. Do you know if anyone from marketing was

 141 25 ever provided this report?

 142 1 A. I don't know.

143:25 - 144:3 Cimino, Mike 12/11/2019 rev. report

 143 25 BY MR. CARTMELL:

 144 1 Q. And I understand now, you've told me that

 144 2 you weren't aware of it. My question to you is:

 144 3 Don't you think you should have been told this?

Re: [143:25-144:3]

Improper Counter Designation

SUSTAINED

144:5 - 144:15 Cimino, Mike 12/11/2019 rev. report

 144 5 BY MR. CARTMELL:

 144 6 Q. That -- that the plug itself, the stem of

 144 7 the plug is too short for proper insertion in people's

 144 8 ears?

 144 9 A. I would not have gotten involved in

 144 10 granular detail of product design.

 144 11 Q. Does that mean even if you had been told

 144 12 this, that the UltraFit earplug end of the Combat 

Arms

 144 13 Plug is too short for proper insertion, even if you

 144 14 had been told that, you would not have gotten 

involved

 144 15 in that and done anything?

Re: [144:5-144:15]

Improper Counter Designation

SUSTAINED

144:17 - 144:21 Cimino, Mike 12/11/2019 rev. report

 144 17 BY THE WITNESS:

 144 18 A. Again, out of context, it also says "at

 144 19 the request of the Army," so I -- I don't know what

 144 20 the -- where -- how this report was done, who --

what

 144 21 the specifications were, anything of that nature.

Re: [144:17-144:21]

Improper Counter Designation

SUSTAINED

146:9 - 146:12 Cimino, Mike 12/11/2019 rev. report

 146 9 BY MR. CARTMELL:

 146 10 Q. What if you had been told that when you

 146 11 became the product manager?

 146 12 A. I wasn't the product manager.

Re: [146:9-146:12]

Improper Counter Designation, 

401/402

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 17 of 179
Cimino, Mike 12/11/2019 rev. report 16

150:24 - 151:2 Cimino, Mike 12/11/2019 rev. report

 150 24 Q. Did anybody tell you that the 22 NRR that

 150 25 was assigned to the Combat Arms Earplug Version 2

 151 1 actually resulted from testing with the flanges folded

 151 2 back on the outward-facing plug?

Re: [150:24-151:2]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [150:24-

151:2]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

151:6 - 151:9 Cimino, Mike 12/11/2019 rev. report

 151 6 A. No, I don't have any recollection of that.

 151 7 BY MR. CARTMELL:

 151 8 Q. You never knew that before this

 151 9 litigation?

Re: [151:6-151:9]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [151:6-

151:9]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

151:12 - 151:12 Cimino, Mike 12/11/2019 rev. report

 151 12 A. I did not know that, no.

Re: [151:12-151:12]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [151:12-

151:12]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

240:13 - 240:21 Cimino, Mike 12/11/2019 rev. report

 240 13 Q. In your experience with working at Aearo

 240 14 Technologies and then 3M and your experience with 

the

 240 15 lab in -- in Indiana called E-A-RCAL that Mr. 

Berger

 240 16 runs, have you experienced that there is tension

 240 17 between the marketing department and the lab?

 240 18 A. No, I can't...

Re: [240:19-240:21]

Def Objection - Argumentative; 

Misstates (611, 403); 

Foundation (602)

Re: [240:19-

240:21]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 18 of 179
Cimino, Mike 12/11/2019 rev. report 17

 240 19 Q. You've -- have you experienced that the

 240 20 lab performs legal tricks to try to get the highest

 240 21 NRRs for its product, for the company's products?

240:22 - 240:22 Cimino, Mike 12/11/2019 rev. report

 240 22 A. So --

240:25 - 240:25 Cimino, Mike 12/11/2019 rev. report

 240 25 BY THE WITNESS:

241:1 - 241:2 Cimino, Mike 12/11/2019 rev. report

 241 1 A. Elliott would have had his processes in

 241 2 place. I'm not familiar.

Re: [241:1-241:2]

Def Objection - Argumentative; 

Misstates (611, 403); 

Foundation (602)

Re: [241:1-

241:2]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Sustained

241:3 - 241:9 Cimino, Mike 12/11/2019 rev. report

 241 3 BY MR. CARTMELL:

 241 4 Q. In other words, you just don't know one

 241 5 way or the other how Mr. Berger, I think you referred

 241 6 to him as Elliott, comes -- comes about getting his

 241 7 NRRs, is that right?

 241 8 A. He -- Elliott would have a process in

 241 9 place.

241:10 - 241:13 Cimino, Mike 12/11/2019 rev. report

 241 10 Q. Okay. Do you know if he uses legal tricks

 241 11 in order to try to get the highest NRRs?

 241 12 A. I don't know what -- what Elliott's

 241 13 processes are.

Re: [241:10-241:13]

Def Objection - Foundation 

(602)

Re: [241:10-

241:13]

Def Objection -

Foundation (602)

44267

241:14 - 242:1 Cimino, Mike 12/11/2019 rev. report

 241 14 (WHEREUPON, a certain document was

 241 15 marked Mike Cimino Deposition Exhibit

 241 16 No. 17, for identification, as of

 241 17 12/11/2019.)

 241 18 BY MR. CARTMELL:

 241 19 Q. I'm going to hand you what's been marked

 241 20 as Exhibit 17. This is an e-mail that was provided to

 241 21 us by 3M in this litigation.

 241 22 I'm going to ask you a question about the

Re: [241:19-242:1]

Def Objection - Foundation 

(602)

Re: [241:19-

242:1]

Def Objection -

Foundation (602)

44267

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 19 of 179
Cimino, Mike 12/11/2019 rev. report 18

 241 23 last e-mail that's on .5, but if you take a look at,

 241 24 just so you know, if you take a look at earlier pages,

 241 25 it will show that it was an e-mail from Doug Ohlin to

 242 1 Doug Moses in the marketing group on May 28th, 

2009.

243:11 - 243:16 Cimino, Mike 12/11/2019 rev. report

 243 11 Q. And we've talked about Mr. Ohlin, but

 243 12 Mr. Ohlin was the retiree from the military who was

 243 13 the director of the Hearing Conservation program

 243 14 there, and after he retired your company actually

 243 15 hired him as a consultant, right?

 243 16 A. Correct.

Re: [243:11-243:16]

Def Objection - Foundation 

(602)

Re: [243:11-

243:16]

Def Objection -

Foundation (602)

Overruled

243:21 - 244:4 Cimino, Mike 12/11/2019 rev. report

 243 21 Q. Now, Doug Ohlin, during the time that you

 243 22 got to know him, and he is actually deceased, is that

 243 23 correct?

 243 24 A. Yes, unfortunately.

 243 25 Q. Okay. He was an audiologist at the

 244 1 military, and I take it he was somebody that you

 244 2 always found to be well respected?

 244 3 A. So he was certainly well respected in the

 244 4 community, yes.

Re: [243:21-244:4]

Improper Counter Designation, 

401/402, 403

SUSTAINED

244:8 - 244:10 Cimino, Mike 12/11/2019 rev. report

 244 8 Q. Okay. Okay. At any rate, he sends this

 244 9 e-mail on May 28th, 2009, to Mr. Moses. Let's go to

 244 10 .5.

Re: [244:8-244:10]

401/402

OVERRULED

244:11 - 244:21 Cimino, Mike 12/11/2019 rev. report

 244 11 And it states: "Doug, I'd like to keep

 244 12 this between you and me. There is already enough

 244 13 tension between the research and marketing groups 

in

 244 14 your shop without me adding to it, but I have to vent

 244 15 to you my frustration over that reduced NRR for the

 244 16 new version of the Combat Arms Earplug."

 244 17 And you -- did you say you reviewed

 244 18 Mr. Moses' testimony or you were told about it,

 244 19 because this is something that Mr. Moses talked 

about

Re: [244:11-244:21]

Def Objection - Compound 

(611, 403); Hearsay (801, 802); 

Foundation (602)

Re: [244:11-

244:21]

Def Objection -

Compound (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 20 of 179
Cimino, Mike 12/11/2019 rev. report 19

 244 20 in his deposition?

 244 21 Did you know that?

245:2 - 246:13 Cimino, Mike 12/11/2019 rev. report

 245 2 A. I did not review Doug's testimony.

 245 3 Q. Okay. Anyway, he mentions tension between

 245 4 research, or the lab, and marketing at 3M, and -- and

 245 5 has that been consistent with your finding at the

 245 6 company?

 245 7 A. I don't know what he is referring to here,

 245 8 he being Doug, is this Doug Ohlin?

 245 9 Q. Doug Ohlin, yes.

 245 10 A. Yeah, I don't know what he is referring

 245 11 to.

 245 12 Q. Okay. He -- he goes on to say: "The old

 245 13 guard at Aearo has always believed that the classic

 245 14 foam and the one size UltraFit were the ultimate in

 245 15 earplug protection. The lab would use every legal

 245 16 trick in the book to get the highest NRRs possible.

 245 17 They had to if they wanted to be competitive."

 245 18 Do you see that?

 245 19 A. I do.

 245 20 Q. And we've already talked about with the

 245 21 Combat Arms Version 2 that the lab actually did a 

test

 245 22 and stopped the test after eight because it was so

 245 23 low, changed the instructions and did a new test to

 245 24 get a higher NRR.

 245 25 Remember that?

 246 1 A. So I remember reviewing the -- are you

 246 2 talking about the report?

 246 3 Q. Yeah.

 246 4 A. I can just comment what -- what it said --

 246 5 says in the report.

 246 6 Q. Okay. And then we know that for a

 246 7 different product, also, that you were involved with,

 246 8 that you contacted Mr. Berger or the lab and you told

 246 9 the lab that you were expecting a certain NRR, that it

 246 10 needed to be equivalent or higher than the prior

 246 11 version, and that you wouldn't accept anything less

Re: [245:2-245:2]

Def Objection - Compound 

(611, 403); Hearsay (801, 802); 

Foundation (602)

Re: [245:3-245:19]

Def Objection - Hearsay (801, 

802); Foundation (602)

Re: [245:20-246:5]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [246:6-246:13]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [245:2-

245:2]

Def Objection -

Compound (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

Overruled

Re: [245:3-

245:19]

Def Objection -

Hearsay (801, 

802); Foundation 

(602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to hearsay 

objection. The 

term "legal" at 

[245:15] 

excluded under

403.

Re: [245:20-

246:5]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 21 of 179
Cimino, Mike 12/11/2019 rev. report 20

 246 12 than that.

 246 13 Do you recall that?

as to remaining 

objections.

Re: [246:6-

246:13]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

246:16 - 246:16 Cimino, Mike 12/11/2019 rev. report

 246 16 A. I recall the e-mail.

Re: [246:16-246:16]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [246:16-

246:16]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

247:4 - 247:11 Cimino, Mike 12/11/2019 rev. report

 247 4 Q. At any rate, let me now direct you to

 247 5 Exhibit 18.

 247 6 BY MR. CARTMELL:

 247 7 Q. Now, you saw on the prior visit -- or

 247 8 prior exhibit that Mr. Ohlin said he was frustrated

 247 9 with the lower NRR on the new Combat Arms 

Earplug.

 247 10 Do you remember reading that?

 247 11 A. Yes.

Re: [247:7-247:11]

Def Objection - Hearsay (801, 

802); Foundation (602)

Re: [247:7-

247:11]

Def Objection -

Hearsay (801, 

802); Foundation 

(602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to hearsay 

objection.

247:12 - 247:17 Cimino, Mike 12/11/2019 rev. report

 247 12 Q. Okay. So the topic, just so it's clear to

 247 13 the jury here, is that there is a version -- a new

 247 14 version of the Combat Arms Earplug that's coming 

out

 247 15 and it had been tested and they had received a low

 247 16 NRR.

 247 17 Do you remember this situation?

Re: [247:12-247:17]

Improper Counter Designation, 

401/402

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 22 of 179
Cimino, Mike 12/11/2019 rev. report 21

247:20 - 247:22 Cimino, Mike 12/11/2019 rev. report

 247 20 BY THE WITNESS:

 247 21 A. Other than what was written on this

 247 22 e-mail.

Re: [247:20-247:22]

Improper Counter Designation, 

401/402

SUSTAINED

248:2 - 248:8 Cimino, Mike 12/11/2019 rev. report

 248 2 Q. Okay. And then this is an e-mail from

 248 3 Doug Ohlin to Doug Moses, 6/10, so about three 

weeks

 248 4 after that, and the topic or subject here is:

 248 5 "revised fitting" -- "fitting protocol for Combat Arms

 248 6 E" -- or "Combat Arms Earplug retest."

 248 7 Do you see that?

 248 8 A. I see that.

Re: [248:2-248:8]

Def Objection - Hearsay (801, 

802); 3M MIL No. 15; 

Foundation (602)

Re: [248:2-

248:8]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 15; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 15; 

OVERRULED 

as to hearsay 

objection.

248:9 - 248:15 Cimino, Mike 12/11/2019 rev. report

 248 9 Q. Okay. And I'll represent to you that this

 248 10 is involving the fourth generation Combat Arms 

Earplug

 248 11 that was tested, and there was a low NRR, and then 

it

 248 12 was proposed that there would be a revised --

 248 13 revision -- revised test or a new test for that.

 248 14 Now, does that refresh your memory at all?

 248 15 A. No.

Re: [248:9-248:15]

Improper Counter Designation, 

401/402, 602

SUSTAINED

248:16 - 249:3 Cimino, Mike 12/11/2019 rev. report

 248 16 Q. Okay. Let's read this e-mail from

 248 17 Mr. Ohlin to Mr. Moses about three weeks later.

 248 18 "Doug, This situation reminds me of

 248 19 something that happened at Aearo years ago of 

which

 248 20 you may or may not be aware. There has always 

been

Re: [248:16-249:3]

Def Objection - Hearsay (801, 

802); 3M MIL No. 8; 

Foundation (602)

Re: [248:16-

249:3]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

FOUNDATION 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 23 of 179
Cimino, Mike 12/11/2019 rev. report 22

 248 21 intense pressure on Elliott to match the attenuation

 248 22 values the Penn State lab is able to produce. I'm not

 248 23 sure if that's what instigated this incident or not,

 248 24 but Aearo received a six figure fine from the EPA 

over

 248 25 some protocol issue related to an attempt to produce

 249 1 higher NRR's."

 249 2 Do you see that?

 249 3 A. I see that.

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to hearsay 

objection. 

249:18 - 249:24 Cimino, Mike 12/11/2019 rev. report

 249 18 Q. What about this, were you told by Doug

 249 19 Moses who reported directly to you that Mr. O --

 249 20 Mr. Ohlin told him that the lab that was run by

 249 21 Elliott at your company, Aearo Technologies, had 

been

 249 22 fined by the EPA for a protocol issue related to an

 249 23 attempt to get a higher NRR?

 249 24 A. This is news to me.

Re: [249:18-249:24]

Def Objection - 3M MIL No. 8; 

Foundation (602)

Re: [249:18-

249:24]

Def Objection -

3M MIL No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8

250:10 - 251:1 Cimino, Mike 12/11/2019 rev. report

 250 10 He then says: "I was appalled, not at

 250 11 Aearo, but more over the EPA focusing on the most

 250 12 professional of the hearing protection manufacturers

 250 13 while Walmart was selling hearing protectors from

 250 14 China without NRR's."

 250 15 It then states: "I'm bringing this up

 250 16 because it sounds like history repeating itself. We

 250 17 are putting pressure on Elliott to come up with a

 250 18 higher NRR for this new version of the Combat 

Arms

 250 19 Earplug."

 250 20 Do you see that?

 250 21 A. I see what's written there, yeah.

 250 22 Q. Do you recall or did Mr. Moses or

 250 23 Mr. Ohlin talk to you and tell you that he was

 250 24 concerned that pressure was being put on the

Re: [250:10-250:21]

Def Objection - Hearsay (801, 

802); 3M MIL No. 8; 

Foundation (602)

Re: [250:22-251:1]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [250:10-

250:21]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to hearsay 

objection.

Re: [250:10-251:4]

Baker MIL1, 403, Relevance

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 24 of 179
Cimino, Mike 12/11/2019 rev. report 23

 250 25 laboratory, Elliott Berger and the laboratory to come

 251 1 up with a higher NRR for the Combat Arms Earplug?

Re: [250:22-

251:1]

Def Objection -

Compound (611, 

403); Foundation 

(602)

OVERRULED

251:3 - 251:4 Cimino, Mike 12/11/2019 rev. report

 251 3 BY THE WITNESS:

 251 4 A. I don't have any recollection of this.

Re: [251:4-251:4]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [251:4-

251:4]

Def Objection -

Compound (611, 

403); Foundation 

(602)

OVERRULED

Re: [250:10-251:4]

Baker MIL1, 403, Relevance

OVERRULED

251:17 - 251:21 Cimino, Mike 12/11/2019 rev. report

 251 17 He goes on to say: "We could be setting

 251 18 Aearo up for another fine. If that happens, those 

who

 251 19 applied the pressure will be no less responsible."

 251 20 Do you see that?

 251 21 A. I do.

Re: [251:17-251:21]

Def Objection - Hearsay (801, 

802); 3M MIL No. 8; 

Foundation (602)

Re: [251:17-

251:21]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to remaining 

objections

Re: [251:17-252:6]

Baker MIL1, 403, Relevance

OVERRULED

253:22 - 254:8 Cimino, Mike 12/11/2019 rev. report

 253 22 A. Again, everybody has opinions.

 253 23 BY MR. CARTMELL:

 253 24 Q. Right. And -- and so what I want to ask

 253 25 you about, not about what protocols your lab had, I

 254 1 want to ask what Mike Cimino's beliefs and opinions

 254 2 are about this question that I'm asking right now, and

 254 3 I want the jury to hear your response.

 254 4 Do you have a belief or an opinion about

 254 5 whether it is appropriate for the marketing 

department

 254 6 to put pressure on the laboratory to provide the

Re: [253:22-254:8]

Def Objection - Compound 

(611, 403); Relevance (401, 

402); Foundation (602)

Re: [253:22-

254:8]

Def Objection -

Compound (611, 

403); Relevance 

(401, 402); 

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 25 of 179
Cimino, Mike 12/11/2019 rev. report 24

 254 7 highest NRR. Do you have a belief and a -- or an

 254 8 opinion about that?

254:11 - 255:2 Cimino, Mike 12/11/2019 rev. report

 254 11 A. I don't.

 254 12 BY MR. CARTMELL:

 254 13 Q. He then states: "Bottom line - Make sure

 254 14 we aren't putting Elliott in a position where he is

 254 15 compromising the integrity of his lab. A 2 decibel

 254 16 increase in the NRR would not be worth another 

fine.

 254 17 You would also have the additional headache of now

 254 18 being answerable to 3M corporate."

 254 19 Do you see that?

 254 20 A. I do.

 254 21 Q. And that's true, that if your marketing

 254 22 department, and this is during a period of time when

 254 23 you were in charge, if your marketing department 

was

 254 24 putting pressure on the lab to try to get them to get

 254 25 the highest NRRs for the Combat Arms Earplugs, 

that

 255 1 would -- that would actually compromise the 

integrity

 255 2 of the lab, would it not?

Re: [254:11-254:11]

Def Objection - Compound 

(611, 403); Relevance (401, 

402); Foundation (602)

Re: [254:13-254:20]

Def Objection - Hearsay (801, 

802); 3M MIL No. 8; 

Foundation (602)

Re: [254:21-255:2]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [254:11-

254:11]

Def Objection -

Compound (611, 

403); Relevance 

(401, 402); 

Foundation (602)

Overruled

Re: [254:13-

254:20]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to hearsay 

objection.

Re: [254:21-

255:2]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

(602)

Overruled

Re: [254:13-254:20]

Baker MIL1, 403, Relevance

OVERRULED

255:5 - 255:7 Cimino, Mike 12/11/2019 rev. report

 255 5 A. Again, the lab would have their own

 255 6 processes and protocols in place to do their

 255 7 evaluations and tests.

Re: [255:5-255:7]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [255:5-

255:7]

Def Objection -

Vague; 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 26 of 179
Cimino, Mike 12/11/2019 rev. report 25

Compound (611, 

403); Foundation 

(602)

Overruled

255:13 - 255:16 Cimino, Mike 12/11/2019 rev. report

 255 13 Do you believe that if the marketing

 255 14 department was putting pressure on the lab to get the

 255 15 highest NRRs possible, that that would compromise 

the

 255 16 integrity of the lab?

Re: [255:13-255:16]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [255:13-

255:16]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

255:20 - 255:20 Cimino, Mike 12/11/2019 rev. report

 255 20 A. I don't have an opinion on that.

Re: [255:20-255:20]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [255:20-

255:20]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

256:11 - 257:4 Cimino, Mike 12/11/2019 rev. report

 256 11 (WHEREUPON, a certain document was

 256 12 marked Mike Cimino Deposition Exhibit

 256 13 No. 19, for identification, as of

 256 14 12/11/2019.)

 256 15 BY MR. CARTMELL:

 256 16 Q. And I say that you were involved, because

 256 17 I want to hand you an exhibit, Exhibit 19, Page 

1436.

 256 18 Exhibit 19, sir, is an e-mail string that

 256 19 came from the company files in this litigation, and I

 256 20 want to actually start at the bottom of the page,

 256 21 because that's how e-mails go chronologically.

 256 22 The bottom e-mail is from you on May 29th,

 256 23 2009. And take a look, sir, that date, May 29th,

 256 24 2009. That is, I think, the exact same day, maybe a

 256 25 day or two within the e-mail from Mr. Ohlin to Doug

 257 1 Moses that talked about the legal tricks and talked

 257 2 about Mr. Ohlin's frustration with the low NRR for 

the

Re: [256:16-257:4]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [256:16-

257:4]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED, 

with the 

exception of the 

term "legal" at 

[257:1], which is 

excluded under 

403.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 27 of 179
Cimino, Mike 12/11/2019 rev. report 26

 257 3 Combat Arms Earplug.

 257 4 Isn't that right?

257:7 - 257:7 Cimino, Mike 12/11/2019 rev. report

 257 7 A. I see the date stamps, yep.

Re: [257:7-257:7]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [257:7-

257:7]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

257:8 - 257:11 Cimino, Mike 12/11/2019 rev. report

 257 8 BY MR. CARTMELL:

 257 9 Q. Okay. Well, if you don't mind, sir, look

 257 10 back at Exhibit 23 -- excuse me -- Exhibit 17. Let's

 257 11 just do it real quickly for the record.

Re: [257:8-257:11]

Improper Counter Designation

SUSTAINED

257:24 - 258:9 Cimino, Mike 12/11/2019 rev. report

 257 24 Q. Okay. And then if we go back to the

 257 25 e-mail from you to Mr. Moses, the date stamp is

 258 1 May 29th, so it's the next day, correct?

 258 2 A. It would appear so, yeah.

 258 3 Q. Okay. And you say at that time in your

 258 4 e-mail to Doug Moses, you say, and the subject line,

 258 5 and we need to -- we need to make sure we highlight

 258 6 the subject line, the subject line is: "Combat Arms

 258 7 Earplug IV launch."

 258 8 Do you see that?

 258 9 A. I do.

258:10 - 258:19 Cimino, Mike 12/11/2019 rev. report

 258 10 Q. And here is your e-mail, these are your

 258 11 words:

 258 12 "Doug, did you find the spec and advise

 258 13 Jeff we won't be launch" -- "launching with the 

lower

 258 14 NRR product? MC."

 258 15 Do you see that?

 258 16 A. I do.

 258 17 Q. That's what you told Mr. Moses one day

 258 18 after Mr. Ohlin was talking about the low NRR with 

Re: [258:10-258:16]

Def Objection - Foundation 

(602)

Re: [258:17-258:19]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602)

Re: [258:10-

258:16]

Def Objection -

Foundation (602)

44267

Re: [258:17-

258:19]

Def Objection -

Misstates; Vague 

(611, 403); 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 28 of 179
Cimino, Mike 12/11/2019 rev. report 27

the

 258 19 Combat Arms, correct?

Foundation (602)

Overruled

258:22 - 258:22 Cimino, Mike 12/11/2019 rev. report

 258 22 A. I can only comment on what's on here.

Re: [258:22-258:22]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602)

Re: [258:22-

258:22]

Def Objection -

Misstates; Vague 

(611, 403); 

Foundation (602)

Overruled

260:9 - 260:17 Cimino, Mike 12/11/2019 rev. report

 260 9 Q. And then Doug Moses responds to you and

 260 10 says: "No...conversation evolved. I think we will be

 260 11 retesting with the new fitting criteria. I'll keep

 260 12 you posted."

 260 13 You see that?

 260 14 A. I do.

 260 15 Q. Okay. So you were asking Doug Moses to

 260 16 put pressure on Jeff Hamer to tell them there would 

be

 260 17 no launch of that product with a low NRR, correct?

Re: [260:9-260:14]

Def Objection - Foundation 

(602)

Re: [260:15-260:17]

Def Objection - Vague; 

Misstates (611, 403); 

Foundation (602)

Re: [260:8-

260:14]

Def Objection -

Foundation (602)

44267

Re: [260:15-

260:17]

Def Objection -

Vague; Misstates 

(611, 403); 

Foundation (602)

Overruled

260:20 - 260:20 Cimino, Mike 12/11/2019 rev. report

 260 20 A. No, I can't say that that's what I say.

Re: [260:20-260:20]

Def Objection - Vague; 

Misstates (611, 403); 

Foundation (602)

Re: [260:20-

260:20]

Def Objection -

Vague; Misstates 

(611, 403); 

Foundation (602)

Overruled

266:22 - 267:4 Cimino, Mike 12/11/2019 rev. report

 266 22 Q. Okay. Let's go back to Exhibit 8.

 266 23 We talked about this earlier, but

 266 24 Mr. Ohlin mentioned that pressure was often put on 

the

 266 25 lab and that can cause EPA fines and compromise 

the

 267 1 integrity. This is an e-mail with you that we talked

 267 2 about previously where you told the lab that you 

would

Re: [266:22-267:4]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [266:22-

267:4]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 29 of 179
Cimino, Mike 12/11/2019 rev. report 28

 267 3 not accept an NRR that wasn't at least an equivalent

 267 4 NRR as the current version of this product, correct?

267:8 - 267:10 Cimino, Mike 12/11/2019 rev. report

 267 8 A. So just like my e-mail says on there, my

 267 9 request was that the worst case scenario the new ones

 267 10 you have there come out with an equivalent NRR 

value.

Re: [267:8-267:10]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [267:8-

267:10]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

267:17 - 267:19 Cimino, Mike 12/11/2019 rev. report

 267 17 But you're -- you're putting pressure on

 267 18 the lab, aren't you, sir, to get a certain NRR before

 267 19 the test is even done, aren't you?

Re: [267:17-267:19]

Def Objection - Misstates; 

Argumentative (611, 403); 

Foundation (602)

Re: [267:17-

267:19]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Overruled

267:23 - 267:24 Cimino, Mike 12/11/2019 rev. report

 267 23 A. No. I'm just requesting an equivalent

 267 24 NRR.

Re: [267:23-267:24]

Def Objection - Misstates; 

Argumentative (611, 403); 

Foundation (602)

Re: [267:23-

267:24]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Overruled

268:8 - 268:10 Cimino, Mike 12/11/2019 rev. report

 268 8 BY MR. CARTMELL:

 268 9 Q. Right. We talked about that. It is a

 268 10 marketing target, correct?

Re: [268:8-268:10]

Improper Counter Designation

OVERRULED

268:13 - 268:14 Cimino, Mike 12/11/2019 rev. report

 268 13 BY THE WITNESS:

 268 14 A. It is a design target.

Re: [268:13-268:14]

Improper Counter Designation

OVERRULED

271:10 - 272:19 Cimino, Mike 12/11/2019 rev. report

 271 10 Q. Okay. And then if you go to Exhibit 20,

 271 11 this is the follow-up e-mail to that.

 271 12 Exhibit 20 is an e-mail dated

Re: [271:10-272:14]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

Foundation (602)

Re: [271:10-

272:14]

Def Objection -

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 30 of 179
Cimino, Mike 12/11/2019 rev. report 29

 271 13 January 19th, 2004, from Elliott Berger to you. And,

 271 14 in fact, he does call you or contact you by I guess

 271 15 e-mail to inform you that he is in that test and he

 271 16 has completed nine subjects on the product.

 271 17 Do you see that?

 271 18 A. Yep.

 271 19 Q. What is that product that we are talking

 271 20 about, the PowerCom data -- or, excuse me, the

 271 21 PowerCom product?

 271 22 A. That would have been a communication

 271 23 headset product.

 271 24 Q. Okay. A hearing protective device with

 271 25 communication, electronic?

 272 1 A. Correct.

 272 2 Q. Okay. So he calls you during the test and

 272 3 he says: "Right now the NRRs are 25 and 25.2."

 272 4 You had asked for a 26, right?

 272 5 A. Was it 8?

 272 6 Q. Yes, sir.

 272 7 A. My e-mail would say that, yes.

 272 8 Q. Okay. He says: "It is very unlikely that

 272 9 the tenth subject will get the 26 you wanted."

 272 10 And then you respond to him, and you say:

 272 11 "Okay. Keep going if you can get me a 25 NRR. It 

is

 272 12 the bare minimum I can accept."

 272 13 Do you see that?

 272 14 A. I do.

 272 15 Q. So marketing is telling the laboratory,

 272 16 Look, you can keep doing your test, laboratory, for

 272 17 this NRR, but I need a 25, if you can't get me a 25, I

 272 18 can't accept it, because the bare minimum is 25.

 272 19 That's what you are saying, right?

Re: [272:15-272:19]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

402); 3M MIL 

No. 18; 

Foundation (602)

Foundation 

Objection 

Withdrawn, 

3/12/2021; 

Remaining 

Objections 

Overruled

Re: [272:15-

272:19]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

272:22 - 272:23 Cimino, Mike 12/11/2019 rev. report

 272 22 A. I'm saying that target -- I'm saying keep

 272 23 going if they could get me a 25 NRR.

Re: [272:22-272:23]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 31 of 179
Cimino, Mike 12/11/2019 rev. report 30

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

272:24 - 273:1 Cimino, Mike 12/11/2019 rev. report

 272 24 BY MR. CARTMELL:

 272 25 Q. Aren't you trying to influence the results

 273 1 of the testing on your product?

Re: [272:24-273:1]

Improper Counter Designation

SUSTAINED

273:4 - 273:5 Cimino, Mike 12/11/2019 rev. report

 273 4 BY THE WITNESS:

 273 5 A. No.

Re: [273:4-273:5]

Improper Counter Designation

SUSTAINED

273:7 - 273:11 Cimino, Mike 12/11/2019 rev. report

 273 7 Q. Then why even contact them, why not let

 273 8 them do their test and give you the results? Why do

 273 9 you have to contact them, sir, and tell them what you

 273 10 need from a marketing perspective or what you 

desire

 273 11 and that you can't accept anything lower than that?

Re: [273:7-273:11]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

273:14 - 273:24 Cimino, Mike 12/11/2019 rev. report

 273 14 A. So I don't recall the context of all of

 273 15 the discussions with this, but that was the discussion

 273 16 as -- as laid out here.

 273 17 BY MR. CARTMELL:

 273 18 Q. My point is, why even call the lab and try

 273 19 to influence their results or tell them you can't

 273 20 accept certain NRRs, why not let the lab do the tests

 273 21 on the hearing protective device, give you what they

 273 22 come out with, the unbiased results, and you live 

with

 273 23 it. Why do you have to contact them and try to

 273 24 pressure them?

Re: [273:14-273:24]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

274:3 - 274:5 Cimino, Mike 12/11/2019 rev. report

 274 3 A. Again, I don't remember the context of --

Re: [274:3-274:5]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 32 of 179
Cimino, Mike 12/11/2019 rev. report 31

 274 4 of this particular discussion, but that is the

 274 5 discussion that was had.

Misstates; Compound (611, 

403); Foundation (602)

274:13 - 274:20 Cimino, Mike 12/11/2019 rev. report

 274 13 Q. And this is the exact same situation,

 274 14 isn't it, with the Combat Arms Earplugs, that there

 274 15 was eight people or nine people tested, like with the

 274 16 Combat Arms Earplugs, now in that case they 

stopped

 274 17 the test.

 274 18 Did they stop the test with this one or do

 274 19 you know?

 274 20 A. I don't know.

Re: [274:13-274:20]

Def Objection - Relevance (401, 

402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 33 of 179
DEFENDANTS’ AFFIRMATIVE 

DESIGNATIONS

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 34 of 179
Preserved Objections Previous Rulings New Objections Rulings

8:03 - 8:09 Babeu, Lorraine (2020-03-10) 0:08

8:03 Q. Good morning, ma'am.

8:04 Could you state your full name

8:05 for the record, please?

8:06 A. Lorraine Angela Babeu.

8:07 Q. And I understand you're a

8:08 retired lieutenant colonel?

8:09 A. Yep.

18:01 - 19:06 Babeu, Lorraine (2020-03-10) 1:21

18:01 Q. So I understand you got a Ph.D.

18:02 in 2000 or 2001 from UF?

18:03 A. 2001, yeah, University of

18:04 Florida.

18:05 Q. And how about undergrad, where

18:06 did you go?

18:07 A. I started undergrad at Norfolk

18:08 State University in Virginia.

18:09 Q. Uh-huh.

18:10 A. Then I did my master's at

18:11 Florida State in Tallahassee, Florida, and

18:12 from there I went on active duty.

18:13 And some point in active duty I

18:14 got the -- it's the Army version of a

18:15 scholarship to go get your Ph.D., and I did

18:16 that at University of Florida.

18:17 Q. And when did you go on active

18:18 duty?

18:19 A. What year? '88.

18:20 Q. And did you perform functions

18:21 on bases as an audiologist or an audiology

18:22 technician?

18:23 A. As an audiologist.

18:24 Q. Okay. And what years did you

18:25 do that, ma'am?

19:01 A. Pretty much my entire career,

19:02 from '88 to 2011.

19:03 Q. Okay.

19:04 A. Oh, wait. Yeah, my last

19:05 assignment I wasn't working in audiology, so

19:06 that would have been 2005 until 2011.

19:19 - 20:09 Babeu, Lorraine (2020-03-10) 1:52

19:19 And at what bases were you

19:20 serving on?

19:21 A. I started at Fort Devens, then

19:22 I went to Fort Knox, then I went to Fort Sam,

19:23 Fort Sam, Houston, for a course.

19:24 Where did I go after that? No,

19:25 wait, sorry. It was -- I started at Fort

20:01 Devens, went to Fort Sam for a course, then

20:02 went to Fort Knox. And after Fort Knox, I

20:03 went to Fort Hood in Texas, and then from

20:04 Fort Hood I went to the University of

Designations

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 35 of 179
20:05 Florida.

20:06 From there I went to Aberdeen

20:07 Proving Ground, and after Aberdeen I went to

20:08 Northern Virginia Tricare, and I retired from

20:09 there.

20:14 - 20:21 Babeu, Lorraine (2020-03-10) 0:18

20:14 Q. Okay. And if we could just

20:15 kind of get a sense of your window of time

20:16 when you were at Aberdeen Proving Ground.

20:17 When was that?

20:18 A. '01 to '05.

20:19 Q. And what group -- you were in

20:20 the Army Research Lab there?

20:21 A. Correct.

35:09 - 35:14 Babeu, Lorraine (2020-03-10) 0:10

35:09 Q. Do you recall that the

35:10 double-ended Combat Arms, which -- what I've

35:11 called the version 2, had an end that was for

35:12 steady-state noise and another end that was

35:13 for impulse noise?

35:14 A. Yep. Yes.

35:15 - 35:18 Babeu, Lorraine (2020-03-10) 0:07

35:15 Q. Okay. And for the benefit of

35:16 the jury, steady-state noise might be noise

35:17 from a generator or a truck or a plane, fair?

35:18 A. Correct, uh-huh.

35:19 - 36:02 Babeu, Lorraine (2020-03-10) 0:16

35:19 Q. Okay. Impulse noise could

35:20 be -- I guess it could be something dropping

35:21 that's real loud, just instantaneously, or a

35:22 gun?

35:23 A. A gun.

35:24 Q. That's -- in your field,

35:25 impulse noise was basically gun noise?

36:01 A. Right. Impact is dropping

36:02 something.

48:15 - 48:15 Babeu, Lorraine (2020-03-10) 0:01

48:15 Passing you, ma'am, P2017, I

54:21 - 56:09 Babeu, Lorraine (2020-03-10) 1:22

54:21 Q. I think you told us based on

54:22 how things were structured within the Army,

54:23 Dr. Ohlin would have been under the medical

54:24 command --

54:25 A. Correct.

55:01 Q. -- and you would have been

55:02 under the research and engineering command?

55:03 A. Correct.

55:04 Q. Okay. But you had some

55:05 occasion to deal with one another as it

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 36 of 179
55:06 related to hearing protection devices, fair?

55:07 A. Okay. So Doug was in charge of

55:08 hearing conservation for the Army. So when

55:09 we did our work, he was our counsel, you

55:10 know. He would be the guy if we had a

55:11 question, there was something, he would help

55:12 make that decision and then tell us, this is

55:13 what you're going to do.

55:14 So...

55:15 Q. And now just so I have the time

55:16 frame right, would that -- when you said he

55:17 would tell you what you were going to do,

55:18 that would have been when you were at Army

55:19 Research Lab? Is that the window of time

55:20 you're referring to?

55:21 A. Well, no.

55:22 Q. In earlier times.

55:23 A. Yeah. It's just -- but he and

55:24 I also communicated about the Combat Arms

55:25 Earplug.

56:01 Q. Uh-huh.

56:02 A. He was the one that -- when I

56:03 arrived at the lab, he said, hey, we don't

56:04 know a lot about this plug. Maybe you want

56:05 to consider doing some research on it.

56:06 Q. Okay. And this is when you

56:07 were at Army Research Lab in Aberdeen; is

56:08 that right?

56:09 A. Correct.

57:03 - 57:06 Babeu, Lorraine (2020-03-10) 0:05

57:03 Q. Okay. So you said Dr. Ohlin

57:04 was involved with the Combat Arms version 2

57:05 at the time when you got there?

57:06 A. Yes.

78:14 - 79:12 Babeu, Lorraine (2020-03-10) 1:02

78:14 Q. Oh, and there's a -- there's a

78:15 note at the bottom that says, "NHCA Spectrum,

78:16 volume 21, supplement 1, 2004," and it looks

78:17 like it's got a page number.

78:18 Do you see that?

78:19 A. Uh-huh.

78:20 Q. Okay. And would the first page

78:21 be fairly characterized as an abstract?

78:22 Study abstract?

78:23 A. Yes.

78:24 Q. Okay. And the NHCA stands for

78:25 what, ma'am?

79:01 A. NHCA. Where is that?

79:02 Oh, I have no idea. Oh, it may

79:03 have been the National Hearing Conservation

79:04 Association. May have been their brochure

79:05 because I did a presentation there.

79:06 Q. Okay.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 37 of 179
79:07 A. But NHCA, that's -- if you ask

79:08 an audiologist what's NHCA, that's what we're

79:09 going to say.

79:10 Q. National Hearing Conservation

79:11 Association?

79:12 A. Conservation association.

79:21 - 79:25 Babeu, Lorraine (2020-03-10) 0:05

79:21 Q. And did you give a presentation

79:22 on one of your studies, ma'am --

79:23 A. Yeah.

79:24 Q. -- at the NHCA?

79:25 A. Sure. Sure did.

81:11 - 81:18 Babeu, Lorraine (2020-03-10) 0:17

81:11 Q. Okay. So the abstract here

81:12 says in the middle, "The US Army recently

81:13 approved the use of the Combat Arms Earplug,

81:14 which is an expanded French version of the

81:15 level-dependent earplug developed at the

81:16 French-German Institute."

81:17 Do you see that?

81:18 A. Correct, uh-huh.

81:24 - 82:01 Babeu, Lorraine (2020-03-10) 0:03

81:24 It says, "The purpose of this

81:25 project was to determine the effects of

82:01 CAE" --

82:02 - 82:03 Babeu, Lorraine (2020-03-10) 0:02

82:02 Is that Combat Arms Earplug?

82:03 A. Correct, uh-huh.

82:04 - 82:04 Babeu, Lorraine (2020-03-10) 0:00

82:04 Q. Okay.

82:05 - 82:10 Babeu, Lorraine (2020-03-10) 0:11

82:05 -- "on the soldier's ability to

82:06 localize sound sources in various listening

82:07 conditions. The participants were seated in

82:08 the center of an array of 37 loud speakers

82:09 distributed over three circular rings."

82:10 A. Right.

82:11 - 82:14 Babeu, Lorraine (2020-03-10) 0:05

82:11 Q. Okay. You remember that test

82:12 environment?

82:13 A. I remember the test

82:14 environment, okay?

83:01 - 84:06 Babeu, Lorraine (2020-03-10) 1:49

83:01 Q. And then there's a short

83:02 summary on the first page. It says, "Three

83:03 groups of 12 listeners each were used as

83:04 participants."

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 38 of 179
83:05 It says, "Group 1 used the

83:06 yellow side of the Combat Arms Earplug,

83:07 Group 2 used the green side, and Group 3 used

83:08 the E-A-R foam plug."

83:09 Do you see that?

83:10 A. Uh-huh.

83:11 Q. And then it talks about within

83:12 each group there were four listening

83:13 conditions and quiet noise and protected and

83:14 unprotected, right?

83:15 A. Yeah.

83:16 Q. Okay. And then is the purpose

83:17 of this study, if I understand it, I mean,

83:18 there's a person sitting -- let me just see

83:19 if I can set it up, and maybe you can

83:20 elaborate for us.

83:21 A. person is sitting in a

83:22 chair --

83:23 A. Uh-huh.

83:24 Q. -- and there's speakers kind of

83:25 arranged around them --

84:01 A. Correct.

84:02 Q. -- and pointing at them.

84:03 A. Uh-huh.

84:04 Q. And sounds are played at that

84:05 person from different speakers --

84:06 A. Correct.

84:07 - 84:20 Babeu, Lorraine (2020-03-10) 1:41

84:07 Q. -- and the person is to

84:08 identify where they think the sound came

84:09 from?

84:10 A. Right.

84:11 Q. And so what you were doing was

84:12 you were measuring the success rate of people

84:13 figuring out where the sound came from with

84:14 open ears or with closed ears, with different

84:15 hearing protection devices, fair?

84:16 A. Right, uh-huh.

84:17 Q. Okay. You know, we have a, I

84:18 think, a color version of your presentation

84:19 that might be easier to work with than that

84:20 one. It's P1510.

84:25 - 85:07 Babeu, Lorraine (2020-03-10) 0:10

84:25 You see before you now P1510.

85:01 If you go to .2, there's a cover page that

85:02 says, "Sound localization with the Combat

85:03 Arms Earplug."

85:04 A. Correct.

85:05 Q. Does that look familiar to you

85:06 now?

85:07 A. Uh-huh.

85:15 - 86:09 Babeu, Lorraine (2020-03-10) 0:27

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 39 of 179
85:15 .5 is showing that double-ended

85:16 design, right?

85:17 A. Correct.

85:18 Q. And we didn't really talk about

85:19 it before, but on the left it looks like the

85:20 yellow -- the yellow tips has been pulled off

85:21 so you can see the stem, right?

85:22 A. Right, uh-huh.

85:23 Q. And there's a little hole in

85:24 that stem --

85:25 A. Right.

86:01 Q. -- where sound would go

86:02 through?

86:03 A. Right, uh-huh.

86:04 Q. And it would go up the stem to

86:05 come out a hole on the tip of the yellow end,

86:06 right?

86:07 A. Correct.

86:08 Q. Okay. And that's the so-called

86:09 level-dependent end?

86:10 - 86:22 Babeu, Lorraine (2020-03-10) 0:24

86:10 A. Yeah.

86:11 Q. Okay. Meaning you get

86:12 attenuation when there's an impulse noise,

86:13 but you shouldn't have much when there's not

86:14 an impulse noise, fair?

86:15 A. Right, uh-huh.

86:16 Q. Okay. And so on the next page

86:17 it says, "The purpose of your research here

86:18 was to assess the effect of level-dependent

86:19 hearing protection on the user's ability to

86:20 localize sounds in quiet noise."

86:21 Right?

86:22 A. Right.

87:10 - 88:10 Babeu, Lorraine (2020-03-10) 1:43

87:10 Q. It looks like for this

87:11 particular test, though, if you go to .8,

87:12 this was a test using the female voice saying

87:13 "Joe."

87:14 A. Correct.

87:15 Q. And I won't do a very good

87:16 female voice, but if I'm understanding this,

87:17 you know, on cue or by a program, it's saying

87:18 "Joe," "Joe," "Joe," and it's coming out of

87:19 different speakers --

87:20 A. Right.

87:21 Q. -- and the listener is to do

87:22 their best to estimate where --

87:23 A. Right.

87:24 Q. -- the sound was coming from?

87:25 A. Uh-huh.

88:01 Q. Is that fair?

88:02 A. Uh-huh.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 40 of 179
88:03 Q. Okay. If you go to the next

88:04 page, we see that the Combat Arms was not

88:05 alone in this study. There was a -- there

88:06 were so-called foamies or E-A-R foam?

88:07 A. Right.

88:08 Q. Okay. Those are the bottom,

88:09 right?

88:10 A. Correct.

88:11 - 88:14 Babeu, Lorraine (2020-03-10) 0:04

88:11 Q. And then there was the

88:12 single-side French.

88:13 Do you see that?

88:14 A. Yes.

93:04 - 93:06 Babeu, Lorraine (2020-03-10) 0:04

93:04 And so were you an experimenter

93:05 on this study, ma'am?

93:06 A. Yes.

93:10 - 93:17 Babeu, Lorraine (2020-03-10) 0:16

93:10 It says, "Method: Earplug

93:11 fitting, treatment order randomized; prior to

93:12 an earplug-use treatment, proper earplug

93:13 insertion demonstrated; unless grossly wrong,

93:14 experimenter did not tamper with the fit of

93:15 the earplug."

93:16 Do you see that?

93:17 A. Uh-huh.

93:18 - 93:22 Babeu, Lorraine (2020-03-10) 0:24

93:18 Q. Okay. Could I have P1166A?

93:19 We'll come back to this

93:20 document in a moment.

93:21 And, Zach, could you pull up on

93:22 the screen P1166A?

93:23 - 93:23 Babeu, Lorraine (2020-03-10) 0:01

93:23 P1166A. And I'm just going to

94:08 - 95:01 Babeu, Lorraine (2020-03-10) 1:34

94:08 Q. It says USACHPPM, TG 41, March

94:09 2006.

94:10 TG is your technical guys?

94:11 A. Yeah.

94:12 Q. Okay. Can we scroll down?

94:13 It says, "Personal hearing

94:14 protection devices, their fitting, care and

94:15 use."

94:16 Do you see that?

94:17 A. (Witness nods head.)

94:18 Q. And this one's dated March

94:19 of 2006, which I guess would have been a

94:20 point in time after you'd gone to Tricare.

94:21 But it says, "Supercedes" -- bottom left,

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 41 of 179
94:22 Mike.

94:23 "Supersedes USAEHA TG 41,

94:24 October 1975."

94:25 Do you see that?

95:01 A. Yeah.

95:19 - 96:14 Babeu, Lorraine (2020-03-10) 1:50

95:19 And then when we go to .36, we

95:20 see Combat Arms Earplugs. And these are the

95:21 double-ended Combat Arms Earplug insertion

95:22 technique in the technical guide of the

95:23 USACHPPM, right?

95:24 A. Yes.

95:25 Q. Okay. And so in this technical

96:01 guide for the Combat Arms Earplugs, under

96:02 double-ended Combat Arms Earplug insertion

96:03 technique, it says, "The double-ended Combat

96:04 Arms Earplug is properly fitted and provides

96:05 the best attenuation when all three flanges,

96:06 olive drab or yellow, snugly contact all

96:07 sides of the ear canal. Insert this item by

96:08 positioning one arm behind the head and

96:09 pulling the ear gently up and away from the

96:10 head, using the free hand to fit the

96:11 earplug." And then it shows the two

96:12 pictures.

96:13 Do you see that?

96:14 A. Right.

96:15 - 96:22 Babeu, Lorraine (2020-03-10) 0:22

96:15 Q. Okay. And those are the

96:16 techniques that are described for fitting

96:17 within the technical guide of CHPPM, correct?

96:18 A. Correct.

96:19 Q. Okay. And then on the next

96:20 page it shows proper and improper fit of the

96:21 double-ended Combat Arms Earplug.

96:22 Do you see that, 53 and 54?

96:23 - 97:04 Babeu, Lorraine (2020-03-10) 0:05

96:23 A. (Witness nods head.)

96:24 Q. Do you see that, ma'am?

96:25 A. Uh-huh.

97:01 Q. Okay.

97:02 A. Oh, sorry, yes.

97:03 Q. Yeah, that's fine. You're

97:04 probably looking at the pictures.

97:05 - 97:13 Babeu, Lorraine (2020-03-10) 0:15

97:05 And so when you were running

97:06 studies and you were fitting people or

97:07 evaluating fit, you would have done it

97:08 consistent with the CHPPM guides?

97:09 A. Right.

97:10 Q. Okay. And you would have

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 42 of 179
97:11 followed these insertion techniques and

97:12 evaluations for proper and improper fit?

97:13 A. Correct.

97:14 - 98:24 Babeu, Lorraine (2020-03-10) 1:22

97:14 Q. Okay. And if we go to .85,

97:15 there's a -- yeah, that's great, Mike, thank

97:16 you, so we can see the DA poster.

97:17 It says, "DA poster 40-501 O,

97:18 March 2006."

97:19 Do you see that?

97:20 A. Yes.

97:21 Q. Okay. DA, is that Department

97:22 of Army?

97:23 A. Correct.

97:24 Q. Okay. And they provide posters

97:25 for audiologists on bases to have available

98:01 to them in their use?

98:02 A. Yeah. It's not just for us.

98:03 It's -- we disseminate it to the units.

98:04 Q. Oh, okay. Okay.

98:05 So these are materials that are

98:06 generally available, and I guess they have a

98:07 number in the bottom so if you want more, you

98:08 can order them?

98:09 A. Correct.

98:10 Q. Okay. And it talks about "For

98:11 maximum protection and comfort, insert the

98:12 Combat Arms Earplug, double-ended, as

98:13 follows."

98:14 And these would be for -- made

98:15 available in a prominent place so service

98:16 members could see them as well?

98:17 A. Right. Like in the motor pool

98:18 or anyplace that they would be -- and they

98:19 have a wall to put it up on, yeah.

98:20 Q. Okay. Okay. And from your

98:21 experience being on bases, you would see

98:22 things like this in an area where it was

98:23 prominent?

98:24 A. Correct.

98:25 - 100:02 Babeu, Lorraine (2020-03-10) 1:47

98:25 Q. Okay. Again, "For maximum

99:01 protection and comfort, insert the Combat

99:02 Arms Earplug, double-ended, as follows. A

99:03 one-size-only earplug with a double-tree

99:04 design: When the olive -- when the solid,

99:05 olive-colored tip of the plug is properly

99:06 inserted in the ear canal, it protects

99:07 against steady-state noise, e.g., helicopters

99:08 or armored personnel carriers."

99:09 Did I read that correctly?

99:10 A. Yes.

99:11 Q. That's consistent with that --

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 43 of 179
99:12 that kind of sell sheet we were looking at

99:13 from Aearo earlier.

99:14 Remember that?

99:15 A. Right. Uh-huh.

99:16 Q. Okay. On 3 it says, "When the

99:17 open, yellow-colored tip of the plug is

99:18 properly inserted into the ear canal, it

99:19 protects against impulse noise, e.g., weapons

99:20 fire."

99:21 Right?

99:22 A. Yes.

99:23 Q. Okay. "In this latter

99:24 configuration, the hearing protector allows

99:25 speech communication and detection, as well

100:01 as localization of acoustic sources."

100:02 A. Correct.

100:03 - 100:03 Babeu, Lorraine (2020-03-10) 0:02

100:03 Q. Did I read that correct?

100:04 - 100:04 Babeu, Lorraine (2020-03-10) 0:00

100:04 A. Correct.

100:22 - 101:01 Babeu, Lorraine (2020-03-10) 0:09

100:22 Q. Okay. In that PowerPoint. Re: [100:22 to 100:25] OVERRULED

100:23 And so when you were fitting -- Def Obj Foundation

100:24 training people how to fit, you would have

100:25 trained them consistent with that TG 41 we Re: [101:01 to 101:12] OVERRULED

101:01 just looked at? Def Obj Foundation

101:05 - 101:07 Babeu, Lorraine (2020-03-10) 0:04

101:05 Q. And when you were evaluating Re: [101:01 to 101:12] OVERRULED

101:06 proper or improper fit, you would have used Def Obj Foundation

101:07 the same guide?

101:09 - 101:12 Babeu, Lorraine (2020-03-10) 1:35

101:09 THE WITNESS: Correct. Re: [101:01 to 101:12] OVERRULED

101:10 QUESTIONS BY MR. BUCHANAN: Def Obj Foundation

101:11 Q. Okay. Now -- okay. So let me

101:12 go forward here -- actually, it's kind of Re: [101:10 to 101:13] OVERRULED

Def Obj Improper Designation

101:13 - 102:02 Babeu, Lorraine (2020-03-10) 0:26

101:13 interesting to look at. If you go to .13, Re: [101:10 to 101:13] OVERRULED

101:14 there's this kind of program where you -- I Def Obj Improper Designation

101:15 guess that the user sitting in the chair --

101:16 A. Right.

101:17 Q. -- would try and identify where

101:18 the sound was coming and the elevation it was

101:19 coming from, fair?

101:20 A. Yes.

101:21 Q. Okay. And it looks like there

101:22 was an option to use different sounds --

101:23 A. Right. Right.

101:24 Q. -- at the bottom.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 44 of 179
101:25 On the bottom left, we see "F

102:01 Joe." Is that female voice Joe?

102:02 A. Yes.

102:03 - 102:12 Babeu, Lorraine (2020-03-10) 0:28

102:03 Q. Okay. So the experimenter, I

102:04 guess in this case you, could pick the sound

102:05 that you were going to use, and the person

102:06 was sitting in the chair, whether it was 12

102:07 or 36, open or closed, and you would evaluate

102:08 the extent to which they were able to

102:09 properly localize the sound, right?

102:10 A. Right. Uh-huh.

102:11 Q. Okay. Let's go to -- if we go

102:12 to .15.

102:13 - 102:16 Babeu, Lorraine (2020-03-10) 0:12

102:13 You graphed out your results

102:14 and the average errors for each of the angles

102:15 that people were presented, right?

102:16 A. Right.

102:17 - 103:18 Babeu, Lorraine (2020-03-10) 1:44

102:17 Q. Okay. And so across the bottom

102:18 we have the presentation angles. Going up

102:19 and down, it's the degrees of error from --

102:20 versus the presentation angle, right?

102:21 A. Right.

102:22 Q. Okay. And it goes from zero to

102:23 180 going up and zero to 180 across, right?

102:24 A. Yes.

102:25 Q. Thank you.

103:01 And so the legend on the bottom

103:02 says, "No earplug, single side, CAE Y."

103:03 Is that the Combat Arms, the

103:04 yellow end?

103:05 A. Yes.

103:06 Q. And CAE G, that would be the

103:07 green end?

103:08 A. Correct.

103:09 Q. And then the E-A-R Classic

103:10 foam, it looks like, is black. That would be

103:11 that spongy one that --

103:12 A. Yes.

103:13 Q. Okay.

103:14 -- people sometimes called

103:15 foamies?

103:16 A. Yes.

103:17 Q. Okay.

103:18 A. Sure do.

103:19 - 103:21 Babeu, Lorraine (2020-03-10) 0:05

103:19 Q. And you graphed them with

103:20 colors that actually make us easy to follow

103:21 this, yellow ends versus green ends, right?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 45 of 179
103:22 - 104:03 Babeu, Lorraine (2020-03-10) 0:23

103:22 A. Right.

103:23 Q. Okay. And we can see that the

103:24 results for the errors for F Joe -- we see,

103:25 for example, at zero degrees, looks like the

104:01 green end has more error than the yellow end,

104:02 right? Zero degree presentation angle?

104:03 A. Right.

104:03 - 104:05 Babeu, Lorraine (2020-03-10) 0:04

104:03 A. Right. Re: [104:04 to 104:05] Re: [104:04 to 104:05] Re: [104:04 to 104:05] OVERRULED

104:04 Q. We see more error with the Def Obj Argumentative (611, OBJECTION WITHDRAWN, Def Obj Argumentative (611,

104:05 yellow end than the green end, right? 403) 3/11/2021 403)

104:07 - 104:15 Babeu, Lorraine (2020-03-10) 0:15

104:07 THE WITNESS: More error? No. Re: [104:07 to 104:09] Re: [104:07 to 104:09] Re: [104:07 to 104:09] OVERRULED

104:08 Are you talking about -- zero, Def Obj Argumentative (611, OBJECTION WITHDRAWN, Def Obj Argumentative (611,

104:09 zero, correct? 403) 3/11/2021 403)

104:10 QUESTIONS BY MR. BUCHANAN:

104:11 Q. I'm at zero, zero, yes, and on Re: [104:11 to 104:15] OVERRULED

104:12 the left side it says "average error"? Def Obj improper clarification

104:13 A. Right. And so the -- which one

104:14 did you say -- so now repeat your question,

104:15 please.

104:16 - 104:22 Babeu, Lorraine (2020-03-10) 0:07

104:16 Q. Yes. At zero --

104:17 A. Uh-huh.

104:18 Q. -- for a presentation angle of

104:19 zero --

104:20 A. Right.

104:21 Q. -- there was more error with

104:22 the green end than the yellow end?

104:24 - 104:24 Babeu, Lorraine (2020-03-10) 0:00

104:24 THE WITNESS: Yes.

105:02 - 106:03 Babeu, Lorraine (2020-03-10) 1:51

105:02 Q. Okay. When you go to

105:03 30 degrees as the presentation angle, you see

105:04 more error with the yellow end than the green

105:05 end, right?

105:06 A. Yes.

105:07 Q. You go to 60 degrees with the

105:08 presentation angle, you see more error with

105:09 the yellow end than the green ends, right?

105:10 A. Correct.

105:11 Q. 90 degrees, more error with the

105:12 yellow than green, right?

105:13 A. Right.

105:14 Q. We'll call it close to even or

105:15 maybe a little more error with the green on

105:16 120, right?

105:17 A. Right.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 46 of 179
105:18 Q. More error, the yellow end at

105:19 150, right?

105:20 A. Right.

105:21 Q. And then more error with the

105:22 yellow -- the green end at 180, right?

105:23 A. Green end at 180, yeah, uh-huh.

105:24 Q. Okay. And then you did the

105:25 same type of presentation for the -- did the

106:01 same type of presentation for the female

106:02 voice Joe with a noisier environment, right?

106:03 A. Right.

106:04 - 107:15 Babeu, Lorraine (2020-03-10) 1:01

106:04 Q. So you're evaluating it in a

106:05 quiet environment and then you actually

106:06 turned up the background noise a little and

106:07 saw were there changes, right?

106:08 A. Uh-huh.

106:09 Q. Is that right?

106:10 A. Yes.

106:11 Q. Okay. And then for female Joe

106:12 voice, in a noise environment -- this would

106:13 be .17, Mike -- and if we go through this

106:14 again, we see more error at zero degrees

106:15 presentation angle in the yellow end versus

106:16 the green end, right?

106:17 A. Yes.

106:18 Q. Okay. You go to 30 degrees,

106:19 you have more with the yellow end versus the

106:20 green end?

106:21 A. Yes.

106:22 MR. FIELDS: Objection. Form.

106:23 QUESTIONS BY MR. BUCHANAN:

106:24 Q. You go to 60 degrees

106:25 presentation angle, and what has more error,

107:01 the green or the yellow?

107:02 A. The green.

107:03 Q. Okay. You go to 90 degrees,

107:04 the yellow end's got more error, right?

107:05 A. Right.

107:06 Q. You go to 120 degrees, I think

107:07 it's close, but I think green's got more

107:08 error, right?

107:09 A. Right.

107:10 Q. Okay. You get 150 degrees, the

107:11 yellow end's got more error?

107:12 A. Right.

107:13 Q. And you get to 180 degrees, it

107:14 looks like the green end's got more error,

107:15 correct?

107:16 - 107:19 Babeu, Lorraine (2020-03-10) 0:10

107:16 A. Right, uh-huh.

107:17 Q. Okay. So, really, depending

107:18 on, you know, which presentation angle, what

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 47 of 179
107:19 was winning out, green versus yellow, fair?

107:22 - 108:06 Babeu, Lorraine (2020-03-10) 0:24

107:22 Q. Is that fair?

107:23 A. Uh-huh.

107:24 Q. And I guess you tabulated these

107:25 results on .18 and said -- I'm sorry, yeah.

108:01 Results, noise, the listening condition, no

108:02 earplug versus single-sided versus CAE-yellow

108:03 versus CAE-green versus E-A-R Classic foam,

108:04 and then you have the average errors off to

108:05 the right, right?

108:06 A. Right.

108:07 - 108:10 Babeu, Lorraine (2020-03-10) 0:20

108:07 Q. Okay. And so we see the yellow

108:08 end's got about 27 as its average error, and

108:09 the green end's got about 25; is that right?

108:10 A. Correct, uh-huh.

108:16 - 108:25 Babeu, Lorraine (2020-03-10) 1:31

108:16 Q. Okay. And then at .19, you

108:17 summarized and said, "Overall, the

108:18 level-dependent earplugs performed better

108:19 than the standard earplug."

108:20 Right?

108:21 A. Right.

108:22 Q. And you said with background

108:23 noise, overall performance better with all

108:24 earplugs, right?

108:25 A. Right.

109:02 - 109:06 Babeu, Lorraine (2020-03-10) 1:30

109:02 You did another study that I

109:03 believe you presented also at the NHCA on

109:04 DPOEs; is that right?

109:05 A. Yeah, uh-huh.

109:06 Q. Okay. Let's see, 1560. I'm

109:07 - 109:09 Babeu, Lorraine (2020-03-10) 0:11

109:07 passing you, ma'am, a copy of P1560. Re: [109:07 to 109:09] OVERRULED

109:08 Oh, I should -- you know, Def Obj improper

109:09 before we start talking about a new study, clarification, relevance,

improper designation of a

question without an answer

109:10 - 109:14 Babeu, Lorraine (2020-03-10) 0:10

109:10 the last study that we looked at, that

109:11 localization study, apart from the

109:12 presentation at NHCA, did you publish that in

109:13 a journal?

109:14 A. No.

109:25 - 110:03 Babeu, Lorraine (2020-03-10) 0:08

109:25 Q. Okay. And to your knowledge, Re: [110:03 to 110:03] OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 48 of 179
110:01 did any of the other authors of that study Def Obj improper

110:02 with you ever publish it? clarification, designation of

110:03 A. No, not that I'm aware. an answer without a question

110:03 - 110:13 Babeu, Lorraine (2020-03-10) 0:13

110:03 A. No, not that I'm aware. Re: [110:03 to 110:03] OVERRULED

110:04 Q. Right. Def Obj improper

110:05 A. No. clarification, designation of

110:06 Q. Before coming in today, did you an answer without a question

110:07 just do like a Google Scholar search to see

110:08 whether it had been published or --

110:09 A. No, I didn't know you could do

110:10 that.

110:11 Q. We gave it a look. We didn't

110:12 see it.

110:13 A. Okay. All right.

110:14 - 110:16 Babeu, Lorraine (2020-03-10) 0:04

110:14 Q. Yeah. But you're not aware of

110:15 it having been published in peer review?

110:16 A. No, right.

110:17 - 111:07 Babeu, Lorraine (2020-03-10) 1:19

110:17 Q. Okay. Getting to P1560, ma'am,

110:18 this is a document that was produced to us by

110:19 the defendants in this case. Just give it a

110:20 quick review, ma'am, and satisfy yourself

110:21 that this is a study that you were actually

110:22 involved in, if you could.

110:23 A. Yeah.

110:24 Q. You've read enough to satisfy

110:25 yourself, ma'am?

111:01 A. Yeah. Yeah, I remember this

111:02 one.

111:03 Q. Okay. And I used a phrase,

111:04 DPOE.

111:05 Is that distortion product

111:06 otoacoustic emissions?

111:07 A. Correct.

111:08 - 111:15 Babeu, Lorraine (2020-03-10) 0:22

111:08 Q. Something you had actually done Re: [111:08 to 111:15] SUSTAINED

111:09 some research with in connection with your Def Obj improper

111:10 Ph.D.? clarification, relevance,

111:11 A. I think so. I don't remember improper designation of a

111:12 my dissertation. Oh, my God, I can't believe question without an answer

111:13 that. Okay. I'm -- I'm not -- I don't

111:14 remember. Jesus. Oh, God.

111:15 Q. That's okay, ma'am. It's --

111:16 - 111:19 Babeu, Lorraine (2020-03-10) 0:05

111:16 A. My memory's shot.

111:17 Q. We're coming to you many years

111:18 after the fact.

111:19 A. Yeah. A lot of years.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 49 of 179
112:03 - 112:07 Babeu, Lorraine (2020-03-10) 0:14

112:03 Q. Distortion product otoacoustic

112:04 emissions is a tool commonly used in newborns

112:05 to measure whether they have hearing, because

112:06 they can't do threshold testing, right?

112:07 A. Right. On newborns, correct.

112:15 - 112:20 Babeu, Lorraine (2020-03-10) 0:18

112:15 Q. And so you conducted a study

112:16 looking at distortion product otoacoustic

112:17 emissions following -- or with use of

112:18 different hearing protection devices before

112:19 and after being on the range, fair?

112:20 A. Right.

112:21 - 112:21 Babeu, Lorraine (2020-03-10) 0:02

112:21 Q. Okay. And if we could, let's Re: [112:21 to 112:21] OVERRULED

Def Obj improper

clarification, relevance,

improper designation of a

question without an answer

112:22 - 113:20 Babeu, Lorraine (2020-03-10) 1:42

112:22 just turn a few pages. Actually, stop at .5

112:23 if we could.

112:24 There's a chart in the middle

112:25 here. It says "octave band attenuation."

113:01 Do you see that?

113:02 A. Right. Right.

113:03 Q. We see "octave band

113:04 attenuation." We looked at a chart earlier

113:05 from that sell sheet --

113:06 A. Right.

113:07 Q. -- on the Combat Arms. You

113:08 remember that?

113:09 A. Correct, uh-huh.

113:10 Q. And it says at the bottom here,

113:11 "Octave band attenuation of the hearing

113:12 protectors used in the studies -- study

113:13 values provided by manufacturer, Aearo

113:14 Company, Inc."

113:15 Do you see that?

113:16 A. Yes.

113:17 Q. Okay. Is that consistent with

113:18 your memory, ma'am? You reached out to the

113:19 company for information on attenuation data?

113:20 A. Right, uh-huh.

114:03 - 115:07 Babeu, Lorraine (2020-03-10) 1:10

114:03 Q. Okay. Just some general

114:04 questions on DPOEs.

114:05 How did you account for

114:06 background noise when you did the study; do

114:07 you remember?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 50 of 179
114:08 A. What do you mean, "how did you

114:09 account for" it?

114:10 Q. How did you, you know,

114:11 calibrate the machine you were using to

114:12 measure DPOEs to adjust for background noise?

114:13 A. Still not tracking.

114:14 Q. Okay. To your understanding,

114:15 ma'am, are DPOE measurements sensitive to

114:16 background noise?

114:17 A. Okay. So once you insert the

114:18 probe in the ear canal, it's measuring what's

114:19 in the ear canal. So unless there is

114:20 extensive, like -- the most I would have done

114:21 would have done it in the booth. Okay? And

114:22 we had a booth out -- for this particular

114:23 test, we had a booth on site.

114:24 Q. When you say "on site," like

114:25 what does that mean? Is that like -- you

115:01 were -- it was -- there was a range?

115:02 A. We were at a range, right.

115:03 Q. And you had a booth off to the

115:04 side?

115:05 A. Yeah, there was a building

115:06 there, and we had a booth moved to that

115:07 building.

115:13 - 115:16 Babeu, Lorraine (2020-03-10) 0:04

115:13 Q. You had, what was it, about

115:14 nine subjects, I think, that you tested in

115:15 this one?

115:16 A. Yeah, something like that --

115:21 - 116:01 Babeu, Lorraine (2020-03-10) 0:09

115:21 Q. -- you would test -- you would

115:22 test before firing and then after firing?

115:23 A. Right.

115:24 Q. But you tested in consecutive

115:25 days, right?

116:01 A. Right.

116:15 - 116:24 Babeu, Lorraine (2020-03-10) 0:15

116:15 Q. Yeah. As I understand it,

116:16 ma'am, there were three hearing protectors

116:17 that were being studied?

116:18 A. Right.

116:19 Q. There was an open end, there

116:20 was a closed end, and then you also studied

116:21 the ComTac.

116:22 A. Yeah.

116:23 Q. Right?

116:24 A. Peltor, uh-huh.

121:22 - 122:10 Babeu, Lorraine (2020-03-10) 0:25

121:22 It says, "As expected and

121:23 consistent with the literature, in most

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 51 of 179
121:24 instances the DPOAE amplitude values were

121:25 higher before firing and lower after firing."

122:01 Did I read that correctly?

122:02 A. Right. Uh-huh.

122:03 Q. And that means there was a

122:04 decline as measured by these DPOEs after

122:05 firing?

122:06 A. Correct.

122:07 Q. Okay. DPOEs are measuring, you

122:08 know, hair cell function in the inner ear; is

122:09 that fair?

122:10 A. Yeah, okay.

122:17 - 123:08 Babeu, Lorraine (2020-03-10) 0:29

122:17 says, "However, it's important to note there

122:18 appeared to be a trend between DPOE amplitude

122:19 for level-dependent and non-level-dependent

122:20 hearing protection."

122:21 Did I read that correctly?

122:22 A. Yes.

122:23 Q. And then you note, I guess --

122:24 it's the bottom third of the paragraph. It

122:25 says, "There was initial concern that these

123:01 findings were a reflection of the averaging

123:02 of results."

123:03 Do you see that?

123:04 A. Yeah.

123:05 Q. Because what you did, I guess,

123:06 was you averaged before and after across your

123:07 full subject population --

123:08 A. Right.

123:09 - 123:10 Babeu, Lorraine (2020-03-10) 0:00

123:09 Q. -- right?

123:10 A. Uh-huh.

123:11 - 123:14 Babeu, Lorraine (2020-03-10) 0:05

123:11 Q. But then you said when you

123:12 looked at the individual results, you saw the

123:13 same pattern.

123:14 A. Right.

125:18 - 125:23 Babeu, Lorraine (2020-03-10) 0:13

125:18 you said, "The question of whether frequency

125:19 response which provides less attenuation in

125:20 the low frequencies affects the amplitude

125:21 values of the DPOAE during small arms weapons

125:22 fire, according to these results, were not

125:23 statistically significant."

125:24 - 125:25 Babeu, Lorraine (2020-03-10) 0:01

125:24 Do you see that?

125:25 A. Yes.

126:01 - 126:06 Babeu, Lorraine (2020-03-10) 0:11

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 52 of 179
126:01 Q. "However, there was a trend

126:02 that appears to indicate that there is an

126:03 effect of the level-dependent hearing

126:04 protection on DPOE amplitude. This trend

126:05 warrants continued study."

126:06 A. Correct. Uh-huh.

141:13 - 141:23 Babeu, Lorraine (2020-03-10) 0:28

141:13 Passing you, ma'am, P1557.

141:14 A. Okay.

141:15 Q. So this is about a month later.

141:16 "Decibels in the desert." Clever name.

141:17 DoubleTree Hotel in Tucson, Arizona.

141:18 Do you remember going out to a

141:19 conference in Tucson, the 30th Annual NHCA

141:20 Hearing Conservation Conference?

141:21 A. Right, uh-huh.

141:22 Q. Do you remember going to that?

141:23 A. Yeah, uh-huh.

141:25 - 142:05 Babeu, Lorraine (2020-03-10) 0:26

141:25 And if we go to .21, we see

142:01 there's a heading, "Observation of the DPOAE

142:02 after exposure to small arms fire."

142:03 Do you see that?

142:04 A. Yeah. Okay.

142:05 Q. And that's your name?

142:06 - 142:06 Babeu, Lorraine (2020-03-10) 0:00

142:06 A. Yeah.

142:12 - 143:07 Babeu, Lorraine (2020-03-10) 1:56

142:12 Q. Okay. And then it talks about Re: [142:12 to 143:07] Re: [142:12 to 143:07]

142:13 a description of your study. And as you get Pltf Obj Incomplete OVERRULED

142:14 to the end, you see discussion and designation, 403 prejudicial

142:15 conclusions from your study? and misleading and prohibited

142:16 A. Uh-huh. by Touhy (see page 136-137)

142:17 Q. Do you see that?

142:18 A. Uh-huh, yes.

142:19 Q. Okay. And it says, "There were

142:20 no significant main effects for the type of

142:21 hearing protection and before and after

142:22 firing of DPOAE amplitude."

142:23 Do you see that?

142:24 A. Okay.

142:25 Q. Do you recall when we were

143:01 looking at your paper before Mr. Berger's

143:02 comments, your findings about the declines in

143:03 DPOAE amplitude?

143:04 A. Right, uh-huh.

143:05 Q. Do you recall Mr. Berger

143:06 counseling you to take out those conclusions?

143:07 A. I don't recall that. You know,

143:08 - 144:11 Babeu, Lorraine (2020-03-10) 1:11

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 53 of 179
143:08 that -- you'd have to show me where he said Re: [143:10 to 143:16] Re: [143:10 to 143:16] Re: [143:10 to 143:16] OVERRULED

143:09 that. Def Obj Relevance (401, 402); OVERRULED Def Obj Relevance (401, 402);

143:10 Q. Yeah, I don't think I can do Prejudice (403) Prejudice (403)

143:11 that, unfortunately.

143:12 A. Okay.

143:13 Q. Okay. By --

143:14 A. Uh-huh.

143:15 Q. By the guidance of counsel.

143:16 A. Right.

143:17 Q. Fair to say, though, you don't

143:18 see that characterized in your discussion

143:19 here?

143:20 A. Right, uh-huh.

143:21 Q. That there was a decline in

143:22 DPOAE amplitude from the before and after

143:23 firing with the Combat Arms Earplugs?

143:24 A. Right.

143:25 Q. You don't see that in the

144:01 presentation abstract, fair?

144:02 A. Right.

144:03 Do you have the presentation?

144:04 Q. We do. We have the PowerPoint

144:05 as well.

144:06 A. Uh-huh.

144:07 Q. With regard to the abstract

144:08 that we're looking at right now, we'd agree

144:09 that we don't see the discussion about the

144:10 decline --

144:11 A. Right. Right.

144:16 - 144:16 Babeu, Lorraine (2020-03-10) 0:19

144:16 Q. Okay. Passing you P124.

145:02 - 145:07 Babeu, Lorraine (2020-03-10) 0:09

145:02 Q. "Field study. Study of the

145:03 effects of encapsulation on the performance

145:04 of soldiers during various tasks."

145:05 Were there broader studies

145:06 going on at this time?

145:07 A. Right. Uh-huh.

146:03 - 146:09 Babeu, Lorraine (2020-03-10) 0:07

146:03 Q. And again, it's been a long

146:04 time, ma'am. I don't want you to infer what

146:05 must have been done versus what you recall

146:06 happening.

146:07 A. Okay.

146:08 Q. Okay?

146:09 A. Uh-huh.

146:10 - 147:14 Babeu, Lorraine (2020-03-10) 1:55

146:10 Q. But then there's a description

146:11 specifically about your DPOE study on the .9.

146:12 It says "method."

146:13 Do you see those?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 54 of 179
146:14 A. Yes.

146:15 Q. "Infantry soldiers over the

146:16 course of nine days wore the Combat Arms

146:17 yellow and green side and the Peltor ComTac

146:18 earmuff while firing the M4 rifle."

146:19 Right?

146:20 A. Uh-huh.

146:21 Q. "Each day they had pre and

146:22 post-distortion product otoacoustic

146:23 emissions, DPOAE, measurements recorded

146:24 during the weapons firing task."

146:25 Do you see that?

147:01 A. Right.

147:02 Q. And it says, "Soldiers fired 54

147:03 each day. Noise level at the ear was as

147:04 quoted."

147:05 A. Uh-huh.

147:06 Q. And then you talk about the

147:07 folks who were involved in this.

147:08 14 infantry soldiers from

147:09 Fort Wainwright, right?

147:10 A. Right.

147:11 Q. Started with 14. Three didn't

147:12 meet the hearing sensitivity criteria for

147:13 inclusion.

147:14 A. Right.

147:16 - 148:01 Babeu, Lorraine (2020-03-10) 0:18

147:16 What were the hearing

147:17 sensitivity inclusion criteria?

147:18 A. I'd have to go back and look,

147:19 but, you know, most likely would have -- most

147:20 likely it would have been they had to have

147:21 normal hearing.

147:22 Q. Okay.

147:23 A. From 250 to 8K.

147:24 Q. It says, "Two were injured

147:25 during the course of the study."

148:01 A. Right.

148:02 - 148:19 Babeu, Lorraine (2020-03-10) 1:03

148:02 Q. And do you know whether any of Re: [148:02 to 148:19] OVERRULED

148:03 that was noise-related, not noise-related? Def Obj 403, relevance

148:04 A. One was. We had a soldier who

148:05 had sudden hearing loss or -- we don't know

148:06 what to attribute it to. Okay? Because when

148:07 I ran an after study on him, he had

148:08 significant hearing loss.

148:09 I sent him down to Walter Reed

148:10 to get reevaluated because we were doing --

148:11 we were in the field, so I wanted to make

148:12 sure that these thresholds that I was getting

148:13 in the field were actually what was going on.

148:14 So I sent him to Walter Reed.

148:15 Walter Reed did the test, and

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 55 of 179
148:16 they confirmed that, yes, the hearing loss is

148:17 there. So he could not participate in the

148:18 hearing part of the study anymore because I

148:19 didn't know what was going on.

150:23 - 151:11 Babeu, Lorraine (2020-03-10) 1:30

150:23 Q. And you didn't see when you

150:24 reviewed this, ma'am, obviously, that you

150:25 observed what would be expected, a decline in

151:01 DPOAEs from before and after firing, fair?

151:02 MR. FIELDS: Objection. Form.

151:03 THE WITNESS: Okay. So when we

151:04 talk about significant, statistical

151:05 significance. So in the research,

151:06 when you were using that word, that's

151:07 what that meant.

151:08 It doesn't mean that there

151:09 wasn't a change. It just means the

151:10 change didn't meet statistical

151:11 significance.

174:01 - 174:18 Babeu, Lorraine (2020-03-10) 0:28

174:01 Q. Did he ever tell you that in

174:02 order to get good results you had to fold

174:03 back the flanges on everybody who was using

174:04 it?

174:05 MR. FIELDS: Objection to form.

174:06 THE WITNESS: I don't think so.

174:07 QUESTIONS BY MR. BUCHANAN:

174:08 Q. And that's not the way you

174:09 tested it in people, right?

174:10 A. I inserted it the way we

174:11 normally insert earplugs. I didn't do any

174:12 special thing.

174:13 Q. Right.

174:14 The way we saw those pictures

174:15 earlier today --

174:16 A. Right.

174:17 Q. -- that's the way you did it?

174:18 A. Right.

179:22 - 181:17 Babeu, Lorraine (2020-03-10) 2:43

179:22 You indicated that you have a

179:23 Ph.D. from the University of Florida?

179:24 A. Correct.

179:25 Q. And you received that Ph.D. in

180:01 2001?

180:02 A. Correct.

180:03 Q. What was your topic or the

180:04 subject matter in which you received your

180:05 Ph.D.?

180:06 A. Audiology.

180:07 Q. You also have a bachelor's

180:08 degree from Norfolk State University?

180:09 A. Correct.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 56 of 179
180:10 Q. When did you receive your

180:11 bachelor's degree from Norfolk State?

180:12 A. '81. Let's go there. Let's

180:13 bring it all out.

180:14 Q. All right. And when you

180:15 received your bachelor's degree from Norfolk

180:16 State in 1981, what was your major?

180:17 A. It was speech pathology,

180:18 audiology.

180:19 Q. You also have a master's degree

180:20 from Florida State University?

180:21 A. Yep.

180:22 Q. When did you receive your

180:23 master's degree from Florida State

180:24 University?

180:25 A. '88.

181:01 Q. And when you received your

181:02 master's degree from Florida State University

181:03 in 1988, what was your major or specialty?

181:04 A. Audiology.

181:05 Q. I seem to recall in some of the

181:06 materials there are some initials behind your

181:07 name besides Ph.D., and that is CCC-A?

181:08 A. Okay.

181:09 Q. And that is a certificate in

181:10 clinical competency for audiology?

181:11 A. Correct.

181:12 Q. And when did you receive your

181:13 CCC-A?

181:14 A. In '89.

181:15 Q. You indicated that you retired

181:16 from active duty in 2011?

181:17 A. Correct.

182:04 - 182:08 Babeu, Lorraine (2020-03-10) 0:11

182:04 Q. You testified earlier that the

182:05 only time period in which you would have

182:06 performed research on the Combat Arms Earplug

182:07 version 2 was in the 2001-2005 time period?

182:08 A. Correct.

189:11 - 189:25 Babeu, Lorraine (2020-03-10) 1:32

189:11 Q. Do you recall when you first

189:12 became aware of the Combat Arms Earplug

189:13 version 2?

189:14 A. When I first became aware of

189:15 the -- when I got to the lab.

189:16 Q. Okay. And you got to the lab

189:17 in 2001?

189:18 A. Correct.

189:19 Q. And do you recall how you

189:20 became aware of the Combat Arms Earplug

189:21 version 2 when you first got to the lab in

189:22 2001?

189:23 A. The other investigators there

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 57 of 179
189:24 were talking about it. Doug was talking

189:25 about it. We talked about it.

194:07 - 195:04 Babeu, Lorraine (2020-03-10) 1:10

194:07 Q. As part of your work at the Re: [194:07 to 195:04] Re: [194:07 to 195:04]

194:08 Army Research Laboratory or in the US Pltf Obj 402; 403 OVERRULED

194:09 military in general, have you ever worn the

194:10 Combat Arms Earplug version 2?

194:11 A. Have I worn them? Yep. Yes.

194:12 Q. Have you ever worn them in any

194:13 type of combat training?

194:14 A. No.

194:15 Q. What were the facts and

194:16 circumstances in which you were wearing the

194:17 Combat Arms Earplug version 2?

194:18 A. Just personally trying them on,

194:19 seeing how they worked, you know. I'm not a

194:20 shooter, so I wasn't really using the yellow

194:21 side. I'd try on the yellow side just to see

194:22 how it feels, but I would use the green side

194:23 if I were going to a concert or something

194:24 like that.

194:25 Q. So with respect to the Combat

195:01 Arms Earplug, the green end, did you wear

195:02 that earplug in instances that involved

195:03 something other than the military?

195:04 A. Yeah. Going to a concert.

195:09 - 195:15 Babeu, Lorraine (2020-03-10) 0:24

195:09 Q. Do you know roughly in what Re: [195:09 to 195:15] Re: [195:09 to 195:15]

195:10 time period you were using the Combat Arms Pltf Obj 402; 403 OVERRULED

195:11 Earplug version 2 for your own use?

195:12 A. It would have been the

195:13 2001-2005. I mean, the thing is is that it

195:14 was just accessible. So once I left, it

195:15 wasn't that accessible.

195:23 - 196:19 Babeu, Lorraine (2020-03-10) 1:20

195:23 Q. You indicated earlier that Re: [196:11 to 196:19] Re: [196:11 to 196:19] Re: [196:11 to 196:19] SUSTAINED

195:24 you're not a shooter. Were there any Def Obj Relevance (401, 402) OVERRULED Def Obj Relevance (401, 402)

195:25 circumstances where you wore the yellow end

196:01 of the Combat Arms Earplug on the firing

196:02 range?

196:03 A. No, huh-uh.

196:04 Q. Do you know on how many

196:05 occasions approximately you've worn the green

196:06 end of the Combat Arms Earplug?

196:07 A. Outside of -- outside of work?

196:08 Q. Outside of work.

196:09 A. Probably at the best, one or

196:10 two, you know. Just --

196:11 Q. Do you recall how many times

196:12 you've worn the Combat Arms Earplug version 2

196:13 as part of work when it's a noisy

196:14 environment?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 58 of 179
196:15 A. I don't. I mean, I don't

196:16 recall because, again, if I were using it and

196:17 I'm in the research, I'm not necessarily

196:18 downrange where the noise is. So I don't

196:19 think I can answer that question really well.

197:21 - 197:24 Babeu, Lorraine (2020-03-10) 0:08

197:21 Q. When you wore the green end of Re: [197:21 to 197:24] Re: [197:21 to 197:24]

197:22 the Combat Arms Earplug to concerts, did it Pltf Obj 402; 403; Expert OVERRULED

197:23 provide the level of sound attenuation you opinion from non-expert

197:24 were expecting? witness; Beyond the scope of

Touhy Designation

198:02 - 198:07 Babeu, Lorraine (2020-03-10) 0:14

198:02 THE WITNESS: Okay. Yes, in Re: [198:02 to 198:07] Re: [198:02 to 198:07]

198:03 the sense that when I left the Pltf Obj 402; 403; Expert OVERRULED

198:04 concert, my ears weren't ringing and opinion from non-expert

198:05 they didn't feel full. So for me, as witness; Beyond the scope of

198:06 an audiologist, that tells you, okay, Touhy Designation

198:07 the earplugs were working.

198:21 - 198:25 Babeu, Lorraine (2020-03-10) 0:15

198:21 Q. Okay. And when you were Re: [198:21 to 198:25] Re: [198:21 to 198:25]

198:22 wearing the Combat Arms Earplug version 2, Pltf Obj 402; 403; Expert OVERRULED

198:23 did you have to roll back the flanges in opinion from non-expert

198:24 order to obtain an acceptable fit? witness; Beyond the scope of

198:25 A. No, huh-uh. Touhy Designation

199:04 - 199:09 Babeu, Lorraine (2020-03-10) 1:50

199:04 Q. Were there any instances where Re: [199:04 to 199:09] Re: [199:04 to 199:09]

199:05 you were wearing the Combat Arms Earplug, Pltf Obj 402; 403; Expert OVERRULED

199:06 either in your work at the laboratory or opinion from non-expert

199:07 outside of work, where you were not able to witness; Beyond the scope of

199:08 obtain an acceptable fit? Touhy Designation

199:09 A. No.

204:01 - 204:05 Babeu, Lorraine (2020-03-10) 0:09

204:01 Q. Okay. So let's take a look at Re: [204:01 to 204:05] Re: [204:01 to 204:05] Re: [204:01 to 204:05] SUSTAINED

204:02 the document that's been marked as Exhibit Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 602; 802

204:03 Number 1 to your deposition. foundation; 805; Expert (Improper expert testimony

204:04 Do you see that? Opinion without foundation or from lay witness); 602; 802

204:05 A. Uh-huh. expert sponsor of the

document; 403

204:21 - 205:16 Babeu, Lorraine (2020-03-10) 1:49

204:21 Q. The first sentence talks about Re: [204:21 to 205:16] Re: [204:21 to 205:16] Re: [204:21 to 205:16] SUSTAINED

204:22 the small -- it says, "The Small Arms Weapons Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 802; 602

204:23 Branch of the Ordnance Center and School was foundation; 805; Expert (Improper expert testimony

204:24 experiencing problems using the Combat Arms Opinion without foundation or from lay witness); 602; 802

204:25 Earplug." expert sponsor of the

205:01 Do you see that? document; 403

205:02 A. Yes.

205:03 Q. Are you familiar with the Small

205:04 Arms Weapons Branch of the Ordnance Center

205:05 and School?

205:06 A. I believe I am.

205:07 Q. Okay. Do you know where that

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 59 of 179
205:08 particular branch or school is located?

205:09 A. At Aberdeen.

205:10 Q. Okay. It says, "When they used

205:11 the earplug in the small arms weapon -- small

205:12 arms weapons firing room, the users felt the

205:13 earplug was not providing adequate

205:14 protection."

205:15 Do you see that?

205:16 A. Yeah.

206:22 - 208:09 Babeu, Lorraine (2020-03-10) 1:24

206:22 Q. It goes on to say, "If the Re: [206:22 to 208:09] Re: [206:22 to 208:09] Re: [206:22 to 208:09] SUSTAINED

206:23 individual is exposed to impulse noise such Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 802; 602

206:24 as that of weapons fire, the yellow side of foundation; 805; Expert (Improper expert testimony

206:25 the earplug provides protection during the Opinion without foundation or from lay witness); 602; 803.

207:01 firing, but when noise levels are low, there expert sponsor of the If Babeu performed a study,

207:02 is limited attenuation, which allows for document; 403 she may talk about that study

207:03 voice communication." from personal knowledge, as a

207:04 Did I read that correctly? lay witness (i.e., describe

207:05 A. Yes. the study and the

207:06 Q. And is that consistent with conclusions). However, she may

207:07 your understanding on the operation of the not apply the conclusions of

207:08 yellow end of the Combat Arms Earplug? the study to the facts of this

207:09 A. Yes. case.

207:10 Q. "The green side of the earplug

207:11 is similar to standard earplugs and is

207:12 designed to protect soldiers from

207:13 continuous-type noise exposures -- noise

207:14 exposure such as that of an engine running in

207:15 the motor pool."

207:16 Did I read that correctly?

207:17 A. Correct, uh-huh.

207:18 Q. And was that also consistent

207:19 with your understanding of how the green side

207:20 performed?

207:21 A. Correct.

207:22 Q. It says, "The auditory research

207:23 team, Dr. Letowski, Lieutenant Colonel Babeu,

207:24 Mary Binseel, and Francis Breitenbach from

207:25 HRED evaluated the problem, conducted noise

208:01 measurements."

208:02 Do you see that?

208:03 A. Uh-huh.

208:04 Q. You do?

208:05 A. Yes.

208:06 Q. Okay. Do you recall being

208:07 brought in by someone to evaluate this

208:08 problem at the small arms weapons branch?

208:09 A. Yes.

208:13 - 210:15 Babeu, Lorraine (2020-03-10) 2:18

208:13 Q. And just for some acronyms Re: [208:13 to 210:15] Re: [208:13 to 210:15] Re: [208:13 to 210:15] SUSTAINED

208:14 here, we have the HRED. Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 802; 602

208:15 A. Right. foundation; 805; Expert (Improper expert, testimony

208:16 Q. That stands for Human Research Opinion without foundation or from lay witness); 602;, 803.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 60 of 179
208:17 and Engineering Directorate? expert sponsor of the If Babeu performed a study,

208:18 A. Correct, uh-huh. document; 403 she may talk about that study

208:19 Q. What was the role of the from, personal knowledge, as a

208:20 auditory research team from HRED at this lay, witness (i.e., describe

208:21 time? the study, and the

208:22 A. For this? conclusions). However, she

208:23 Q. Yes. may not apply the conclusions,

208:24 A. Okay. So based on this, of the study to the facts of

208:25 it's -- they've got a complaint about using this, case.

209:01 the Combat Arms Earplug. And then we went in

209:02 and we looked, we did some noise

209:03 measurements, and we found that -- well, the

209:04 noise measurements didn't tell us that, but

209:05 it was that the room -- you can't use the

209:06 yellow side of the Combat Arms Earplug in

209:07 indoors. It has to be an outdoor use.

209:08 Q. And do you recall being brought

209:09 in to assist the small arms weapon branch in

209:10 the problems that they were experiencing in

209:11 the small arms weapons firing room?

209:12 A. I remember Tom and I went over,

209:13 and we were talking to the guys -- this is

209:14 what I remember. I went -- we were talking

209:15 to the guys that were doing testing on small

209:16 arms, and it's -- it's a -- like a padded

209:17 room, but they're inside the padded room.

209:18 They're not outside of it. They're inside

209:19 the padded room. And then they're testing

209:20 different properties of the weapon.

209:21 So they're firing in there, and

209:22 when they're firing, the whole room goes

209:23 reverberant.

209:24 Q. It says in this document,

209:25 continuing, "It was recommended that due to

210:01 the highly reverberant firing environment,

210:02 that soldiers should use the green end of the

210:03 earplug rather than the yellow side."

210:04 Do you see that?

210:05 A. Yep.

210:06 Q. And this document uses a term

210:07 that you also just used, which is

210:08 "reverberant."

210:09 A. Uh-huh.

210:10 Q. What does it mean to say that

210:11 the environment is reverberant?

210:12 A. The sound is bouncing off the

210:13 walls, and it kind of defeats the mechanism

210:14 for the yellow side of the Combat Arms

210:15 Earplug.

210:19 - 210:24 Babeu, Lorraine (2020-03-10) 0:11

210:19 Q. And so how does the firing Re: [210:19 to 210:24] Re: [210:19 to 210:24] Re: [210:19 to 210:24] SUSTAINED

210:20 environment affect the conclusion regarding Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 802; 602

210:21 which end should be inserted during training? foundation; 805; Expert (Improper expert, testimony

210:22 A. How does -- Opinion without foundation or from lay witness); 602;, 803.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 61 of 179
210:23 Q. The firing environment, inside expert sponsor of the If Babeu performed a study,

210:24 versus outside? document; 403 she may talk about that study

from, personal knowledge, as a

211:03 - 211:22 Babeu, Lorraine (2020-03-10) 1:01 lay, witness (i.e., describe

211:03 THE WITNESS: If you -- what Re: [211:03 to 211:22] the study, and the

211:04 happened if they used the yellow side Pltf Obj 602; 802; Lack of conclusions). However, she

211:05 inside? That's what happens. The foundation; 805; Expert may not apply the conclusions,

211:06 yellow -- the mechanism that makes the Opinion without foundation or of the study to the facts of

211:07 yellow side of the Combat Arms expert sponsor of the document this, case.

211:08 Earplug, the physics, just doesn't

211:09 work anymore. Okay? Re: [211:03 to 211:22]

211:10 And so you have to use it only SUSTAINED - 701

211:11 outside where it's not subject to -- (Improper expert, testimony

211:12 like you couldn't use that earplug in from lay witness); 602;, 803.

211:13 a room like this and fire a weapon. If Babeu performed a study,

211:14 QUESTIONS BY MR. FIELDS: she may talk about that study

211:15 Q. Now, it uses the term "small from, personal knowledge, as a

211:16 arms." lay, witness (i.e., describe

211:17 For someone who is not in the the study, and the

211:18 military, what's small arms? conclusions). However, she

211:19 A. Pistol, M16 rifle, M14 rifle. may not apply the conclusions,

211:20 There's debate about the machine gun, but -- of the study to the facts of

211:21 Q. So it's not just handguns? this, case.

211:22 A. Right, uh-huh.

213:06 - 213:10 Babeu, Lorraine (2020-03-10) 0:14

213:06 Q. Why did your team decide that Re: [213:06 to 213:10] Re: [213:06 to 213:10] Re: [213:06 to 213:10] SUSTAINED

213:07 for indoor gun range such as the one at the Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 602; 802

213:08 small weapons -- small arms weapons branch foundation; 805; Expert (Improper expert, testimony from lay

213:09 that the soldiers should use the green end Opinion without foundation or witness); 602;, 803. If Babeu performed 

213:10 instead of the yellow end? expert sponsor of the document a study, she may talk about that study

from, personal knowledge, as a

213:13 - 214:01 Babeu, Lorraine (2020-03-10) 0:26 lay, witness (i.e., describe the study, 

213:13 THE WITNESS: Because of the Re: [213:13 to 214:01] and the conclusions). However, she Re: [213:13 to 214:01] SUSTAINED

213:14 reverberant room. Pltf Obj 602; 802; Lack of may not apply the conclusions, Pltf Obj 701; 602; 802

213:15 QUESTIONS BY MR. FIELDS: foundation; 805; Expert of the study to the facts of this, case.

213:16 Q. And would that be true for any Opinion without foundation or Re: [213:13 to 214:01]

213:17 indoor firing range -- expert sponsor of the document SUSTAINED - 701

213:18 A. Yeah. (Improper expert, testimony from lay

213:19 Q. -- or would you have to witness); 602;, 803. If Babeu performed 

213:20 evaluate it on a case-by-case basis? a study, she may talk about that study

213:21 A. No, huh-uh, no. That's -- just from, personal knowledge, as a

213:22 as an audiologist, knowing what I know about lay, witness (i.e., describe the study, 

213:23 the Combat Arms Earplug and what it's and the conclusions). However, she

213:24 supposed to do and the mechanisms of how it's may not apply the conclusions,

213:25 supposed to work, no, you do not fire using of the study to the facts of this, case.

214:01 the yellow side in, in indoors.

214:08 - 214:21 Babeu, Lorraine (2020-03-10) 1:30

214:08 Q. The next line says, "The Re: [214:08 to 214:15] Re: [214:08 to 214:15] Re: [214:08 to 214:21] SUSTAINED

214:09 soldiers were instructed on how to insert the Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 802; 602

214:10 earplug. The earplug requires a deep fit, foundation; 805; Expert (Improper expert, testimony

214:11 which is not something that would necessarily Opinion without foundation or from lay witness); 602;, 803.

214:12 be intuitive for soldiers accustomed to using expert sponsor of the If Babeu performed a study,

214:13 other types of earplugs." document; 403 she may talk about that study

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 62 of 179
214:14 Do you see that? from, personal knowledge, as a

214:15 A. Uh-huh. lay, witness (i.e., describe

214:16 Q. Was it your view that the the study, and the

214:17 Combat Arms Earplug version 2 required a deep conclusions). However, she

214:18 fit, and that was different than other types may not apply the conclusions,

214:19 of earplugs that had been used by the of the study to the facts of

214:20 military? this, case.

214:21 A. Yes.

214:25 - 216:15 Babeu, Lorraine (2020-03-10) 2:40

214:25 Q. And as part of your work on the Re: [216:03 to 216:15] Re: [216:03 to 216:15] Re: [215:21 to 216:15] SUSTAINED

215:01 auditory research team, did you provide Pltf Obj 602; 802; Lack of SUSTAINED - 701 Pltf Obj 701; 602; 802

215:02 instructions to the soldiers at the small foundation; 805; Expert (Improper expert, testimony

215:03 arms weapons branch about how to properly Opinion without foundation or from lay witness); 602;, 803. Re: [216:03 to 216:15]

215:04 insert the Combat Arms Earplug version 2 into expert sponsor of the If Babeu performed a study, Pltf Obj 602; 802; Lack of

215:05 their ears? document; 403 she may talk about that study foundation; 805; Expert

215:06 A. For what? from, personal knowledge, as a Opinion without foundation or

215:07 Q. Yeah. Let me ask the question lay, witness (i.e., describe expert sponsor of the

215:08 again, which is, as part of your work back in the study, and the document; 403

215:09 the early 2000s, did you provide the soldiers conclusions). However, she

215:10 at the small arms weapons branch with may not apply the conclusions,

215:11 instructions on how to properly insert the of the study to the facts of

215:12 Combat Arms Earplug version 2? this, case.

215:13 A. Okay. Yeah. This -- yeah.

215:14 Yeah.

215:15 Q. Okay. And with respect to the

215:16 instructions that you provided to the

215:17 soldiers, did you advise the soldiers that

215:18 they would need to roll back the flanges in

215:19 any way?

215:20 A. No, huh-uh.

215:21 Q. With respect to the

215:22 instructions that you gave to the soldiers at

215:23 the small arms weapons branch, was that

215:24 instruction based on information that had

215:25 been provided to you by Aearo?

216:01 A. On how to insert the earplug,

216:02 yeah.

216:03 Q. Okay. Now, it says, "With the

216:04 guidance of the research team, the soldiers

216:05 were able to use the earplug and obtain the

216:06 results that satisfied them."

216:07 Do you see that?

216:08 A. Yes.

216:09 Q. At any point in time, did you

216:10 receive any follow-up feedback from the

216:11 soldiers at the small arms weapons branch in

216:12 which they expressed dissatisfaction with the

216:13 performance of the Combat Arms Earplug

216:14 version 2?

216:15 A. No.

219:13 - 219:17 Babeu, Lorraine (2020-03-10) 0:09

219:13 Q. Do you recall reaching the Re: [219:13 to 219:17] Re: [219:13 to 219:17] Re: [219:13 to 219:24] SUSTAINED

219:14 conclusion in the early 2000s that soldiers, Pltf Obj 611; expert opinion SUSTAINED - 611 Pltf Obj 611; 701; strike as

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 63 of 179
219:15 when firing small arms in indoor gun ranges, from non-expert; 403 nonresponsive; 403; 602

219:16 should use the green end of the Combat Arms

219:17 Earplug version 2?

219:20 - 220:10 Babeu, Lorraine (2020-03-10) 1:48

219:20 THE WITNESS: Okay. So Re: [219:20 to 219:24] Re: [219:20 to 219:24] Re: [219:13 to 219:24] SUSTAINED

219:21 reaching that conclusion, yeah, but it Pltf Obj Strike as SUSTAINED Pltf Obj 611; 701; strike as

219:22 was well-known that you should use the nonresponsive, lack of nonresponsive; 403; 602

219:23 green side in indoors, that the yellow foundation for answer; 403

219:24 side was only for outdoors. Re: [220:02 to 220:10] SUSTAINED

219:25 Re: [220:02 to 220:04] Re: [220:02 to 220:04] Pltf Obj 701; 802; 602

220:01 QUESTIONS BY MR. FIELDS: Pltf Obj 802: lack of SUSTAINED - 701; 802

220:02 Q. And when you say it was foundation; expert opinion

220:03 well-known, how did you become aware it was from non expert; 403

220:04 well-known?

220:05 A. It's in the literature. The Re: [220:05 to 220:10] Re: [220:05 to 220:10]

220:06 French folks put it out. I think Aearo did Pltf Obj 802; lack of SUSTAINED - 602; 802

220:07 as well, or 3M did as well. foundation; expert testimony

220:08 And just in discussions with from non expert; 403

220:09 the -- our research team, you know, it was

220:10 always the yellow side outdoors.

220:22 - 221:02 Babeu, Lorraine (2020-03-10) 0:15

220:22 Q. And did you ever change your

220:23 view that the green end should be used when

220:24 firing small arms, indoor gun ranges?

220:25 A. Did I change my view on that,

221:01 that you should use the green?

221:02 Q. Yeah.

221:05 - 221:12 Babeu, Lorraine (2020-03-10) 0:22

221:05 THE WITNESS: When you fire the

221:06 weapon indoors, you should use the

221:07 green side.

221:08 QUESTIONS BY MR. FIELDS:

221:09 Q. And that was your view in 2002,

221:10 and that is your view today?

221:11 A. Oh, well, yeah. I mean, I have

221:12 no reason to change it.

221:16 - 221:20 Babeu, Lorraine (2020-03-10) 0:17

221:16 Q. I'm going to hand you what Re: [221:16 to 221:20] Re: [221:16 to 221:20] Re: [221:16 to 221:20] SUSTAINED

221:17 we're going to mark as Exhibit 2 to your Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 802; 701

221:18 deposition, which is a February -- a foundation; 602 WITHDRAWN, 3/11/2021,

221:19 February 2003 publication entitled "Fast REMAINING OBJECTIONS,

221:20 Tracks." SUSTAINED - 701; 802

221:23 - 222:01 Babeu, Lorraine (2020-03-10) 0:08

221:23 Q. And our internal document Re: [221:23 to 222:01] Re: [221:23 to 222:01] Re: [221:23 to 222:01] SUSTAINED

221:24 reference number is DOD00011494. Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 701; 802

221:25 Do you see that? foundation; 602 WITHDRAWN, 3/11/2021,

222:01 A. Uh-huh. REMAINING OBJECTIONS,

SUSTAINED - 701; 802

222:18 - 222:24 Babeu, Lorraine (2020-03-10) 0:21

222:18 Q. Oh, that reminds me. When we Re: [222:18 to 222:24] SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 64 of 179
222:19 were talking about Exhibit 1 and I asked you Pltf Obj 402

222:20 about the location of the Small Arms Weapons

222:21 Branch of the Ordnance Center and School, and

222:22 you said it was in Aberdeen, was that

222:23 Aberdeen Proving Grounds?

222:24 A. Correct.

222:25 - 223:06 Babeu, Lorraine (2020-03-10) 0:14

222:25 Q. And I'd like to focus your Re: [222:25 to 223:06] Re: [222:25 to 223:06] Re: [222:25 to 223:06] SUSTAINED

223:01 attention, first of all, in the article that Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 802; 701

223:02 says, "Former science advisor needs device foundation; 602 WITHDRAWN, 3/11/2021,

223:03 which he introduced into the Army, Combat REMAINING OBJECTIONS,

223:04 Arms Earplugs." SUSTAINED - 701; 802

223:05 Do you see that?

223:06 A. Yes.

224:01 - 224:07 Babeu, Lorraine (2020-03-10) 0:16

224:01 Q. It says, "Mr. Mike Golden, who Re: [224:01 to 224:07] Re: [224:01 to 224:07] Re: [224:01 to 224:07] SUSTAINED

224:02 followed John as our SETAF science advisors, Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 701; 802

224:03 obtained 150 pairs of the earplugs for foundation; 602 WITHDRAWN, 3/11/2021,

224:04 evaluation by SETAF soldiers during static REMAINING OBJECTIONS,

224:05 target shooting." SUSTAINED - 701; 802

224:06 Do you see that?

224:07 A. Yes.

225:04 - 225:18 Babeu, Lorraine (2020-03-10) 1:45

225:04 Q. If you turn to page 2 of the Re: [225:04 to 225:18] Re: [225:04 to 225:18] Re: [225:04 to 225:18] SUSTAINED

225:05 document, first column, it says, "Currently, Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 802; 701

225:06 Lieutenant Colonel Lorraine A. Babeu, Ph.D., foundation; 602 WITHDRAWN, 3/11/2021,

225:07 a military audiologist at the US Army REMAINING OBJECTIONS,

225:08 Research Laboratory, human research and SUSTAINED - 701; 802

225:09 engineering director, its visual and auditory

225:10 processes branch, is working on a project to

225:11 determine the impact the Combat Arms Earplug

225:12 has on performance."

225:13 Do you see that?

225:14 A. Yes.

225:15 Q. And with respect to what is

225:16 being referenced here, at this time were you

225:17 actually performing the localization study?

225:18 A. Yes.

226:12 - 227:06 Babeu, Lorraine (2020-03-10) 1:36

226:12 Q. It continues on. It says, Re: [226:12 to 227:06] Re: [226:12 to 227:06] Re: [226:12 to 227:06] SUSTAINED

226:13 "AMC-FAST then contacted Bruce Amrein" -- Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 802; 701

226:14 A. Amrein, uh-huh. foundation; 602 WITHDRAWN, 3/11/2021,

226:15 Q. -- "our quick reaction REMAINING OBJECTIONS,

226:16 coordinator at the US Army Research SUSTAINED - 701; 802

226:17 Laboratory, Human Research and Engineering

226:18 Directorate, where Bruce is also the chief,

226:19 visual and auditory processes branch."

226:20 Do you see that?

226:21 A. Yep.

226:22 Q. So was Bruce Amrein your

226:23 supervisor?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 65 of 179
226:24 A. Yes.

226:25 Q. It says, "Working with

227:01 Lieutenant Colonel Lorraine A. Babeu, Ph.D.,

227:02 who was assigned to Bruce's branch, they

227:03 obtained 50 pair and made arrangements for

227:04 their shipment on 6 February."

227:05 Do you see that?

227:06 A. Yes.

227:11 - 227:15 Babeu, Lorraine (2020-03-10) 0:07

227:11 Q. The next sentence says, "The Re: [227:11 to 227:15] Re: [227:11 to 227:15] Re: [227:11 to 227:15] SUSTAINED

227:12 reaction to using the earplugs was that they Pltf Obj 802; lack of 602 OBJECTIONS Pltf Obj 802; 701

227:13 were worth their weight in gold." foundation; 602 WITHDRAWN, 3/11/2021,

227:14 Do you see that? REMAINING OBJECTIONS,

227:15 A. Yes. SUSTAINED - 701; 802

228:23 - 229:02 Babeu, Lorraine (2020-03-10) 0:13

228:23 Q. While you were at the Army

228:24 Research Laboratory, do you recall receiving

228:25 feedback from any soldiers suggesting that

229:01 the Combat Arms Earplug version 2 were not

229:02 reducing sound as intended?

229:05 - 229:15 Babeu, Lorraine (2020-03-10) 0:23

229:05 THE WITNESS: While at the lab?

229:06 QUESTIONS BY MR. FIELDS:

229:07 Q. Yes.

229:08 A. Okay. I don't recall that.

229:09 Q. Okay. As an audiologist

229:10 working at the Army Research Laboratory,

229:11 would you have been interested in

229:12 understanding whether or not a particular

229:13 hearing protection device was performing as

229:14 expected?

229:15 A. Yes.

230:19 - 231:06 Babeu, Lorraine (2020-03-10) 1:32

230:19 When you were at the Army

230:20 Research Laboratory --

230:21 A. Right.

230:22 Q. -- would it be of interest to

230:23 you to learn if there was a hearing

230:24 protection device being used by soldiers that

230:25 did not adequately attenuate sound?

231:01 A. Correct. Yes.

231:02 Q. While you were at the Army

231:03 Research Laboratory, did you learn of any

231:04 hearing protection device being used by

231:05 soldiers that did not adequately protect the

231:06 soldiers' hearing?

231:09 - 231:09 Babeu, Lorraine (2020-03-10) 0:00

231:09 THE WITNESS: No, huh-uh.

231:14 - 232:19 Babeu, Lorraine (2020-03-10) 1:12

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 66 of 179
231:14 Q. Here you are on page 3 --

231:15 A. I know. I should know better,

231:16 right?

231:17 Q. -- of the document.

231:18 It is entitled "The Combat Arms

231:19 Nonlinear Earplug."

231:20 Do you see that?

231:21 A. Yes.

231:22 Q. And as a matter of fact, if you

231:23 go to the prior page, there's a reference

231:24 that says, "As a follow-up to this action,

231:25 Lieutenant Colonel Babeu prepared a fact

232:01 paper which provides the background and

232:02 description of the Combat earplugs as well as

232:03 the role played by the US Army Center for

232:04 Health Promotion and Preventive Medicine,

232:05 CHPPM. Her paper is provided on page 3."

232:06 Do you see that?

232:07 A. Uh-huh.

232:08 Q. I read that correctly?

232:09 A. Yes.

232:10 Q. And on page 3, this is the fact

232:11 paper that you prepared and that was

232:12 published in the Fast Tracks digest?

232:13 A. Right.

232:14 Q. Do you recall preparing this

232:15 fact paper relating to the Combat Arms

232:16 Earplug?

232:17 A. I don't recall this one, but --

232:18 I don't recall this one, but it would not

232:19 have been uncommon for me to do it.

232:24 - 233:20 Babeu, Lorraine (2020-03-10) 1:58

232:24 Q. So what was your purpose of

232:25 preparing fact papers like this regarding a

233:01 hearing protection device?

233:02 A. It would be just to describe

233:03 the product and how it's supposed to be used

233:04 and what it's supposed to do, and maybe

233:05 somewhere in here, how it stacks up against

233:06 what's currently in there.

233:07 Q. Okay.

233:08 A. Currently in our inventory.

233:09 Q. The first paragraph of this

233:10 fact paper says, "For the dismounted soldier

233:11 or Marine, conventional hearing protection

233:12 can interfere with the communication

233:13 requirements of a mission when hearing

233:14 protection is needed the most, i.e., firing

233:15 weapons from dismounted positions."

233:16 Do you see that?

233:17 A. Yes.

233:18 Q. First of all, what is a

233:19 dismounted position?

233:20 A. They're out of their vehicles.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 67 of 179
234:09 - 234:25 Babeu, Lorraine (2020-03-10) 0:28

234:09 In the second paragraph, last

234:10 sentence --

234:11 A. Okay.

234:12 Q. -- you say, "In relative quiet,

234:13 however" --

234:14 A. Okay. Yes.

234:15 Q. -- "conventional linear hearing

234:16 protectors interfere with both speech

234:17 communication and the detection of

234:18 environmental combat sounds."

234:19 Do you see that?

234:20 A. Uh-huh.

234:21 Q. What was your basis for making

234:22 that statement?

234:23 A. It's looking at the attenuation

234:24 characteristics of earplugs in quiet. Okay?

234:25 I mean, it is what it is.

235:01 - 235:12 Babeu, Lorraine (2020-03-10) 1:36

235:01 In a quiet environment -- the

235:02 complaint from the field was always: When I

235:03 put the earplugs in, I can't hear anything.

235:04 And the -- in the quiet

235:05 environment, that's correct, because it's

235:06 just the nature -- it's a quiet environment,

235:07 and then you're bringing the person's hearing

235:08 thresholds down more. Okay? So they can't

235:09 hear.

235:10 But in a noisy environment, you

235:11 want it because you want to reduce that

235:12 stimulation.

235:13 - 236:05 Babeu, Lorraine (2020-03-10) 1:43

235:13 Q. In the next sentence you say,

235:14 "The solution for the dismounted soldier or

235:15 Marine is a nonlinear hearing protector that

235:16 mitigates the hazard from weapons fire over a

235:17 desired range but marginally interferes with

235:18 required communications and detection of

235:19 combat sounds such as vehicle noise, steps in

235:20 leaves, closing of a rifle bolt, et cetera."

235:21 Do you see that?

235:22 A. Yes.

235:23 Q. Did I read that correctly?

235:24 A. Yes.

235:25 Q. And how did you come to learn

236:01 that a nonlinear hearing protector might

236:02 mitigate the hazards from weapons fire over a

236:03 desired range but marginally interfere with

236:04 required communications and detection of

236:05 combat sounds?

236:08 - 236:16 Babeu, Lorraine (2020-03-10) 0:21

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 68 of 179
236:08 THE WITNESS: It would have

236:09 been the information that we got from

236:10 3M.

236:11 QUESTIONS BY MR. FIELDS:

236:12 Q. Prior to you joining the Army

236:13 Research Lab in approximately 2001, were you

236:14 familiar with the concept of a nonlinear

236:15 hearing protector?

236:16 A. No.

236:21 - 238:08 Babeu, Lorraine (2020-03-10) 2:35

236:21 Q. Was the first nonlinear hearing

236:22 protector that you became aware of the Combat

236:23 Arms version 2?

236:24 A. Yes. Yes. Yes.

236:25 Q. If you skip down to the fifth

237:01 paragraph, you write, "The US Army Center for

237:02 Health Promotion and Preventive Medicine,

237:03 C-H-P-P-M, CHPPM, contributed to this

237:04 development effort by recommending an

237:05 American-made earplug, the UltraFit, to house

237:06 the French filter, creating the color-coded

237:07 scheme, and by performing blast

237:08 overpressure -- overpressure testing."

237:09 Do you see that?

237:10 A. Yes.

237:11 Q. Now, the US Army Center for

237:12 Health Promotion and Preventive Medicine,

237:13 CHPPM, that's where Doug Ohlin was?

237:14 A. Yes.

237:15 Q. With respect to this sentence

237:16 about CHPPM's contribution, what was the

237:17 source of this information?

237:18 A. It would have been from Doug,

237:19 CHPPM.

237:20 Q. It says the -- continuing on,

237:21 "The single-size UltraFit should accommodate

237:22 most of our Combat Arms users."

237:23 Do you see that?

237:24 A. Yes.

237:25 Q. And why did you reach the

238:01 conclusion that the single-size UltraFit

238:02 should accommodate most of our Combat Arms

238:03 users?

238:04 A. That would have been just what

238:05 they told us.

238:06 Q. And when you say "they," who

238:07 are you referring to?

238:08 A. Either 3M or Doug.

241:03 - 241:04 Babeu, Lorraine (2020-03-10) 0:02

241:03 Q. Yeah. So when you were writing

241:04 this fact paper --

241:06 - 241:11 Babeu, Lorraine (2020-03-10) 0:12

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 69 of 179
241:06 Q. -- had you reached a conclusion

241:07 that you thought it was better for users to

241:08 be able to carry one earplug that provided

241:09 impulse and steady-state noise protection as

241:10 opposed to having two separate earplugs?

241:11 A. Yes.

241:15 - 241:25 Babeu, Lorraine (2020-03-10) 0:27

241:15 Q. And why did you reach that

241:16 conclusion?

241:17 A. It was just -- that was the

241:18 whole thing about the Combat Arms Earplug.

241:19 You're going to get the single-sided, the

241:20 impulse noise protection, and you get the

241:21 steady state, and you get it all one -- you

241:22 know, one bang for your buck.

241:23 Q. Okay. And why was that more

241:24 beneficial in your view versus having to

241:25 carry two earplugs?

242:03 - 242:10 Babeu, Lorraine (2020-03-10) 0:18

242:03 THE WITNESS: Reduction of

242:04 loss.

242:05 QUESTIONS BY MR. FIELDS:

242:06 Q. What's reduction of loss?

242:07 A. You're out in the woods.

242:08 You're out in the woods, and, you know,

242:09 things get lost. So maybe it's just less --

242:10 less cumbersome for the soldier. That's all.

246:14 - 247:05 Babeu, Lorraine (2020-03-10) 1:33

246:14 Q. In the last sentence, you -- of

246:15 the document, you say, "In the Combat Arms

246:16 Earplug, we finally have a hearing protector

246:17 that protects without impairing military

246:18 effectiveness."

246:19 Do you see that?

246:20 A. Uh-huh.

246:21 Q. You do see that?

246:22 A. Yeah.

246:23 Q. Okay. At the time that you

246:24 wrote that, did you believe that to be a true

246:25 statement?

247:01 A. Yes.

247:02 Q. And during the entire time that

247:03 you were at the Army Research Laboratory, did

247:04 you believe that to be a true statement?

247:05 A. Yeah.

247:06 - 247:07 Babeu, Lorraine (2020-03-10) 0:01

247:06 Q. Do you still believe that is a Re: [247:06 to 247:07] Re: [247:06 to 247:07] Re: [247:06 to 247:07] OVERRULED

247:07 true statement? Def Obj Hearsay (801, 802); OVERRULED - Defendants Def Obj Hearsay (801, 802);

Relevance (401, 402)Prejudice opened the door Relevance (401, 402)Prejudice

(403) (403)

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 70 of 179
247:10 - 247:23 Babeu, Lorraine (2020-03-10) 0:17

247:10 THE WITNESS: I don't know. I Re: [247:10 to 247:13] Re: [247:10 to 247:13] Re: [247:10 to 247:13] OVERRULED

247:11 mean, you got everybody saying that Def Obj Hearsay (801,802); OVERRULED - Defendants Def Obj Hearsay (801,802);

247:12 it's defective, so it wouldn't be Relevance (401, 402); opened the door; Not hearsay Relevance (401, 402);

247:13 true. Prejudice (403) because not offered for truth Prejudice (403)

247:14 QUESTIONS BY MR. FIELDS:

247:15 Q. Do you know one way or the

247:16 other whether it's true now?

247:17 A. Well, you've got these people

247:18 that say it's not true, so...

247:19 I haven't done any research

247:20 with it, but --

247:21 Q. So you don't know one way or

247:22 another?

247:23 A. Right.

248:15 - 249:03 Babeu, Lorraine (2020-03-10) 1:07

248:15 While you were at the research

248:16 laboratory --

248:17 A. Right.

248:18 Q. -- did you see or hear any data

248:19 that caused you to question whether the

248:20 statements you wrote --

248:21 A. No, huh-uh.

248:22 Q. -- on page 3 --

248:23 A. Right.

248:24 Q. -- which is, "In the Combat

248:25 Arms Earplug, we finally have a hearing

249:01 protector that protects without impairing

249:02 military effectiveness"?

249:03 A. Right.

249:06 - 249:06 Babeu, Lorraine (2020-03-10) 0:00

249:06 THE WITNESS: No.

256:06 - 257:05 Babeu, Lorraine (2020-03-10) 2:35

256:06 Q. Dr. Babeu, I'm handing you what

256:07 has been marked as Exhibit 4, which is a

256:08 document that bears 3M's internal control

256:09 number DOD1314. It starts with -004 and ends

256:10 with DOD00001314-19.

256:11 Do you see that?

256:12 A. Yes.

256:13 Q. Okay. Now, we talked a little

256:14 bit earlier in this deposition about some

256:15 research that you were performing at the Army

256:16 Research Laboratory regarding sound

256:17 localization.

256:18 A. Uh-huh, yes.

256:19 Q. Now, can you tell us what this

256:20 document, which says its protocol

256:21 ARL 20098-02005 -- it says, "Project title,

256:22 detection, recognition and sound localization

256:23 abilities of human listener wearing various

256:24 headgear and earplugs."

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 71 of 179
256:25 Do you see that?

257:01 A. Yes.

257:02 Q. And was that the research

257:03 project that you were performing in early

257:04 2000s at the Army Research Laboratory?

257:05 A. Correct, uh-huh.

257:15 - 258:10 Babeu, Lorraine (2020-03-10) 1:59

257:15 Q. As part of your research for

257:16 the Army Research Laboratory, did you

257:17 typically have to submit a written protocol?

257:18 A. Yes.

257:19 Q. Okay. What was the purpose of

257:20 submitting a written protocol prior to

257:21 performing the research?

257:22 A. Well, you have to go through

257:23 the human use committee to make sure that

257:24 whatever you were going to do was in

257:25 compliance with human protection rules and

258:01 regulations.

258:02 You get approval from, like,

258:03 your lead. Like that would be Tom, okay, Tom

258:04 Letowski. We get approval from him. And --

258:05 because everybody wants it to make sense,

258:06 what you're doing, and that your hypothesis

258:07 makes sense and all of that stuff.

258:08 So that would be the purpose of

258:09 writing everything out, is to get the

258:10 appropriate approvals.

259:12 - 260:08 Babeu, Lorraine (2020-03-10) 1:54

259:12 guess the question is: At some point in

259:13 time, was there a final written protocol that

259:14 was approved for your project?

259:15 A. Yes, and this is it.

259:16 Q. Okay. You actually have on

259:17 this document you as the principal

259:18 investigator?

259:19 A. Yes.

259:20 Q. What was -- what is -- and

259:21 there's also a listing of associate

259:22 investigator.

259:23 Do you see that?

259:24 A. Yes.

259:25 Q. And the associate

260:01 investigators, there are two listed:

260:02 Dr. Letowski --

260:03 A. Uh-huh.

260:04 Q. -- and Timothy Mermagen?

260:05 A. Mermagen, uh-huh.

260:06 Q. So what's the difference

260:07 between the principal investigator and the

260:08 associate investigator on this project?

260:09 - 260:25 Babeu, Lorraine (2020-03-10) 1:47

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 72 of 179
260:09 A. I developed the idea. I wrote

260:10 the protocol for it. Tom would -- okay. So

260:11 as the principal investigator, you're the

260:12 person that came up with the idea, wrote the

260:13 protocol for the idea, and you'll be in

260:14 charge of the study itself as it goes

260:15 through. And then you're responsible for

260:16 writing up the results and eventually getting

260:17 it published.

260:18 Q. And so you came up with the

260:19 idea to perform this project, which was

260:20 "Detection, recognition and sound

260:21 localization abilities of human listener

260:22 wearing various headgear and earplugs"?

260:23 A. Right.

260:24 Q. And why was this -- why was

260:25 this a topic you were interested in?

261:01 - 261:16 Babeu, Lorraine (2020-03-10) 1:55

261:01 A. Well, it was a localization

261:02 lab, okay, so your study was going to deal

261:03 with that. And this -- the Combat Arms

261:04 Earplug was very different than what was

261:05 already in the system, and so we wanted to

261:06 make sure -- because at that time, the

261:07 developers were coming up with new helmets,

261:08 new gear for the soldiers, so we just wanted

261:09 to make sure that if we used this Combat Arms

261:10 Earplug, how does it work when you have it --

261:11 having to function in real life. In real

261:12 life it's -- you got the helmet on, you've

261:13 got gear on and things of that nature.

261:14 Q. And when you're talking about

261:15 the developers, you're talking about

261:16 developers at the US Army?

261:19 - 261:25 Babeu, Lorraine (2020-03-10) 0:19

261:19 THE WITNESS: Yeah. I mean,

261:20 developers for the lab. You know,

261:21 because you've got ARL, Army Research

261:22 Lab, and they're developers who are

261:23 developing products, all types, okay?

261:24 And HRED was just a directorate within

261:25 the Army Research Lab.

263:09 - 264:09 Babeu, Lorraine (2020-03-10) 1:03

263:09 So it says, "Since the Combat

263:10 Arms Earplug is new to the Army's inventory

263:11 of personal protective equipment, there has

263:12 been little research done by the US Army to

263:13 determine the effect of the plug on human

263:14 performance."

263:15 Do you see that?

263:16 A. Yes.

263:17 Q. What did you mean by "effect on

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 73 of 179
263:18 human performance"?

263:19 A. Well, what I said earlier,

263:20 okay? So a good example is Mr. Hickey's

263:21 letter, okay?

263:22 If you've got the earplug in

263:23 and you're working and head movements, it

263:24 gets caught up on clothing and things of that

263:25 nature, that's an effect on human

264:01 performance. Because you don't want to have

264:02 to stop and keep putting the earplug in, and

264:03 you don't want to go without the earplug.

264:04 Okay?

264:05 So for us at the lab at that

264:06 time, that would have been our focus. It's

264:07 like, great, we've got this new earplug, but

264:08 how does it work when you put it with

264:09 everything else that the soldiers use.

264:18 - 265:13 Babeu, Lorraine (2020-03-10) 1:56

264:18 paragraph under there. It says, "The project

264:19 consists of two listening tasks. The first

264:20 task involves sound source detection,

264:21 recognition and localization."

264:22 Do you see that?

264:23 A. Yes.

264:24 Q. "The second task is a speech

264:25 recognition task using two types of stimuli."

265:01 Do you see that?

265:02 A. Yes.

265:03 Q. Now, first of all, let's focus

265:04 on the first task that you have listed here,

265:05 which is the sound source detection,

265:06 recognition and localization.

265:07 Okay?

265:08 A. Right.

265:09 Q. At this point in time in the

265:10 early 2000s, did your lab have the expertise

265:11 to perform tests to evaluate products -- the

265:12 Combat Arms Earplugs' effect on sound source

265:13 detection, recognition and localization?

265:16 - 265:23 Babeu, Lorraine (2020-03-10) 0:13

265:16 THE WITNESS: Yeah.

265:17 QUESTIONS BY MR. FIELDS:

265:18 Q. Did the lab have the equipment

265:19 that you needed in order to evaluate the

265:20 Combat Arms Earplug version 2's effect on

265:21 sound source detection, recognition and

265:22 localization?

265:23 A. Yes.

266:02 - 266:18 Babeu, Lorraine (2020-03-10) 1:43

266:02 Q. Do you know whether or not the

266:03 lab had performed similar type testing in the

266:04 past, before this project?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 74 of 179
266:05 A. Similar type testing of other

266:06 things. But the localization, that's the

266:07 whole -- that's what localization is all

266:08 about. That's what they do.

266:09 Q. Now, the second task that is

266:10 listed here is a speech recognition task

266:11 using two types of stimuli.

266:12 Do you see that?

266:13 A. Yeah.

266:14 Q. At the time that you submitted

266:15 this protocol, did your lab have the

266:16 expertise to perform tests on -- to evaluate

266:17 the Combat Arms Earplug version 2's effect on

266:18 speech recognition?

266:21 - 267:08 Babeu, Lorraine (2020-03-10) 1:44

266:21 THE WITNESS: Yes.

266:22 QUESTIONS BY MR. FIELDS:

266:23 Q. Did it have the equipment to

266:24 perform tests to evaluate the Combat Arms

266:25 Earplug's effect on speech recognition?

267:01 A. Yes.

267:02 Q. We talked a little bit earlier

267:03 about some of the results of the localization

267:04 research.

267:05 Do you recall completing the

267:06 research involving speech recognition?

267:07 A. Do I recall completing this

267:08 project? Yeah.

269:09 - 269:16 Babeu, Lorraine (2020-03-10) 0:15

269:09 Q. And it says that this project

269:10 will include three different experiments.

269:11 Do you see that?

269:12 A. Yes.

269:13 Q. And this is for the -- this is

269:14 actually for the sound source detection and

269:15 recognition localization study?

269:16 A. Yes.

270:03 - 270:09 Babeu, Lorraine (2020-03-10) 0:15

270:03 Q. And it lists various conditions

270:04 for each of the experiments?

270:05 A. Uh-huh.

270:06 Q. Now, do you recall as you sit

270:07 here today actually performing the experiment

270:08 using all of these different conditions?

270:09 A. Yes.

270:10 - 270:25 Babeu, Lorraine (2020-03-10) 1:46

270:10 Q. Okay. And do you recall

270:11 writing up a report that provided the results

270:12 and conclusions of your research using these

270:13 various project conditions?

270:14 A. I don't recall this one. I

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 75 of 179
270:15 mean, if you have it...

270:16 Q. We don't, yeah.

270:17 A. Because if you have it, then

270:18 you know I did.

270:19 Q. Okay.

270:20 Do you recall what conclusions,

270:21 if any, you reached regarding the Combat Arms

270:22 Earplug's version 2's effect on speech

270:23 recognition?

270:24 A. For this study, I don't recall.

270:25 I don't recall the results of this at all.

271:05 - 271:22 Babeu, Lorraine (2020-03-10) 1:42

271:05 Q. So if we go to page 6 of the

271:06 document, and I want to look at -- under the

271:07 speech recognition task.

271:08 Do you see that?

271:09 A. Uh-huh.

271:10 Q. And it talks about "In the

271:11 speech recognition task, a target word,

271:12 Modified Rhyme Test, and phrase, Callsign

271:13 Acquisition Test, will be presented through a

271:14 loud speaker, and the soldier's task will be

271:15 to identify the word or a phrase from a list

271:16 of possibilities presented on the computer

271:17 screen and provide a response using a numeric

271:18 keypad."

271:19 Do you see that?

271:20 A. Uh-huh.

271:21 Q. Yes or no?

271:22 A. Yes, uh-huh.

272:11 - 272:15 Babeu, Lorraine (2020-03-10) 0:12

272:11 Q. And do you recall performing

272:12 this speech recognition task with the Combat

272:13 Arms Earplug where you used the Modified

272:14 Rhyme Test and the Callsign Acquisition Test?

272:15 A. Yes.

273:24 - 274:03 Babeu, Lorraine (2020-03-10) 1:45

273:24 Q. All right. Just for the sake

273:25 of convenience, I'm going to refer back to a

274:01 document that you were examined on earlier --

274:02 A. Uh-huh.

274:03 Q. -- which is P1553.

274:15 - 275:03 Babeu, Lorraine (2020-03-10) 1:54

274:15 First of all, with respect to

274:16 page number 1 of P1553.1, this is an abstract

274:17 entitled "Sound localization wearing

274:18 level-dependent HPD, Combat Arms Earplug."

274:19 A. Correct.

274:20 Q. Now, at the bottom of this, it

274:21 indicates -- it has a reference to NHCA

274:22 Spectrum, volume 21, supplement 1, 2004.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 76 of 179
274:23 Do you see that?

274:24 A. Uh-huh, yes.

274:25 Q. It also indicates that the

275:01 authors are you, Ms. Binseel, Dr. Letowski.

275:02 Those are the three authors?

275:03 A. Correct.

275:15 - 275:23 Babeu, Lorraine (2020-03-10) 0:28

275:15 Q. Okay. Do you recall submitting

275:16 an abstract to the NHCA Spectrum regarding

275:17 the research you had performed on sound

275:18 localization?

275:19 A. Yes.

275:20 Q. And what was the purpose of

275:21 providing the abstract to the NHCA Spectrum?

275:22 A. I wanted to be able to present

275:23 at the conference.

276:10 - 276:22 Babeu, Lorraine (2020-03-10) 1:31

276:10 Q. With respect to the

276:11 conference -- and we'll talk a little bit

276:12 about the conference later.

276:13 But was this a conference that

276:14 was attended by other personnel from the US

276:15 military?

276:16 A. Yes.

276:17 Q. So was one of your purposes to

276:18 make sure that the fellow members of the US

276:19 military received information on the testing

276:20 that you were doing as far as sound

276:21 localization testing on the earplug?

276:22 A. Yes.

277:07 - 277:19 Babeu, Lorraine (2020-03-10) 0:26

277:07 Q. Okay. In the -- near the end

277:08 of the first paragraph, it says, "The purpose

277:09 of this project was to determine the effects

277:10 of the CAE on the soldier's ability to

277:11 localize sound sources in various listening

277:12 conditions."

277:13 Do you see that?

277:14 A. Yes.

277:15 Q. Why did you deem it important

277:16 to understand or determine the effects of the

277:17 CAE on the soldier's ability to localize

277:18 sound sources in various listening

277:19 conditions?

277:22 - 278:06 Babeu, Lorraine (2020-03-10) 0:20

277:22 THE WITNESS: Well, that was

277:23 the claim to fame of the

277:24 single-sided -- you know, the yellow

277:25 side of the Combat Arms Earplug. The

278:01 claim to fame was, hey, you wear this,

278:02 and you'll be able to hear like

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 77 of 179
278:03 normal.

278:04 Well, "like normal" involves

278:05 localization. So that's why we would

278:06 do it, do the research.

278:08 - 279:08 Babeu, Lorraine (2020-03-10) 1:00

278:08 Q. And it outlines in general

278:09 terms that you had the -- the abstract says

278:10 you had three groups of 12 listeners, each

278:11 were used as participants. Group 1 used the

278:12 yellow side of the Combat Arms Earplug,

278:13 Group 2 used the green side of the earplug,

278:14 and Group 3 used the E-A-R foam plug.

278:15 Do you see that?

278:16 A. Yes.

278:17 Q. And is that consistent with the

278:18 design of the experiment?

278:19 A. Yes.

278:20 Q. It continues on. "Within each

278:21 group, there were four listening conditions:

278:22 open ears in quiet and noise, and protected

278:23 ears in quiet and noise."

278:24 Do you see that?

278:25 A. Yes.

279:01 Q. What does it mean when you say

279:02 "open ears in quiet and noise"?

279:03 A. No earplug.

279:04 Q. So open ears in quiet and noise

279:05 means that the listeners would not be wearing

279:06 earplugs in a quiet environment and then also

279:07 in a noisy environment?

279:08 A. Correct.

279:09 - 280:01 Babeu, Lorraine (2020-03-10) 1:44

279:09 Q. You also say there's going to

279:10 be a setup with protected ears in quiet and

279:11 noise.

279:12 Do you see that? Same

279:13 sentence?

279:14 A. Yes, uh-huh.

279:15 Q. And the protected ears were

279:16 when the individuals were wearing some type

279:17 of hearing protection device?

279:18 A. Right, yes.

279:19 Q. And then you go on to say that

279:20 "participants were asked to localize various

279:21 speech and environmental stimuli."

279:22 Do you see that?

279:23 A. Yes.

279:24 Q. In your view, was it important

279:25 that soldiers be able to localize various

280:01 speech and environmental stimuli?

280:04 - 280:19 Babeu, Lorraine (2020-03-10) 0:29

280:04 THE WITNESS: For the earplug

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 78 of 179
280:05 to -- when I was doing this research,

280:06 that was important.

280:07 QUESTIONS BY MR. FIELDS:

280:08 Q. Okay. It says, "Data

280:09 comparisons for all three earplugs has not

280:10 revealed any significant differences in

280:11 soldier performance, although the yellow,

280:12 level-dependent earplug resulted in slightly

280:13 better performance than two others."

280:14 Do you see that?

280:15 A. Yes.

280:16 Q. And why did you reach that

280:17 conclusion?

280:18 A. Why? I mean, the statistics

280:19 probably said that.

280:23 - 281:06 Babeu, Lorraine (2020-03-10) 0:26

280:23 Q. Now, if we'll continue on, I'm

280:24 just going to use the black and white

280:25 versions that are a part of this

281:01 Exhibit P1553.

281:02 A. Okay.

281:03 Q. And that's continuing on on

281:04 pages 2 through 5.

281:05 Do you see that?

281:06 A. Yes.

281:07 - 281:13 Babeu, Lorraine (2020-03-10) 0:23

281:07 Q. Okay. And these were the

281:08 slides that you presented at the 2004 NHCA

281:09 annual meeting?

281:10 A. Correct.

281:11 Q. With respect to your

281:12 presentation, were there members of the US

281:13 military that attended?

281:16 - 281:18 Babeu, Lorraine (2020-03-10) 0:03

281:16 THE WITNESS: This is a

281:17 conference that military people

281:18 attend.

281:22 - 281:25 Babeu, Lorraine (2020-03-10) 0:09

281:22 Q. Do you know whether anyone from

281:23 the US military attended your presentation?

281:24 A. I would -- I don't know, but I

281:25 would highly suspect that they did.

282:04 - 282:14 Babeu, Lorraine (2020-03-10) 0:29

282:04 Q. If you look on page 2, the

282:05 third slide says "Level-Dependent HPD" on it?

282:06 A. Yes.

282:07 Q. And it says, "Little

282:08 attenuation at low noise levels."

282:09 Do you see that?

282:10 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 79 of 179
282:11 Q. And did you come to learn that

282:12 the Combat Arms Earplug version 2 had some

282:13 amount of attenuation even at low noise

282:14 levels?

282:17 - 283:02 Babeu, Lorraine (2020-03-10) 0:22

282:17 THE WITNESS: That would have

282:18 been information that would have come

282:19 from the REAT.

282:20 QUESTIONS BY MR. FIELDS:

282:21 Q. Okay. And you reviewed that

282:22 information?

282:23 A. Yep.

282:24 Q. And based on reviewing that

282:25 information, you reached the conclusion that

283:01 the Combat Arms Earplug had little

283:02 attenuation at low noise levels?

283:05 - 283:05 Babeu, Lorraine (2020-03-10) 0:00

283:05 THE WITNESS: Right.

283:18 - 284:07 Babeu, Lorraine (2020-03-10) 1:50

283:18 Q. If you go to the next page, so

283:19 page 3, and there's a slide that says

283:20 "Experimental Factors."

283:21 Do you see that?

283:22 A. Yes.

283:23 Q. And the slide that has

283:24 experimental factors lists whether -- the

283:25 types of earplugs or no earplug that was used

284:01 in your experiment?

284:02 A. Correct.

284:03 Q. And so in this experiment you

284:04 compared the four different earplugs, and

284:05 also no earplug, and the effect on the

284:06 subject's localization of sound?

284:07 A. Correct.

284:08 - 284:14 Babeu, Lorraine (2020-03-10) 0:22

284:08 Q. If you move over to the next

284:09 page, Mr. Buchanan asked you some questions

284:10 about this, but I want to ask you about this

284:11 slide. There's a slide that says, "Method

284:12 Earplug Fitting."

284:13 Do you see that?

284:14 A. Oh, okay. Yeah.

284:22 - 285:17 Babeu, Lorraine (2020-03-10) 1:43

284:22 Q. And there's a slide that says,

284:23 "Earplug Fitting."

284:24 A. Uh-huh.

284:25 Q. And it says, "Prior to an

285:01 earplug use treatment, proper earplug

285:02 insertion demonstrated."

285:03 Do you see that?

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 80 of 179
285:04 A. Yes.

285:05 Q. Who provided the demonstration

285:06 to the subjects?

285:07 A. It would have been me.

285:08 Q. And then it says -- the next

285:09 dash says, "Unless grossly wrong,

285:10 experimenter did not tamper with fit of

285:11 earplug."

285:12 Do you see that?

285:13 A. Yes.

285:14 Q. Do you recall any instances

285:15 where any of the experimenters had to tamper

285:16 with the fit of the earplugs?

285:17 A. I don't recall, huh-uh.

285:18 - 286:13 Babeu, Lorraine (2020-03-10) 1:18

285:18 Q. And I think you indicated

285:19 earlier that the experimenters did not

285:20 instruct the subjects to fold over the

285:21 opposite flange of the earplugs before -- the

285:22 Combat Arms Earplugs before inserting them?

285:23 A. Okay. So let's clarify.

285:24 Q. Okay.

285:25 A. What do you mean by "fold

286:01 over"?

286:02 Q. Okay. I don't have a set of

286:03 the earplugs, but if you look at the

286:04 picture...

286:05 So if you look at P0715.2.

286:06 When -- I think -- and

286:07 Mr. Buchanan can correct me if I'm wrong, but

286:08 when either of us are talking about folding

286:09 over the opposite end, it means that if you

286:10 were going to insert the yellow end into your

286:11 ear, you would fold over the flange backwards

286:12 of the --

286:13 A. Oh, no, huh-uh.

286:14 - 286:18 Babeu, Lorraine (2020-03-10) 0:10

286:14 Q. Okay. Are you aware of any of

286:15 the subjects folding over the opposite flange

286:16 when inserting the Combat Arms Earplug

286:17 version 2?

286:18 A. No.

287:21 - 288:23 Babeu, Lorraine (2020-03-10) 1:21

287:21 And specifically I want to look

287:22 at the slide on P1553.5 that has the heading,

287:23 "Results, No Noise."

287:24 Do you see that?

287:25 A. Correct, uh-huh.

288:01 Q. And that's the -- your

288:02 experimental results when there was quiet?

288:03 A. Correct.

288:04 Q. And one of the things that you

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 81 of 179
288:05 did in this slide is you have a column that

288:06 has your listening condition, and then you

288:07 have a column that says your average error.

288:08 Do you see that?

288:09 A. Yes.

288:10 Q. And what do you mean by the

288:11 average error column? What's in the average

288:12 error column?

288:13 A. The number of errors. The

288:14 average of the number of errors.

288:15 Q. Okay. And with respect to this

288:16 slide, which is on P1553.5, when there was no

288:17 noise, the subjects with no earplug had the

288:18 best ability to localize?

288:19 A. Right.

288:20 Q. And then the users that were

288:21 wearing the Combat Arms Earplug yellow end

288:22 had the next best ability to localize sound?

288:23 A. Correct.

289:08 - 290:12 Babeu, Lorraine (2020-03-10) 2:40

289:08 Q. Now, if we go over to page

289:09 P11 -- 1553.6, there is a slide that says,

289:10 "Results, Noise."

289:11 Do you see that?

289:12 A. Yes.

289:13 Q. And that is the results of your

289:14 experiments when the users were subjected to

289:15 some level of noise?

289:16 A. Correct.

289:17 Q. And in the experimental setup

289:18 with noise, the subjects that were not

289:19 wearing an earplug were better able to

289:20 localize the sound?

289:21 A. Yes.

289:22 Q. And then the users wearing the

289:23 Combat Arms Earplug green had the next lowest

289:24 level at 25?

289:25 A. Yes.

290:01 Q. And then the single-ended --

290:02 those were in the single-ended --

290:03 single-sided earplug and the Combat Arms

290:04 yellow were tied for the next lowest?

290:05 A. Correct.

290:06 Q. And the single-sided is what is

290:07 commonly called the French plug?

290:08 A. Right.

290:09 Q. And the earplug -- the subjects

290:10 who were wearing the Classic foam earplug had

290:11 the lowest ability to localize sounds?

290:12 A. Correct.

290:13 - 291:11 Babeu, Lorraine (2020-03-10) 1:01

290:13 Q. And the last slide that is on

290:14 page P1553.6 is the summary slide.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 82 of 179
290:15 Do you see that?

290:16 A. Right, uh-huh.

290:17 Q. And it says, "With background

290:18 noise, overall performance better with all

290:19 earplugs."

290:20 Do you see that?

290:21 A. Correct, uh-huh.

290:22 Q. And what did you mean by that?

290:23 A. If you compared the noise

290:24 versus no noise, or no noise versus noise, it

290:25 turns out there were less errors in the noise

291:01 condition than in quiet.

291:02 Q. And then you say, "Overall, the

291:03 level-dependent earplugs performed better

291:04 than the standard earplug."

291:05 Do you see that?

291:06 A. Yes.

291:07 Q. And what was the standard

291:08 earplug? What's that reference to?

291:09 A. The E-A-R.

291:10 Q. The E-A-R Classic foam?

291:11 A. Correct.

291:12 - 291:16 Babeu, Lorraine (2020-03-10) 0:13

291:12 Q. And the level-dependent

291:13 earplugs would be the single-sided French

291:14 plug and the yellow end of the Combat Arms

291:15 Earplug?

291:16 A. Yes.

293:02 - 293:06 Babeu, Lorraine (2020-03-10) 0:17

293:02 Q. Okay. So based on your

293:03 research, are you able to determine whether

293:04 or not users of Combat Arm version 2 earplugs

293:05 would be able to adequately localize sounds

293:06 in either a quiet or noisy environment?

293:09 - 293:15 Babeu, Lorraine (2020-03-10) 0:13

293:09 THE WITNESS: On this?

293:10 QUESTIONS BY MR. FIELDS:

293:11 Q. Yeah.

293:12 A. Okay. They had less errors in

293:13 noise.

293:14 Q. As compared to --

293:15 A. To in quiet.

293:16 - 293:21 Babeu, Lorraine (2020-03-10) 0:11

293:16 Q. Okay. So was one of the things

293:17 you were trying to do was to figure out

293:18 whether or not users of the Combat Arms

293:19 Earplug version 2 could adequately localize

293:20 sounds in the field?

293:21 A. Yes.

293:25 - 294:05 Babeu, Lorraine (2020-03-10) 0:16

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 83 of 179
293:25 Q. And did this research allow you

294:01 to research a conclusion on that particular

294:02 issue?

294:03 A. Not for the fields, because it

294:04 wasn't a field study. It was a controlled

294:05 environment like this.

294:06 - 294:10 Babeu, Lorraine (2020-03-10) 0:15

294:06 Q. Okay. Were you able to reach

294:07 any conclusions based on the laboratory

294:08 research regarding the ability of the Combat

294:09 Arms Earplug version 2 to permit users to

294:10 localize sounds?

294:13 - 294:25 Babeu, Lorraine (2020-03-10) 0:29

294:13 THE WITNESS: They had less

294:14 errors.

294:15 QUESTIONS BY MR. FIELDS:

294:16 Q. And what does it mean, "they

294:17 had less errors"?

294:18 A. Okay. So less errors in a

294:19 quiet environment.

294:20 To -- just coming from an

294:21 audiology standpoint, to say that this would

294:22 allow you to localize better, I just -- we

294:23 didn't get there from this. It just kind of

294:24 helped us -- you'd need more research to

294:25 actually come up and make that claim.

295:17 - 295:21 Babeu, Lorraine (2020-03-10) 0:28

295:17 Q. Okay. Dr. Babeu, we're going

295:18 to hand you what we have marked as Exhibit

295:19 Number 5. And Exhibit Number 5 is a -- is

295:20 entitled "Sail the Sound, 29th Annual NHCA

295:21 Hearing Conservation Conference."

296:14 - 296:19 Babeu, Lorraine (2020-03-10) 0:17

296:14 Q. And the abstract that is on

296:15 page 24 is a conference abstract that you

296:16 provided to the NHCA in the hopes that they

296:17 would accept the abstract and allow you to

296:18 present your results at the conference?

296:19 A. Correct.

296:23 - 297:02 Babeu, Lorraine (2020-03-10) 0:09

296:23 Q. And eventually the NHCA did

296:24 accept your abstract --

296:25 A. Yes.

297:01 Q. -- and permit you to give a

297:02 presentation at the annual conference?

297:05 - 297:22 Babeu, Lorraine (2020-03-10) 1:48

297:05 THE WITNESS: Yes.

297:06 QUESTIONS BY MR. FIELDS:

297:07 Q. And if you turn to page 18 of

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 84 of 179
297:08 the document, you'll see sort of an agenda or

297:09 timetable.

297:10 Do you see that?

297:11 A. Yes.

297:12 Q. And you see that on Saturday,

297:13 February 21st, from 11:50 to 12:10 p.m., you

297:14 were scheduled to give the talk "Sound

297:15 Localization Wearing Level-Dependent HPD

297:16 Combat Arms Earplugs."

297:17 Do you see that?

297:18 A. Yes.

297:19 Q. And do you recall giving the

297:20 presentation that is outlined in the abstract

297:21 that is included in Exhibit 5?

297:22 A. Yes.

297:23 - 298:03 Babeu, Lorraine (2020-03-10) 0:14

297:23 Q. One of the things in the sound

297:24 localization study, one of the types of

297:25 earplugs that you used was the foam earplug,

298:01 the E-A-R Classic foam earplug.

298:02 Do you recall that?

298:03 A. Yes.

298:18 - 299:05 Babeu, Lorraine (2020-03-10) 1:47

298:18 Q. Was the E-A-R foam plug a plug

298:19 that was made available to members of the US

298:20 military at the time?

298:21 A. Yes.

298:22 Q. And when you were at the Army

298:23 Research Laboratory in the 2001 to 2005 time

298:24 period, did you have experience wearing the

298:25 E-A-R Classic foam plug?

299:01 A. Yes.

299:02 Q. Okay. And were you aware of

299:03 other members of the US military using the

299:04 E-A-R Classic foam plug?

299:05 A. Yes.

307:02 - 307:13 Babeu, Lorraine (2020-03-10) 1:39

307:02 Q. I want to talk with you now

307:03 about your research on the -- involving

307:04 DPOAE.

307:05 Okay?

307:06 A. Okeydoke.

307:07 Q. And we talked about that a

307:08 little earlier --

307:09 A. Okay.

307:10 Q. -- and that was -- was that a

307:11 separate research project versus the sound

307:12 localization project?

307:13 A. Yes.

308:18 - 310:07 Babeu, Lorraine (2020-03-10) 2:28

308:18 Now, with respect to the DPOAE

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 85 of 179
308:19 project, who came up with the idea?

308:20 A. Of using DPOAEs?

308:21 Q. Uh-huh.

308:22 A. I probably did.

308:23 Q. Okay. And why did you want to

308:24 evaluate DPOAE after small arms fire when

308:25 using level-dependent hearing protection?

309:01 A. The whole thing about DPOAEs,

309:02 or otoacoustic measures, is that they're a

309:03 little bit more sensitive than the

309:04 traditional pure tone audiogram.

309:05 Q. And what do you mean, they're

309:06 more sensitive than the pure tone audiogram?

309:07 A. You would just start to see

309:08 changes in hearing that the -- the

309:09 sensitivity of the typical audiogram is not

309:10 going to pick up.

309:11 Q. If you go to .2 -- first of

309:12 all, again, these were slides that you

309:13 presented at a meeting of the National

309:14 Hearing Conservation Association?

309:15 A. Yes.

309:16 Q. I wanted to look at some of

309:17 the slides that you used.

309:18 I mean, one, I wanted to focus

309:19 on the background slide, which is on .2.

309:20 A. Oh, background. Okay. Yes.

309:21 Q. And what it says is, "The ideal

309:22 HPD would be adaptive to different

309:23 environments."

309:24 Do you see that?

309:25 A. Yes.

310:01 Q. And what did you mean by that

310:02 statement?

310:03 A. The big environment for the

310:04 Army was going from relative quiet to a fire

310:05 fight, and so you would want an earplug that

310:06 could function under both listening

310:07 conditions.

311:24 - 312:01 Babeu, Lorraine (2020-03-10) 0:12

311:24 Q. And as an audiologist, were you

311:25 familiar with the importance of otoacoustic

312:01 emissions?

312:02 - 312:02 Babeu, Lorraine (2020-03-10) 0:00

312:02 A. Yes.

312:08 - 312:19 Babeu, Lorraine (2020-03-10) 0:24

312:08 Q. I'm sorry, let's go back to the

312:09 exhibit, which is P --

312:10 A. 0124.

312:11 Q. -- 124.

312:12 A. Okeydoke.

312:13 Q. .1.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 86 of 179
312:14 You're getting good.

312:15 There are some -- there's a

312:16 slide on here that has peak pressure and

312:17 insertion loss.

312:18 Do you see that?

312:19 A. Oh, yes, uh-huh.

313:08 - 313:20 Babeu, Lorraine (2020-03-10) 0:27

313:08 Q. As you sit here today, do you

313:09 know where the peak pressure measurements

313:10 came from?

313:11 A. No, huh-uh.

313:12 Q. And you say you would have

313:13 determined the insertion loss?

313:14 A. Right.

313:15 Q. And did you have the equipment

313:16 at the Army Research Laboratory at Aberdeen

313:17 Proving Ground to determine insertion loss

313:18 from earplugs?

313:19 A. Yes.

313:20 It's a hearing test.

316:14 - 317:11 Babeu, Lorraine (2020-03-10) 1:55

316:14 Q. Eight subjects had normal Re: [317:03 to 318:14] OVERRULED

316:15 hearing sensitivity in both ears? Pltf Obj 701; 802

316:16 A. Right.

316:17 Q. One subject had moderate to

316:18 moderately severe high frequency loss at 6 to

316:19 8 kilohertz in the left ear.

316:20 Do you see that?

316:21 A. Yes.

316:22 Q. And with respect to this

316:23 individual that had moderate to moderately

316:24 severe high frequency loss at 6 to

316:25 8 kilohertz in the left ear, he was -- he or

317:01 she was included in the study?

317:02 A. Yes.

317:03 Q. And why did you include that

317:04 individual in the study, even if the

317:05 individual had moderate to moderately severe

317:06 high frequency loss in one ear?

317:07 A. Because the noise, if it's

317:08 going to affect a person's hearing, it's

317:09 usually at 3 to 4 K. So if I had normal

317:10 hearing up to that point, I felt confident

317:11 that I could keep the person in the study.

317:14 - 318:19 Babeu, Lorraine (2020-03-10) 1:19

317:14 Q. There is a slide that says Re: [317:03 to 318:14] OVERRULED

317:15 "Results." Pltf Obj 701; 802

317:16 Do you see that?

317:17 A. Yes. Re: [318:15 to 319:03] OVERRULED

317:18 Q. And it says, "Test of within Pltf Obj 701; 802; 611

317:19 subjects' effects measure."

317:20 A. Uh-huh.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 87 of 179
317:21 Q. And the first setting says, "No

317:22 significant main effects or interaction for

317:23 the following factors, DPOAE measurement

317:24 hearing protection."

317:25 A. Correct.

318:01 Q. What does that mean?

318:02 A. So when I'm looking at the main

318:03 effects of hearing protection and distortion

318:04 products, when you run the statistical

318:05 analysis -- and it's been a long time, but

318:06 when you run it, you're looking to see, when

318:07 you made this change, did this happen or did

318:08 something happen. You did this; did

318:09 something else happen. So when you run your

318:10 statistics, you're looking for your main

318:11 effects.

318:12 So that's what I was

318:13 indicating, that there were no main effects

318:14 on DPOAE measurement and hearing protection.

318:15 Q. So does that mean that it did

318:16 not appear from a statistical standpoint that

318:17 hearing protection -- that the type of

318:18 hearing protection had a statistically

318:19 significant effect on DPOAE measurements?

318:22 - 319:03 Babeu, Lorraine (2020-03-10) 0:19

318:22 THE WITNESS: Okay. So it's no Re: [318:15 to 319:03] OVERRULED

318:23 significant effect on frequency. So Pltf Obj 701; 802; 611

318:24 we measured along different

318:25 frequencies. And no interaction

319:01 between three factors: hearing

319:02 protection, distortion product or

319:03 frequency.

319:24 - 320:02 Babeu, Lorraine (2020-03-10) 0:15

319:24 Q. As part of your research on

319:25 DPOAEs, in the study you also were running

320:01 pure tone audiogram on the subjects?

320:02 A. Yes.

320:15 - 321:10 Babeu, Lorraine (2020-03-10) 1:34

320:15 So when they came and they were

320:16 getting ready to participate in the

320:17 experiment --

320:18 A. Right.

320:19 Q. -- before they would fire the

320:20 gun --

320:21 A. Right.

320:22 Q. -- you would -- you or your

320:23 team would perform DPOAE measurements?

320:24 A. Correct.

320:25 Q. And then after the individuals

321:01 had fired the weapons --

321:02 A. Correct.

321:03 Q. -- you would perform another

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 88 of 179
321:04 DPOAE measurement?

321:05 A. Correct.

321:06 Q. And you indicated earlier that

321:07 you were performing the DPOAE measurements in

321:08 a sound booth in a building located next to

321:09 the firing range?

321:10 A. Correct.

321:11 - 322:04 Babeu, Lorraine (2020-03-10) 1:58

321:11 Q. And what was your purpose of Re: [321:11 to 322:04] OVERRULED

321:12 performing DPOAE measurements before the Pltf Obj 701; 802

321:13 firing and then after the firing?

321:14 A. The whole point of the DPOAE is

321:15 to look at the amplitude. So you look at the

321:16 amplitude before they fire and then the

321:17 amplitude of the DPOAE after they fire.

321:18 And what I'm looking for, is

321:19 there a statistically significant change

321:20 before and after firing, in the DPOAE.

321:21 Q. And does that -- when you say

321:22 whether there's a statistically different --

321:23 statistically significant difference --

321:24 A. Uh-huh.

321:25 Q. -- was your hypothesis that

322:01 gunfire could cause a decrease in the

322:02 amplitude of the DPOAE?

322:03 A. Right. I mean, that's the

322:04 whole thing.

322:17 - 323:23 Babeu, Lorraine (2020-03-10) 2:38

322:17 Q. And so, for example, on 124.12,

322:18 on the bottom slide, you have a comparison of

322:19 DPOE amplitudes for wearers of Combat Arms

322:20 Earplug, level-dependent side, before and

322:21 after small arms fire?

322:22 A. Correct.

322:23 Q. And the level-dependent end of

322:24 the Combat Arms Earplug would be the yellow

322:25 end?

323:01 A. Yes.

323:02 Q. Okay. With respect to -- and

323:03 you have -- for each of the frequencies, you

323:04 have measurements of DPOAE amplitudes?

323:05 A. Yes.

323:06 Q. With respect to the data that

323:07 is presented here, is this a combination or

323:08 the average amplitudes of the subjects?

323:09 A. Yes.

323:10 Q. Okay. So if you look, for

323:11 example, at 500, the amplitude of the DPOAE

323:12 emissions is higher than after firing.

323:13 Do you see that?

323:14 A. Yes, uh-huh.

323:15 Q. And that's true for several

323:16 other frequencies as well.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 89 of 179
323:17 Do you see that?

323:18 A. Yes.

323:19 Q. And then when you get up to

323:20 around 2000 and higher, the DPOAE amplitudes

323:21 are higher after firing than before firing.

323:22 Do you see that?

323:23 A. Yes.

323:24 - 324:19 Babeu, Lorraine (2020-03-10) 2:33

323:24 Q. And did you reach a hypothesis

323:25 as to why -- or develop a hypothesis as to

324:01 why, at frequencies at 2000 or above, the

324:02 DPOAE amplitudes are higher after firing than

324:03 before firing for the Combat Arms yellow end?

324:04 A. No.

324:05 Q. If you look at the slide on

324:06 P124.13, the top slide, this is a slide that

324:07 actually compares the DPO -- the average

324:08 DPOAE amplitudes of the subjects wearing the

324:09 green end of the Combat Arms Earplug before

324:10 and after small arms fire?

324:11 A. Right.

324:12 Q. And with respect to the

324:13 amplitudes for the subjects, for example, at

324:14 500 hertz, the average amplitude was lower

324:15 before firing than after firing?

324:16 A. Right.

324:17 Q. Okay. And that was true for

324:18 several frequencies. That was true,

324:19 actually, on all the frequencies, wasn't it?

324:22 - 325:09 Babeu, Lorraine (2020-03-10) 1:58

324:22 THE WITNESS: Yeah.

324:23 QUESTIONS BY MR. FIELDS:

324:24 Q. And did you reach a conclusion

324:25 why the DPOAE amplitudes of the subjects

325:01 wearing the green end of the Combat Arm

325:02 Earplugs had higher DPOAE amplitudes after

325:03 firing than before firing?

325:04 A. No, huh-uh.

325:05 Q. And in the slide on the bottom

325:06 of P0124.1 -- .13 is a comparison of DPOAE

325:07 amplitudes of users wearing the ComTac

325:08 earmuff before and after small arms fire?

325:09 A. Yes.

325:10 - 325:17 Babeu, Lorraine (2020-03-10) 0:25

325:10 Q. If you turn to 0124.14, in the

325:11 summary slide you say, "Type of hearing

325:12 protection did not have significant impact on

325:13 DPOAE."

325:14 Do you see that?

325:15 A. Yes.

325:16 Q. And what did you mean by that?

325:17 A. Statistically significant.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 90 of 179
325:22 - 325:25 Babeu, Lorraine (2020-03-10) 0:09

325:22 As a researcher, were you

325:23 trying to determine whether the type of

325:24 hearing protection had a statistically

325:25 significant impact on DPOAE measurements --

326:04 - 326:25 Babeu, Lorraine (2020-03-10) 2:54

326:04 Q. -- or amplitudes?

326:05 A. Yes, that was the whole point

326:06 of the study.

326:07 Q. If you would find

326:08 Exhibit P1560. It's the article. Yeah,

326:09 without comments.

326:10 Now, I know you mentioned

326:11 earlier that you had some communications with

326:12 Mr. Berger about your DPOAE experiment?

326:13 A. Yes.

326:14 Q. Did Mr. Berger or Aearo play

326:15 any role in the design of your DPOAE

326:16 experiment?

326:17 A. No, huh-uh.

326:18 Q. Did either Mr. Berger or anyone

326:19 at Aearo participate in the process of

326:20 collecting the data for the experiment?

326:21 A. No.

326:22 Q. Based on your dissertation, you

326:23 had previous experience performing

326:24 experiments using DPOAE measurements?

326:25 A. Yes.

328:22 - 329:23 Babeu, Lorraine (2020-03-10) 2:34

328:22 Q. Now, at the time that you sent

328:23 a -- and I'm not going to get into the

328:24 substance of the draft.

328:25 But at the time you sent the

329:01 document, a draft of the DPOAE article to

329:02 Mr. Berger --

329:03 A. Uh-huh.

329:04 Q. -- you were aware that

329:05 Mr. Berger worked for Aearo?

329:06 A. Yeah.

329:07 Q. And you were aware that Aearo

329:08 was the company that marketed and sold the

329:09 Combat Arms Earplug?

329:10 A. Correct.

329:11 Q. Okay. And even though Aearo

329:12 was the company that sold the Combat Arms

329:13 Earplug and Mr. Berger worked for the

329:14 company, why did you feel comfortable seeking

329:15 his comments?

329:16 A. Because in the audiology field,

329:17 especially noise field, he is one of our

329:18 leading experts. So, you know, if he were

329:19 somebody that we shouldn't use in terms of

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 91 of 179
329:20 him not being -- not having the expertise,

329:21 Tom wouldn't have let me send it to him.

329:22 It's like, oh, wow, yeah, Elliott, ask him,

329:23 yeah.

335:07 - 336:01 Babeu, Lorraine (2020-03-10) 1:57

335:07 Q. If you go to page 3 of the

335:08 document --

335:09 A. Of this?

335:10 MAJOR EVANS: Yes.

335:11 QUESTIONS BY MR. FIELDS:

335:12 Q. Yes, of the article, or of the

335:13 report.

335:14 I'm sorry. If you go back to

335:15 page 2, the second full paragraph, first

335:16 sentence, you say, "Studies have demonstrated

335:17 that the otoacoustic emission provides a

335:18 vehicle for observing the effects of noise on

335:19 the cochlear."

335:20 Do you see that?

335:21 A. Yes.

335:22 Q. And why was it important to

335:23 you, if it was, that there were studies

335:24 showing that otoacoustic emissions could

335:25 provide a vehicle for observing the effects

336:01 of noise on the cochlear?

336:19 - 337:04 Babeu, Lorraine (2020-03-10) 1:50

336:19 If you go to page 7 of the

336:20 document under Results.

336:21 Under Results, you're outlining

336:22 the results of your research, correct?

336:23 A. Right.

336:24 Q. And one of the things that you

336:25 say in the second paragraph is, "There were

337:01 no significant, P less than .05, main effects

337:02 for the type of hearing protection in before

337:03 and after firing DPOAE amplitudes."

337:04 Correct?

337:11 - 339:12 Babeu, Lorraine (2020-03-10) 2:14

337:11 There's a sentence here that

337:12 says, "There was no interaction between the

337:13 type of hearing protection, frequency of the

337:14 DPOAE amplitudes, or the before or after

337:15 weapons fire DPOAE measurement."

337:16 Correct?

337:17 A. Correct.

337:18 Q. And finally it says, "The daily

337:19 post-weapons fire hearing test results were

337:20 negative for significant increase in hearing

337:21 threshold for frequencies 500 to

337:22 800 hertz" --

337:23 A. 8000.

337:24 Q. Oh, "8000 hertz" -- let me read

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 92 of 179
337:25 that over.

338:01 "The daily post-weapons fire

338:02 hearing test results were negative for

338:03 significant decrease in hearing threshold for

338:04 frequencies 500 to 8000 hertz, 10 decibel

338:05 shift or greater."

338:06 Do you see that?

338:07 A. Uh-huh.

338:08 Q. Yes, you do?

338:09 A. Yes, I do. I'm sorry. I'm

338:10 sorry.

338:11 Q. You're familiar with the term

338:12 "temporary threshold shift"?

338:13 A. Correct.

338:14 Q. And what is a temporary

338:15 threshold shift?

338:16 A. It's a change in hearing that

338:17 after noise exposure, let's say, you will

338:18 have a temporary decrease in your hearing

338:19 thresholds. So your hearing will get a

338:20 little worse.

338:21 And then over time, it

338:22 recovers. So because it recovers, we call it

338:23 a temporary threshold shift.

338:24 Q. And then what is a permanent

338:25 threshold shift?

339:01 A. The threshold change does not

339:02 go back to baseline. It doesn't go back. It

339:03 just stays. You now have a decrease at that

339:04 frequency.

339:05 Q. And can you use audiograms to

339:06 determine whether or not an individual has

339:07 sustained a temporary threshold shift?

339:08 A. Yeah, uh-huh.

339:09 Q. And can you also use audiograms

339:10 to determine whether an individual has

339:11 sustained a permanent threshold shift?

339:12 A. Yes.

339:16 - 339:24 Babeu, Lorraine (2020-03-10) 0:27

339:16 Q. In this particular experiment,

339:17 one of the things that you were doing is

339:18 after -- each day after weapons fire, you

339:19 were running a pure tone audiogram on the

339:20 subjects?

339:21 A. Yes.

339:22 Q. Okay. Based on your research,

339:23 did any of the subjects in the experiment

339:24 sustain a temporary threshold shift?

340:02 - 340:02 Babeu, Lorraine (2020-03-10) 0:02

340:02 THE WITNESS: Yeah. No.

340:04 - 340:06 Babeu, Lorraine (2020-03-10) 0:06

340:04 Q. Okay. Did any of the

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 93 of 179
340:05 individuals in the experiment sustain a

340:06 permanent threshold shift?

340:08 - 340:19 Babeu, Lorraine (2020-03-10) 0:17

340:08 THE WITNESS: No. Well, there

340:09 was the one guy that had the injury,

340:10 but it wasn't permanent. It resolved.

340:11 QUESTIONS BY MR. FIELDS:

340:12 Q. So other than the one

340:13 individual that was -- eventually was removed

340:14 from the study --

340:15 A. Right.

340:16 Q. -- did anyone -- well, you said

340:17 that wasn't permanent. So let me ask about

340:18 permanent again.

340:19 A. Uh-huh.

340:20 - 340:23 Babeu, Lorraine (2020-03-10) 0:12

340:20 Q. So during your study, did any

340:21 of the subjects sustain a permanent threshold

340:22 shift?

340:23 A. No. Not based on this.

340:24 - 341:04 Babeu, Lorraine (2020-03-10) 0:09

340:24 Q. And with respect to the one Re: [340:24 to 341:02] OVERRULED

340:25 individual you indicated earlier where you Def Obj 106 (should include

341:01 removed him from the study -- 20-23)

341:02 A. Right.

341:03 Q. -- that individual, you don't Re: [341:03 to 341:07] OVERRULED

341:04 know the cause of the threshold shift? Def Obj improper

clarification,

341:07 - 341:07 Babeu, Lorraine (2020-03-10) 0:02

341:07 THE WITNESS: Right. Re: [341:03 to 341:07] OVERRULED

Def Obj improper

clarification,

341:09 - 341:25 Babeu, Lorraine (2020-03-10) 1:53

341:09 Q. And if you go to page 4, under

341:10 Methodology, Subjects, you say at the very

341:11 end of that paragraph, "Post-firing

341:12 audiograms were recorded after each firing

341:13 event to ensure that no significant decrease

341:14 in hearing sensitivity had occurred during

341:15 the firing event."

341:16 A. Correct.

341:17 Q. So for each of these subjects,

341:18 were you actually performing multiple

341:19 audiograms --

341:20 A. Yes.

341:21 Q. -- during the course of the

341:22 study?

341:23 A. Uh-huh.

341:24 Q. Yes?

341:25 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 94 of 179
342:21 - 343:15 Babeu, Lorraine (2020-03-10) 1:12

342:21 Q. On page 4 of this article, you

342:22 write, "In order to make the desired

342:23 observation, the DPOAE is the ideal vehicle

342:24 because it provides the DPOE is more

342:25 sensitive to outer hair cell disturbance than

343:01 traditional audiograms."

343:02 Do you see that?

343:03 A. Correct. Yes.

343:04 Q. And what did you mean by that?

343:05 A. Well, that was the whole --

343:06 that's the whole point of otoacoustic

343:07 emissions, is that it's a way for us to get a

343:08 measurement that there's possibly some change

343:09 in the cochlea that would not show up on an

343:10 audiogram.

343:11 Q. And as a result of your study,

343:12 did you see a statistically significant

343:13 effect on the cochlear as a result of being

343:14 exposed to gunfire with hearing protection

343:15 devices used in the study?

343:18 - 345:18 Babeu, Lorraine (2020-03-10) 2:23

343:18 THE WITNESS: Yeah, there was

343:19 no significant effect.

343:20 QUESTIONS BY MR. FIELDS:

343:21 Q. Okay. And we talked earlier

343:22 about the fitting instructions for the

343:23 localization study. I wanted to briefly

343:24 touch on the fitting instructions that were

343:25 given as part of this study, if they were.

344:01 A. Okay.

344:02 Q. First of all, let me ask you:

344:03 Did you provide the subjects with

344:04 instructions on how to fit the device?

344:05 A. Yes.

344:06 Q. Okay. And if you -- as a

344:07 matter of fact, if you go to the bottom of

344:08 page 4, under Hearing Protectors it says,

344:09 "The hearing protectors used in the study

344:10 were the following: Combat Arms Earplug,

344:11 level-dependent, yellow; Combat Arms Earplug,

344:12 non-level-dependent, olive drab; and the

344:13 Peltor ComTac noise muff."

344:14 Do you see that?

344:15 A. Yes, uh-huh.

344:16 Q. And then you say, "The subject

344:17 received instruction on how to insert the

344:18 earplugs."

344:19 Do you see that?

344:20 A. Yes.

344:21 Q. And then you say, "The actual

344:22 insertion or placement of the hearing

344:23 protection was conducted by the experimenter

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 95 of 179
344:24 team."

344:25 Do you see that?

345:01 A. Correct. Yes.

345:02 Q. With respect to the

345:03 instructions on how to insert the earplugs,

345:04 did you and the experimenter team tell any of

345:05 the subjects to fold over the flanges of the

345:06 earplug before inserting it in his or her

345:07 ear?

345:08 A. From what I remember, no,

345:09 because this fold-over stuff is new.

345:10 Q. As you sit here today, do you

345:11 recall any of the subjects who participated

345:12 in the study rolling over the flanges of the

345:13 earplug prior to inserting it in his or her

345:14 ears?

345:15 A. When you say "rolling over,"

345:16 are you talking about that pull back --

345:17 Q. The flanges over, yeah.

345:18 A. Right. No.

345:19 - 345:22 Babeu, Lorraine (2020-03-10) 0:18

345:19 Q. Based on the experiment that Re: [345:19 to 346:01] OVERRULED

345:20 you performed that's outlined in P1560, were Def Obj asked

345:21 any of the subjects who participated, did any

345:22 of them sustain any type of hearing loss?

345:25 - 346:01 Babeu, Lorraine (2020-03-10) 0:01

345:25 THE WITNESS: The only person Re: [345:19 to 346:01] OVERRULED

346:01 was that one person. Def Obj asked

346:07 - 346:11 Babeu, Lorraine (2020-03-10) 0:17

346:07 Q. Other than the one person who

346:08 did not participate in the study, did any of

346:09 the other subjects who participated in the

346:10 study, did they sustain any hearing loss

346:11 based on the data that you collected?

346:14 - 346:14 Babeu, Lorraine (2020-03-10) 0:00

346:14 THE WITNESS: No.

348:21 - 348:25 Babeu, Lorraine (2020-03-10) 0:24

348:21 Q. If you would go to P1560.3, and

348:22 I want to look at the last paragraph on that

348:23 page.

348:24 And the first sentence of that

348:25 says, "The use of DPOAE as an early detector

348:24 - 349:24 Babeu, Lorraine (2020-03-10) 2:32

348:24 And the first sentence of that

348:25 says, "The use of DPOAE as an early detector

349:01 of cochlear damage was borne out by Shi and

349:02 Martin 1997 who compared the effectiveness of

349:03 the click auditory brainstem response, ABR,

349:04 and DPOAE in detecting cochlear damage caused

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 96 of 179
349:05 by gentamycin treatment in the guinea pig."

349:06 Do you see that?

349:07 A. Uh-huh, yes.

349:08 Q. And then you go down a little

349:09 bit further, about three sentences further

349:10 down, you write, "DPOAEs have also been used

349:11 to determine the effects of noise on cochlea

349:12 response."

349:13 Do you see that?

349:14 A. Correct.

349:15 Q. At the time that you wrote this

349:16 document, did you believe that DPOAE testing

349:17 could serve as an early detector of damage to

349:18 the cochlea caused by noise?

349:19 A. Caused by noise, yes.

349:20 Q. Okay. And if you go back to

349:21 page 5 of the article, there's a section that

349:22 talks about the small arms weapons.

349:23 Do you see that?

349:24 A. Yes.

349:25 - 351:05 Babeu, Lorraine (2020-03-10) 2:36

349:25 Q. And the small arm weapons that

350:01 were used by the test subjects in your study

350:02 were either an M16 rifle or an M4 carbine

350:03 rifle?

350:04 A. Correct.

350:05 Q. And as part of your study, the

350:06 subjects fired 54 rounds each time that --

350:07 each day. The total rounds fired over the

350:08 nine-day period was 486.

350:09 Do you see that?

350:10 A. Correct.

350:11 Q. So if I'm interpreting that

350:12 correctly, that means each of the subjects

350:13 would have fired 486 rounds as part of your

350:14 study?

350:15 A. Correct.

350:16 Q. And are you saying that the

350:17 subjects would have fired 54 rounds each day?

350:18 A. Yes.

350:19 Q. And what you would do is you

350:20 would perform a DPOAE measurement of the

350:21 subjects before they fired any rounds on a

350:22 given day?

350:23 A. Right.

350:24 Q. Then they would fire the 54

350:25 rounds, and then you would perform another

351:01 DPOAE measurement?

351:02 A. Correct.

351:03 Q. And then also that same day,

351:04 you would perform an audiogram?

351:05 A. Yes.

351:06 - 352:01 Babeu, Lorraine (2020-03-10) 1:21

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 97 of 179
351:06 Q. And if you go back to page 7,

351:07 under Results it says, "By the end of the

351:08 study, each subject had worn each type of

351:09 hearing protection three times during the

351:10 course of the study."

351:11 Is that correct?

351:12 A. Yes.

351:13 Q. And the three hearing

351:14 protection devices were the Combat Arms

351:15 yellow end, the Combat Arms green end, and

351:16 the Peltor ComTac earmuff?

351:17 A. (Witness nods head.)

351:18 Q. So as a result of the study,

351:19 each subject would have -- during the study

351:20 would have worn the Combat Arms Earplug three

351:21 times, the Combat Arms green three times, and

351:22 the Peltor ComTac earmuff three times?

351:23 A. Yes.

351:24 Q. And would they -- for example,

351:25 on a given day, would they only wear one type

352:01 of hearing protection device?

352:05 - 353:01 Babeu, Lorraine (2020-03-10) 1:53

352:05 Q. During your study?

352:06 A. Yes, because they only fired

352:07 once. Live fire is what we're talking about.

352:08 Q. Okay. So just so that I

352:09 understand, for one of the subjects -- let's

352:10 do one subject.

352:11 A. Uh-huh.

352:12 Q. Would it be -- the setup be for

352:13 one hypothetical subject that you would have

352:14 that -- you would bring the subject in, you

352:15 would measure the DPOAE amplitudes, the

352:16 subject would put on a Combat Arms yellow

352:17 earplug, they would fire 54 rounds, then you

352:18 would perform a DPOAE amplitude measurement

352:19 after that?

352:20 A. Correct.

352:21 Q. And so for each day, they were

352:22 firing 56 rounds with a given hearing

352:23 protector?

352:24 A. Yeah, 56 or 54. I'm not sure

352:25 which.

353:01 Q. 54.

353:02 - 353:04 Babeu, Lorraine (2020-03-10) 0:13

353:02 A. Okay.

353:03 Q. On page 5.

353:04 A. Okay.

353:08 - 353:08 Babeu, Lorraine (2020-03-10) 0:17

353:08 Q. I'm going to hand you what has

353:08 - 353:11 Babeu, Lorraine (2020-03-10) 1:34

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 98 of 179
353:08 Q. I'm going to hand you what has

353:09 been marked as Exhibit Number 9 to your

353:10 deposition, which is an e-mail exchange back

353:11 in 2004 plus an attachment.

353:11 - 353:13 Babeu, Lorraine (2020-03-10) 0:23

353:11 in 2004 plus an attachment.

353:12 It bears Bate Stamp

353:13 Number 3M_MDL13301 through 13305.

355:24 - 356:09 Babeu, Lorraine (2020-03-10) 0:28

355:24 Q. So my question is: Do you

355:25 recall in 2004 receiving feedback from

356:01 soldiers stating or suggesting that they

356:02 needed better instructions for using the

356:03 Combat Arms Earplug version 2?

356:04 A. I don't recall.

356:05 Q. Okay. Do you remember at any

356:06 time receiving any feedback from soldiers

356:07 that there needed to be better instructions

356:08 for inserting or using the Combat Arms

356:09 Earplug version 2?

356:12 - 356:13 Babeu, Lorraine (2020-03-10) 0:08

356:12 THE WITNESS: No, I don't

356:13 recall.

357:06 - 357:06 Babeu, Lorraine (2020-03-10) 0:06

357:06 Do you see that? So page 5.

358:06 - 358:09 Babeu, Lorraine (2020-03-10) 0:16

358:06 Q. Okay. While you were at the

358:07 Army Research Laboratory, did you ever advise

358:08 any of your superiors that you believe the

358:09 Combat Arms Earplug version 2 was defective?

358:12 - 359:01 Babeu, Lorraine (2020-03-10) 1:38

358:12 THE WITNESS: I don't think so.

358:13 QUESTIONS BY MR. FIELDS:

358:14 Q. Okay. Did you ever tell any of

358:15 your superiors at the Army Research

358:16 Laboratory that you believed that the Combat

358:17 Arms Earplug version 2 did not perform

358:18 satisfactorily?

358:19 A. No, I don't think so.

358:20 Q. While you were with the Army

358:21 Research Laboratory, did you ever tell anyone

358:22 in the US government or the US military that

358:23 you believed the Combat Arms Earplug

358:24 version 2 did not satisfactorily attenuate

358:25 sound for soldiers?

359:01 A. No.

394:09 - 395:12 Babeu, Lorraine (2020-03-10) 1:04

394:09 Q. One of the statements that you

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 99 of 179
394:10 were asked about is at the bottom of the

394:11 discussion section. It says, "This could be

394:12 an indication that although hearing

394:13 protection was in place, the outer hair cells

394:14 were affected in some way by the exposure to

394:15 impulse noise."

394:16 A. Correct.

394:17 Q. "At this juncture, this is

394:18 speculation, and it is not clear what the

394:19 pattern is indicative of, but it is certainly

394:20 worth noting."

394:21 Do you see that?

394:22 A. Yes.

394:23 Q. At any point in time did you

394:24 perform any additional research to determine

394:25 whether or not the conclusions that I just

395:01 read were anything more than speculation?

395:02 A. No.

395:03 Q. In the summary section on the

395:04 bottom of -- near the middle of page 10, last

395:05 sentence, it says, "However, there was a

395:06 trend that appears to indicate there is an

395:07 effect of the level-dependent hearing

395:08 protection on the DPOAE amplitude. This

395:09 trend warrants continued study."

395:10 Do you see that?

395:11 A. Yes.

395:12 Q. After this study, did you

395:13 - 395:16 Babeu, Lorraine (2020-03-10) 0:10

395:13 continue studying DPOAE amplitudes to

395:14 determine whether or not this was a real

395:15 trend?

395:16 A. No.

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 100 of 179
Preserved Objections Previous Rulings New Objections Rulings

11:03 - 11:06 Battler, Leanne (2020-09-10) 0:10

11:03 Q. Good morning. Would you identify

11:04 yourself for the jury, please.

11:05 A. My name is Lieutenant Colonel

11:06 Leanne Marie Battler.

15:13 - 16:06 Battler, Leanne (2020-09-10) 1:51

15:13 Q. Why don't you start with -- start Re: [15:13 to 16:06] Re: [15:13 to 16:06]

15:14 with college. You attended Brock University? Pltf Obj Improper bolstering, OVERRULED

15:15 A. Yes, I did. Yes. I graduated in 402/403, improper attempt to

15:16 1989. qualify lay witness as expert

15:17 Q. And after that, you attended SUNY

15:18 Buffalo where you obtained a doctor of

15:19 audiology?

15:20 A. Yes, that's correct.

15:21 Q. Any other formal education?

15:22 A. In between there, I went to -- I

15:23 attended Georgian College in Orillia, Ontario,

15:24 graduated in 1991 as an audiometric technician.

15:25 Q. Okay.

16:01 A. And then worked in Toronto for

16:02 several years, and then overseas before I went

16:03 back to get my doctorate.

16:04 Q. Okay. Are you currently licensed

16:05 as an audiologist?

16:06 A. Yes.

16:10 - 16:18 Battler, Leanne (2020-09-10) 1:31

16:10 Q. Approximately when did you become Re: [16:10 to 16:18] Re: [16:10 to 16:18]

16:11 licensed? Pltf Obj Improper bolstering, SUSTAINED

16:12 A. 2004. 402/403, improper attempt to

16:13 Q. Are you a member of any qualify lay witness as expert

16:14 professional associations or groups?

16:15 A. Yes. ASHA, American Speech and

16:16 Hearing Association, and the Military Audiology

16:17 Association, National Hearing Conservation

16:18 Association, and American Academy of Audiology.

16:25 - 20:06 Battler, Leanne (2020-09-10) 5:20

16:25 Q. Could you -- When did you join Re: [16:25 to 20:06] Re: [16:25 to 20:06] Re: [19:13 to 19:22] SUSTAINED

17:01 the Army? Pltf Obj Improper bolstering, SUSTAINED as to Pltf Obj 402

17:02 A. 2003. I was commissioned as a 402/403, improper attempt to testimony regarding Battler's

17:03 green card holder. qualify lay witness as expert opinion about Dr. Ohlin (and Re: [19:23 to 20:06] SUSTAINED

17:04 Q. Could you give the jury an (702), 611 leading, 701, 802 her husband's comments to Dr. Pltf Obj 402; 404

17:05 overview of your career in the Army and the Ohlin), 402 & 403; OVERRULED

17:06 role that you played over the years in the in all other respects,

17:07 Army? regarding Battler's opinion,

17:08 A. In 2003, I was commissioned as a about Dr. Ohlin (and her,

17:09 fourth-year intern at the older Walter Reid husband's comments to Dr.,

17:10 Army Medical Center, so I was commissioned as a Ohlin), 402 & 403; OVERRULED,

17:11 first lieutenant; and at the conclusion of that in all other respects

17:12 year, I was moved to Fort Hood, Texas; I was

17:13 there as the Army Hearing Program manager until

Designations

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17:14 2006, and that's where I also got my ASHA

17:15 certificate of clinical competence and my

17:16 license.

17:17 Then from 2006 to 2010, '11, I

17:18 was at Fort Carson in Colorado, I was the Army

17:19 Hearing Program manager. During that time I

17:20 deployed to Iraq for five months, in 2008, it

17:21 was from March to July 2008, as the brigade

17:22 audiologist individual augment team.

17:23 Then in 2011, I moved to Fort

17:24 Richardson, Alaska; en route I stopped at Fort

17:25 Benning and became a paratrooper; after Alaska,

18:01 so 2012 to 2016, then I moved to Germany and

18:02 was the Regional Army Hearing Program

18:03 consultant, until 2018; at which time I came

18:04 back to DC.

18:05 Q. And what are your duties

18:06 currently?

18:07 A. I'm a staff audiologist.

18:08 Q. Okay. You indicated that you, in

18:09 2003, if I understood correctly, you were a

18:10 third- or fourth-year intern; is that correct?

18:11 A. Yes.

18:12 Q. Okay. And so does that mean that

18:13 your internship had started earlier?

18:14 A. So for the doctor of audiology

18:15 degree the requirement is a four-year

18:16 postgraduate degree which incorporates two

18:17 thousand clinical hours. So the first thousand

18:18 are acquired during the first three years

18:19 concurrently with academics, and then the

18:20 fourth year is that final one thousand clinical

18:21 hours. So I was commissioned as a first

18:22 lieutenant because I did not have the doctoral

18:23 degree yet.

18:24 Q. Understood. In your

18:25 authorization, there is a mention of a 2001

19:01 internship with the Army Hearing Program. Can

19:02 you describe what that is?

19:03 A. Yes. So I was still a student at

19:04 SUNY Buffalo; and during the summer of 2001 I

19:05 married an American soldier, Richard Cleveland,

19:06 who was stationed at Aberdeen Proving Ground at

19:07 the time. So, yeah, we got married, and we

19:08 were at Aberdeen. And actually, my husband

19:09 called the CHPPM and spoke with Dr. Ohlin and

19:10 said: My wife thinks you're a God and would

19:11 love to work with you. And I had an interview,

19:12 and, yeah, I spent the summer working there.

19:13 Q. Okay. Did you hold Dr. Ohlin in

19:14 high regard?

19:15 A. Yes. Very high regard.

19:16 Q. And why did you hold Dr. Ohlin in

19:17 high regard?

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19:18 A. Probably because -- Because I

19:19 also -- One of my instructors at SUNY Buffalo

19:20 was Donald Henderson, who also mentioned a lot

19:21 of the work of Dr. Ohlin during my class as his

19:22 student.

19:23 Q. And did you regard Dr. Ohlin,

19:24 from your interaction with him, as competent at

19:25 the tasks he performed?

20:01 A. (Witness nods head in the

20:02 affirmative.)

20:03 Q. You have to answer audibly yes or

20:04 no for the videographer.

20:05 A. Oh, yes. Yes. Very, very

20:06 competent.

20:21 - 24:24 Battler, Leanne (2020-09-10) 6:00

20:21 Q. Why don't you start with your Re: [20:21 to 24:24] Re: [20:21 to 24:24] Re: [20:21 to 24:24] OVERRULED

20:22 duties during the internship. Pltf Obj Improper bolstering, OVERRULED, but will Pltf Obj improper attempt to

20:23 A. Right. So at Aberdeen, with Dr. 402/403, improper attempt to give, limiting instruction as qualify lay witness as expert

20:24 Ohlin? qualify lay witness as expert to the, witness's status as a (702), 611 leading, 701, 802

20:25 Q. Yes. (702), 611 leading, 701, 802 lay witness

21:01 A. So primarily, it was -- I worked

21:02 with, at the time, Major Cheryl Cameron, who

21:03 has since retired. We did a lot of CAOC

21:04 courses, so the technician training,

21:05 troubleshooting with the events in CCA, DOEHRS

21:06 audiometers; some work with Leanne Demanico,

21:07 helping her with the DOEHRS system, again.

21:08 I sat in on a health hazard

21:09 assessment team, we did noise measurements out

21:10 in the field, I prepared briefings. I did

21:11 basically anything I was asked to do. But at

21:12 some -- even some patient care, we did go over

21:13 to the occupational health clinic a few times

21:14 and do some patient testing.

21:15 Q. And did you do some work with the

21:16 Combat Arms Version 2 during your internship?

21:17 A. Not work, as much as just I

21:18 learned about them and -- and I took several

21:19 back to SUNY Buffalo where I did an independent

21:20 study using them.

21:21 Q. What did you learn about the

21:22 Combat Arms Version 2 during your 2001

21:23 internship?

21:24 A. That they were the first

21:25 nonlinear earplug that I had ever heard of, and

22:01 -- and pretty -- pretty cool.

22:02 Q. And why do you describe them as

22:03 pretty cool?

22:04 A. Because they allowed the wearer

22:05 to hear things, I think -- Well, I know that

22:06 one of the reasons why people reject hearing

22:07 protection is because of the fear of being

22:08 overattenuated and not being able to hear

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22:09 things that could cost their own life or limb.

22:10 Q. And why is that a concern in the

22:11 military?

22:12 A. Because you need to hear -- You

22:13 need to hear the bad guys. Hearing is a -- is

22:14 a three-hundred-and-sixty-degree,

22:15 twenty-four-hour awareness. So if you can't

22:16 hear what's going on around you, then -- then

22:17 you're a liability.

22:18 Q. Have you worn the Combat Arms

22:19 Version 2 yourself?

22:20 A. Yes.

22:21 Q. And did you have any trouble

22:22 fitting the Combat Arms Version 2 in your ear?

22:23 A. I fortunately have very average

22:24 size ear canals, so they did fit me well.

22:25 Q. Great. Did you need to roll back

23:01 the flanges to fit the Combat Arms Version 2 in

23:02 your ear?

23:03 A. No.

23:04 Q. And when you fit the Combat Arms

23:05 Version 2 in your ear, did they maintain their

23:06 seal?

23:07 A. Yes.

23:08 Q. When you fit the Combat Arms

23:09 Version 2 in your ear, did they provide you

23:10 with adequate hearing protection?

23:11 A. Yes.

23:12 Q. Would -- Would you wear the

23:13 Combat Arms Version 2 today based on what you

23:14 know?

23:15 A. Yes.

23:16 Q. Have you also fit other

23:17 individuals with the Combat Arms Version 2?

23:18 A. Yes.

23:19 Q. And am I correct that, as with

23:20 other preformed earplugs, the regulations

23:21 require a medically trained personnel to

23:22 provide the initial fit?

23:23 A. Yes.

23:24 Q. And why is it that the

23:25 regulations require that a preformed earplug be

24:01 trained (sic) by medically trained personnel?

24:02 A. Because they come in different

24:03 sizes, and ears come in different sizes. And

24:04 the fact that it's preformed means it's -- it's

24:05 not adjustable, like the foam plugs -- Even the

24:06 foam plugs are not one-size-fits-all. There's

24:07 -- That was the one thing that Doug said

24:08 constantly is, if you remember one thing,

24:09 remember there's no such thing as one size fits

24:10 all.

24:11 Q. And were there -- Were there

24:12 certain service members who the -- when you

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24:13 were doing your work fitting the Combat Arms

24:14 Version 2 did not fit?

24:15 A. Yes.

24:16 Q. And in instances where you were

24:17 fitting a service member for whom the Combat

24:18 Arms Version 2 did not fit, what would you do

24:19 then?

24:20 A. Then we would go to the

24:21 traditional triple-flange, size small or large,

24:22 you know, whatever was appropriate. And then

24:23 if I had funding, I would take impressions to

24:24 do custom hearing protection at that time.

25:06 - 25:17 Battler, Leanne (2020-09-10) 1:47

25:06 Let's go to page 67, at the bottom. The bottom Re: [25:06 to 25:17] Re: [25:06 to 25:17] Re: [25:06 to 25:17] SUSTAINED

25:07 right right now, it says 55. And let's mark Pltf Obj 402/403 - 87 page SUSTAINED Pltf Obj 802; 805; 403

25:08 this as the next exhibit, which is Exhibit newsletter document contains

25:09 Number 1. various other stories that are

25:10 Do you recognize this document, wholly irrelevant and include

25:11 Lieutenant Colonel Cleveland? hearsay 802-As to the Fort

25:12 A. Yes. Carson story itself, includes

25:13 Q. Can you tell the jury what it is? speculation and

25:14 A. This is my paper. generalizations about Military

25:15 Q. And what's the title? habit/compliance that should

25:16 A. Fort Carson, An Army Hearing be excluded under 406.

25:17 Program Success Story.

25:21 - 27:22 Battler, Leanne (2020-09-10) 3:56

25:21 Q. Do you recognize the diagram,

25:22 Figure 3, at the top of page 70?

25:23 A. Yes.

25:24 Q. And does that -- Does that help

25:25 to illustrate some of your duties as an

26:01 audiologist?

26:02 A. Yes.

26:03 Q. Can you describe, in summary

26:04 form, how?

26:05 A. So the Army Hearing Program has

26:06 four main components: Hearing readiness,

26:07 operational hearing services, clinical hearing

26:08 services, and hearing conservation. So this

26:09 diagram was to describe hearing readiness,

26:10 which is designed for soldiers, rather than

26:11 noise-exposed civilians who would be in a

26:12 traditional OSHA-type hearing conservation

26:13 program.

26:14 So the first thing that we always

26:15 did was the otoscopic examination, which is

26:16 looking in the ear canal to determine after why

26:17 kind of -- you can tell just by looking at the

26:18 ear canal what size of hearing protection the

26:19 person was going to require.

26:20 We're also looking to see if we

26:21 can visualize the tympanic membrane and make

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26:22 sure that there's no active pathology before we

26:23 would fit them with the hearing protector.

26:24 If the ear canals were clear, we

26:25 would continue with the earplug fitting. If we

27:01 could not visualize the tympanic membrane, we

27:02 would send the soldier to have their ears

27:03 cleaned out.

27:04 And then after -- Going back to

27:05 the earplug fitting, we would pull them -- pull

27:06 up their hearing health record in the DOEHRS

27:07 database and MEDPROS, and we would determine,

27:08 you know, does this person already have a

27:09 hearing loss, do they have normal hearing, so

27:10 we have some idea what to expect; and also

27:11 we'll be able to tell if there's been a

27:12 significant change in the hearing test that

27:13 we're about to do.

27:14 Then we would test the hearing.

27:15 If there was a STS, or significant threshold

27:16 shift, then we would tell them they needed to

27:17 retest no sooner than twenty-four hours, and no

27:18 later than thirty days; then if there was no

27:19 STS, we would update the records, say you're

27:20 good to go. But the most important part was

27:21 always the earplug fitting and the hearing

27:22 health education.

33:11 - 34:13 Battler, Leanne (2020-09-10) 2:45

33:11 Q. Okay. Could you summarize the Re: [33:11 to 34:13] Re: [33:11 to 34:13] Re: [33:11 to 34:13] SUSTAINED

33:12 conclusion of your article: Fort Carson, An Pltf Obj 402/403 prejudicial SUSTAINED Pltf Obj 402/403 prejudicial

33:13 Army Hearing Program Success Story for the generalizations about Military generalizations about Military

33:14 jury? practices; 404/406 improper practices; 404/406 improper

33:15 A. Right. So basically, the habit/character habit/character

33:16 regulation had said, for quite some time, that generalizations on Military; generalizations on Military;

33:17 the military audiologist should spend no more 701 and 602 improper 701 and 602 improper

33:18 than 50 percent of their time involved patient generalizations; 802 generalizations; 802

33:19 care, and the rest of the time we should be out

33:20 there doing the training and the inspections

33:21 and the evaluations to prevent hearing loss.

33:22 But the problem was, with

33:23 hospital commanders, typically, seeing us as

33:24 REU generating potential, were reluctant to

33:25 release us from our clinical obligation 50

34:01 percent of the time.

34:02 And so I started this whole

34:03 project as a quality assurance project. And I

34:04 believe that it showed that by releasing me,

34:05 and the other audiologists, by assigning a

34:06 second military audiologist to Fort Carson, we

34:07 still, between the two of us, seeing patients

34:08 50 percent of the time, were still able to

34:09 maintain the prior 100 percent clinical

34:10 mission, while simultaneously preventing

34:11 hearing loss and drastically reducing the

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34:12 amount of hearing loss while we were an Army at

34:13 war.

34:25 - 35:22 Battler, Leanne (2020-09-10) 1:22

34:25 Model, which said you need one audiologist and Re: [34:25 to 35:22] Re: [34:25 to 35:22] Re: [34:25 to 35:22] SUSTAINED

35:01 2.5 technicians for every 18,000 soldiers, that Pltf Obj 701 and 602; improper SUSTAINED 602; 701; Pltf Obj 701 and 602; improper

35:02 was in the era of paper medical charts. lay witness opinions; 802 lay witness opinions;

35:03 MR. MONSOUR: Objection. speculation; 403; 802; cut speculation; 403; 802;

35:04 Responsiveness. This calls for an expert includes Nomellini sidebar includes sidebar between

35:05 opinion beyond the scope of the Touhy. testimony that he's 'limiting counsel

35:06 Q. You can proceed. to her personal capacity'

35:07 MAJ WALD: Ma'am, you're not

35:08 allowed to elicit expert testimony. Please

35:09 don't answer the question.

35:10 Q. Can you just answer based on

35:11 your -- just based on your personal experience?

35:12 MR. MONSOUR: Objection. Still

35:13 calls for an expert opinion, regardless of

35:14 whether personal or not.

35:15 MAJ WALD: Ma'am, please don't

35:16 answer the question.

35:17 THE WITNESS: Understood.

35:18 MR. NOMELLINI: Okay. Major

35:19 Wald, I am limiting it to her personal

35:20 experience. I may -- We may need to ask the

35:21 Court for assistance regarding this. But for

35:22 now I will go to another part of the document.

37:01 - 38:14 Battler, Leanne (2020-09-10) 3:33

37:01 Could you read the next two Re: [37:01 to 38:14] Re: [37:01 to 38:14] Re: [37:01 to 38:14] SUSTAINED

37:02 paragraphs on page 70 of your article. I Pltf Obj Speculation; 701 and SUSTAINED 602; 701; Pltf Obj Speculation; 701 and

37:03 should start with -- Start with the next 602 improper lay witness 802 602 improper lay witness

37:04 paragraph, beginning with: The initial group. opinion; improper opinion; improper

37:05 A. The initial group of soldiers who generalizations about Military generalizations about Military

37:06 were deployed to the first cycle of Operation practices, 403, 406, practices, 403, 406,

37:07 Iraqi Freedom did so without the Combat Arms cumulative/doc speaks for cumulative

37:08 earplugs, which are currently a Rapid Fielding itself

37:09 Initiative issue to all deploying soldiers.

37:10 The Combat Arms earplugs allow low-level

37:11 sounds, such as speech, to pass through

37:12 unimpeded. The nonlinear filter in the Combat

37:13 Arms earplug dampens high-level impulse noise

37:14 such as weapons fire. As with all earplugs,

37:15 proper size and fit are crucial. During the

37:16 initial deployments for the Global War on

37:17 Terror, the Combat Arms earplug, and

37:18 conventional earplugs for soldiers were often

37:19 not available, not wanted, or not fitted

37:20 properly, which resulted in the dramatic STS

37:21 increase in 2003.

37:22 Q. Thank you. So one of the

37:23 sentences that you just read says: As with all

37:24 earplugs, proper size and fit are crucial.

37:25 Based on your -- Based on your personal

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38:01 experience, is that true both for the Combat

38:02 Arms and other earplugs?

38:03 A. Yes.

38:04 Q. And why is that true, that proper

38:05 size and fit are crucial?

38:06 A. Because no two ears are the same.

38:07 Q. What could happen, in your

38:08 personal experience with service members, if

38:09 there is not proper size and fit?

38:10 A. Well, then -- Then they won't --

38:11 They won't protect the soldier as optimally as

38:12 they could.

38:13 Q. And in your experience, who had

38:14 the responsibility for ensuring proper fit?

38:24 - 39:07 Battler, Leanne (2020-09-10) 1:42

38:24 A. Well, if I gave you a Kevlar Re: [38:24 to 39:07] Re: [38:24 to 39:07] Re: [38:24 to 39:07] OVERRULED

38:25 helmet that was two sizes too big or two sizes Pltf Obj Speculation; 701 and OVERRULED Pltf Obj Speculation; 701 and

39:01 too small, it wouldn't protect you. 602 improper lay witness 602 improper lay witness

39:02 Q. Is the same true of earplugs like opinion; improper opinion; improper

39:03 the Combat Arms earplug? generalizations about Military generalizations about Military

39:04 A. Absolutely. practices, 403, 404/406; 802 practices, 403, 404/406; 802

39:05 Q. In your view, who had

39:06 responsibility for ensuring that the Combat

39:07 Arms earplugs were fitted proper?

39:17 - 43:05 Battler, Leanne (2020-09-10) 5:20

39:17 A. I mean, ultimately, the final Re: [39:17 to 43:05] Re: [39:17 to 43:05] Re: [39:17 to 43:05] OVERRULED

39:18 responsibility comes down to the soldier. Pltf Obj Speculation; 701 and OVERRULED 701 Pltf Obj Speculation; 701 and

39:19 Q. And why do you say the final 602 improper lay witness 602 improper lay witness

39:20 responsibility comes down to the soldier? opinion; improper opinion; improper

39:21 A. We fit the earplug, we tell you generalizations about Military generalizations about Military

39:22 how to wear the earplug, but if the soldier practices, 402/403, 404/406; practices, 402/403, 404/406;

39:23 chooses not to use the earplug, then that's 802 802

39:24 their choice -- or not to use it in the way

39:25 that we have trained them to.

40:01 Q. Okay. So with respect to your

40:02 personal experience with the Combat Arms

40:03 earplug, how did you train the soldiers to use

40:04 the earplug?

40:05 A. At the SRP site, when they came

40:06 through for their predeployment hearing test,

40:07 after we looked in the ear, we would give

40:08 everyone a set of size medium, regular sheath,

40:09 triple-flange or quad-flange earplugs, and then

40:10 we would train them all to use their opposite

40:11 hand, you know, pull the ear up and back, twist

40:12 and push, until the -- the final flange, the

40:13 third or fourth flange, was flush with the

40:14 opening of the ear canal. Then we would tell

40:15 them to do a tug test to make sure they felt

40:16 some suction or resistance. Then we would do

40:17 an additional tug test to say yes, you have

40:18 adequate suction or resistance, then we would

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40:19 make them do the other ear.

40:20 And once we determined that they

40:21 were either a size medium or small or large,

40:22 with the cheap earplugs, then we would try the

40:23 Combat Arms earplug, and do the same thing,

40:24 pull -- reach with your opposite hand, pull the

40:25 ear up and back, twist and push, do the tug

41:01 test, both ears, because often one ear canal is

41:02 bigger than the other. So just because you're

41:03 a size medium in one ear, doesn't mean you're

41:04 going to be a size medium in both ears.

41:05 And right then -- I mean, it was

41:06 a pretty intense process.

41:07 Q. And in your personal experience

41:08 with these different kinds of earplugs, did you

41:09 give service members the choice among the

41:10 various earplugs or was it the case that they

41:11 had to use a certain earplug, or did it vary?

41:12 A. So we would actually -- Because

41:13 we fitted them to determine the initial

41:14 size-ish, get a good estimate what size Combat

41:15 Arms earplug they would be, and we fitted them

41:16 with the regular, inexpensive triple or

41:17 quad-flange, then they would have those pair.

41:18 So we give them the -- so linear hearing

41:19 protection and a case, plus the nonlinear

41:20 hearing protection and a case.

41:21 So I guess they had -- Initially,

41:22 there was only one Combat Arms earplug, but

41:23 then when the version with the pistol came out,

41:24 then some people preferred that -- they called

41:25 them the bumblebees, the yellow and olive drab.

42:01 So if I had more than one version, then I would

42:02 let them choose.

42:03 Q. Okay. And you were saying, I

42:04 guess, they had a -- were you going to say that

42:05 you guessed that the service members had a

42:06 choice between the earplugs?

42:07 A. So we would give them -- We'd

42:08 give them as many as we could.

42:09 Q. Okay. So in other words, you'd

42:10 give the service members more than one of the

42:11 various types of earplugs?

42:12 A. Yes.

42:13 Q. And what types of earplugs did

42:14 you provide, other than the Combat Arms?

42:15 A. So the -- Well, there's the

42:16 orange triple-flange; or the blue Elvex

42:17 Quattro; or the size small green triple-flange;

42:18 or the Howard light mint green, they were also

42:19 size small; or the other Howard light smedium,

42:20 we called them smedium, because they were kind

42:21 of in between a small and a medium; and then

42:22 the large blue triple-flange, based on what

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42:23 they were fitted at.

42:24 Q. So among those earplugs, for the

42:25 ones that fit them, they had the choice as to

43:01 which ones to use?

43:02 A. (Witness nods head in the

43:03 affirmative.)

43:04 Q. Is that correct?

43:05 A. Yes. Correct. Uh-huh.

44:20 - 45:07 Battler, Leanne (2020-09-10) 1:03

44:20 Q. Based on your personal experience Re: [44:20 to 45:07] Re: [44:20 to 45:07] Re: [44:20 to 45:07] SUSTAINED

44:21 with the CAEv2, you indicated that the CAE and Pltf Obj 602, 611, SUSTAINED Pltf Obj 602, 611,

44:22 conventional earplugs for soldiers were often Speculation, leading, Speculation, leading,

44:23 not available or not wanted. What's your basis 701/702/602, 403, 802; 701/702/602, 403, 802;

44:24 for that? conjecture conjecture

44:25 A. Right. Okay. The -- Well,

45:01 during the initial deployment, they weren't

45:02 available. They weren't available. And -- Or,

45:03 as I said, the fear of being overattenuated and

45:04 not -- not able to hear external sounds with

45:05 use of a linear earplug caused a lot of

45:06 soldiers to reject them and not use them at

45:07 all.

45:10 - 46:04 Battler, Leanne (2020-09-10) 2:40

45:10 Q. Thank you, Lieutenant Colonel. Re: [45:10 to 46:04] Re: [45:10 to 46:04] Re: [45:10 to 46:04] OVERRULED

45:11 And you also indicated, based on your personal Pltf Obj 611, Leading, OVERRULED 701 (lay Pltf Obj 611, Leading,

45:12 experience with the usage and application of speculation, compound; opinion, based on personal speculation, compound;

45:13 the CAEv2, that the -- during the initial 602/701/702; 403; 404/406; 802 knowledge, and experience) 602/701/702; 403; 404/406; 802

45:14 deployments, the CAE was sometimes not fitted

45:15 properly. What's your basis for that?

45:16 A. When I deployed, and the Rapid

45:17 Fielding Initiative truck pulled up, and I went

45:18 there to get my uniforms and my boots and my

45:19 knee pads and my pocket tool, they threw a pair

45:20 of Combat Arms earplugs at me and said: Here

45:21 you go.

45:22 Q. Was that concerning to you?

45:23 A. Yes.

45:24 Q. Why was that concerning to you?

45:25 A. Because they're not one size fits

46:01 all and there was no education provided as to

46:02 when to put which end in your ear, how to --

46:03 how to pull the ear up and back, twist and

46:04 push, do the tug test, none of that.

46:20 - 47:20 Battler, Leanne (2020-09-10) 1:27

46:20 So you were describing as part of Re: [46:20 to 47:20] Re: [46:20 to 47:20] Re: [46:20 to 47:20] OVERRULED

46:21 the Rapid Fielding Initiative, when you Pltf Obj 611 leading, OVERRULED Pltf Obj 611 leading,

46:22 deployed, the truck pulled up and you were compound, asked/answered; compound, asked/answered;

46:23 handed a pair of Combat Arms earplugs without 402/403; conjecture 402/403; conjecture

46:24 -- without instructions; correct?

46:25 A. Correct.

47:01 Q. And this was in what year?

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47:02 A. 2008.

47:03 Q. Okay. And was there -- Was there

47:04 anything in writing that accompanied the Combat

47:05 Arms earplugs when you received them in 2008?

47:06 A. No.

47:07 Q. And did they -- did they come in

47:08 a little baggy as part of the Rapid Fielding

47:09 Initiative or some kind of packaging or just

47:10 stand-alone?

47:11 A. Just two earplugs.

47:12 Q. Okay. And were there -- Were

47:13 there other service members with you at the

47:14 time you were provided your earplugs?

47:15 A. Yes.

47:16 Q. Okay. What other service members

47:17 were with you in 2008 when you were provided

47:18 Combat Arms earplugs as part of the Rapid

47:19 Fielding Initiative, approximately how many?

47:20 A. Oh, five.

48:01 - 48:05 Battler, Leanne (2020-09-10) 0:15

48:01 Q. Okay. And did you have concern Re: [48:01 to 48:05] Re: [48:01 to 48:05] Re: [48:01 to 48:05] SUSTAINED

48:02 that as part of the Rapid Fielding Initiative, Pltf Obj 611 leading, SUSTAINED 402; 403 Pltf Obj 611 leading,

48:03 other service members would be getting the compound, speculation, compound, speculation,

48:04 earplugs without fitting instructions? asked/answered; 402/403; 406; asked/answered; 402/403; 406;

48:05 A. Yes. conjecture conjecture

48:08 - 49:14 Battler, Leanne (2020-09-10) 2:47

48:08 Q. And based on your personal Re: [48:08 to 49:14] Re: [48:08 to 49:14] Re: [48:08 to 49:14] SUSTAINED

48:09 experience, why did you have that concern for Pltf Obj 611 leading and calls SUSTAINED 402; 403; Pltf Obj 611 leading and calls

48:10 other service members as part of the Rapid for speculation; 402/403; 802; 611; 802 for speculation; 402/403; 802;

48:11 Fielding Initiative? 404/406, 701; conjecture 404/406, 701; conjecture

48:12 A. Because -- Because there's no

48:13 such thing as one size fits all, and because

48:14 there was -- they had no idea -- my assumption

48:15 was that they had no idea which end was which.

48:16 Q. And so -- And so based on your --

48:17 your personal experience, was it your

48:18 understanding that as part of the Rapid

48:19 Fielding Initiative, service members like

48:20 yourself were receiving the Combat Arms Version

48:21 2 without instruction and fitting?

48:22 A. Yes, that's correct.

48:23 Q. And was the basis of that

48:24 understanding?

48:25 A. The basis is that there was no

49:01 instruction given.

49:02 Q. And did you have any discussions

49:03 with others in the audiologist community, or

49:04 other service members, about the fact that

49:05 earplugs were being given out as part of the

49:06 Rapid Fielding Initiative without instruction

49:07 and fitting?

49:08 A. Yes.

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49:09 Q. Tell the jury about the

49:10 discussions you had with other -- other service

49:11 members regarding the fact that in the Rapid

49:12 Fielding Initiative, Combat Arms earplugs were

49:13 being provided without proper instruction and

49:14 fitting.

49:16 - 49:21 Battler, Leanne (2020-09-10) 0:29

49:16 A. So I tried to coordinate with the Re: [49:16 to 49:21] Re: [49:16 to 49:21] Re: [49:16 to 49:21] SUSTAINED

49:17 Rapid Fielding Initiative leadership to allow Pltf Obj 402,802, vague SUSTAINED Pltf Obj 402,802, vague

49:18 us to access those -- those Combat Arms

49:19 earplugs and fit them concurrently with the

49:20 predeployment hearing test. And sometimes I

49:21 was successful, sometimes not. But . . .

50:08 - 50:25 Battler, Leanne (2020-09-10) 1:02

50:08 Q. Yes. So you said sometimes your Re: [50:08 to 50:25] Re: [50:08 to 50:25] Re: [50:08 to 50:25] SUSTAINED

50:09 efforts were not successful in terms of proper Pltf Obj 402/403, 611 vague, SUSTAINED Pltf Obj 402/403, 611 vague,

50:10 fitting and instructions for the Combat Arms as leading, speculation, 802, leading, speculation, 802,

50:11 part of the Rapid Fielding Initiative, not your 406, 701, 802 406, 701, 802

50:12 clinic, the Rapid Fielding Initiative, can you

50:13 describe that?

50:14 A. Sure. Right. We tried to get

50:15 them to relinquish their supply of Combat Arms

50:16 earplugs to our clinic, and sometimes

50:17 contractors were more than happy to say: Yep,

50:18 here you go, take them all. Others were like:

50:19 No, these are -- it's not -- We're not handing

50:20 them over, this is what we do. And . . .

50:21 Q. Okay. So you said contractors

50:22 would tell you they're not handing them over,

50:23 they wanted to provide the Combat Arms directly

50:24 to the troops without instruction or fitting;

50:25 correct?

51:03 - 51:04 Battler, Leanne (2020-09-10) 0:01

51:03 A. That is -- That was my Re: [51:03 to 51:04] Re: [51:03 to 51:04] Re: [51:03 to 51:04] SUSTAINED

51:04 experience, yes. Pltf Obj 402/403, conjecture, SUSTAINED Pltf Obj 402/403, conjecture,

vague 611, 802 vague 611, 802

52:01 - 52:12 Battler, Leanne (2020-09-10) 1:43

52:01 Q. Okay. The contractors you're Re: [52:01 to 52:12] Re: [52:01 to 52:12] Re: [52:01 to 52:12] SUSTAINED

52:02 referring to, these are supply contractors who Pltf Obj Speculation; 402/403; SUSTAINED Pltf Obj Speculation; 402/403;

52:03 are supplying Combat Arms, these are not the compound question; compound question;

52:04 manufacturers of the earplug; correct? asked/answered; 701/602; asked/answered; 701/602;

52:05 A. Correct. conjecture; 406 conjecture; 406

52:06 Q. Okay. So the contractors that

52:07 you are referring to, who are supplying the

52:08 Combat Arms earplugs as part of the Rapid

52:09 Fielding Initiative without proper instruction

52:10 and fitting, that is not 3M or Aearo; correct?

52:11 A. Not to my knowledge. They were

52:12 just regular civilian contractors.

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52:19 - 52:21 Battler, Leanne (2020-09-10) 0:10

52:19 Q. Okay. But they were people who Re: [52:19 to 52:21] Re: [52:19 to 52:21] Re: [52:19 to 52:21] SUSTAINED

52:20 would show up in trucks with Combat Arms Pltf Obj Vague, Leading, SUSTAINED Pltf Obj Vague, Leading,

52:21 earplugs and other earplugs; correct? 402/403 relevance, conjecture 402/403 relevance, conjecture

52:24 - 52:25 Battler, Leanne (2020-09-10) 0:08

52:24 A. They would have earplugs and all Re: [52:24 to 52:25] Re: [52:24 to 52:25] Re: [52:24 to 52:25] SUSTAINED

52:25 of the other Rapid Fielding Initiative items. Pltf Obj Nonresponsive SUSTAINED Pltf Obj Nonresponsive

answers; conjecture; 402/403; answers; conjecture; 402/403;

611 compound questions, vague, 611 compound questions, vague,

leading, asked/answered leading, asked/answered

53:01 - 54:09 Battler, Leanne (2020-09-10) 2:16

53:01 Q. Okay. So that's a helpful Re: [53:01 to 54:09] Re: [53:01 to 54:09] Re: [53:01 to 54:09] SUSTAINED

53:02 clarification. So these contractors who would Pltf Obj Nonresponsive SUSTAINED Pltf Obj Nonresponsive

53:03 -- who would show up and would provide the answers; conjecture; 402/403; answers; conjecture; 402/403;

53:04 Combat Arms earplugs without proper instruction 611 compound questions, vague, 611 compound questions, vague,

53:05 or fitting, they didn't just provide hearing leading, asked/answered; 802; leading, asked/answered; 802;

53:06 protection, they also would come up -- show up 406; 602/701 406; 602/701

53:07 in the truck with other Rapid Fielding

53:08 Initiative equipment; right?

53:09 A. Yes, that's correct.

53:10 Q. And could you describe what were

53:11 some of the other types of equipment?

53:12 A. Oh, we got our uniforms and boots

53:13 and socks and T-shirts and coats and our

53:14 multitool and knee pads, elbow pads, our body

53:15 armor, all of it.

53:16 Q. Okay. So referring back to

53:17 Exhibit 1, and back to page 70, at the bottom,

53:18 you said: During the initial deployment for

53:19 the Global War on Terror, the CAE and

53:20 conventional earplugs for soldiers were often

53:21 not available, not wanted, or not fitted

53:22 properly, which resulted in the dramatic

53:23 increase in STS in 2003. And on that, I want

53:24 to be very careful, and I want to limit you to

53:25 your personal experience and the scope of the

54:01 Touhy authorization.

54:02 So with respect to your personal

54:03 experience regarding CAEv2 usage and

54:04 application with the Army, which is what you're

54:05 authorized under the August 13, 2020, letter,

54:06 how did the CAE and conventional earplugs for

54:07 soldiers not being available or wanted or not

54:08 being fitted properly result in the dramatic

54:09 STS increase in 2003?

54:13 - 54:24 Battler, Leanne (2020-09-10) 2:58

54:13 A. So, again, I pulled these numbers Re: [54:13 to 54:24] Re: [54:13 to 54:24] Re: [54:13 to 54:24] SUSTAINED

54:14 historically from the DOEHRS data repository. Pltf Obj Speculation; SUSTAINED Pltf Obj Speculation;

54:15 I was obviously not in the Army in 2002. But Nonresponsive; 402/403; 802; Nonresponsive; 402/403; 802;

54:16 if the earplugs were not available and not 602/701 602/701

54:17 fitted, and there was a war, and the hearing

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54:18 loss increased, and that was not the case when

54:19 those hearing protection devices were fitted,

54:20 then, to me, that's a significant correlation.

54:21 Q. Thank you. Okay. If you look at

54:22 the next sentence. Can you read the next

54:23 sentence of your article to the jury, please,

54:24 beginning with: The elimination?

55:05 - 55:21 Battler, Leanne (2020-09-10) 1:54

55:05 A. The elimination of the Army Re: [55:05 to 55:21] Re: [55:05 to 55:21] Re: [55:05 to 55:21] SUSTAINED

55:06 audiologist's authorization from Fort Carson in Pltf Obj foundation; OVERRULED Pltf Obj foundation;

55:07 2002 resulted in the abandonment of key speculation; 602/701; 402/403; speculation; 602/701; 402/403;

55:08 concepts, such as hearing loss prevention 802 802

55:09 education and the emphasis on hearing

55:10 protection devices and their proper use.

55:11 Q. Okay. And, again, I want to be

55:12 careful to limit this to the scope of your

55:13 authorization. So based on your personal

55:14 knowledge regarding CAEv2 usage and

55:15 application, can you describe how the

55:16 elimination of the Army audiologist's

55:17 authorization from Fort Carson in 2002 resulted

55:18 in the abandonment of key concepts, such as

55:19 hearing loss prevention education and the

55:20 emphasis on hearing protection devices and

55:21 their proper use?

55:25 - 56:05 Battler, Leanne (2020-09-10) 1:35

55:25 A. When I was at Fort Carson, the Re: [55:25 to 56:05] Re: [55:25 to 56:05] Re: [55:25 to 56:05] SUSTAINED

56:01 civilian audiologist, who was there during Pltf Obj Foundation; 402/403; OVERRULED Pltf Obj Foundation; 402/403;

56:02 2002, when the authorization was eliminated, he 802; incomplete designation; 802; incomplete designation;

56:03 -- he was a retired Army audiologist, and did 602/701 602/701

56:04 his best, but was limited -- had very little

56:05 time outside of the clinic, because he was a

56:18 - 56:20 Battler, Leanne (2020-09-10) 0:10

56:18 Q. Okay. This will be marked as Re: [56:18 to 56:20] Re: [56:18 to 56:20] Re: [56:18 to 56:20] OVERRULED

56:19 Exhibit 3. Can you take a look at this Pltf Obj Foundation; 402/403; SUSTAINED Pltf Obj Foundation; 402/403;

56:20 document and tell us what it is? 802; 802;

57:01 - 57:11 Battler, Leanne (2020-09-10) 1:32

57:01 Q. Do you recognize it as Department

57:02 of Defense Instruction 6055.12 for the DoD

57:03 Hearing Conservation Program?

57:04 A. Yes.

57:05 Q. And the instruction contains a

57:06 number of requirements for the Hearing

57:07 Conservation Program at the DoD components;

57:08 right?

57:09 A. Yes.

57:10 Q. And if you look at 6.6.5 of this

57:11 instruction.

57:14 - 59:07 Battler, Leanne (2020-09-10) 3:52

Page 14 of 79

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57:14 Q. It says: Personnel shall be Re: [57:14 to 59:07] Re: [57:14 to 59:07] Re: [57:14 to 59:07] OVERRULED

57:15 allowed to choose personal hearing protection Pltf Obj 402/403; Speculation; OVERRULED Pltf Obj 402/403; Speculation;

57:16 from among those approved devices, available Conjecture; 602/701; vague; Conjecture; 602/701; vague;

57:17 through supply channels unless medically document speaks for itself; document speaks for itself;

57:18 contraindicated or inappropriate for particular

57:19 hazardous noise exposure; correct?

57:20 A. Yes.

57:21 Q. So Army service members were able

57:22 to choose what hearing protection device they

57:23 wear while in service, whether it be the Combat

57:24 Arms or some alternative to the Combat Arms;

57:25 correct?

58:01 A. Based on what we had.

58:02 Q. Correct. And sometimes you did

58:03 not have the Combat Arms available; correct?

58:04 A. That's correct.

58:05 Q. Sometimes the only hearing

58:06 protection devices that were available were

58:07 hearing protection devices other than the

58:08 Combat Arms; correct?

58:09 A. Yes. That's correct.

58:10 Q. If you look at 6.6.7, is it

58:11 correct that the regulations required the

58:12 preformed earplugs such as the Combat Arms

58:13 shall be fitted and issued only under the

58:14 supervision of personnel who have been

58:15 specifically trained to fit earplugs?

58:16 A. Yes.

58:17 Q. 6.6.9. What does 6.6.9 require?

58:18 A. So the idea is that when each

58:19 troop comes in for their annual hearing tests,

58:20 at that time we will also inspect their

58:21 existing hearing protection and fit them with

58:22 new hearing protection.

58:23 Q. Okay. So medically trained

58:24 personnel must examine the fit and condition of

58:25 preformed earplugs like the Combat Arms at

59:01 least annually; correct?

59:02 A. Yes.

59:03 Q. 6.6.10: Personnel shall require

59:04 -- receive adequate and effective training in

59:05 the proper care and use of personal hearing

59:06 protectors; correct?

59:07 A. Yes.

59:16 - 63:11 Battler, Leanne (2020-09-10) 6:07

59:16 Q. Can you explain what enclosure 6 Re: [59:16 to 63:11] Re: [59:16 to 63:11] Re: [59:16 to 63:11] OVERRULED

59:17 of the DoD Instruction 6055.12 is? Pltf Obj 402/403; 602/701/702; OVERRULED Pltf Obj 402/403; 602/701/702;

59:18 A. So these are the instructions how conjecture; 611 vague, conjecture; 611 vague,

59:19 to properly fit and insert and check for leading, speculation leading, speculation

59:20 adequate seal your hearing protection.

59:21 Q. Okay. And you've seen these

59:22 instructions before?

59:23 A. Yes.

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59:24 Q. Okay. Could you read instruction

59:25 number 3, in the general information?

60:01 A. Number three: Plugs tend to work

60:02 loose as a result of talking and chewing and

60:03 must be reseated.

60:04 Q. Okay. And you understood that to

60:05 be true based on your experience with the

60:06 Combat Arms and other preformed earplugs, that

60:07 plugs tend to work loose as a result of talking

60:08 and chewing and must be reseated?

60:09 A. Yes.

60:10 Q. Okay. And based on your

60:11 experience, was that equally true of the

60:12 various preformed earplugs or did that tend to

60:13 happen more with some preformed earplugs than

60:14 others?

60:15 A. That was true for all earplugs.

60:16 Q. Okay. So for all earplugs,

60:17 whether it be the CAEv2 or something else,

60:18 plugs tend to work loose as a result of talking

60:19 and chewing; correct?

60:20 A. Yes.

60:21 Q. And is that -- Is that something

60:22 that, based on your personal experience, was

60:23 known within the audiological community?

60:24 A. Yes.

60:25 Q. And when -- When an earplug works

61:01 itself loose as a result of talking or chewing,

61:02 could -- is that something that when you were

61:03 wearing earplugs, that you could tell based on

61:04 auditory clues from the ambient noise?

61:05 A. Yes.

61:06 Q. So -- So I used -- I used words

61:07 like auditory clues and ambient noise, but can

61:08 you describe in simple terms for the jury how

61:09 you could tell, when you were wearing Combat

61:10 Arms and other preformed earplugs, if the

61:11 earplugs had loosened.

61:12 A. Basically, with any jaw movement,

61:13 you would hear the ambient -- you would hear

61:14 the outside cutting in and out as -- as the

61:15 earplug would shift.

61:16 Q. Okay. And it's important for an

61:17 earplug to maintain its seal; correct?

61:18 A. Yes.

61:19 Q. And why is that important?

61:20 A. Because sound -- Sound can travel

61:21 through the tiniest little opening, and, in

61:22 fact, the external ear is designed to funnel

61:23 those sounds and direct them into the ear

61:24 canal.

61:25 Q. Okay. And then you were

62:01 describing earlier, if an earplug did not

62:02 maintain its seal, that's something that you

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62:03 could tell when you were wearing them; correct?

62:04 A. Yes.

62:05 Q. And if you were wearing an

62:06 earplug and it did not maintain its seal, and

62:07 you received an auditory clue, what would you

62:08 do then?

62:09 A. Same as the direction here,

62:10 opposite hand, pull the ear up and back, twist

62:11 and push, wait -- feel for that final flange

62:12 flush with the opening in the ear canal, do a

62:13 tug test.

62:14 Q. So an earplug losing its seal, in

62:15 your experience, that's not something that's

62:16 out of the ordinary; correct?

62:17 A. Correct.

62:18 Q. Okay. And let me ask you, with

62:19 respect to the Combat Arms Version 2, did you

62:20 ever roll back the flanges for service members

62:21 when you were fitting that earplug?

62:22 A. No.

62:23 Q. Okay. So in those instances, you

62:24 did not need to roll back the flanges to obtain

62:25 an appropriate fit; correct?

63:01 A. If I was not able to attain an

63:02 appropriate fit without -- Well, I never tried

63:03 rolling back. If I did not obtain an adequate

63:04 fit with the earplug as -- as it was, then I

63:05 didn't recommend -- I would recommend an

63:06 alternate hearing protection device.

63:07 Q. Okay. So if you -- If you were

63:08 unable to fit the soldier, then you would

63:09 recommend to the soldier that a different

63:10 hearing device be used; correct?

63:11 A. Correct.

63:12 - 63:25 Battler, Leanne (2020-09-10) 1:56

63:12 Q. In the instances where you

63:13 successfully fit service members with Combat

63:14 Arms earplugs, did you ever see the Combat Arms

63:15 earplugs lose their seal in the soldier's ear

63:16 after you had fit them?

63:17 A. Inside the clinic or downrange?

63:18 Q. Inside the clinic.

63:19 A. No.

63:20 Q. In the instances where you fit

63:21 service members with Combat Arms earplugs, did

63:22 you ever witness those earplugs losing their

63:23 seal at any time?

63:24 A. I mean, I would only see them for

63:25 a few minutes after we achieved the seal.

64:09 - 65:08 Battler, Leanne (2020-09-10) 2:32

64:09 Q. Did any service member ever Re: [64:09 to 65:08] Re: [64:09 to 65:08] Re: [64:09 to 65:08] SUSTAINED

64:10 complain to you about Combat Arms earplugs? Pltf Obj 802 and HS w/in HS; SUSTAINED Pltf Obj 802 and HS w/in HS;

Page 17 of 79

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64:11 A. I heard things like they were 402/403; vague; 701/702 402/403; vague; 701/702

64:12 kind of -- the plastic was hard, they would improper opinion testimony; improper opinion testimony;

64:13 have preferred a softer silicone, and that they speculation 602/611 speculation 602/611

64:14 didn't like how far out they stuck. But those

64:15 were the -- Those were the two main -- And when

64:16 they would drop into the dirt, then they

64:17 wouldn't be able to find it.

64:18 Q. Okay. Those things relating to

64:19 the comfort and how far out they stuck and

64:20 dropping into the dirt, based on your

64:21 experience, did they ever impede the

64:22 performance of the Combat Arms earplug in terms

64:23 of keeping out sound?

64:24 A. No.

64:25 Q. Any complaints from ever -- any

65:01 service member ever about that the Combat Arms

65:02 earplug was not effective in terms of keeping

65:03 out sound?

65:04 A. No.

65:05 Q. And approximately how many

65:06 service members did you fit with the Combat

65:07 Arms earplug?

65:08 A. Thousands.

65:12 - 65:22 Battler, Leanne (2020-09-10) 1:45

65:12 Q. Let's mark as the next exhibit Re: [65:12 to 65:22] Re: [65:12 to 65:22] Re: [65:12 to 65:22] OVERRULED

65:13 Tab 22. We'll mark this as Exhibit Number 4. Pltf Obj 402/403; OVERRULED Pltf Obj 402/403;

65:14 Can you identify this document,

65:15 Lieutenant Colonel Battler?

65:16 A. Yes. This is the DA PAM 40-501.

65:17 Q. What is the DA PAM 40-501?

65:18 A. This was the precursor to the

65:19 Army Hearing Program. The Army Hearing -- This

65:20 was the old Army Hearing Conservation Program

65:21 based on the OSHA model for noise-exposed

65:22 civilian personnel.

66:02 - 66:14 Battler, Leanne (2020-09-10) 1:41

66:02 Q. So this document -- The Re: [66:02 to 66:14] Re: [66:02 to 66:14] Re: [66:02 to 66:14] OVERRULED

66:03 regulation we were looking at earlier, Exhibit Pltf Obj Objections are DEFER RULING Pltf Obj Objections are

66:04 3, pertained to the Armed Forces. And this related to 66:8-14; related to 66:8-14,

66:05 document, the DA PAM pertains to the Army Foundation; mischaracterizes Foundation; mischaracterizes

66:06 specifically, right, Lieutenant Colonel? evidence; conjecture; 402/403; evidence; conjecture; 402/403;

66:07 A. Yes. 701/702 701/702

66:08 Q. And if you look at section 6.3,

66:09 characteristics, for the Combat Arms and other

66:10 preformed earplugs, medically trained personnel

66:11 were required to fit and examine the earplugs

66:12 at least annually to ensure proper fit and

66:13 condition; correct?

66:14 A. Yes.

67:03 - 69:03 Battler, Leanne (2020-09-10) 2:06

67:03 Q. And I would focus you on your use Re: [67:03 to 69:03] Re: [67:03 to 69:03] Re: [67:03 to 69:03] SUSTAINED as to 67:03-05 up to 

Page 18 of 79

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67:04 and your personal experience with respect to Pltf Obj Agree to: 67:24-68:3; SUSTAINED as to Pltf Obj Agree to: 67:24-68:3

67:05 Combat Arms earplugs. Those are triple-flange Disagree as to remainder on [68:2569:03], OVERRULED in all Disagree as to remainder on

67:06 earplugs; correct? the follwing other, respects the follwing grounds:

67:07 A. So the triple-flange are what we grounds:Conjecture; 402/403; Conjecture; 402/403; 611

67:08 had mostly available, through the NSN 611 leading, asked/answered, leading, asked/answered,

67:09 purchasing. vague; speculation, compound vague; speculation, compound

67:10 Q. When you say the triple-flange questions; 602/701/702 questions; 602/701/702

67:11 are what you had mostly available, you're improper opinion tesitmony; improper opinion tesitmony;

67:12 referring to something other than the Combat 802; 802;

67:13 Arms; correct?

67:14 A. Yes.

67:15 Q. Okay. So what you had mostly

67:16 available for service members was a

67:17 triple-flange earplug other than the Combat

67:18 Arms?

67:19 A. Yes.

67:20 Q. And that's the first thing that

67:21 you tried to fit the service members with;

67:22 correct?

67:23 A. Yes.

67:24 Q. And approximately when did the

67:25 Combat Arms first become available in your

68:01 clinic?

68:02 A. Probably 2004. Yes, at Fort

68:03 Hood. 2004.

68:04 Q. So you first tried to fit the

68:05 service members with a triple-flange earplug

68:06 other than the Combat Arms; correct?

68:07 A. Yes.

68:08 Q. And sometimes the Combat Arms

68:09 were available and sometimes they were not;

68:10 correct?

68:11 A. Yes.

68:12 Q. And if they were available, you

68:13 would try to fit the service member with the

68:14 Combat Arms; correct?

68:15 A. In addition to the linear

68:16 triple-flange, yes.

68:17 Q. And sometimes the Combat Arms

68:18 would fit and sometimes the Combat Arms would

68:19 not fit; correct?

68:20 A. Yes.

68:21 Q. And the Combat Arms were not a

68:22 one-size-fits-all earplug, they fit some people

68:23 and not others; correct?

68:24 A. Yes.

68:25 Q. And it was known in the

69:01 audiological community that Combat Arms did not

69:02 fit some percentage of service members;

69:03 correct?

69:07 - 69:08 Battler, Leanne (2020-09-10) 0:04

69:07 Q. Based on your personal experience Re: [69:07 to 69:08] Re: [69:07 to 69:08] Re: [69:07 to 69:08] SUSTAINED

69:08 and communications with them. Pltf Obj 802, speculation, SUSTAINED Pltf Obj 802, speculation,

"earplugs" and 68:25-69:03. 

Otherwise OVERRULED

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402/403 402/403

69:10 - 69:18 Battler, Leanne (2020-09-10) 1:37

69:10 A. Our -- Our training -- Our Re: [69:10 to 69:18] Re: [69:10 to 69:18] Re: [69:10 to 69:18] SUSTAINED

69:11 training -- Part of our training was that Pltf Obj Nonresponsive answer; SUSTAINED Pltf Obj Nonresponsive answer;

69:12 there's no such thing as one size fits all. 402/403; speculation; 611 402/403; speculation; 611

69:13 Q. With respect to -- With respect leading, vague questions; leading, vague questions;

69:14 to preformed earplugs; correct? 701/702 701/702

69:15 A. With all earplugs.

69:16 Q. And so that would also be true of

69:17 the Combat Arms; correct?

69:18 A. Yes.

71:10 - 71:21 Battler, Leanne (2020-09-10) 1:40

71:10 Q. Okay. So with respect to the Re: [71:10 to 71:21] Re: [71:10 to 71:21] Re: [71:10 to 71:21] SUSTAINED

71:11 Combat Arms Version 2, though, in giving Pltf Obj Agree to SUSTAINED Pltf Obj Agree to 71:10-16;

71:12 instruction to service members, you did not 71:10-16;DISAGREE to 71:17-21 DISAGREE to 71:17-21 -

71:13 provide anything to them in writing; correct? - speculation; conjecture; speculation; conjecture;

71:14 A. Oh. We had to -- CHPPM made the 701/702; 402/403; 406 701/702; 402/403; 406

71:15 card, the little wallet card, with the

71:16 instruction.

71:17 Q. Okay. So what the -- What the

71:18 service members received in writing regarding

71:19 the Combat Arms earplug was the CHPPM wallet

71:20 card; correct?

71:21 A. When we had them available, yes.

71:24 - 72:06 Battler, Leanne (2020-09-10) 1:33

71:24 And did the service members,

71:25 based on your recollection, receive anything

72:01 other than the wallet card created by CHPPM

72:02 when you interacted with them in connection

72:03 with the Combat Arms?

72:04 A. Well, there was our verbal

72:05 instruction, and then when we did the hearing

72:06 health education, we had PowerPoint slides.

72:11 - 72:17 Battler, Leanne (2020-09-10) 0:23

72:11 Q. Okay. So the -- Based on your Re: [72:11 to 72:17] Re: [72:11 to 72:17] Re: [72:11 to 72:17] SUSTAINED

72:12 experience, the written materials that service Pltf Obj Asked and Answered; SUSTAINED Pltf Obj Asked and Answered;

72:13 members would have received relating to the Speculation; 611 leading, Speculation; 611

72:14 Combat Arms would have been the CHPPM wallet compound, asked and answered; leading/compound/asked&answered;

72:15 card or a PowerPoint that the audiologist would conjecture; conjecture;

72:16 have created; correct?

72:17 A. Yes.

73:05 - 73:16 Battler, Leanne (2020-09-10) 1:59

73:05 Q. So did you ever ask the -- any Re: [73:05 to 73:16] Re: [73:05 to 73:16] Re: [73:05 to 73:16] OVERRULED

73:06 representatives of the manufacturer of the Pltf Obj 802; 402/403; 611 OVERRULED Pltf Obj 802; 402/403; 611

73:07 Combat Arms, either Aearo or 3M, to give leading, speculation, 701/702 leading, speculation, 701/702

73:08 presentations to service members relating to

73:09 the Combat Arms?

73:10 A. I -- I did not, no.

73:11 Q. And based on -- Based on your

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73:12 personal experience, you would not have

73:13 expected the manufacturer of the Combat Arms or

73:14 its representatives to come onto bases to give

73:15 presentations to service members; correct?

73:16 A. No. That's correct.

74:04 - 74:17 Battler, Leanne (2020-09-10) 1:37

74:04 Q. Let me simplify it. In your Re: [74:04 to 74:17] Re: [74:04 to 74:17] Re: [74:04 to 74:17] SUSTAINED

74:05 personal experience, the people who gave Pltf Obj Agree to 74:4-12; SUSTAINED Pltf Obj Agree to 74:4-12;

74:06 instructions to service members relating to the DISAGREE to 74:13-17 - DISAGREE to 74:13-17 -

74:07 use and fitting of Combat Arms were vague/confusing, speculation, vague/confusing, speculation,

74:08 audiologists and medically trained personnel; compound, 402/403, 602/701 compound, 402/403, 602/701

74:09 correct?

74:10 A. Yes.

74:11 Q. At Fort Carson; correct?

74:12 A. Correct.

74:13 Q. Okay. And we already talked

74:14 about as part of the Rapid Fielding Initiative,

74:15 which is separate from Fort Carson and not

74:16 under you, service members did not always

74:17 receive that fitting and instruction; correct?

74:21 - 75:08 Battler, Leanne (2020-09-10) 1:49

74:21 Q. Based on your personal Re: [74:21 to 75:08] Re: [74:21 to 75:08] Re: [74:21 to 75:08] SUSTAINED

74:22 experience. Pltf Obj Mischaracterizes SUSTAINED Pltf Obj Mischaracterizes

74:23 A. Based on my personal experience, evidence; 611 leading, evidence; 611 leading,

74:24 that is correct. compound, asked/answered, 802; compound, asked/answered, 802;

74:25 Q. The regulations that we looked at 402/403 402/403

75:01 earlier, they -- they did not talk about the

75:02 manufacturers' representatives coming on to

75:03 bases to give instruction with respect to the

75:04 use and fitting of Combat Arms; correct?

75:05 A. That's correct.

75:06 Q. They talk about audiologists and

75:07 medically trained personnel doing this; fair?

75:08 A. Yes.

75:12 - 78:09 Battler, Leanne (2020-09-10) 6:34

75:12 Q. Okay. Let's mark as the next Re: [75:12 to 78:09] Re: [75:12 to 78:09] Re: [75:12 to 78:09] SUSTAINED

75:13 exhibit Tab 11. And we'll call this Exhibit 5. Pltf Obj Improper bolstering, SUSTAINED Pltf Obj Improper bolstering,

75:14 And I want you to focus on the foundation, 402/403; 802; foundation, 402/403; 802;

75:15 portion of the email that's the July 8, 2004, speculation; leading, vague; speculation; leading, vague;

75:16 transmission at 9:26 and below, all the way 602/701 602/701

75:17 down to the bottom.

75:18 Can you tell the jury what this

75:19 document is?

75:20 A. This is an email that my

75:21 ex-husband sent to Doug Ohlin. He forwarded --

75:22 It was forwarded from a friend of my

75:23 ex-husband, who was a active duty infantry

75:24 officer in Iraq who used the Combat Arms

75:25 earplugs that I fitted him with prior to his

76:01 deployment.

76:02 Q. Okay. So let's -- Let's break

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76:03 that down. The report, beginning where it

76:04 starts with: Hey, Diggs, who is that -- who is

76:05 the individual that is coming from?

76:06 A. It was coming from Ron Millis,

76:07 who is a Lieutenant Colonel at 11th Bravo --

76:08 11th Alpha infantry officer.

76:09 Q. Okay. And what's your

76:10 understanding of where Ron Millis was at the

76:11 time he sent this email?

76:12 A. Ron was emailing from Iraq, to my

76:13 husband, Richard, who people called Diggs, who

76:14 was in Kuwait at the time. And he just said,

76:15 again, you know, where -- yeah, had an

76:16 opportunity --

76:17 Q. Let's break it down. So in

76:18 Exhibit Number 5, let's start -- Can you please

76:19 read to the jury the paragraph beginning with:

76:20 Well, the Millis luck.

76:21 A. Well, the Millis luck seems to be

76:22 holding.

76:23 So this is Ron -- Ron speaking,

76:24 with the 11 Alpha infantry officer ranger: So

76:25 my family luck seems to be holding. I arrived

77:01 here the day before the -- the storm; and then

77:02 he defines the storm by saying, we've had the

77:03 most killed in action since Vietnam. We are

77:04 especially lucky -- and he's being sarcastic --

77:05 especially lucky that here in Camp Taji was the

77:06 Arty rocket mortar training base for Saddam

77:07 Hussein, so all of the out-of-work locals are

77:08 pretty good at indirect fire.

77:09 Q. So did you understand that to

77:10 mean that things were pretty intense where he

77:11 was?

77:12 A. Yes.

77:13 Q. Could you now read the next

77:14 paragraph in the email from this service member

77:15 in Iraq?

77:16 A. Right. So then he said: Hey,

77:17 did Leanne, your wife, have anything to do with

77:18 Combat Arms earplugs, the yellow and green

77:19 ones? They work great in this environment. I

77:20 was able to test them out two different times.

77:21 They probably made the difference between

77:22 eardrum/hearing damage and not. They

77:23 definitely allow you to mentally recover very

77:24 quickly so you are able to deal with your

77:25 situation, versus standing around like a

78:01 stunned mullet for a while.

78:02 Q. And what did you take that

78:03 paragraph to mean?

78:04 A. I took that to mean that he had

78:05 been hit by at least one blast, and that the

78:06 Combat Arms earplug attenuated enough of the

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78:07 percussion wave that it didn't knock the wind

78:08 out of him to the level that he was -- had

78:09 experienced prior.

79:08 - 80:09 Battler, Leanne (2020-09-10) 2:52

79:08 Q. Okay. So you understood Mr. Re: [79:08 to 80:09] Re: [79:08 to 80:09] Re: [79:08 to 80:09] SUSTAINED

79:09 Millis to be indicating that the Combat Arms Pltf Obj Speculation; SUSTAINED Pltf Obj Speculation;

79:10 earplugs worked great in combat? nonresponsive answers; 802; nonresponsive answers; 802;

79:11 A. Yes. Dismounted -- He's an 611 vague, leading; 402/403; 611 vague, leading; 402/403;

79:12 infantry officer, dismounted operations. 602/701/702 602/701/702

79:13 Q. Okay. And he says that they

79:14 probably made the difference between

79:15 eardrum/hearing damage and not.

79:16 What did you understand that to

79:17 mean?

79:18 A. I understood that as him saying

79:19 he was -- he was in a fire-fight and exposed to

79:20 at least one blast, close range, and maintained

79:21 his hearing.

79:22 Q. While wearing the Combat Arms?

79:23 A. Yes.

79:24 Q. He also says in the next

79:25 sentence: They definitely allow you to

80:01 mentally recover very quickly so you are able

80:02 to deal with your situation versus standing

80:03 around like a stunned mullet for a while. What

80:04 did you understand that to mean?

80:05 A. My understanding was, again, that

80:06 was -- when you're hit -- a percussion wave, a

80:07 significant impulse noise, whether it's weapons

80:08 fire or blast exposure, affects your whole

80:09 body, not just your ears.

80:14 - 80:18 Battler, Leanne (2020-09-10) 0:15

80:14 Q. And reflecting on Mr. Millis' Re: [80:14 to 80:18] Re: [80:14 to 80:18] Re: [80:14 to 80:18] SUSTAINED

80:15 email, are you -- are you proud of your role Pltf Obj 402/403; 602/701/702 SUSTAINED Pltf Obj 402/403; 602/701/702

80:16 with respect to fitting the Combat Arms, in

80:17 terms of it -- the protection that it provided

80:18 to service members?

80:22 - 81:08 Battler, Leanne (2020-09-10) 1:03

80:22 A. I mean, Ron was at our wedding. Re: [80:22 to 81:08] Re: [80:22 to 81:08] Re: [80:22 to 81:08] SUSTAINED

80:23 I might have -- And that was the summer I was Pltf Obj Nonresponsive answer; SUSTAINED Pltf Obj Nonresponsive answer;

80:24 working at Aberdeen, I -- I'm pretty sure I 402/403; speculation; 611 402/403; speculation; 611

80:25 fitted him. I'm very proud of that. leading, vague questions; leading, vague questions;

81:01 Q. Okay. So you're proud of fitting 701/702; impromper bolstering 701/702; impromper bolstering

81:02 Mr. Millis with the Combat Arms and the

81:03 protection that it provided to him in combat?

81:04 A. Yes.

81:05 Q. And in doing that, you were

81:06 helping the United States Military with respect

81:07 to its mission in Iraq?

81:08 A. Yes. Very proud of that.

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81:19 - 82:19 Battler, Leanne (2020-09-10) 2:38

81:19 Q. Yes. Not just with respect to Re: [81:19 to 82:19] Re: [81:19 to 82:19] Re: [81:19 to 82:19] SUSTAINED

81:20 Mr. Millis, but with respect to the Combat Arms Pltf Obj 402/403; vague; SUSTAINED Pltf Obj 402/403; vague;

81:21 generally, and soldiers generally, are you mischaracterizes evidence; mischaracterizes evidence;

81:22 proud of the role that you played with respect 602/701/702 improper 602/701/702 improper

81:23 to fitting soldiers with Combat Arms? opinion/expert testimony; opinion/expert testimony;

81:24 A. And my response is yes, hundred speculation speculation

81:25 percent.

82:01 Q. And you say that, yes, a hundred

82:02 percent. Can you describe for the jury why

82:03 your answer is, yes, you're a hundred percent

82:04 proud of your role with respect to the Combat

82:05 Arms?

82:06 A. This was -- These were the first

82:07 nonlinear earplugs, they were cutting-edge

82:08 technology; for the first time, soldiers were

82:09 wanting -- wanting the hearing protection; they

82:10 had great things to say about it; and I was

82:11 part of history.

82:12 Q. And based on your personal

82:13 experience, and your -- and communications that

82:14 you had with soldiers, is it your -- as an

82:15 audiologist, is it your understanding that the

82:16 Combat Arms earplugs, which you helped to fit,

82:17 helped the military effort in Iraq and

82:18 Afghanistan?

82:19 A. Absolutely.

82:25 - 83:03 Battler, Leanne (2020-09-10) 0:27

82:25 A. I believe that the earplug, the

83:01 Combat Arms earplug, Version 2, helped improve

83:02 situational awareness, survivability, and

83:03 lethality.

83:09 - 83:11 Battler, Leanne (2020-09-10) 0:09

83:09 With respect to your personal Re: [83:09 to 83:11] Re: [83:09 to 83:11] Re: [83:09 to 83:11] SUSTAINED

83:10 experience, how did the Combat Arms earplug Pltf Obj Speculation; 402/403; SUSTAINED Pltf Obj Speculation; 402/403;

83:11 help soldiers with situational awareness? 611; 602/701/702 improper 611; 602/701/702 improper

opinion/expert testimony; opinion/expert testimony;

improper bolstering improper bolstering

83:22 - 84:08 Battler, Leanne (2020-09-10) 1:55

83:22 A. So, yes. Again, a regular Re: [83:22 to 84:08] Re: [83:22 to 84:08] Re: [83:22 to 84:08] SUSTAINED

83:23 triple-flange earplug, or foam earplug, which Pltf Obj Speculation; 802; SUSTAINED Pltf Obj Speculation; 802;

83:24 would overattenuate to the point that troops 402/403; 406; 602/701/702 402/403; 406; 602/701/702

83:25 felt they were not always able to hear sniper

84:01 fire or calls from their buddies. But that

84:02 was -- The overattenuation effect was

84:03 alleviated by the filter portion of the Combat

84:04 Arms earplug in dismounted operations.

84:05 Q. Based on -- Based on your

84:06 personal experience and your communications

84:07 with service members, how did the Combat Arms

84:08 earplug help with survivability?

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84:11 - 86:11 Battler, Leanne (2020-09-10) 3:11

84:11 A. Hearing is twenty-four hours, Re: [84:11 to 86:11] Re: [84:11 to 86:11] Re: [84:11 to 86:11] SUSTAINED

84:12 three-hundred-sixty degrees. So if you're Pltf Obj Conjecture; SUSTAINED Pltf Obj Conjecture;

84:13 asleep, and someone is coming up to get you, speculation; nonresponsive speculation; nonresponsive

84:14 you could hear them, even if you had the Combat answers; 402/403; 602/701/702 answers; 402/403; 602/701/702

84:15 Arms earplug in. improper opinion/expert improper opinion/expert

84:16 Q. And in your view, was that a opinions; 611 leading, vague, opinions; 611 leading, vague,

84:17 positive feature of the Combat Arms? compound questions; vast compound questions; vast

84:18 A. Hear the enemy, stay alive. generalizations; 802 generalizations; 802

84:19 Q. Let's talk about the third thing

84:20 that you said that the Combat Arms earplug

84:21 helped with, and that was with respect to

84:22 lethality. Did I get that right?

84:23 A. Yes.

84:24 Q. And based on your personal

84:25 experience and your communication with service

85:01 members, how did the Combat Arms earplug help

85:02 with respect to lethality?

85:03 A. It's really the same as

85:04 survivability.

85:05 Q. Okay. How so?

85:06 A. So you can hear -- you can hear

85:07 the enemy.

85:08 Q. And have you had communications

85:09 with others in the audiological community about

85:10 how the Combat Arms earplugs helped soldiers

85:11 with situational awareness, survivability, and

85:12 lethality?

85:13 A. Yes.

85:14 Q. Who else in the audiological

85:15 community have you talked to about how the

85:16 Combat Arms Version 2 helped soldiers with

85:17 situational awareness, survivability, and

85:18 lethality?

85:19 A. We all talk about it.

85:20 Q. Okay. And based on your

85:21 communications with others in the -- First of

85:22 all, when you're saying all, are you referring

85:23 to Army audiologists or all Armed Forces?

85:24 A. I've met a lot of -- I've met a

85:25 lot of audiologists in all of the services over

86:01 the last seventeen years. And as I say, I'm

86:02 very proud of the role I played, and I do

86:03 mention anecdotal encounters and reports that

86:04 I've heard from soldiers who I've seen in the

86:05 clinic.

86:06 Q. Okay. And there were soldiers

86:07 who you've seen in the clinic who reported a

86:08 positive experience with respect to the Combat

86:09 Arms?

86:10 A. Right. And downrange and in the

86:11 hazardous noise environments.

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86:21 - 88:01 Battler, Leanne (2020-09-10) 2:05

86:21 Q. You -- The -- You said you had Re: [86:21 to 88:01] Re: [86:21 to 88:01] Re: [86:21 to 88:01] SUSTAINED

86:22 talked to others within the audiological Pltf Obj 802; 402/403; 404; SUSTAINED Pltf Obj 802; 402/403; 404;

86:23 community about how the Combat Arms helped with Speculation; 611; vague; Speculation; 611; vague;

86:24 situational awareness, survivability, and 602/701/702; leading 602/701/702; leading

86:25 lethality for soldiers. Are there any in the

87:01 audiological community who shared your view

87:02 that the Combat Arms helped with those things,

87:03 based on your conversations?

87:04 A. I presented a lot of data at

87:05 military audiology meetings, and some people

87:06 did ask for copies of my slides at the end,

87:07 yes.

87:08 Q. Okay. And did you present data

87:09 showing how the Combat Arms had helped

87:10 soldiers?

87:11 A. Yes.

87:12 Q. Okay. And could you describe

87:13 that data?

87:14 A. So it was related to my

87:15 deployment, which was in support of fielding a

87:16 different hearing protector. And in my data

87:17 collection, I thought, well, if you're going to

87:18 ask how do you like this new hearing protector,

87:19 then the best way to describe how you like it

87:20 would be comparing it to a series of other

87:21 hearing protectors. So that's how I collected

87:22 data, and I included the Combat Arms earplug as

87:23 one of the alternate types of hearing

87:24 protection, to compare things like situational

87:25 awareness, comfort, radial clarity, that sort

88:01 of thing.

88:05 - 88:09 Battler, Leanne (2020-09-10) 0:15

88:05 Q. So in 2008, you put together a

88:06 slide presentation comparing the Combat Arms

88:07 earplug to other earplugs in a variety of

88:08 respects; correct?

88:09 A. Yes.

88:21 - 88:25 Battler, Leanne (2020-09-10) 0:21

88:21 Lieutenant Colonel Battler, can Re: [88:21 to 88:25] Re: [88:21 to 88:25] Re: [88:21 to 88:25] SUSTAINED

88:22 you describe how the Combat Arms fared Pltf Obj 611 Vague, Leading, SUSTAINED Pltf Obj 611 Vague, Leading,

88:23 compared to other earplugs in the analysis that 402/403, 701/702; 402/403, 701/702;

88:24 you did?

88:25 A. Pretty well.

90:02 - 90:12 Battler, Leanne (2020-09-10) 1:46

90:02 Q. Okay. Exhibit 6, is that a Re: [90:02 to 90:12] Re: [90:02 to 90:12] Re: [90:02 to 90:12] SUSTAINED

90:03 PowerPoint you prepared? Pltf Obj 802; 402/403 SUSTAINED Pltf Obj 802; 402/403

90:04 A. Yes.

90:05 Q. Can you describe the background

90:06 behind this PowerPoint?

90:07 A. Oh. This was a presentation that

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90:08 I made at the joint DoD and VA Audiology

90:09 Conference in 2009, basically summarizing the

90:10 results of my deployment to Iraq as an

90:11 individual augmentee with the 3rd Brigade

90:12 Combat Team, 4th Infantry Division.

90:18 - 92:04 Battler, Leanne (2020-09-10) 3:32

90:18 Q. Okay. And did your -- As part of Re: [90:18 to 92:04] Re: [90:18 to 92:04] Re: [90:18 to 92:04] SUSTAINED

90:19 your survey, did you ask for feedback on the Pltf Obj 802; 402/403; SUSTAINED Pltf Obj 802; 402/403;

90:20 Combat Arms and other hearing protection? speculation; 602/701/702; speculation; 602/701/702;

90:21 A. Yes. conjecture; nonresponsive conjecture; nonresponsive

90:22 Q. How did -- How did the Combat answers answers

90:23 Arms fare relatively to other hearing

90:24 protection in your survey?

90:25 A. Right. So as part of my mission,

91:01 so historically, the 4th Infantry Division was

91:02 known as the digital division, so they tested

91:03 and fielded all digital equipment before

91:04 anybody else.

91:05 So they were gifted these nine

91:06 hundred seventy-five single channel and five

91:07 hundred seventy-five dual channel, high-level

91:08 electronic hearing protection systems. They

91:09 didn't receive them until they were actually in

91:10 theater.

91:11 So my mission was to collect

91:12 quality assurance data to see how they worked,

91:13 how soldiers liked them. So I thought, well, I

91:14 guess the best way to comment on one thing is

91:15 to compare it to another thing. And so I asked

91:16 -- I fitted all of these combat hearing aids

91:17 and then went back and took survey results, and

91:18 also measured their postdeployment audiogram

91:19 and compared it to their predeployment

91:20 audiogram to see if this group using this

91:21 high-level electronic TCAPS, tactical

91:22 communication and hearing protection system, if

91:23 they fared better than groups using different

91:24 hearing protectors.

91:25 So basically, I asked them how

92:01 they felt they worked in dismounted operations

92:02 versus mounted operations, radio communication,

92:03 situational awareness, comfort, a variety. So

92:04 I can -- I can review these slides --

92:08 - 92:24 Battler, Leanne (2020-09-10) 1:09

92:08 Q. Well, let's do -- Let's do a Re: [92:08 to 92:24] Re: [92:08 to 92:24] Re: [92:08 to 92:24] SUSTAINED

92:09 summary. First of all, what you're looking at Pltf Obj 402/403; speculation; SUSTAINED Pltf Obj 402/403; speculation;

92:10 is TCAPS. Can you describe for the jury what 602/701/702 602/701/702

92:11 TCAPS is?

92:12 A. So TCAPS is the generic name to

92:13 encompass all electronic hearing systems, like

92:14 Kleenex is a brand of facial tissue, so, you

92:15 know, the QuietPro is a brand of TCAPS, same as

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92:16 the Altor; anything electronic, anything that

92:17 has an active attenuation or amplification or

92:18 active noise reduction, or some combination of

92:19 those, designed to not only protect your

92:20 hearing but actually enhance your hearing

92:21 ability on the battlefield.

92:22 Q. And what is the price range of

92:23 TCAPS, like QuietPro, relative to the price of

92:24 Combat Arms Version 2 in your experience?

93:07 - 93:25 Battler, Leanne (2020-09-10) 1:56

93:07 A. At the time, this particular Re: [93:07 to 93:25] Re: [93:07 to 93:25] Re: [93:07 to 93:25] SUSTAINED

93:08 system that I was evaluating, they were about a Pltf Obj Agree to 93:16-19; DEFER RULING Pltf Obj Agree to 93:16-19;

93:09 thousand dollars apiece. Disagree to the rest; 402/403; Disagree to the rest 402/403;

93:10 Q. Okay. So the QuietPro you were 701/702 701/702

93:11 evaluating was about a thousand dollars apiece;

93:12 correct?

93:13 A. Yes. The dual channel was

93:14 slightly more expensive than the single-channel

93:15 units.

93:16 Q. Okay. And the approximate price

93:17 of the Combat Arms Version 2?

93:18 A. At the time, I think it was about

93:19 seven dollars.

93:20 Q. Okay. And you evaluated the

93:21 QuietPro, which was about a thousand dollars,

93:22 and the Combat Arms Version 2, which was

93:23 approximately seven dollars. And how did the

93:24 Combat Arms Version 2 perform for soldiers,

93:25 relative to the QuietPro?

94:04 - 94:23 Battler, Leanne (2020-09-10) 2:14

94:04 A. So I think right off the bat, one Re: [94:04 to 94:23] Re: [94:04 to 94:23] Re: [94:04 to 94:23] SUSTAINED

94:05 of the first questions in the survey was what Pltf Obj 402/403; 802; SUSTAINED Pltf Obj 402/403; 802;

94:06 kind of hearing protection did you use before, 602/701/702; speculation; 602/701/702; speculation;

94:07 so what are you comparing the QuietPro to? And conjecture; 611 leading and conjecture; 611 leading and

94:08 25 percent of the 79 respondents had used the compound compound

94:09 -- compared it to the Combat Arms earplug.

94:10 In terms of dismounted

94:11 operations, 35 percent of that group felt they

94:12 were equal. Mounted operations, speech clarity

94:13 they felt was equal. Fatigue, seventy -- about

94:14 70 percent felt that they were the same. In

94:15 terms of generator -- around generator noise,

94:16 43 percent felt they were the same.

94:17 Situational awareness, 37 percent felt it was

94:18 the same. And that was -- so I mean, not bad.

94:19 Q. So your overall take-away, is it

94:20 fair to say, that the seven-dollar Combat Arms,

94:21 based on your personal experience, surveys of

94:22 soldiers, performed approximately the same as

94:23 the one thousand dollar QuietPro?

95:02 - 95:18 Battler, Leanne (2020-09-10) 2:35

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95:02 A. For a good portion of them. Not Re: [95:02 to 95:18] Re: [95:02 to 95:18] Re: [95:02 to 95:18] SUSTAINED

95:03 a majority, but a good portion, yes. Pltf Obj 402/403; 602/701/702; SUSTAINED Pltf Obj 402/403; 602/701/702;

95:04 Q. Okay. What was your personal speculation; conjecture; 611 speculation; conjecture; 611

95:05 take-away from your study on use of the leading and compound leading and compound

95:06 QuietPro versus use of the Combat Arms?

95:07 A. The QuietPro was kind of like a

95:08 smartphone, you had -- you had to have a lot of

95:09 practice with it before you could be

95:10 proficient. The Combat Arms earplug was much

95:11 more simple.

95:12 Q. And based on -- Based on your

95:13 experience, would you recommend to soldiers the

95:14 Combat Arms versus the QuietPro?

95:15 A. At the level -- At the level of

95:16 development that both products were at in 2008,

95:17 yes, I'd recommend the Combat Arms over the

95:18 QuietPro.

96:07 - 96:23 Battler, Leanne (2020-09-10) 1:21

96:07 Q. Okay. You said that at the level Re: [96:07 to 96:23] Re: [96:07 to 96:23] Re: [96:07 to 96:23] SUSTAINED

96:08 of deployment that both products were at in Pltf Obj Vague/confusing; SUSTAINED Pltf Obj Vague/confusing;

96:09 2008, you'd recommend to soldiers the Combat 402/403; 802; 602/701/702 402/403; 802; 602/701/702

96:10 Arms Version 2 over the QuietPro. Why is that?

96:11 A. Because it was more portable, it

96:12 was easier to operate, the price point was a

96:13 factor as well. Soldiers were afraid -- If a

96:14 piece of -- If a high-value piece of equipment

96:15 is lost, then oftentimes soldiers are

96:16 responsible to replace it. And I know of

96:17 several soldiers who said they would rather

96:18 lose hearing than risk losing a high --

96:19 high-value piece of equipment.

96:20 So they'd rather use a

96:21 seven-dollar piece, that if they have to buy it

96:22 or have it repaired, then seven dollars is more

96:23 affordable.

97:11 - 98:09 Battler, Leanne (2020-09-10) 2:32

97:11 Q. Okay. You fit -- You fit Re: [97:11 to 98:09] Re: [97:11 to 98:09] Re: [97:11 to 98:09] SUSTAINED

97:12 thousands of soldiers with Combat Arms; Pltf Obj 802; 404; 403 OVERRULED as to Pltf Obj 802; 404; 403

97:13 correct? [97:1197:18], SUSTAINED

97:14 A. Yes. (hearsay) as to, [97:1998:09]

97:15 Q. And did any of them come back to

97:16 you and complain that the Combat Arms did not

97:17 adequately protect their hearing?

97:18 A. Not one.

97:19 Q. Did any of them come back to you

97:20 and complain that they experienced tinnitus

97:21 after using the Combat Arms?

97:22 A. (Witness shakes head.)

97:23 Q. Is that a no?

97:24 A. No. I'm just -- I'm thinking.

97:25 Some soldiers would exaggerate or

98:01 feign hearing loss or tinnitus or both on their

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98:02 postdeployment hearing test. But I don't

98:03 recall anyone saying it was a direct result of

98:04 using X, Y, or Z hearing protection.

98:05 Q. Okay. You said some soldiers

98:06 would exaggerate or feign hearing loss or

98:07 tinnitus on their postdeployment hearing test,

98:08 is that based on your personal experience and

98:09 observation of those soldiers?

98:13 - 98:22 Battler, Leanne (2020-09-10) 1:43

98:13 A. That is -- That is my experience, Re: [98:13 to 98:22] Re: [98:13 to 98:22] Re: [98:13 to 98:22] SUSTAINED

98:14 yes. Pltf Obj 611 leading, SUSTAINED Pltf Obj 611 leading,

98:15 Q. And how were you able to asked/answered; 402/403; asked/answered; 402/403;

98:16 determine that? 602/701/702 602/701/702

98:17 A. We have -- Some of our tests

98:18 require no response from the patient. It's not

98:19 a matter of them pressing the button, their

98:20 brain will tell us how their hearing is.

98:21 Q. Okay. Can we go back to Tab 11,

98:22 which is Exhibit 5?

98:24 - 99:14 Battler, Leanne (2020-09-10) 1:03

98:24 Q. All right. Do you see the note Re: [98:24 to 99:14] Re: [98:24 to 99:14] Re: [98:24 to 99:14] OVERRULED

98:25 at the top it says: This note from Doug Ohlin Pltf Obj 802; 701/702; OVERRULED Pltf Obj 802; 701/702;

99:01 re: Combat Arms in Iraq, we are helping. And improper bolstering; 404; improper bolstering; 404;

99:02 that's from Elliott Berger. 402/403 402/403

99:03 Do you see that?

99:04 A. Yes.

99:05 Q. Have you met Elliott Berger?

99:06 A. Yes.

99:07 Q. And is it -- Is it your view that

99:08 he is competent in the field of hearing

99:09 protection, based on your interaction with him?

99:10 A. Yes.

99:11 Q. And do you agree that the Combat

99:12 Arms was helping in Iraq, based on your

99:13 personal experience?

99:14 A. Yes, I do.

99:18 - 100:01 Battler, Leanne (2020-09-10) 1:45

99:18 Q. Let's go to Tab 6, and mark it as Re: [99:18 to 100:01] Re: [99:18 to 100:01] Re: [99:18 to 100:01] OVERRULED

99:19 the next exhibit, which is Exhibit Number 8. Pltf Obj Agree to 99:23-100:1; OVERRULED Pltf Obj Agree to 99:23-100:1

99:20 This exhibit is an email from Kathy Gates to Disagree to entry of Exhibit 8 Disagree to entry of Exhibit 8

99:21 Theresa Schultz and others, dated December 10, - foundation; 802; 602; - foundation; 802; 602;

99:22 2007. 402/403 402/403

99:23 Who is Kathy Gates?

99:24 A. Retired Colonel Dr. Kathy Gates

99:25 was our audiology consultant to the Surgeon

100:01 General.

100:06 - 100:09 Battler, Leanne (2020-09-10) 0:18

100:06 Q. Okay. So do you -- Do you recall

100:07 the date of when you deployed to Iraq for CAE

100:08 fitting?

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100:09 A. It was in March 2008.

101:06 - 103:02 Battler, Leanne (2020-09-10) 3:52

101:06 Q. So it says: Leanne Cleveland, Re: [101:06 to 103:02] Re: [101:06 to 103:02] Re: [101:06 to 103:02] OVERRULED

101:07 audiologist at Fort Carson, serves as the Pltf Obj AGREE to 102:2-12; OVERRULED Pltf Obj AGREE to 102:2-12

101:08 hearing expert and will deploy with the DISAGREE with 101:6-20 and DISAGREE with 101:6-20 and

101:09 division to continue to support this testimony based on Ex. 8 - testimony based on Ex. 8 -

101:10 initiative. Soldiers were provided 802; 611; foundation; DISAGREE 802; 611; foundation; DISAGREE

101:11 predeployment hearing service, parentheses with 102:13 - 701/702; with 102:13 - 701/702;

101:12 DOEHRS, audiogram, CAE fitting, health 402/403; 611 leading; 402/403; 611 leading;

101:13 education, and QP training/fitting. vague/confusing vague/confusing

101:14 My question is: Does that

101:15 refresh your recollection that you were

101:16 deployed in or around December 2007 to provide

101:17 CAE fitting and other predeployment hearing

101:18 services?

101:19 A. There were -- The planned process

101:20 was in motion for me to deploy in March, yeah.

101:21 Q. Okay. Okay. So you deployed

101:22 with the division to support this initiative in

101:23 2008?

101:24 A. I deployed after the division had

101:25 already left. I was an individual augmentee,

102:01 added later on.

102:02 Q. Okay. And did you provide CAE

102:03 fitting as part of that deployment?

102:04 A. Through the SRP site, yes, with

102:05 their predeployment as discussed -- As before,

102:06 everybody was fitted with the linear earplugs,

102:07 triple-flange or quad-flange, and Combat Arms,

102:08 provided we had them.

102:09 Q. Okay. And SRP stands for?

102:10 A. Soldier Readiness Processing

102:11 Center, also sometimes just called Soldier

102:12 Readiness Center.

102:13 Q. Okay. And you did not have any

102:14 more difficulty fitting the Combat Arms, than

102:15 you did other earplugs; correct?

102:16 A. Difficulty, like?

102:17 Q. Well, let me ask you this way:

102:18 Comparing Combat Arms with other earplugs, in

102:19 your personal experience, you did not find that

102:20 the Combat Arms earplugs were more likely to

102:21 lose their seal than other earplugs; correct?

102:22 A. Not including electronic TCAPS,

102:23 correct.

102:24 Q. Okay. So I'm correct that Combat

102:25 Arms earplugs were not more likely to lose

103:01 their seal than other earplugs; yes?

103:02 A. In my experience, yes.

103:07 - 103:20 Battler, Leanne (2020-09-10) 1:54

103:07 Tab 3. This is Exhibit Number 9. Re: [103:07 to 103:20] Re: [103:07 to 103:20] Re: [103:07 to 103:20] SUSTAINED

103:08 Do you recognize this document? Pltf Obj 802; 403; Foundation; SUSTAINED Pltf Obj 802; 403; Foundation;

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103:09 A. Yes. Speculation 602; conjecture; Speculation 602; conjecture;

103:10 Q. And what is it? 701/701 701/701

103:11 A. This is a quote from the Ron

103:12 Millis email to my husband, which my husband

103:13 forwarded to Doug Ohlin. And Doug said: Oh,

103:14 this is awesome. Can we use this -- Do you

103:15 think he'd mind if we use this in the card?

103:16 Q. So the document, Exhibit 9, this

103:17 is the wallet card that was provided to

103:18 soldiers, by the Army, in connection with the

103:19 Combat Arms Version 2?

103:20 A. Yes.

104:04 - 104:21 Battler, Leanne (2020-09-10) 1:04

104:04 Q. Okay. So the person who decided Re: [104:04 to 104:21] Re: [104:04 to 104:21] Re: [104:04 to 104:21] SUSTAINED

104:05 to use the comment from Ron Millis on the card Pltf Obj 802; 403; 602; SUSTAINED (the Pltf Obj 802; 403; 602;

104:06 was Doug Ohlin, who was with the Army; correct? Speculation; conjecture comment is, hearsay) Speculation; conjecture

104:07 A. Yes.

104:08 Q. And the card says at the bottom:

104:09 USACHPPM; right?

104:10 A. Yes.

104:11 Q. And, again, CHPPM is United

104:12 States Army Center for Health Promotion and

104:13 Preventative Medicine. So that's who the

104:14 wallet card came from; correct?

104:15 A. Yes.

104:16 Q. And were you -- When you saw this

104:17 wallet card, were you proud of the wallet card

104:18 and the fact that it contained a quote from Ron

104:19 Millis, who you had fitted with an earplug and

104:20 whose hearing had been protected by the Combat

104:21 Arms?

104:24 - 106:02 Battler, Leanne (2020-09-10) 2:52

104:24 Q. Based on your personal Re: [104:24 to 106:02] Re: [104:24 to 106:02] Re: [104:24 to 106:02] SUSTAINED

104:25 experience. Pltf Obj 802; 402/403; SUSTAINED Pltf Obj 802; 402/403;

105:01 A. Yes, I was proud. speculation; 602/701/702 speculation; 602/701/702

105:02 Q. And did -- When the ear -- When

105:03 the wallet card came out, do you -- do you

105:04 recall discussing with anyone: Hey, this is

105:05 based on a quote of somebody who I know?

105:06 A. Yes.

105:07 Q. Can you describe those

105:08 conversations for the jury, to the best of your

105:09 recollection?

105:10 A. I -- I had a -- Ron sent me a

105:11 photo of him in all his battle rattle in Iraq,

105:12 and I used it in my hearing health briefings.

105:13 I said: Here is Lieutenant Colonel Ron Millis,

105:14 and there's his comment. And all the soldiers

105:15 loved it. Oh, it's so funny. It's Ron Millis.

105:16 They loved it during the briefings.

105:17 Q. Okay. When were these briefings

105:18 given?

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105:19 A. Usually during a safety

105:20 stand-down day annually. Soldiers talk about,

105:21 you know, alcohol and heat injury, cold injury,

105:22 sexual harassment, it's just a day of just mass

105:23 education. And we tried to get our

105:24 thirty-minute presentation in there about

105:25 hearing protection, and the Army Hearing

106:01 Program, hearing readiness, purpose of

106:02 profiles, all of that.

106:05 - 108:11 Battler, Leanne (2020-09-10) 3:21

106:05 Q. Okay. In the first bullet at the Re: [106:05 to 108:11] Re: [106:05 to 108:11] Re: [106:05 to 108:11] OVERRULED

106:06 bottom it says: Check proper fit by gently Pltf Obj 611 leading, compound OVERRULED Pltf Obj 611 leading, compound

106:07 tugging on plugs for tension. questions; 402/403; 802; 406; questions; 402/403; 802; 406;

106:08 Do you agree with that and is 602/701/702; nonresponsive 602/701/702; nonresponsive

106:09 that the part of the procedure that you used in answers answers

106:10 the clinic to check the proper fit of the

106:11 Combat Arms earplug?

106:12 A. Yes. That's -- I would call it

106:13 the tug test.

106:14 Q. Okay. So describe the tug test

106:15 and who did it and how it was done.

106:16 A. So I or my technicians, we would,

106:17 again, give the soldiers the preformed,

106:18 regular, nonlinear -- excuse me, linear

106:19 triple-flanged or quad-flanged earplugs, the

106:20 inexpensive version. Rather than us physically

106:21 putting them in, I said it's important for the

106:22 soldiers to know how to insert the hearing

106:23 protection themselves, because I would say:

106:24 I'm not going to be out there on the

106:25 battlefield next to you to put your earplugs

107:01 in, you need to learn how to do this yourself.

107:02 So we would demonstrate, and then

107:03 make them do it themselves, reaching up and

107:04 over with the opposite hand, pulling the pinna

107:05 up and back to straighten out the ear canal,

107:06 then pushing and twisting and turning until

107:07 that last flange was flush with the opening of

107:08 the ear canal; then letting go of the ear, and

107:09 doing the tug test. And then we would do a tug

107:10 test on top of it to make sure that they had

107:11 that suction or resistance.

107:12 Q. Lieutenant Colonel Battler, you

107:13 testified earlier about your concern with the

107:14 Rapid Fielding Initiative and Combat Arms

107:15 earplugs being given out as part of the Rapid

107:16 Fielding Initiative without instruction and

107:17 fitting. Was part of that concern is that they

107:18 were not able to see the clinic demonstration

107:19 that you just described?

107:20 A. Yes. Yes. Definitely.

107:21 Q. And why is that?

107:22 A. Because you don't know what you

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107:23 don't know. How could they know?

107:24 Q. And when you say how could they

107:25 know, you're talking about soldiers who

108:01 received their Combat Arms earplugs as part of

108:02 the Rapid Fielding Initiative?

108:03 A. Right. Just looking at it, they

108:04 just think it's a funny-looking earplug. They

108:05 -- You know, when I actually explained that one

108:06 side was linear and the other side was

108:07 nonlinear, and the reason for them being color

108:08 coded the way they were, one is for dismounted

108:09 operations, the other was for mounted, there

108:10 was always a light going on: Oh, why didn't

108:11 anybody ever tell me that?

108:20 - 108:24 Battler, Leanne (2020-09-10) 0:14

108:20 Q. And then there's -- It actually Re: [108:20 to 108:24] Re: [108:20 to 108:24] Re: [108:20 to 108:24] OVERRULED

108:21 has a picture on the wallet card with the Pltf Obj Foundation; OVERRULED Pltf Obj Foundation;

108:22 flange folded back, do you see that, the lower incomplete designation incomplete designation

108:23 right?

108:24 A. Yes, I do see that.

109:09 - 110:15 Battler, Leanne (2020-09-10) 2:00

109:09 Q. All right. Let's mark that fact Re: [109:09 to 110:15] Re: [109:09 to 110:15] Re: [109:09 to 110:15] OVERRULED

109:10 sheet as Exhibit 10. It's Tab 2. Pltf Obj foundation; OVERRULED Pltf Obj foundation;

109:11 Have you seen this document nonresponsive answers; nonresponsive answers;

109:12 before, Lieutenant Colonel Battler? 701/702; 802; 402/403; 701/702; 802; 402/403;

109:13 A. Yes. document speaks for itself document speaks for itself

109:14 Q. Can you describe for the jury

109:15 what it is?

109:16 A. So this is -- explains how much

109:17 attenuation the Combat Arms earplug provides in

109:18 response to a variety of exposures to impulse

109:19 blasts.

109:20 Q. Okay. And it's called Just the

109:21 Facts, the Combat Arms Earplug, that's the

109:22 title of the document; correct?

109:23 A. Yes.

109:24 Q. Okay. Could you -- The paragraph

109:25 that says communication and detection

110:01 capabilities, could you read that paragraph

110:02 beginning with communication, and down to the

110:03 second-to-last sentence. You don't need to

110:04 read the last sentence.

110:05 A. Communication and detection

110:06 capabilities. While high-frequency impulse

110:07 noise is significantly reduced, most speech

110:08 energy is passed. In addition, a detection

110:09 model developed at the Army Research Lab

110:10 predicts a normal-hearing soldier with an H1

110:11 profile, can detect a truck with a

110:12 low-frequency noise signature at the same

110:13 distance, 800 meters, with or without the

110:14 nonlinear plug. That detection capability is

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110:15 cut in half with conventional foam plugs.

112:11 - 113:25 Battler, Leanne (2020-09-10) 2:20

112:11 Q. If you come back from that Re: [112:11 to 113:25] Re: [112:11 to 113:25] Re: [112:11 to 113:25] OVERRULED

112:12 call-out back to the document, and go to the Pltf Obj Foundation; 701/702; OVERRULED Pltf Obj Foundation; 701/702;

112:13 next page of this, do you see the part that 802; speculation; 402/403; 802; speculation; 402/403;

112:14 says -- the graphic that says: Detection of 611; conjecture 611; conjecture

112:15 sound by?

112:16 Can you describe what that

112:17 graphic shows and how it relates to situational

112:18 awareness?

112:19 A. Yes. So we use this in a lot of

112:20 our hearing health education briefings. And

112:21 basically it's saying that with an unoccluded

112:22 ear, so nothing in your ear canal at all, if

112:23 you have H1 hearing, then you have the ability

112:24 to hear a rifle bolt closing, so that

112:25 (indicating) sound, at a distance of a thousand

113:01 meters; versus if you are wearing the foam

113:02 earplug, you don't hear that same rifle bolt

113:03 closing until the person making noise is sixty

113:04 meters from your position; in other words,

113:05 you're a dead man.

113:06 Along comes the Combat Arms

113:07 earplug, not quite as good as an unoccluded

113:08 ear, but you can hear that rifle bolt closing

113:09 within five hundred meters and would still give

113:10 you some time to react and survive.

113:11 Q. So was that an advantage of the

113:12 Combat Arms earplug based on your personal

113:13 experience and communications with soldiers?

113:14 A. Yes.

113:15 Q. Okay. If you go to user tips in

113:16 this document, where it says, in the second

113:17 bullet point: Like any earplug, it is

113:18 essential that the Combat Arms be properly

113:19 inserted.

113:20 Do you agree with that?

113:21 A. Yes.

113:22 Q. And that's just as true for the

113:23 Combat Arms, as it is for other earplugs;

113:24 right?

113:25 A. Yes.

114:04 - 114:10 Battler, Leanne (2020-09-10) 1:55

114:04 Q. Okay. Let's go to Tab 13. And Re: [114:04 to 114:10] Re: [114:04 to 114:10] Re: [114:04 to 114:10] SUSTAINED

114:05 let's go to Bates number 051171. Pltf Obj Foundation; 802; SUSTAINED Pltf Obj Foundation; 802;

114:06 If you look down at the bottom, 402/403; 602/701/702 402/403; 602/701/702

114:07 that's an email from Richard Cleveland to you

114:08 and Dr. Ohlin, dated July 8 regarding email

114:09 from Iraq via Diggs; right?

114:10 A. Yes.

116:24 - 117:04 Battler, Leanne (2020-09-10) 0:19

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116:24 Q. Based on -- Based on your Re: [116:24 to 117:04] Re: [116:24 to 117:04] Re: [116:24 to 117:04] SUSTAINED

116:25 experience, do you believe that the Pltf Obj 701/702; 403 SUSTAINED Pltf Obj 701/702; 403

117:01 overwhelming feedback on the Combat Arms

117:02 Version 2 has been positive?

117:03 A. In my experience, yes, very

117:04 positive.

117:10 - 117:11 Battler, Leanne (2020-09-10) 0:07

117:10 MR. NOMELLINI: We're going back Re: [117:10 to 117:11] Re: [117:10 to 117:11] Re: [117:10 to 117:11] SUSTAINED

117:11 to Exhibit 2, which is also Tab 5. Pltf Obj Foundation; 802; 403; SUSTAINED Pltf Obj Foundation; 802; 403;

702/701 702/701

117:14 - 120:05 Battler, Leanne (2020-09-10) 4:14

117:14 Q. If you could go to the page DoD Re: [117:14 to 120:05] Re: [117:14 to 120:05] Re: [117:14 to 120:05] SUSTAINED

117:15 164. Pltf Obj Foundation; 802; SUSTAINED (hearsay Pltf Obj Foundation; 802;

117:16 A. (Witness complies.) 602/701/702; speculation; in, document) 602/701/702; speculation;

117:17 Q. Go to the bottom of that page, 402/403; 404; 611 402/403; 404; 611

117:18 there is an email from Kathy Gates to various

117:19 individuals, including the witness, dated

117:20 October 6, 2005. Can you describe what this --

117:21 what this email is, Lieutenant Colonel Battler?

117:22 A. Colonel Gates -- I don't remember

117:23 this exact -- but there were instances where

117:24 she would send a request for information, you

117:25 know, en masse, to several of us, asking for

118:01 assistance.

118:02 Q. Okay. So Colonel Gates is asking

118:03 you and others for feedback on the Combat Arms

118:04 Version 2 in 2005; correct?

118:05 A. Yes.

118:06 Q. Okay. Then if you look at the

118:07 prior page, DoD 163, which is part of Exhibit

118:08 2, you provided Colonel Gates with two success

118:09 stories in relation to the Combat Arms; right?

118:10 A. Yes.

118:11 Q. Okay. Looking at Exhibit 2, can

118:12 you describe the first success story with

118:13 respect to the Combat Arms that you shared with

118:14 Colonel Gates?

118:15 A. Yes. You want me to read it?

118:16 Q. Sure. Why don't you -- Why don't

118:17 you read -- read the first -- the first item.

118:18 If you could please read the first success

118:19 story that you shared with Colonel Gates

118:20 regarding the Combat Arms on October 6, 2005.

118:21 A. All right. Ma'am, two success

118:22 stories I'd like to share. First, several

118:23 months ago, I saw an O6, so a full colonel,

118:24 brigade commander, for his postdeployment OIF,

118:25 Operation Iraqi Freedom, audiometric eval; so

119:01 his postdeployment DOEHRS test. He told me

119:02 that he had not heard of the Combat Arms

119:03 earplugs until he was in theater. He did not

119:04 know what they looked like, but was determined

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119:05 to get them for his entire brigade.

119:06 He inquired with some local Iraqi

119:07 supply company and ended up purchasing what he

119:08 thought were Combat Arms earplugs, but in

119:09 reality they were only foam plugs. Finally, he

119:10 made some calls back to Fort Hood and was able

119:11 to get his staff to order them here -- so I was

119:12 at Fort Hood here -- and then shipped them out

119:13 to the brigade. They were finally received by

119:14 the soldiers in Iraq over four months after

119:15 they initially deployed.

119:16 The colonel told me that he was

119:17 sitting in the back of his HMMWV, so

119:18 high-mobility multi- -- high-purpose

119:19 multiwheeled vehicle, HMMWV with his new Combat

119:20 Arms earplugs in his ears, for the first time,

119:21 when he experienced his first IED blast, so

119:22 improvised explosive device, at close range.

119:23 He said that his soldiers in the

119:24 HMMWV had just been grumbling to him about his

119:25 insistence that they all wore their Combat Arms

120:01 earplugs, but that they were all very glad they

120:02 had their Combat Arms earplugs after the blast,

120:03 and that they wore them every day afterwards.

120:04 By the way, the colonel had no

120:05 hearing loss and no tinnitus upon redeployment.

120:08 - 124:10 Battler, Leanne (2020-09-10) 6:50

120:08 Q. Why was that a success story Re: [120:08 to 124:10] Re: [120:08 to 124:10] Re: [120:08 to 124:10] SUSTAINED

120:09 relating to the Combat Arms, in your view? Pltf Obj 701/702; 402/403; SUSTAINED Pltf Obj 701/702; 402/403;

120:10 A. Oh, because he had no hearing 802; conjecture; speculation; 802; conjecture; speculation;

120:11 loss and tinnitus. We had prevented hearing 611 leading, vague; 602; 404 611 leading, vague; 602; 404

120:12 loss, that's our mission.

120:13 Q. When you say it had prevented

120:14 hearing loss, you're referring to the Combat

120:15 Arms earplugs that had prevented hearing loss?

120:16 A. Yes.

120:17 Q. And you also had a second success

120:18 story to share with Colonel Gates; correct?

120:19 A. Yes.

120:20 Q. And that related to information

120:21 that you obtained from a postdeployment health

120:22 assessment survey; right?

120:23 A. Yes.

120:24 Q. And you asked several soldiers

120:25 questions regarding the Combat Arms plug at the

121:01 request of Aearo?

121:02 A. Yes.

121:03 Q. Okay. And can you read the last

121:04 -- the last sentence in paragraph two,

121:05 beginning with: I wish.

121:06 A. I wish all soldiers believed in

121:07 the merit of the Combat Arms earplug like this

121:08 specialist .50 cal gunner does. I especially

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121:09 liked his comment that he would not change

121:10 anything about the Combat Arms earplug or the

121:11 case, because they worked for two hundred and

121:12 five convoys.

121:13 Q. And why did you like the comment

121:14 that the Combat Arms had worked for two hundred

121:15 and five convoys?

121:16 A. Because he felt confident enough

121:17 to wear it. He -- it -- His comment indicated

121:18 to me that he knew he needed some protection,

121:19 and also felt confident that he was not going

121:20 to have overattenuation.

121:21 Q. Okay. And a .50 caliber gunner,

121:22 based on your experience, that's someone who,

121:23 if they do not wear appropriate hearing

121:24 protection, can experience hearing loss;

121:25 correct?

122:01 A. Yes.

122:02 Q. And so question number four, you

122:03 asked him when this .50 caliber gunner wore the

122:04 CAE, and what did he tell you?

122:05 A. The right part of that is cut

122:06 off.

122:07 There we go. Thank you. He

122:08 said: I wore the yellow side in my ear the

122:09 whole time we were on the convoy until we were

122:10 in the gate. And if there were mortars coming

122:11 down outside, sometimes I would wear the yellow

122:12 end in one ear and the green end in the other

122:13 ear, like when I had the yellow in with

122:14 earpiece and the short wave radio for talking

122:15 from truck to truck and also inside the truck,

122:16 and the green end in the opposite ear.

122:17 Q. Okay. And then in the other

122:18 question, you asked him to describe the

122:19 circumstances when he encountered loud noises

122:20 using the -- while using the CAEv2, and what

122:21 did he say?

122:22 Item number one. Describe the

122:23 circumstances.

122:24 A. Oh, so he said: Mostly in

122:25 convoys. And then in two or three mortars

123:01 going off near the sleeping quarters. So he

123:02 must have been wearing them when he was in his

123:03 quarters.

123:04 Q. Question number two, you asked

123:05 the soldier did he believe his hearing had been

123:06 affected by the loud noises that he had heard,

123:07 and what did he say?

123:08 A. He said -- He said no. He wore

123:09 his earplugs all the time and if he had not

123:10 worn them, he believed that he would have -- he

123:11 would have incurred hearing loss.

123:12 Q. So did you understand that to

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123:13 mean that the Combat Arms Version 2 had

123:14 protected the hearing of this .50 caliber

123:15 gunner?

123:16 A. Yes.

123:17 Q. And were you proud of that and is

123:18 that part of the reason why you shared that

123:19 information with your superior?

123:20 A. Yes.

123:21 Q. If you look at question number

123:22 nine, you asked a soldier whose hearing was

123:23 protected by the Combat Arms if there's

123:24 anything that he indicated did not work or how

123:25 it might be improved, and what was his

124:01 response?

124:02 A. He said he would not change

124:03 anything at all.

124:04 Q. And what did that indicate to you

124:05 about the Combat Arms?

124:06 A. It indicated to me that -- that

124:07 they were a great fit and a great product.

124:08 Q. And is it your view today, based

124:09 on your personal experience, that the Combat

124:10 Arms is a great product?

124:13 - 127:08 Battler, Leanne (2020-09-10) 5:01

124:13 Q. Based on your personal experience Re: [124:13 to 127:08] Re: [124:13 to 127:08] Re: [124:13 to 127:08] SUSTAINED

124:14 and communication with soldiers? Pltf Obj 701/702; 802; SUSTAINED (hearsay) Pltf Obj 701/702; 802;

124:15 A. Based on my experience, yes, I 402/403; 404; conjecture; as to [124:13124:16], 402/403; 404; conjecture;

124:16 think it's a great product. 701/702; 611 leading; OVERRULED as to [124:17126:01] 701/702; 611 leading;

124:17 Q. And why do you think the Combat speculation; 602; improper SUSTAINED as to 126:02, speculation; 602; improper

124:18 Arms is a great product, based on your bolstering 126:19] OVERRULED as to bolstering

124:19 experience? 126:20, 126:24] SUSTAINED as

124:20 A. I mean, on the firing ranges, for to [126:25, 127:08]

124:21 sure, but especially downrange. You know, I

124:22 wore them and experienced that I knew I felt

124:23 protected, but not overly protected. I still

124:24 had situational awareness.

124:25 Q. And why is it important that with

125:01 the Combat Arms you felt protected but not

125:02 overall protected?

125:03 A. So if there was weapons fire or

125:04 blasts, noise -- hazardous noise exposure, then

125:05 I knew that I would not have permanent hearing

125:06 loss.

125:07 Q. And based on your personal

125:08 experience, did the Combat Arms, in fact,

125:09 protect your hearing?

125:10 A. I believe so.

125:11 Q. And you do not have permanent

125:12 hearing loss today; correct?

125:13 A. I have excellent hearing.

125:14 Q. And you do not have tinnitus

125:15 today; correct?

125:16 A. Not today.

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Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 139 of 179
125:17 Q. And how many times have you used

125:18 the Combat Arms?

125:19 A. Every year for seventeen years.

125:20 Q. Okay. So you've used the Combat

125:21 Arms from approximately 2003 to the present;

125:22 correct?

125:23 A. Yes.

125:24 Q. And they've protected your

125:25 hearing throughout that time?

126:01 A. Yes.

126:02 Q. Let's go to DoD 190, in the same

126:03 document. DoD 190, at the top, is a email from

126:04 Kathy Gates to Leanne Cleveland and others,

126:05 dated March 7, 2006, attaching recent hearing

126:06 conservation articles.

126:07 And I want to direct your

126:08 attention to the next page, which is DoD 191,

126:09 which is part of the article that was

126:10 forwarded, and in particular, handing -- going

126:11 down to halfway down the page where it starts

126:12 with the words: Handing them out with written

126:13 instructions.

126:14 Okay. So in this article you

126:15 were forwarded it says: Handing them out with

126:16 written instructions isn't effective, said

126:17 Douglas Ohlin, an audiologist who heads the

126:18 Hearing Conservation Program. Most people have

126:19 to be shown who wear earplugs.

126:20 Do you agree that handing out

126:21 earplugs, including the Combat Arms, with only

126:22 written instructions is not effective and that

126:23 people have to be shown how to wear earplugs?

126:24 A. Yes, I agree.

126:25 Q. And why is it important, in your

127:01 view, then, based on your experience, not to

127:02 rely on written instructions in providing

127:03 soldiers with earplugs?

127:04 A. I mean, look at soldiers.

127:05 They're not people who sit behind a desk.

127:06 They're -- We're all attention deficit

127:07 disorder; we need that hands-on training.

127:08 We're not book people.

127:19 - 129:01 Battler, Leanne (2020-09-10) 3:35

127:19 Q. Okay. And so you believe that Re: [127:19 to 129:01] Re: [127:19 to 129:01] Re: [127:19 to 129:01] Prior ruling stands.

127:20 it's important to sort of work hands-on with an Pltf Obj Foundation; 802; OVERRULED as to Pltf Obj Foundation; 802;

127:21 individual soldier, or military personnel, to 402/403; 701/702; speculation; 127:19, 127:25, SUSTAINED as 402/403; 701/702; speculation;

127:22 show them how to use the plug and to make sure conjecture to [128:01, 129:01] (hearsay) conjecture

127:23 that it fits correctly, as opposed to using a

127:24 written instruction; correct?

127:25 A. Exactly.

128:01 Q. Okay. Let's go to DoD 195 from

128:02 that document. This is an email -- DoD 195,

128:03 which is part of Exhibit 2, is an email from

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128:04 Kathy Gates to Leanne Cleveland and others

128:05 dated June 13, 2006, forwarding data from Fort

128:06 Polk. Do you see that?

128:07 A. Yes, sir.

128:08 Q. And if you go below, there is an

128:09 email from Kathy Gates to Christian Reid that

128:10 Kathy Gates is in turn forwarding to you which

128:11 reports data from the Louisiana National Guard

128:12 regarding the Combat Arms earplug.

128:13 Do you see that?

128:14 A. Yes.

128:15 Q. And it's reported that 86 percent

128:16 of soldiers reported that they found the Combat

128:17 Arms earplug beneficial in Combat Arms

128:18 operation. Was that level of satisfaction

128:19 consistent with your experience?

128:20 A. Yes.

128:21 Q. And 70 percent of soldiers

128:22 reported they felt the Combat Arms earplugs

128:23 protects their ears as well as improves

128:24 communication ability in noise. Was that

128:25 consistent with your experience?

129:01 A. Yes.

137:17 - 137:24 Battler, Leanne (2020-09-10) 0:27

137:17 Q. And did you receive feedback from Re: [137:17 to 137:24] Re: [137:17 to 137:24] Re: [137:17 to 137:24] SUSTAINED

137:18 some soldiers that other earplugs were more Pltf Obj 802; 402/403; 602/611 SUSTAINED Pltf Obj 802; 402/403; 602/611

137:19 comfortable than the CAEv2? calls for speculation calls for speculation

137:20 A. Yes.

137:21 Q. Okay. And that issue with

137:22 respect to comfort, in your experience, that

137:23 did not have anything to do with the CAEv2's

137:24 ability to protect users from noise; correct?

138:03 - 138:07 Battler, Leanne (2020-09-10) 0:21

138:03 Q. Based on your personal experience Re: [138:03 to 138:07] Re: [138:03 to 138:07] Re: [138:03 to 138:07] SUSTAINED

138:04 and what they reported to you. Pltf Obj 802; 402/403; 701/702 SUSTAINED Pltf Obj 802; 402/403; 701/702

138:05 A. If it's not comfortable, then

138:06 they're not going to wear it. But that doesn't

138:07 mean it didn't fit.

138:14 - 138:16 Battler, Leanne (2020-09-10) 0:08

138:14 Q. And that's also based on your Re: [138:14 to 138:16] Re: [138:14 to 138:16] Re: [138:14 to 138:16] SUSTAINED

138:15 personal experience and your communications Pltf Obj 611 asked/answered; SUSTAINED Pltf Obj 611 asked/answered;

138:16 with soldiers; correct? 802; 402/403; 701/702 802; 402/403; 701/702

138:19 - 139:03 Battler, Leanne (2020-09-10) 1:35

138:19 A. You know, the Army combat helmet Re: [138:19 to 139:03] Re: [138:19 to 139:03] Re: [138:19 to 139:03] SUSTAINED

138:20 was -- gave me an excruciating headache, but it Pltf Obj 402/403; conjecture; OVERRULED Pltf Obj 402/403; conjecture;

138:21 protected me. 701/702; 611 leading; 701/702; 611 leading;

138:22 Q. Okay. And you say the same is speculation speculation

138:23 true with respect to the Combat Arms, it

138:24 protected you; correct?

138:25 A. If it was properly fitted, and if

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139:01 it was the right size, in my experience, yes.

139:02 Q. And it has to be properly fitted

139:03 by medically trained personnel; correct?

139:06 - 139:15 Battler, Leanne (2020-09-10) 0:21

139:06 A. It needed to be fitted by the Re: [139:06 to 139:15] Re: [139:06 to 139:15] Re: [139:06 to 139:15]

139:07 soldier who was using it, who received adequate Pltf Obj Conjecture; 701/702; OVERRULED as to Pltf Obj Conjecture; 701/702;

139:08 training from medically trained personnel, yes. 402/403; 611 leading, [139:06, 139:08], SUSTAINED as 402/403; 611 leading,

139:09 Q. The soldier needs to receive asked/anwered to [139:09, 139:15] asked/anwered

139:10 adequate training from medically trained

139:11 personnel; correct?

139:12 A. Correct.

139:13 Q. It's not sufficient to hand out

139:14 the earplugs without training, like was done in

139:15 the Rapid Fielding Initiative; correct?

139:18 - 139:22 Battler, Leanne (2020-09-10) 0:22

139:18 Q. Based on your experience and Re: [139:18 to 139:22] Re: [139:18 to 139:22] Re: [139:18 to 139:22] SUSTAINED

139:19 interaction with soldiers. Pltf Obj 402/403; incomplete SUSTAINED Pltf Obj 402/403; incomplete

139:20 A. When the Army issued me my M9, designation; nonresponsive designation; nonresponsive

139:21 they didn't give me a pamphlet on how to answer; 701/702 answer; 701/702

139:22 operate it.

140:09 - 141:16 Battler, Leanne (2020-09-10) 2:12

140:09 Q. Okay. Let's go to Tab 15. I'm Re: [140:09 to 141:16] Re: [140:09 to 141:16] Re: [140:09 to 141:16]

140:10 going to mark this as Exhibit 13. You then -- Pltf Obj 802; 402/403; OVERRULED Pltf Obj 802; 402/403;

140:11 you provided Aearo and Brian Myers with speculation; 602/701/702 speculation; 602/701/702

140:12 feedback that you obtained from soldiers;

140:13 correct?

140:14 A. Yes.

140:15 Q. And who asked you to obtain

140:16 feedback from soldiers on the Combat Arms?

140:17 A. This was a while ago. I remember

140:18 the deputy -- one of the deputy commanders at

140:19 Darnell Hospital said: Hey, we're doing this

140:20 initial postdeployment health reassessment

140:21 survey, we're making history, this is a big

140:22 deal, I want you to participate.

140:23 So I -- I don't remember if I

140:24 reached out to Doug or someone else or if I

140:25 reached out to Colonel Tuten, reached out to

141:01 Doug. I'm not sure exactly how everything

141:02 transpired, but -- but I wanted to do a good

141:03 job and get data, and so I -- Right. There was

141:04 communication where I said help me ask the

141:05 right questions.

141:06 Q. Okay. If you look down -- If you

141:07 look down the chain of Exhibit 13, there is an

141:08 email from Brian Myers, to you, dated August

141:09 17, 2005, where he lays out questions for you

141:10 to ask; right?

141:11 A. Yes.

141:12 Q. And from your perspective as an

141:13 audiologist, was that a good thing for an

SUSTAINED. Hearsay. Objections 

to Ex. 13 (D-GEN-0012) are also 

SUSTAINED, and the Court's prior 

ruling in Exhibits Order No. 3 (ECF 

159) overruling the objections is 

hereby amended by this Order. The 

Court notes that the exhibit was not 

previously admitted or otherwise 

submitted for priority ruling in 

other bellwether trials. 

Additionally, objections to this 

testimony were mistakenly 

overruled EHK.

SUSTAINED as to 139:13-15. 

Otherwise OVERRULED

Page 42 of 79

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 142 of 179
141:14 earplug manufacturer to do, to solicit feedback

141:15 from the soldiers and their personal

141:16 experiences with the earplugs?

141:19 - 143:11 Battler, Leanne (2020-09-10) 2:14

141:19 Q. If you could just limit it to Re: [141:19 to 143:11] Re: [141:19 to 143:11] Re: [141:19 to 143:11]

141:20 your personal experience. Pltf Obj 802; conjecture; OVERRULED as to Pltf Obj 802; conjecture;

141:21 A. Yes. Any -- Anyone who is asking 701/702; 402/403; 611 [141:19, 143:03], SUSTAINED as 701/702; 402/403; 611

141:22 for how can they improve a product is -- Sure. vague/confusing, compound and to [143:04, 143:11] (hearsay) vague/confusing, compound and

141:23 All data is good data. leading questions; 602 leading questions; 602

141:24 Q. Okay. And one of the speculation speculation

141:25 questions -- If you look at question number

142:01 one, the soldier is asked to describe the

142:02 circumstances when they encounter loud noises;

142:03 right?

142:04 A. Yes.

142:05 Q. And then the soldier is asked

142:06 whether their hearing has been affected by the

142:07 loud noises; right?

142:08 A. Yes.

142:09 Q. And in question number four, the

142:10 soldier is asked about when they wore the CAE;

142:11 right?

142:12 A. Yes.

142:13 Q. And those are all good questions

142:14 for getting feedback on the CAE?

142:15 A. I believe so, yes.

142:16 Q. Okay. And you attached, to your

142:17 email back to Aearo, some of the feedback you

142:18 had gotten from soldiers; right?

142:19 A. Yes.

142:20 Q. Did Aearo or 3M restrict you in

142:21 any way, in terms of the questions that you

142:22 could ask to the soldiers? Were you free to

142:23 communicate with them as you wished?

142:24 A. Yes.

142:25 Q. Okay. So you never -- They never

143:01 instructed you: These types of questions are

143:02 off limits; right?

143:03 A. Oh, no. Never.

143:04 Q. And if we scroll down to 3M MDL

143:05 000285548, that's the -- that's the .50 caliber

143:06 gunner we talked about before; right?

143:07 A. Yes.

143:08 Q. And his hearing was protected by

143:09 the Combat Arms earplug, based on your survey;

143:10 right?

143:11 A. I believe so, yes.

143:18 - 144:10 Battler, Leanne (2020-09-10) 1:00

143:18 Q. Question number four that you Re: [143:18 to 144:10] Re: [143:18 to 144:10] Re: [143:18 to 144:10] SUSTAINED

143:19 asked, what was your question and what was Pltf Obj 802; conjecture; SUSTAINED (hearsay) Pltf Obj 802; conjecture;

143:20 their response? 701/702; 402/403; 611 701/702; 402/403; 611

143:21 A. Okay. So I asked him: When did vague/confusing, compound and vague/confusing, compound and

SUSTAINED. Hearsay. Objections 

to Ex. 13 (D-GEN-0012) are also 

SUSTAINED, and the Court's prior 

ruling in Exhibits Order No. 3 (ECF 

159) overruling the objections is 

hereby amended by this Order. The 

Court notes that the exhibit was not 

previously admitted or otherwise 

submitted for priority ruling in 

other bellwether trials. 

Additionally, objections to this 

testimony were mistakenly 

overruled EHK.

Page 43 of 79

Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 143 of 179
143:22 you wear the Combat Arms earplug? And he said leading questions; 602 leading questions; 602

143:23 he wore them for approximately one week, but speculation speculation

143:24 they were too irritating, too deep inside the

143:25 ear canal. And he reports that he used the

144:01 orange triple-flange corded version that his

144:02 father gave to him rather than the Combat Arms

144:03 earplug that was issued to him.

144:04 Q. Okay. And if you look at the

144:05 next page, 285551, in response to question

144:06 number nine, what did the second soldier who

144:07 you surveyed indicate about the effectiveness

144:08 of the Combat Arms Earplug Version 2?

144:09 A. He said that when he wore them,

144:10 they were effective.

145:04 - 146:16 Battler, Leanne (2020-09-10) 3:34

145:04 Q. And has that also been a topic of Re: [145:04 to 146:16] Re: [145:04 to 146:16] Re: [145:04 to 146:16] SUSTAINED

145:05 discussion between you and other audiologists, Pltf Obj 802; 402/403; 404; SUSTAINED (hearsay) Pltf Obj 802; 402/403; 404;

145:06 that there sometimes can be difficulties in 406; 611; 602/701/702; 406; 611; 602/701/702;

145:07 getting soldiers to wear earplugs, particularly conjecture; speculation conjecture; speculation

145:08 in a combat environment?

145:09 A. Yes.

145:10 Q. Okay. And what's been the

145:11 substance of those discussions you've had with

145:12 audiologists about the difficulty of getting

145:13 soldiers to wear earplugs in the combat -- in a

145:14 combat environment?

145:15 A. Probably the two most common

145:16 themes are for people who already have some

145:17 level of hearing loss, even the -- I mean, the

145:18 Combat Arms earplug -- well, all earplugs, are

145:19 going to provide some attenuation. So when you

145:20 already have hearing loss, that extra

145:21 attenuation really makes communication

145:22 difficult. So that population is -- is really

145:23 at a disadvantage, because then they don't wear

145:24 their hearing protection and then they incur

145:25 even more hearing loss.

146:01 And then I think the second one,

146:02 it's less now. But, again, at that time there

146:03 was a school of thought where it was almost

146:04 like hearing loss was your badge of manhood and

146:05 it was -- it was -- they were proud of hearing

146:06 loss. Yeah. You know, guns, mortars, I've

146:07 been around all this noise, and I've got

146:08 hearing loss; I'm a man. That mindset is a lot

146:09 better now than it used to be. But I've heard

146:10 of senior noncommissioned officers encouraging

146:11 their younger troops to not use hearing

146:12 protection, to toughen their ears and get used

146:13 to the noise.

146:14 And in some cases, even going out

146:15 into a fire fight hoping to get a perforated

146:16 eardrum so that would give you a Purple Heart.

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147:06 - 148:01 Battler, Leanne (2020-09-10) 1:29

147:06 Q. Yeah. So the first two -- The Re: [147:06 to 148:01] Re: [147:06 to 148:01] Re: [147:06 to 148:01] SUSTAINED

147:07 first two respondents of the four you talked Pltf Obj 802; 402/403; 404; SUSTAINED Pltf Obj 802; 402/403; 404;

147:08 to, indicating that the -- indicated that the 602/701/702 602/701/702

147:09 Combat Arms were effective in protecting their

147:10 ear; right?

147:11 A. The -- Yes. Correct.

147:12 Q. Okay. And then we looked at --

147:13 Let's look at the next respondent, MDL 285552.

147:14 And that respondent indicated, in response to

147:15 question number five, that the -- he used -- he

147:16 or she used the Combat Arms for one week and

147:17 then lost them; correct?

147:18 A. Yes.

147:19 Q. And the Combat Arms can't provide

147:20 hearing protection if it's lost; fair to say?

147:21 A. Correct.

147:22 Q. And the last soldier you talked

147:23 to, 3M MDL 285554, indicated in response to

147:24 question number four, that he rarely used the

147:25 Combat Arms earplug; right?

148:01 A. Yes. Correct.

148:12 - 150:17 Battler, Leanne (2020-09-10) 3:52

148:12 Q. Okay. But based on -- Based on Re: [148:12 to 150:17] Re: [148:12 to 150:17] Re: [148:12 to 150:17] SUSTAINED

148:13 all your -- all your communications with any Pltf Obj 802; 402/403; OVERRULED as to Pltf Obj 802; 402/403;

148:14 service member, you've already indicated that conjecture; 701/702; [148:12, 148:21], SUSTAINED as conjecture; 701/702;

148:15 no service member indicated to you that the Foundation; speculation to [148:22, 150:17] (hearsay) Foundation; speculation

148:16 Combat Arms earplug was ineffective in terms of

148:17 protecting hearing; right?

148:18 A. Correct.

148:19 Q. And these are among the service

148:20 members that you talked to; right?

148:21 A. Yes.

148:22 Q. Now, they did have other

148:23 criticisms of the Combat Arms, like that they

148:24 didn't come in the right size for them; right?

148:25 A. Right.

149:01 Q. And that was addressed in

149:02 subsequent versions of the Combat Arms earplug,

149:03 the version 3 and version 4; correct?

149:04 A. Yes.

149:05 Q. And that's partly based on the

149:06 feedback that you received in surveys from

149:07 soldiers; correct?

149:08 A. I like to think that my data was

149:09 contributory, yes.

149:10 Q. All right. And if you go to

149:11 question two, do you believe that your hearing

149:12 has been affected by the loud noises you heard?

149:13 Why or why not? The service member responded:

149:14 Yes. I didn't wear the earplugs all the time

149:15 because they were too big and they hurt and

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149:16 they didn't work very well.

149:17 Do you see that?

149:18 A. Yes.

149:19 Q. Okay. So first of all, he's

149:20 indicating that they were not the right --

149:21 Combat Arms Version 2 was not the right size

149:22 for him; right?

149:23 A. Yes.

149:24 Q. And if the Combat Arms is not the

149:25 right size for somebody, they shouldn't -- they

150:01 shouldn't even be using that earplug; right?

150:02 A. Correct.

150:03 Q. Okay. And where he says they

150:04 didn't work very well, do you know whether

150:05 that's indicating anything about the ability of

150:06 the earplug to attenuate noise, as opposed to

150:07 the ability to, you know, hear conversation

150:08 with the yellow end? Do you know specifically

150:09 what that's referring to?

150:10 A. Well, they could not work well if

150:11 -- if they weren't worn and if they were the

150:12 wrong size.

150:13 Q. Okay. And that's true of all

150:14 earplugs, not just the Combat Arms Version 2,

150:15 they could not work well if they weren't worn

150:16 and if they were the wrong size; correct?

150:17 A. Yes. That's correct.

151:13 - 152:17 Battler, Leanne (2020-09-10) 2:33

151:13 We talked about the process of Re: [151:13 to 152:17] Re: [151:13 to 152:17] Re: [151:13 to 152:17] OVERRULED

151:14 instruction on the Combat Arms earplug by Pltf Obj 402/403 OVERRULED Pltf Obj 402/403

151:15 medically trained personnel. Do you recall

151:16 that?

151:17 A. Yes, sir.

151:18 Q. And am I correct that you did not

151:19 rely on Aearo or 3M to come by the

151:20 installations to provide fitting on the Combat

151:21 Arms Earplug Version 2 to soldiers?

151:22 A. Correct.

151:23 Q. And am I correct that you did not

151:24 invite Aearo or 3M to come by the installations

151:25 to provide fitting of the Combat Arms Version 2

152:01 to soldiers?

152:02 A. Correct.

152:03 Q. Am I also correct that you did

152:04 not rely on Aearo or 3M to provide any oral

152:05 instructions to soldiers relating to the Combat

152:06 Arms version?

152:07 A. Correct.

152:08 Q. And am I also correct that you

152:09 did not rely on Aearo or 3M to provide any

152:10 written instructions to soldiers on the Combat

152:11 Arms version?

152:12 A. Correct.

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152:13 Q. And, in fact, based on your

152:14 investigation, you never provided any --

152:15 anything in writing from Aearo or 3M on the

152:16 Combat Arms Version 2 to soldiers; correct?

152:17 A. The Version 2, correct.

153:10 - 153:19 Battler, Leanne (2020-09-10) 1:38

153:10 Q. Okay. And when you say earlier Re: [153:10 to 153:19] Re: [153:10 to 153:19] Re: [153:10 to 153:19] SUSTAINED

153:11 in your career there were not enough Pltf Obj 402/403; conjecture; SUSTAINED Pltf Obj 402/403; conjecture;

153:12 audiologists to accomplish the mission 701/702; 611 leading; 701/702; 611 leading;

153:13 successfully of hearing loss prevention, what vague/confusing; nonresponsive vague/confusing; nonresponsive

153:14 years are you referring to?

153:15 A. During GWOT, during Operation

153:16 Iraqi Freedom, Operation Enduring Freedom,

153:17 Afghanistan. It's questionable if -- We're

153:18 doing better; I'm not sure if we're there yet

153:19 but, yeah.

154:04 - 155:03 Battler, Leanne (2020-09-10) 2:49

154:04 Q. What years are you referring to Re: [154:04 to 155:03] Re: [154:04 to 155:03] Re: [154:04 to 155:03] SUSTAINED

154:05 there during GWOT, Operation Iraqi Freedom, and Pltf Obj 402/403; 602/701/702; SUSTAINED Pltf Obj 402/403; 602/701/702;

154:06 Operation Enduring Freedom, approximately? 611 leading questions, vague, 611 leading questions, vague,

154:07 A. 2004 to 2011, '12. asked/answered; 802; asked/answered; 802;

154:08 Q. And you testified that during foundation; speculation foundation; speculation

154:09 those years, 2004 to 2011 or '12, there were

154:10 not enough audiologists to accomplish the

154:11 mission successfully of hearing loss

154:12 prevention. Could you explain that testimony?

154:13 A. I believe there were not enough

154:14 Army uniformed 72 Charlie audiologists aligned

154:15 under preventive medicine, which would allow us

154:16 that 50 percent of our time spent outside of

154:17 the clinic, in the motor pools, on the ranges,

154:18 doing the education and the on-the-spot earplug

154:19 fitting and fit checks.

154:20 Q. And you, as an individual,

154:21 Lieutenant Colonel Battler, worked extremely

154:22 hard, but you can only do so much; would you

154:23 agree with that?

154:24 A. Yes.

154:25 Q. And how does there not being

155:01 enough Army uniformed 72 Charlie audiologists

155:02 aligned under preventative medicine, how does

155:03 that impede hearing protection for soldiers?

155:06 - 155:10 Battler, Leanne (2020-09-10) 0:29

155:06 A. So, again, being aligned under Re: [155:06 to 155:10] Re: [155:06 to 155:10] Re: [155:06 to 155:10] SUSTAINED

155:07 Department of Surgery and with productivity Pltf Obj Conjecture; OVERRULED Pltf Obj Conjecture;

155:08 being measured in terms of RVU generation, it's speculation; 601/701/702; speuclation; 601/701/702;

155:09 -- it's very difficult to get outside of the 402/403 402/403

155:10 clinic and do the hands-on work.

156:06 - 157:12 Battler, Leanne (2020-09-10) 2:09

156:06 Q. Okay. And not having enough Re: [156:06 to 157:12] Re: [156:06 to 157:12] Re: [156:06 to 157:12] SUSTAINED

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156:07 audiologists from 2004 to 2012, how does that Pltf Obj 611 leading, vague, SUSTAINED as to Pltf Obj 611 leading, vague,

156:08 impact the hearing protection mission, based on mischaracterizes evidence; [156:06, 156:21], OVERRULED as mischaracterizes evidence;

156:09 your personal experience with the CAEv2 and 602/701/702; conjecture; to [156:22, 157:12] 602/701/702; conjecture;

156:10 other plugs? 404/406; speculation; 402/403 404/406; speculation; 402/403

156:11 A. Right. So not only were we --

156:12 does that impede our ability to get out there

156:13 in the noise to do the proper instruction, but

156:14 generally, the Department of Surgery budget

156:15 doesn't include funding for hearing protection.

156:16 That falls under the prevention mission, which

156:17 is sometimes -- sometimes under preventive

156:18 medicine, sometimes not. But definitely not --

156:19 Department of Surgery is not concerned with

156:20 providing preformed hearing protection for

156:21 soldiers.

156:22 Q. And proper instruction is key for

156:23 preformed hearing protectors like the Combat

156:24 Arms Version 2 to work effectively in your

156:25 experience; correct?

157:01 A. In my experience, yes, that's

157:02 correct.

157:03 Q. And final question, before we

157:04 take a break, why, based on your experience, is

157:05 that true for preformed hearing protectors like

157:06 the CAEv2?

157:07 A. Because I worked under both

157:08 clinics: I've worked under Department of

157:09 Surgery and I've worked under preventive

157:10 medicine clinic. And the prevention mission is

157:11 -- our productivity is not based on how many

157:12 patients we see.

157:25 - 158:06 Battler, Leanne (2020-09-10) 0:13

157:25 Q. Okay. Lieutenant Colonel Re: [157:25 to 158:06] Re: [157:25 to 158:06] Re: [157:25 to 158:06] SUSTAINED

158:01 Battler, my name is Doug Monsour, I'm one of Def Obj 3M MIL No. 10, refers SUSTAINED as to Def Obj 3M MIL No. 10, refers

158:02 the members of the plaintiff steering committee to soldiers that have filed [157:25, 158:06] to soldiers that have filed

158:03 representing the soldiers that have filed lawsuits lawsuits

158:04 lawsuits against 3M.

158:05 Do you understand who I am?

158:06 A. Yes.

158:11 - 158:21 Battler, Leanne (2020-09-10) 0:23

158:11 Q. Okay. The -- Is a -- The Combat

158:12 Arms Version 2 is a triple-flanged earplug;

158:13 correct?

158:14 A. Yes.

158:15 Q. And do you insert it the same way

158:16 that you insert other triple-flanged earplugs,

158:17 you reach over, you pull behind the ear, and

158:18 you stick it in the ear; is that right?

158:19 A. Yes.

158:20 Q. Same way; right?

158:21 A. Yes.

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158:22 - 158:24 Battler, Leanne (2020-09-10) 0:09

158:22 Q. And have you ever been assigned Re: [158:22 to 159:03] OVERRULED

158:23 to any of the basic training bases? Def Obj 106, improper

158:24 A. No. Negative. clarification

158:25 - 159:03 Battler, Leanne (2020-09-10) 0:13

158:25 Q. Okay. Are you aware that during Re: [158:22 to 159:03] OVERRULED

159:01 basic training, the soldiers are taught how to Def Obj 106, improper

159:02 insert triple-flange earplugs? clarification

159:03 A. Yes.

160:09 - 160:12 Battler, Leanne (2020-09-10) 0:10

160:09 Q. Okay. And is it a fair statement Re: [160:09 to 160:18] Re: [160:09 to 160:18] Re: [160:09 to 160:18] OVERRULED

160:10 to say that once you can insert one Def Obj foundation (602); OVERRULED Def Obj foundation (602);

160:11 triple-flange plug, you can insert any vague (611, 403); 701 vague (611, 403); 701

160:12 triple-flange plug?

160:14 - 160:14 Battler, Leanne (2020-09-10) 0:03

160:14 Q. It's the same process, isn't it? Re: [160:09 to 160:18] Re: [160:09 to 160:18] Re: [160:09 to 160:18] OVERRULED

Def Obj foundation (602); OVERRULED Def Obj foundation (602);

vague (611, 403); 701 vague (611, 403); 701

160:17 - 160:18 Battler, Leanne (2020-09-10) 0:01

160:17 A. I think it's the same process, Re: [160:09 to 160:18] Re: [160:09 to 160:18] Re: [160:09 to 160:18] OVERRULED

160:18 yes. Def Obj foundation (602); OVERRULED Def Obj foundation (602);

vague (611, 403); 701 vague (611, 403); 701

160:19 - 160:22 Battler, Leanne (2020-09-10) 0:09

160:19 Q. Okay. So if somebody has been

160:20 taught how to insert a triple-flange plug, they

160:21 don't necessarily have to be taught again, do

160:22 they?

161:01 - 161:08 Battler, Leanne (2020-09-10) 0:23

161:01 A. I think a refresher is always -- Re: [161:01 to 161:04] Re: [161:01 to 161:04] Re: [161:01 to 161:04] OVERRULED

161:02 and that's why the regulation says we're Pltf Obj 01. 402 OVERRULED Pltf Obj 402

161:03 supposed to check it every year, at least

161:04 annually, to make sure they know how to do it. Re: [161:05 to 161:18] Re: [161:05 to 161:18] Re: [161:01 to 161:04] OVERRULED

161:05 Q. I understand. But the troops, if Pltf Obj 11. Foundation OVERRULED Pltf Obj 403; 602

161:06 they're going through basic training, and have

161:07 received that type of training, then they will Re: [161:05 to 161:18] OVERRULED

161:08 know how to insert a plug; true? Pltf Obj 402; 403; 602

161:12 - 161:18 Battler, Leanne (2020-09-10) 0:13

161:12 A. I wouldn't say necessarily. Re: [161:05 to 161:18] Re: [161:05 to 161:18] Re: [161:05 to 161:18] OVERRULED

161:13 Depends who taught them, how they taught them. Pltf Obj 11. Foundation OVERRULED Pltf Obj 402; 403; 602

161:14 I'm --

161:15 Q. Assuming --

161:16 A. I can speak for my -- I can speak

161:17 for my clinics and my technicians, I can't

161:18 speak for others.

162:01 - 162:05 Battler, Leanne (2020-09-10) 0:11

162:01 Q. Thousands. One of the things you

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162:02 said earlier is you've never rolled back the

162:03 opposing flanges to insert a Combat Arms; is

162:04 that a true statement?

162:05 A. Correct.

162:06 - 162:18 Battler, Leanne (2020-09-10) 1:31

162:06 Q. You also said that you have been

162:07 using Combat Arms plugs from 2003 to the

162:08 present, for your own personal use; is that

162:09 correct?

162:10 A. Correct. Yes.

162:11 Q. Which versions have you used over

162:12 the years?

162:13 A. All of them.

162:14 Q. Okay. And when did you start

162:15 using the Version 2 and when did you stop using

162:16 the Version 2?

162:17 A. I started using the Version 2

162:18 when I was a student at Aberdeen.

163:25 - 164:06 Battler, Leanne (2020-09-10) 0:27

163:25 Q. Okay. As far as the number of Re: [163:25 to 164:13] Re: [163:25 to 164:13] Re: [163:25 to 164:13] SUSTAINED

164:01 audiologists that the Army has had over the Pltf Obj 17. Objection SUSTAINED Pltf Obj nonresponsive

164:02 years, wasn't going to a one-sized Combat Arms Nonresponsive

164:03 plug a way to address the fact that the -- not Re: [163:25 to 164:13]

164:04 everybody could be hand-fitted by an Pltf Obj speculation; 602;

164:05 audiologist? Wasn't that one of the reasons 403;

164:06 why the Army went to a one-size plug?

164:11 - 164:13 Battler, Leanne (2020-09-10) 0:07

164:11 A. I never thought it was a one-size Re: [163:25 to 164:13] Re: [163:25 to 164:13] Re: [163:25 to 164:13] SUSTAINED

164:12 plug. I always thought it was a size medium Pltf Obj 17. Objection SUSTAINED Pltf Obj nonresponsive

164:13 plug. Nonresponsive

Re: [163:25 to 164:13]

Pltf Obj speculation; 602;

403;

164:14 - 164:16 Battler, Leanne (2020-09-10) 0:10

164:14 Q. Okay. Were you aware that the

164:15 Combat Arms earplug was supposed to be a

164:16 one-size-fits-most earplug?

164:19 - 164:21 Battler, Leanne (2020-09-10) 0:10

164:19 Q. One size fits most. I guess

164:20 medium would fit most, yes.

164:21 A. I mean, that's fair.

164:22 - 165:12 Battler, Leanne (2020-09-10) 1:47

164:22 Q. Are you aware that the Combat Re: [164:22 to 165:12] Re: [164:22 to 165:12] Re: [164:22 to 165:12] OVERRULED

164:23 Arms earplug was supposed to be a Def Obj foundation (602) OVERRULED Def Obj foundation (602)

164:24 one-size-fits-most plug?

164:25 A. No.

165:01 Q. Okay.

165:02 A. I understood it was a size medium

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165:03 earplug, and most people are size medium. So,

165:04 yes, I could infer one from the other, but it

165:05 was never presented as a one-size-fits-most.

165:06 Q. Okay. If you can pull up the

165:07 wallet card, whoever has got -- I can't

165:08 remember which exhibit it was, the wallet that

165:09 Mr. Nomellini used earlier.

165:10 MR. MONSOUR: Do you know which

165:11 one that is, Terry.

165:12 Here it is. Thank you, Corey.

165:13 - 166:03 Battler, Leanne (2020-09-10) 1:31

165:13 Q. If you will look under ordering,

165:14 it mentions the double-ended earplug, which, as

165:15 you know, that has to be the Combat Arms

165:16 Version 2, because that's the only double-ended

165:17 plug that's ever been around; correct?

165:18 A. Right.

165:19 Q. Do you notice where it says:

165:20 Which fits most of the adult population. Do

165:21 you see that?

165:22 A. Yes.

165:23 Q. Do you know what percentage of

165:24 the adult population it fits?

165:25 A. I would say probably

166:01 seventy-five --

166:02 Q. Okay.

166:03 A. -- maybe eighty.

166:10 - 167:17 Battler, Leanne (2020-09-10) 1:28

166:10 Q. And let me ask you this, Re: [167:03 to 167:17] Re: [167:03 to 167:17] Re: [167:03 to 167:17] OVERRULED

166:11 Lieutenant Colonel: The -- you mentioned that Def Obj misleading (611, 403) OVERRULED Def Obj misleading (611, 403)

166:12 when you went to -- I think you said when you

166:13 got to Iraq, when you arrived, as part of the

166:14 Rapid Fielding Initiative, somebody just handed

166:15 you two plugs; is that correct?

166:16 A. That was before I was in Iraq.

166:17 That was at the CRC, at Fort Benning. The

166:18 predeployment.

166:19 Q. What year would that have been?

166:20 A. 2008.

166:21 Q. And you saw that -- those just

166:22 being handed out without any instructions, that

166:23 was you and did you say there were five of you

166:24 in total?

166:25 A. Right. So it was like a round

167:01 robin, we all kind of circulated through the

167:02 different stations in our team.

167:03 Q. Okay. But there were just five

167:04 of you that you saw receive them this way;

167:05 true?

167:06 A. Yes.

167:07 Q. Okay. And you already knew how

167:08 to insert them properly; correct?

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167:09 A. Yes.

167:10 Q. And then you then showed the

167:11 other people that were in your group how to

167:12 insert them properly; correct?

167:13 A. Yes.

167:14 Q. Okay. And at that point in time,

167:15 in 2008, the Army had been using this earplug,

167:16 is it approximately four years?

167:17 A. Yes.

167:25 - 168:14 Battler, Leanne (2020-09-10) 1:41

167:25 Q. The only time -- The only time Re: [167:25 to 168:08] Re: [167:25 to 168:08] Re: [167:25 to 168:08] OVERRULED

168:01 that you've ever seen them handed out without Def Obj misstates; vague (611, OVERRULED Def Obj misstates; vague (611,

168:02 instruction, as you described, was the time 403) 403)

168:03 where you were there with that group of five

168:04 people; correct?

168:05 MR. NOMELLINI: Object to form

168:06 and foundation.

168:07 A. That's the only time I was

168:08 physically in the RFI site, yes.

168:09 Q. Okay. And during that time, the

168:10 plugs had been around for four years; correct?

168:11 A. They had been -- Yes.

168:12 Q. And you then instructed your

168:13 group on how to put them in; correct?

168:14 A. Yes.

168:15 - 168:19 Battler, Leanne (2020-09-10) 0:17

168:15 Q. So you can't tell me of any Re: [168:15 to 168:19] Re: [168:15 to 168:19] Re: [168:15 to 168:19] OVERRULED

168:16 situation where you know somebody has been Def Obj incomplete counter DEFER RULING Def Obj incomplete counter

168:17 given these and not had instructions at some (106) (106)

168:18 point in time; true?

168:19 A. Negative. Soldiers would tell me

169:08 - 169:16 Battler, Leanne (2020-09-10) 1:31

169:08 Q. Understood. But I'm going -- But Re: [169:08 to 169:16] Re: [169:08 to 169:16] Re: [169:08 to 169:16] OVERRULED

169:09 based upon your personal knowledge, from what Def Obj vague, leading (611, OVERRULED Def Obj vague, leading (611,

169:10 you have actually seen, it's only that little 403) 403)

169:11 group of five, and they quickly received

169:12 instruction from you; right?

169:13 MR. NOMELLINI: Object to the

169:14 form of the question.

169:15 Q. Is that correct?

169:16 A. Correct.

171:01 - 171:24 Battler, Leanne (2020-09-10) 1:56

171:01 One of the things that you were

171:02 talking about before is the Fort Carson study

171:03 that you did. Do you remember talking about

171:04 that, the study that was called Fort Carson:

171:05 An Army Hearing Program Success Story.

171:06 Do you remember that?

171:07 A. Yes.

171:08 Q. I have a couple of questions

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171:09 about that. Was that a -- Was that done

171:10 through an IRB?

171:11 A. It was not a research study, so

171:12 there was no need for IRB.

171:13 Q. Okay. Was it multicenter or just

171:14 your base -- or your fort?

171:15 A. Just Fort Carson.

171:16 Q. Okay. And it was never peer

171:17 reviewed by any formal journal at any journal

171:18 review board; correct?

171:19 A. It was peer reviewed. The AMED

171:20 Journal is a peer-reviewed journal.

171:21 Q. It is a peer-reviewed journal.

171:22 Okay. And that article does not speak for the

171:23 Army, does it?

171:24 A. Correct.

171:25 - 172:17 Battler, Leanne (2020-09-10) 1:53

171:25 Q. A couple of things, do you Re: [171:25 to 172:17] Re: [171:25 to 172:17] Re: [171:25 to 172:17] SUSTAINED

172:01 understand that the Army performed a criminal Def Obj foundation (602); 3M SUSTAINED Def Obj foundation (602); 3M

172:02 investigation with regard to the Combat Arms MIL No. 6; 403 MIL No. 6; 403

172:03 Version 2?

172:04 A. No.

172:05 Q. Okay. So you're unaware that

172:06 there was a criminal investigation into the

172:07 Combat Arms Version 2 earplug?

172:08 A. Correct.

172:09 Q. And I take it, since you were

172:10 unaware that there was an Army criminal

172:11 investigation, that you don't know any of the

172:12 evidence that was included in the Army's

172:13 criminal investigation of the Combat Arms

172:14 Version 2 earplug; true?

172:15 A. True.

172:16 Q. I cannot hear you.

172:17 A. True.

172:19 - 172:23 Battler, Leanne (2020-09-10) 0:18

172:19 I take it that you are -- Are you Re: [172:19 to 172:23] Re: [172:19 to 172:23] Re: [172:19 to 172:23] SUSTAINED

172:20 aware that the Combat Arms Version 2 earplug Def Obj 3M MIL No. 16; 403 OVERRULED Def Obj 3M MIL No. 16; 403

172:21 was discontinued in November of 2015?

172:22 A. I knew it was discontinued. I

172:23 wasn't sure the exact date, but, yes.

173:03 - 173:16 Battler, Leanne (2020-09-10) 1:54

173:03 Q. Okay. With regard to your --

173:04 With regard to your knowledge of the Combat

173:05 Arms Earplug Version 2, you've never done any

173:06 REAT testing on the Version 2; correct?

173:07 A. Correct.

173:08 Q. You've never done any Meyer

173:09 testing on the Version 2; correct?

173:10 A. Correct.

173:11 Q. You've never done any impulse

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173:12 testing on the Version 2; correct?

173:13 A. Correct.

173:14 Q. You've never had any access to

173:15 Aearo's REAT data for the version 2; correct?

173:16 A. Correct.

173:18 - 173:20 Battler, Leanne (2020-09-10) 0:05

173:18 We talked about the wallet card earlier. Do

173:19 you remember that?

173:20 A. Yes.

173:21 - 174:08 Battler, Leanne (2020-09-10) 1:00

173:21 Q. When did you start using the

173:22 wallet card?

173:23 A. I guess when -- when it was

173:24 available.

173:25 Q. And I asked a poor question. Let

174:01 me be more specific. What year was it

174:02 available?

174:03 A. That's a great question. I'm

174:04 trying to think if we had it in Fort Hood.

174:05 Well, we must have had it in Fort Hood because

174:06 -- Yeah. So what year was it on the --

174:07 Whatever year the -- I don't know exactly what

174:08 year it came available.

174:09 - 175:24 Battler, Leanne (2020-09-10) 2:57

174:09 Q. Okay. And how would you use the

174:10 wallet card? When you fit soldiers, would you

174:11 hand them one?

174:12 A. Not usually. I'd say -- After we

174:13 did the fitting, then I would say: Here's some

174:14 cards; if anybody wants to keep a card to kind

174:15 of remember if you forget what we talked about,

174:16 you can use this as a refresher.

174:17 Q. Okay. So it was -- It was

174:18 optional, additional instruction that were

174:19 available to the soldiers?

174:20 A. When we had them available, yes.

174:21 Q. Okay. And did you, like, pass

174:22 them out or did you just kind of have them in a

174:23 bowl on a table somewhere and say: If anybody

174:24 wants one, just pick one up?

174:25 A. Never a bowl. It was always, if

175:01 they were -- Yeah. If we had them, I'd have

175:02 them in my hand and say, who wants one of

175:03 these? Anybody want one of these?

175:04 Q. Okay. You also said you used a

175:05 PowerPoint, I guess, to explain how to use the

175:06 Combat Arms Version 2s?

175:07 A. Yes.

175:08 Q. And what did that PowerPoint have

175:09 in it?

175:10 A. So, again, I had like the --

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175:11 Well, kind of -- the picture of the wallet

175:12 card, and then I had the picture of Ron Millis

175:13 with his quote. Then we would have a short

175:14 video of a blast, and then another video of a

175:15 truck engine in the motor pool to talk about

175:16 the difference between impulse noise and steady

175:17 state noise; and then we'd talk about which end

175:18 to put in in each scenario. And then I would

175:19 do it up there on the stage, I'd say pull up

175:20 and back. And my techs would usually be in the

175:21 audience, you know, running around giving

175:22 everybody size medium, looking in their ears as

175:23 they came in for the briefing. And then we try

175:24 to do an en masse, you know, fitting like that.

175:25 - 176:07 Battler, Leanne (2020-09-10) 0:23

175:25 Q. And when you would be giving

176:01 these PowerPoint presentations to the men and

176:02 women of the United States Army, how big of a

176:03 group would you be giving that to? Would it be

176:04 ten people, a hundred people, more than that?

176:05 A. One time, there was a large group

176:06 of about two hundred. But most of the time

176:07 they were much smaller.

176:08 - 176:11 Battler, Leanne (2020-09-10) 0:10

176:08 Q. Once a soldier was instructed on Re: [176:08 to 176:12] OVERRULED

176:09 how to insert the Combat Arms, did you find Def Obj 602

176:10 that they were able to consistently insert

176:11 them?

176:15 - 176:20 Battler, Leanne (2020-09-10) 0:14

176:15 A. Yeah. Usually. I mean, well, Re: [176:15 to 176:20] OVERRULED

176:16 that was part of it, is -- is we would, you Def Obj 602

176:17 know, instruct them how to do it, and then we

176:18 would do the follow-on tug test to make sure

176:19 that they had achieved the proper seal; and, if

176:20 not, we would reinstruct them.

177:13 - 177:23 Battler, Leanne (2020-09-10) 0:27

177:13 Q. Now, you had mentioned before,

177:14 with regard to the earplugs, when you wore

177:15 them, you could tell if they had a good fit or

177:16 seal; correct?

177:17 A. Yes.

177:18 Q. And I can't remember the phrase

177:19 that you used, but I guess it involved just the

177:20 noise that you would be hearing; is that right?

177:21 A. Right. You'd kind of hear your

177:22 environmental -- just the air, cutting in and

177:23 out.

177:24 - 178:15 Battler, Leanne (2020-09-10) 1:57

177:24 Q. Now, is it more difficult to tell Re: [177:24 to 178:15] Re: [177:24 to 178:15] Re: [177:24 to 178:15] OVERRULED

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177:25 if you've got a good seal with the yellow end, Pltf Obj 11. Foundation OVERRULED Pltf Obj 701; 602

178:01 because that is supposed to allow for a lot of

178:02 those sounds to come through anyway?

178:03 A. No. Because it's different.

178:04 Q. Explain the difference.

178:05 A. You hear all of the environment

178:06 coming -- coming in and out, rather than a

178:07 portion of it.

178:08 Q. So what you're saying is,

178:09 determining whether or not there is a seal in

178:10 the earplugs is the same for the yellow side as

178:11 the green side?

178:12 A. Yes.

178:13 Q. Even though the yellow side has a

178:14 hole in it?

178:15 A. Yes.

178:16 - 181:14 Battler, Leanne (2020-09-10) 3:24

178:16 Q. Okay. If we could, you did --

178:17 You talked earlier with 3M's counsel, Mr.

178:18 Nomellini, about the survey that you had done

178:19 of some of the soldiers to ask them about their

178:20 usage of the Combat Arms Version 2, do you

178:21 remember that?

178:22 A. In the PDHRA, yes.

178:23 Q. Yes. And I believe -- I've seen

178:24 an email, I can pull it up, you might remember

178:25 this, you were intending to look at twenty-five

179:01 people on a Thursday and then another

179:02 twenty-five on a Friday. That was the

179:03 intention; correct?

179:04 A. I remember -- I don't recall that

179:05 exactly, but I do remember reading that that

179:06 was -- Yes.

179:07 Q. Okay. And you were able to get

179:08 four of them done; correct?

179:09 A. Wasn't it ten?

179:10 Q. I found four.

179:11 A. Oh.

179:12 Q. And I believe you forwarded four

179:13 to -- I guess we can pull up -- Let me go ahead

179:14 and pull up the email that talks about that.

179:15 Give me one second.

179:16 Yeah. This is the one that says

179:17 twenty-five.

179:18 MR. MONSOUR: Okay. If you'll

179:19 pull up LC-006.

179:20 Q. And if you will look, Lieutenant

179:21 Colonel, you will see that this is an email

179:22 that you sent to a man by the name of Brian

179:23 Myers. Do you see that?

179:24 A. Yes.

179:25 Q. And that took place on August 22,

180:01 2005; correct?

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180:02 A. Yes.

180:03 Q. And it says questions regarding

180:04 Combat Arms earplugs; correct?

180:05 A. Yes.

180:06 Q. And Brian Myers works with Aearo,

180:07 which is now 3M; correct?

180:08 A. I honestly don't remember who

180:09 Brian Myers is.

180:10 Q. Look down a little lower on the

180:11 email, you will see Brian Myers' email address

180:12 down below, and it notes that he has an Aearo

180:13 email address.

180:14 Do you see that?

180:15 A. Yes.

180:16 Q. Okay. Does that clear that up?

180:17 A. Yes.

180:18 Q. Okay. If you'll look at the

180:19 email that you sent to him, you say: Brian --

180:20 MR. MONSOUR: Go up a little bit.

180:21 Q. Brian, I am attaching responses

180:22 from four soldiers. I only had the opportunity

180:23 to interview these four. I thought I was going

180:24 to see more soldiers, but that's the way it

180:25 worked out.

181:01 Did I read that reasonably

181:02 correctly?

181:03 A. Yes.

181:04 Q. And then it says: And one of

181:05 them, number 3 I think, had to leave before we

181:06 finished all the questions. Even with this

181:07 small number, I think they generated some

181:08 really good ideas, mainly, that they seem to

181:09 want the earplugs integrated with either their

181:10 helmet or sunglasses and also that they need

181:11 them to be available in a greater variety of

181:12 sizes. I hope this helps. Captain Cleveland.

181:13 Did I read that right?

181:14 A. Yes.

181:15 - 181:22 Battler, Leanne (2020-09-10) 0:13

181:15 Q. I think we've made this clear,

181:16 your name is Leanne Battler, but your name used

181:17 to be Leanne Cleveland; correct?

181:18 A. Yes.

181:19 Q. So any time we see anything from

181:20 Leanne Cleveland, regardless of rank, that's

181:21 you?

181:22 A. That's me.

182:18 - 182:23 Battler, Leanne (2020-09-10) 0:08

182:18 MR. MONSOUR: Okay. I'll do it.

182:19 Let's pull up Exhibit LC-008, and let's mark

182:20 this as Exhibit 14 -- excuse me, 15.

182:21 (Whereupon, Plaintiff's

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182:22 Exhibit 15 was marked for

182:23 identification purposes.)

182:24 - 184:20 Battler, Leanne (2020-09-10) 2:53

182:24 Q. This is one of your surveys, Re: [184:15 to 184:20] Re: [184:15 to 184:20] Re: [184:15 to 184:20] SUSTAINED

182:25 correct, one of the four? Def Obj foundation (602); SUSTAINED Def Obj foundation (602);

183:01 A. Yes. vague, leading (611, 403) vague, leading (611, 403)

183:02 Q. If we look at that, look at

183:03 question number two, it says: Do you believe

183:04 your hearing has been affected by the loud

183:05 noises you heard? Why or why not? He says:

183:06 Yes. I didn't wear the earplugs all the time

183:07 because they were too big and they hurt and

183:08 they didn't work very well.

183:09 Do you see that?

183:10 A. Yes.

183:11 Q. And then if you look down at

183:12 number four it says: When did you wear the

183:13 CAE? And he writes -- he answers: I rarely

183:14 used them. When we had to use the headset, I

183:15 could not hear what the driver said with my

183:16 HPDs in.

183:17 Did I read that correct?

183:18 A. Yes.

183:19 Q. Then number seven, it says: I

183:20 could not understand conversation even with the

183:21 yellow end in my ear. They were too big for my

183:22 ear. They need to come in different sizes.

183:23 Do you see that?

183:24 A. Yes.

183:25 Q. And then if we look at number

184:01 nine, he notes: They hurt too much, so I

184:02 didn't use them enough.

184:03 Do you see that?

184:04 A. Yes.

184:05 Q. And then, finally, number eleven

184:06 goes back to that comfort issue that you and I

184:07 were talking about just a few minutes ago, it

184:08 says: Anything else that you would like to say

184:09 about what did or did not work with the Combat

184:10 Arms earplug or comments on how it might be

184:11 improved? And the answer was: They fit too

184:12 big. It makes you not want to wear them.

184:13 Did I read that correctly?

184:14 A. Yes.

184:15 Q. Now, so that's one person of the

184:16 four that did not like the Combat Arms;

184:17 correct?

184:18 MR. NOMELLINI: Object to form

184:19 and foundation.

184:20 A. Yes.

184:21 - 190:09 Battler, Leanne (2020-09-10) 6:25

184:21 (Whereupon, Plaintiff's Re: [188:06 to 188:11] Re: [188:06 to 188:11] Re: [188:06 to 188:11] SUSTAINED

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184:22 Exhibit 16 was marked for Def Obj vague, leading (611, SUSTAINED Def Obj vague, leading (611,

184:23 identification purposes.) 403); foundation (602) 403); foundation (602)

184:24 Q. Okay. Let's go to Exhibit Number Re: [190:05 to 190:09]

184:25 16, which is LC-009. And this person says, Re: [190:05 to 190:09] SUSTAINED Re: [190:05 to 190:09]

185:01 number four: I used them during the convoy Def Obj vague, leading (611, Def Obj vague, leading (611,

185:02 live fire exercise on the road trip from 403); foundation (602) 403); foundation (602)

185:03 Kuwait, but then I lost them.

185:04 Correct? Re: [186:23 to 187:10]

185:05 A. Yes. Def Obj 602

185:06 Q. And then number five says: How

185:07 often and how long did you typically wear it?

185:08 And the response is: For one week, then I lost

185:09 them and used the triple-flange and the foam

185:10 for the rest of the year.

185:11 Did I read that correctly?

185:12 A. Yes.

185:13 Q. And then if you go down to number

185:14 seven it says: They were difficult to store.

185:15 They were too big for the case. A lot of the

185:16 people kept them on their Kevlar, but they got

185:17 dusty and dirty and didn't want to wear them

185:18 when they got like that. I lost mine with my

185:19 brown scarf when we switched over to another

185:20 vehicle.

185:21 Do you see that?

185:22 A. Yes.

185:23 Q. He does note that there was a

185:24 complaint that they were too big for the case.

185:25 Do you see that?

186:01 A. Yeah.

186:02 (Whereupon, Plaintiff's

186:03 Exhibit 17 was marked for

186:04 identification purposes.)

186:05 Q. Let's go to Exhibit Number 17,

186:06 which is LC-010. This is the third person.

186:07 And on number two it says: Do you believe your

186:08 hearing has been affected by the loud noises

186:09 you heard? Why or why not? And the answer is:

186:10 Yes. My hearing is worse and the ringing is

186:11 worse. My tinnitus used to be intermittent,

186:12 now it's all the time.

186:13 Did I read that correctly?

186:14 A. Yes.

186:15 Q. Then if we look at number four,

186:16 it says: When did you wear the CAE? And the

186:17 person answers: Approximately one week, but

186:18 they were too irritating. Too deep inside the

186:19 ear canal. And then it's explained that the

186:20 soldier switched to using an oral

186:21 triple-flanged earplug; correct?

186:22 A. Yes.

186:23 Q. If a plug is too irritating and

186:24 fits too deep inside the ear canal, that can be

186:25 a problem for that plug's fit; correct?

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187:01 MR. NOMELLINI: Object to the

187:02 form.

187:03 Q. Is that correct?

187:04 A. So you've got too irritating, too

187:05 deep, does that mean they were too big or that

187:06 he didn't like the consistency of the silicone?

187:07 Q. I don't know. I wasn't there to

187:08 ask him the question, but you were. Do you

187:09 remember?

187:10 A. No.

187:11 Q. If we look at number seven, it

187:12 says: We are in the process of redesigning the

187:13 CAE. If length of the actual earplug was an

187:14 issue, how long can the CAE be and not

187:15 interfere with other tasks which you must

187:16 perform, like talking on the radio, et cetera?

187:17 And it says here: The hand mic used in radio

187:18 control depresses the CAE further into the ear

187:19 canal making it way too irritating. Make the

187:20 length flush with the opening of the ear canal.

187:21 Did I read that right?

187:22 A. Yes.

187:23 Q. And then if we go to eleven, it

187:24 says: Anything else that you would like to say

187:25 about what did or did not work with the CAE or

188:01 comments on how it might be improved? And the

188:02 person responds: Length both too far in the

188:03 canal and too far out of the canal.

188:04 Did I read that correctly?

188:05 A. Yes.

188:06 Q. So it looks like this person

188:07 didn't particularly like the plugs either.

188:08 Fair statement?

188:09 MR. NOMELLINI: Object to the

188:10 form and foundation.

188:11 A. I agree.

188:12 (Whereupon, Plaintiff's

188:13 Exhibit 18 was marked for

188:14 identification purposes.)

188:15 Q. Okay. So that's two out of three

188:16 that didn't like it. And let's go to Exhibit

188:17 Number 18, and that's LC-011.

188:18 And this one, I believe, is one

188:19 that Mr. Nomellini went through you -- with you

188:20 through. And he explains that he wore his

188:21 earplugs all the time under number two. If I

188:22 hadn't worn hearing protective devices, I would

188:23 have had serious problems or else have been

188:24 deaf.

188:25 Correct?

189:01 A. Yes.

189:02 Q. Then at the end, number eleven,

189:03 he says: No, I wouldn't change anything at

189:04 all.

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189:05 True? Is that right?

189:06 A. Yes.

189:07 Q. So we've got one person that

189:08 likes them, one person that says they're too

189:09 irritating, one person that lost them after a

189:10 week, and another person that thought they were

189:11 too big; correct?

189:12 A. Say that again. One --

189:13 Q. Sure. One thought they were too

189:14 big and they hurt and that they didn't work

189:15 well, that's the first person. Correct?

189:16 A. Okay.

189:17 Q. One used them for a week and then

189:18 lost them. That's the second person; correct?

189:19 A. Uh-huh.

189:20 Q. The third person found that they

189:21 were too irritating and had to switch to a

189:22 different triple-flange plug after a week and

189:23 thought they went too far in the canal;

189:24 correct?

189:25 A. Yes.

190:01 Q. And then the fourth person liked

190:02 the plug and said: I wouldn't change anything

190:03 at all; correct?

190:04 A. Yes.

190:05 Q. So out of four people, two of

190:06 them didn't like them; fair?

190:07 MR. NOMELLINI: Object to the

190:08 form.

190:09 A. Fair.

190:10 - 190:20 Battler, Leanne (2020-09-10) 1:35

190:10 (Whereupon, Plaintiff's

190:11 Exhibit 19 was marked for

190:12 identification purposes.)

190:13 Q. Now, if we could pull up

190:14 Plaintiff's Exhibit -- let me see. This should

190:15 be 19. Let's mark it P 1272.2.

190:16 Have you seen this document

190:17 before?

190:18 A. Yes.

190:19 Q. Okay. What is it?

190:20 A. I made this.

191:13 - 192:23 Battler, Leanne (2020-09-10) 2:01

191:13 Q. Okay. Now, one of the things, if Re: [192:11 to 192:19] Re: [192:11 to 192:19] Re: [192:11 to 192:19] SUSTAINED

191:14 we look on here, on the right-hand side of the Def Obj foundation (602); SUSTAINED Def Obj foundation (602);

191:15 document, underneath number three, in the third vague (611, 403) vague (611, 403)

191:16 column, it says, and you had talked about this

191:17 earlier, it says: All earplugs work loose and

191:18 must be reseated after a period of time.

191:19 Do you see that?

191:20 A. Yes.

191:21 Q. Do you agree with that?

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191:22 A. Yes.

191:23 Q. How long, typically, does it take

191:24 for an earplug to work loose as is being

191:25 described here?

192:01 A. Well, that depends if they're

192:02 chewing gum or -- it depends on the individual.

192:03 Q. Okay. How often -- You say plugs

192:04 must be reseated. Can there be a plug that has

192:05 to be reseated -- that needs to be reseated so

192:06 often that it's not very helpful, not very

192:07 useful?

192:08 A. I guess if it was fitting barely,

192:09 then, yeah. If it was less than a perfect fit

192:10 then it would need to be reseated more often.

192:11 Q. Why would having to reseat a plug

192:12 more often cause problems for soldiers?

192:13 MR. NOMELLINI: Object to the

192:14 form of the question.

192:15 MAJ WALD: I would just remind

192:16 you to answer with your -- based on personal

192:17 knowledge.

192:18 A. Well, it's hard to fire a weapon

192:19 when you're adjusting your hearing protection.

192:20 Q. Fair enough. So you want a plug

192:21 that stays in longer, rather than shorter;

192:22 fair?

192:23 A. Correct.

193:07 - 193:19 Battler, Leanne (2020-09-10) 1:55

193:07 Q. And what is that a picture of?

193:08 A. So with the old BDU, the battle

193:09 dress uniform, we used to have a pocket on the

193:10 right front breast, and the part of the uniform

193:11 was to wear the earplug carrying case with your

193:12 unit crest attached to the button on that

193:13 uniform. So that was the Darnell Army

193:14 Community Hospital crest, my earplug case, and

193:15 those earplugs are the Elvex Quattro, which I

193:16 found were softer of silicone than the orange

193:17 triple-flanged, and which were -- which

193:18 provided a similar fit to the orange

193:19 triple-flange.

193:20 - 193:23 Battler, Leanne (2020-09-10) 0:14

193:20 Q. Okay. You insert triple-flange

193:21 plugs basically the same way you do quad-flange

193:22 plugs?

193:23 A. Yes.

193:24 - 195:13 Battler, Leanne (2020-09-10) 2:55

193:24 Q. Okay. I note there it says: Re: [195:07 to 195:13] Re: [195:07 to 195:13] Re: [195:07 to 195:13] OVERRULED

193:25 Every soldier who in-processes through Fort Def Obj foundation (602); OVERRULED Def Obj foundation (602);

194:01 Hood Hearing Conservation Clinic is fitted with vague, leading (611, 403) vague, leading (611, 403)

194:02 a pair of preformed earplugs and issued a

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194:03 carrying case.

194:04 Do you see that?

194:05 A. Yes.

194:06 Q. Now, what does in-process mean?

194:07 A. So when you -- When you arrive at

194:08 your new duty station, when you PCS, permanent

194:09 change of station. So when you're a brand-new

194:10 soldier, you've got your orders that say you

194:11 will report to Fort Hood, you in-process, and

194:12 that's when you go through all of your medical

194:13 checks, and you are assigned your new unit and

194:14 leadership, your housing, you get your kids

194:15 enrolled in school. But the medical

194:16 in-processing at Fort Hood was done through the

194:17 Soldier Readiness Center.

194:18 Q. Are a lot of soldiers processed

194:19 through Fort Hood?

194:20 A. Yes.

194:21 Q. It's a pretty big Army fort,

194:22 isn't it?

194:23 A. Huge.

194:24 Q. Huge. So every soldier that

194:25 shows up at Fort Hood goes through a fitting

195:01 process with these types of plugs; correct?

195:02 A. Yes.

195:03 Q. And those are put in basically

195:04 the same way as a Combat Arms Version 2 plug;

195:05 correct?

195:06 A. Yes.

195:07 Q. So if I can put in one of these,

195:08 I can put in a Version 2; correct?

195:09 MR. NOMELLINI: Object to form

195:10 and foundation.

195:11 Q. Is that correct?

195:12 A. You should. It's the same

195:13 process, yeah.

195:14 - 195:19 Battler, Leanne (2020-09-10) 0:25

195:14 Q. Right. Okay. So it appears that Re: [195:14 to 196:01] Re: [195:14 to 196:01] Re: [195:14 to 196:01] SUSTAINED

195:15 the Army, if it's addressed in basic training, Def Obj foundation (602); SUSTAINED Def Obj foundation (602);

195:16 and then it's addressed every time a soldier vague, leading (611, 403) vague, leading (611, 403)

195:17 moves, it appears that the Army is constantly

195:18 reinforcing hearing protection fit and how to

195:19 put them in; is that a fair statement?

195:24 - 196:01 Battler, Leanne (2020-09-10) 0:07

195:24 Q. You can answer the question. Re: [195:14 to 196:01] Re: [195:14 to 196:01] Re: [195:14 to 196:01] SUSTAINED

195:25 A. Speaking for my -- my clinics, Def Obj foundation (602); SUSTAINED Def Obj foundation (602);

196:01 yes. vague, leading (611, 403) vague, leading (611, 403)

196:02 - 196:19 Battler, Leanne (2020-09-10) 1:12

196:02 (Whereupon, Plaintiff's

196:03 Exhibit 20 was marked for

196:04 identification purposes.)

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196:05 Q. Okay. Now, if we could,

196:06 Lieutenant Colonel, let's pull up a document

196:07 LC-003. And if we will look at the top of

196:08 LC-003, and I'll mark that as Exhibit -- I'm

196:09 sorry, the document that I previously had up on

196:10 the screen, let's mark that one that had the

196:11 photos on it as Exhibit Number 19. And I will

196:12 mark this exhibit, LC-003, as Exhibit Number

196:13 20.

196:14 If we look at this document,

196:15 Lieutenant Colonel, do you see that it is an

196:16 email that is -- that the top was sent from a

196:17 Captain William Porter, to Brian Myers and you,

196:18 in August of 2005?

196:19 A. Yes.

197:25 - 201:01 Battler, Leanne (2020-09-10) 3:29

197:25 Q. And then it appears that if you Re: [199:10 to 199:17] Re: [199:10 to 199:17] Re: [199:10 to 199:17] Prior rulings stand.

198:01 look in the email immediately above that, they Def Obj foundation (602); 611, SUSTAINED AS TO Def Obj foundation (602); 611,

198:02 are talking about getting some of the 403; leading COMMENTS RECEIVED 403; leading

198:03 audiologists that have talked to some people to

198:04 get the information. Re: [200:20 to 201:01] Re: [200:20 to 201:01] Re: [200:20 to 201:01]

198:05 Do you see that? Def Obj foundation (602); SUSTAINED AS TO Def Obj foundation (602);

198:06 A. Yes. leading, vague (611, 403) COMMENTS RECEIVED leading, vague (611, 403)

198:07 Q. And then if we go up a couple of

198:08 emails before that, there's one from a

198:09 Lieutenant Colonel Vickie Tuten. Did I

198:10 pronounce that right?

198:11 A. Yes, you did.

198:12 Q. And it is from Lieutenant Colonel

198:13 Tuten to a Roberta Nang and a William --

198:14 Captain William Porter, and you are cc'd on it;

198:15 correct?

198:16 A. Yes.

198:17 Q. And if we look at the end of the

198:18 first paragraph, Lieutenant Colonel Tuten

198:19 writes: I know I've personally had feedback

198:20 about fit/comfort issues.

198:21 Do you see that?

198:22 A. Yes.

198:23 Q. Now, you also had feedback on

198:24 fit/comfort issues; correct?

198:25 A. Yes.

199:01 Q. And then if you look immediately

199:02 above, you see there is an email from Captain

199:03 William Porter, and he lists three criticisms

199:04 of the system.

199:05 Do you see that?

199:06 A. Yes.

199:07 Q. What is the first criticism

199:08 Captain Porter notes?

199:09 A. Fit and size.

199:10 Q. And, again, you saw fit and size

199:11 problems, Lieutenant Colonel Tuten saw fit

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199:12 problems, and now Captain Porter sees the same

199:13 problems; correct?

199:14 MR. NOMELLINI: Object to the

199:15 form of the question.

199:16 A. Right. The fit problem was that

199:17 there was only one size.

199:18 Q. Okay. And then it says here, let

199:19 me read you what Captain Porter says:

199:20 Fit/size. As you are well aware, not every

199:21 external ear canal is the same size, and some

199:22 soldiers could not/did not wear the CAE and

199:23 choose to wear other hearing protection because

199:24 it was more comfortable.

199:25 Do you see that?

200:01 A. Yes.

200:02 Q. Is it a fair statement that if

200:03 you put an earplug in somebody's ear and it's

200:04 too big, that it hurts?

200:05 A. That's fair.

200:06 Q. And if it hurts, that's a problem

200:07 for the user; true?

200:08 A. True.

200:09 Q. If we look down, number three,

200:10 there's an issue with compatibility that

200:11 Captain Porter notes. He writes:

200:12 Compatibility with the standard Army earplug

200:13 case, the CAE will fit into the standard

200:14 plastic earplug case, but not without some

200:15 struggle. If you develop a new version of the

200:16 CAE, the case should be integrated with the

200:17 product.

200:18 Did I read that correctly?

200:19 A. Yes.

200:20 Q. So it appears from Captain Porter

200:21 the product was too big for the carrying case;

200:22 fair?

200:23 MR. NOMELLINI: Object to form

200:24 and foundation.

200:25 Q. Is that fair?

201:01 A. It was wrong, yes.

201:02 - 201:19 Battler, Leanne (2020-09-10) 1:51

201:02 Q. And then if we go back to where

201:03 we kind of started, Lieutenant Colonel, we go

201:04 to the email from Brian Myers on 8/16, to --

201:05 back to the same William Porter, Captain

201:06 Porter, and you have been cc'd on it, and he

201:07 says: First, I want to thank you for the

201:08 feedback. The first two items are high on our

201:09 list for improvements, and I believe you will

201:10 be much happier with the version currently

201:11 under development.

201:12 We have conducted an additional

201:13 testing to determine if we are able to decrease

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201:14 filter and earplug size but retain the

201:15 performance of the product. It appears that we

201:16 can do this, which will go a long way toward

201:17 resolving the fit/comfort issue.

201:18 Do you see that?

201:19 A. Yes.

201:20 - 202:05 Battler, Leanne (2020-09-10) 1:34

201:20 Q. Do you agree that there was a Re: [202:03 to 202:10] Re: [202:03 to 202:10] Re: [202:03 to 202:10] OVERRULED

201:21 fit/comfort issue with these plugs? Def Obj 702; foundation (602); OVERRULED Def Obj 702; foundation (602);

201:22 A. Because they were only one size. leading, vague (611, 403) leading, vague (611, 403)

201:23 Q. Right. But he also mentions that

201:24 there was an issue with decreasing the filter

201:25 size.

202:01 Do you see that?

202:02 A. I do.

202:03 Q. Do you understand that the filter

202:04 was too big, and that was having an issue with

202:05 regard to comfort?

202:08 - 202:10 Battler, Leanne (2020-09-10) 0:14

202:08 A. For people with size small ear Re: [202:03 to 202:10] Re: [202:03 to 202:10] Re: [202:03 to 202:10] OVERRULED

202:09 canals, it would have been too -- the -- the Def Obj 702; foundation (602); OVERRULED Def Obj 702; foundation (602);

202:10 earplug would have been too big. leading, vague (611, 403) leading, vague (611, 403)

202:11 - 202:14 Battler, Leanne (2020-09-10) 0:13

202:11 Q. Well, here's my -- What

202:12 percentage of the Army's population has ear

202:13 canals that are too small?

202:14 A. Not that many.

202:15 - 203:04 Battler, Leanne (2020-09-10) 1:42

202:15 Q. And, yet, we noted on your Re: [202:15 to 203:01] OVERRULED

202:16 previous interview of those four people, two of Def Obj (602), Vague

202:17 them didn't like the fit; true?

202:18 MR. NOMELLINI: Object to the

202:19 form of the question.

202:20 Q. You can answer.

202:21 A. Go back again. So the -- Was it

202:22 that they didn't like the softness of the --

202:23 I'm not sure how you're determining the word

202:24 fit, how you're defining the word fit.

202:25 I'm not sure how you're defining

203:01 the word fit.

203:02 Q. Okay. They thought they were

203:03 uncomfortable, true, two of the four?

203:04 A. Correct.

203:05 - 203:09 Battler, Leanne (2020-09-10) 0:15

203:05 Q. And if you're saying it should

203:06 only be for the smallest ear canals, that's not

203:07 very many people, but we still have a

203:08 significant number that are reporting it's not

203:09 very comfortable.

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203:15 - 203:19 Battler, Leanne (2020-09-10) 0:24

203:15 A. Right. I guess you'd -- you'd

203:16 need to be more precise about what -- how they

203:17 were defining comfort. Was it because of -- I

203:18 know that the softness of the silicone was an

203:19 issue.

203:20 - 203:23 Battler, Leanne (2020-09-10) 0:08

203:20 Q. One of them said it was too

203:21 irritating because it went deep inside the ear

203:22 canal; correct?

203:23 A. Uh-huh.

203:24 - 204:04 Battler, Leanne (2020-09-10) 0:10

203:24 Q. And the other one said they hurt Re: [203:24 to 204:06] Re: [203:24 to 204:06] Re: [203:24 to 204:06] SUSTAINED

203:25 too much, so I didn't use them enough. They Def Obj leading, vague (611, SUSTAINED Def Obj leading, vague (611,

204:01 fit too big. It makes you not want to wear 403); improper counter (leaves 403); improper counter (leaves

204:02 them. out response at 204:7-10) out response at 204:7-10)

204:03 Correct?

204:04 A. Correct.

204:11 - 204:13 Battler, Leanne (2020-09-10) 0:08

204:11 Q. Okay. But on one of them it does

204:12 appear to be a diameter issue, because it

204:13 hurts; true?

204:16 - 204:17 Battler, Leanne (2020-09-10) 0:08

204:16 A. Not necessarily. To me, it could

204:17 have been the silicone softness.

207:02 - 207:25 Battler, Leanne (2020-09-10) 1:01

207:02 Q. So let's talk about a few of Re: [207:09 to 207:25] Re: [207:09 to 207:25] Re: [207:09 to 207:25] OVERRULED

207:03 these things. We had talked about this before Def Obj leading (611, 403) OVERRULED Def Obj leading (611, 403)

207:04 but can you again state for us, why is it

207:05 important to have a plug that you don't have to

207:06 constantly reinsert?

207:07 A. Because you need two hands to

207:08 operate your radio or fire your weapon.

207:09 Q. If your earplugs are loosening

207:10 and you have to constantly free one of your

207:11 hands to stick them back in -- or actually use

207:12 both hands, because you've got to pull the

207:13 pinna back and stick it in, that can be a

207:14 problem to a soldier who is busy looking for

207:15 bad guys that are trying to kill him; true?

207:16 A. True.

207:17 Q. And that's one of the things that

207:18 you mentioned earlier, is we want our soldiers

207:19 to be lethal. As mean as that sounds, we want

207:20 them lethal; right?

207:21 A. Yes.

207:22 Q. And if they're fidgeting with

207:23 their earplugs, they're not very lethal, are

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207:24 they?

207:25 A. Correct.

210:05 - 210:14 Battler, Leanne (2020-09-10) 1:32

210:05 Q. And the paragraph that says -- on Re: [210:05 to 210:14] Re: [210:05 to 210:14] Re: [210:05 to 210:14] OVERRULED

210:06 the left-hand size that says: Designed to meet Def Obj relevance (401, 402); OVERRULED Def Obj relevance (401, 402);

210:07 the unique demands of the Armed Forces. On 403 403

210:08 this one, it says: The level-dependent

210:09 technology used in the earplug, and the earplug

210:10 itself, has been tested on human subjects and

210:11 found to be protective at 190 dBP for at least

210:12 one hundred exposures.

210:13 Do you see that?

210:14 A. Yes.

211:02 - 211:08 Battler, Leanne (2020-09-10) 0:23

211:02 Q. Okay. But doesn't that imply Re: [211:02 to 211:08] Re: [211:02 to 211:08] Re: [211:02 to 211:08] OVERRULED

211:03 some sort of a quality for an earplug, if it Def Obj 702; foundation (602); OVERRULED Def Obj 702; foundation (602);

211:04 can be protective at a hundred exposures for relevance (401, 402); 403 relevance (401, 402); 403

211:05 190 dBP?

211:06 MR. NOMELLINI: Object to form.

211:07 A. Yes. That's -- that's a lot --

211:08 lot of noise.

211:19 - 211:25 Battler, Leanne (2020-09-10) 0:23

211:19 Q. Then if we look down one -- under Re: [211:19 to 211:25] Re: [211:19 to 211:25] Re: [211:19 to 211:25] OVERRULED

211:20 the dual-ended Combat Arms earplugs, there's Def Obj relevance (401, 402); OVERRULED Def Obj relevance (401, 402);

211:21 several bullets there. And it notes: 403; foundation (602) 403; foundation (602)

211:22 Premolded triple-flange design fits most ear

211:23 canals.

211:24 Do you see that?

211:25 A. Yes.

212:07 - 212:19 Battler, Leanne (2020-09-10) 1:48

212:07 Q. It says: The level-dependent Re: [212:07 to 212:19] Re: [212:07 to 212:19] Re: [212:07 to 212:19] OVERRULED

212:08 technology used in the earplug and the earplug Def Obj relevance (401, 402); OVERRULED Def Obj relevance (401, 402);

212:09 itself has been tested on human subjects and 403; foundation (602) 403; foundation (602)

212:10 found to be protective at 190 dBP for at least

212:11 a hundred exposures.

212:12 Are you aware that that's a false

212:13 statement?

212:14 A. It appears -- Like I said, that's

212:15 a lot of noise. It's surprising to me.

212:16 If -- It -- It sounds -- It

212:17 sounds like it could -- I don't know who could

212:18 survive a hundred exposures of 190 decibels of

212:19 peak sound pressure level.

212:20 - 212:20 Battler, Leanne (2020-09-10) 0:02

212:20 Q. Does it concern you that 3M's Re: [212:20 to 212:20] Re: [212:20 to 212:20] Re: [212:20 to 212:20] OVERRULED

Def Obj incomplete counter SUSTAINED Def Obj incomplete counter

(106); foundation (602) (106); foundation (602)

213:16 - 213:19 Battler, Leanne (2020-09-10) 0:12

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Case 7:20-cv-00039-MCR-GRJ Document 166-1 Filed 06/11/21 Page 168 of 179
213:16 Q. No. Has -- Have you ever had a

213:17 situation where a vendor has made false

213:18 statements about the capabilities of their

213:19 earplugs?

213:22 - 214:03 Battler, Leanne (2020-09-10) 0:26

213:22 Q. You can answer. Re: [213:24 to 215:07] Re: [213:24 to 215:07] Re: [213:24 to 215:07] SUSTAINED

213:23 A. I would say yes. Pltf Obj 01. 402, 15. 403 SUSTAINED/DEFER Pltf Obj 402; 403

213:24 Q. You have had situations where (Prejudicial vs Probative), RULING

213:25 they've made false claims? 11. Foundation

214:01 A. Yes.

214:02 Q. And who was that?

214:03 A. That was --

214:10 - 214:25 Battler, Leanne (2020-09-10) 2:31

214:10 A. Okay. The -- My personal Re: [213:24 to 215:07] Re: [213:24 to 215:07] Re: [213:24 to 215:07] SUSTAINED

214:11 experience is that the SureFire EP2 earplug was Pltf Obj 01. 402, 15. 403 SUSTAINED/DEFER Pltf Obj 402; 403

214:12 -- was -- soldiers believed it was going to (Prejudicial vs Probative), RULING

214:13 offer a similar amount of protection as the 11. Foundation

214:14 Combat Arms ISL filter, and my experience was

214:15 it did not.

214:16 Q. How was that a false claim?

214:17 A. So that's why I hesitated with

214:18 answering that, because it's not like they

214:19 wrote in the pamphlet EP2 is equivalent to.

214:20 But somehow soldiers were coming into my clinic

214:21 with these SureFire earplugs that Sonic

214:22 Defender added into their flashlight orders,

214:23 and because they were a much softer silicone,

214:24 the soldiers were under the impression that it

214:25 was a fabulous hearing protection.

224:24 - 226:12 Battler, Leanne (2020-09-10) 2:58

224:24 MR. MONSOUR: If you could, Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

224:25 Corey, if you'll pull up Exhibit Number 19. Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

225:01 Q. We went through this before. I Foundation, 04. 702, 15. 403

225:02 want to ask you a question about it, Lieutenant (Prejudicial vs Probative)

225:03 Colonel.

225:04 If you look at that second

225:05 picture on the left-hand column, you see

225:06 there's a soldier, and his ear has the green

225:07 end sticking out.

225:08 Do you see it?

225:09 A. Yes.

225:10 Q. Now, did you take this picture?

225:11 A. I did. That's my husband's ear

225:12 -- ex-husband's ear.

225:13 Q. That's your ex-husband, okay.

225:14 Okay. So you know this soldier; correct?

225:15 A. Yes.

225:16 Q. And what size ear canal did he

225:17 have?

225:18 A. Medium.

225:19 Q. Medium, okay.

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225:20 And do you see how the plug is

225:21 fit in this situation?

225:22 A. Yes.

225:23 Q. Do you see how the opposing green

225:24 flange appears to be kind of pushed up against

225:25 his tragus?

226:01 A. Yes.

226:02 Q. Do you believe that this picture

226:03 shows a good fit?

226:04 A. Yes.

226:05 Q. Does it appear to you that the

226:06 outside flange in this picture is butting up

226:07 against -- is flush against his tragus?

226:08 A. It's flush, yes.

226:09 Q. If that flange had a -- had

226:10 enough tension on it to where it was pushing

226:11 against the tragus and loosening the plug,

226:12 would that be a problem?

226:15 - 226:22 Battler, Leanne (2020-09-10) 0:24

226:15 A. Say that one more time. Pushing Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

226:16 against the -- Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

226:17 Q. Sure. If that flange -- As it Foundation, 04. 702, 15. 403

226:18 was inserted, if that flange got tension on it (Prejudicial vs Probative)

226:19 because of the insertion, and as the flange

226:20 kind of reverted to form, it pushed the earplug

226:21 kind of out of the ear canal, would that be a

226:22 problem for this plug?

226:25 - 227:05 Battler, Leanne (2020-09-10) 0:16

226:25 A. No. Because the yellow -- The Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

227:01 yellow part was seated properly. Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

227:02 Q. But what if that green flange was Foundation, 04. 702, 15. 403

227:03 forcing the entire earplug to kind of pull out (Prejudicial vs Probative)

227:04 of the ear, would that be a problem with the

227:05 plug?

227:12 - 227:17 Battler, Leanne (2020-09-10) 0:24

227:12 A. I mean -- Yeah. Does it -- I Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

227:13 don't know how it would -- how it would exert Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

227:14 force against the tragus. Foundation, 04. 702, 15. 403

227:15 Q. If such force against the tragus (Prejudicial vs Probative)

227:16 existed, though, and the plug did loosen, that

227:17 would be a problem with this plug; true?

227:20 - 228:05 Battler, Leanne (2020-09-10) 1:43

227:20 A. It grew arms and pushed itself Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

227:21 out? Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

227:22 If the yellow part is seated Foundation, 04. 702, 15. 403

227:23 correctly, so it -- it -- the -- the -- I don't (Prejudicial vs Probative)

227:24 see -- I do not -- I cannot comprehend how the

227:25 green portion would exert any force on the part

228:01 that was inserted in the canal.

228:02 Q. Okay. But I guess here's my

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228:03 question: If a plug -- If the design of a plug

228:04 caused it to loosen itself, that's a problem

228:05 with the plug; true?

228:08 - 228:14 Battler, Leanne (2020-09-10) 0:18

228:08 A. Right. It's hypothetical. It's Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

228:09 not a realistic question. Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

228:10 Q. I'm asking about this plug that Foundation, 04. 702, 15. 403

228:11 you used. I'm not talking about a hypothetical (Prejudicial vs Probative)

228:12 plug, I'm talking about a CAEv2. If the design

228:13 of the plug caused the plug itself to loosen,

228:14 that's a problem with the plug; right?

228:21 - 230:12 Battler, Leanne (2020-09-10) 3:07

228:21 A. Yeah, it's hypothetical. It's Re: [224:24 to 229:03] Re: [224:24 to 229:03] Re: [224:24 to 229:03] OVERRULED

228:22 hypothetical. Pltf Obj 01. 402, 11. OVERRULED Pltf Obj 402; 602; 702; 403

228:23 The yellow portion of this Foundation, 04. 702, 15. 403

228:24 earplug was seated perfectly. This was a (Prejudicial vs Probative) Re: [229:04 to 229:13] Re: [229:04 to 229:13] OVERRULED

228:25 perfect size medium earplug. The green -- The OVERRULED Pltf Obj nonresponsive; 402

229:01 fact that the third flange is touching his Re: [229:04 to 229:13]

229:02 tragus had no impact on how the yellow part Pltf Obj 01. 402, 17. Re: [229:14 to 230:03] Re: [229:14 to 230:02] OVERRULED

229:03 remained seated. Objection Nonresponsive OVERRULED Pltf Obj 402

229:04 Q. When you are taking pictures of

229:05 plugs like this, and examining them, did you Re: [229:14 to 230:03]

229:06 seat the plug and then take the picture and Pltf Obj 01. 402

229:07 then move on and do something else? Or did you

229:08 seat the plug and come back an hour later and

229:09 check it again?

229:10 A. My husband put the earplug in; I

229:11 did the tug test; and then he used it for

229:12 several missions, four deployments, and came

229:13 back with excellent hearing and no tinnitus.

229:14 Q. Okay. Do you know any soldiers

229:15 that have come back from serving our country

229:16 that used the Combat Arms earplug and do have

229:17 either hearing loss or tinnitus?

229:18 A. No.

229:19 Q. You don't know one soldier that

229:20 used these plugs that has either hearing loss

229:21 or tinnitus?

229:22 A. I don't know -- Of the soldiers

229:23 who came back with hearing loss and/or

229:24 tinnitus, I am not sure how consistently they

229:25 used the earplugs. I am -- I am a hundred

230:01 percent certain that my ex-husband used them

230:02 with -- used them all the time.

230:03 Q. Okay. And he put them in

230:04 himself; correct?

230:05 A. Yes.

230:06 Q. Did he put them in as you trained

230:07 him to do?

230:08 A. Yes.

230:09 Q. And he does not have the flanges

230:10 folded back, the opposing flanges folded back;

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230:11 true?

230:12 A. Correct.

230:13 - 230:16 Battler, Leanne (2020-09-10) 0:13

230:13 Q. Are you familiar with the Re: [230:13 to 230:16] Re: [230:13 to 230:16] Re: [230:13 to 230:16] SUSTAINED

230:14 Albuquerque studies, also known as the Blast Def Obj foundation (602) SUSTAINED Def Obj foundation (602)

230:15 Overpressure Studies?

230:16 A. No.

230:20 - 230:23 Battler, Leanne (2020-09-10) 0:17

230:20 MR. MONSOUR: Okay. If you can

230:21 pull up LC-026. We'll call this Exhibit 24.

230:22 Are we on Exhibit 24, Madam Court

230:23 Reporter?

231:02 - 231:19 Battler, Leanne (2020-09-10) 1:58

231:02 Q. Okay. Let's pull this up.

231:03 This is from the GAO. Is that

231:04 the General Accounting Office, or Government

231:05 Accountability Office? Do you see that?

231:06 A. Yes. GAO.

231:07 Q. It says: Report to congressional

231:08 committees, hearing loss prevention, from

231:09 January 2011.

231:10 Do you see that?

231:11 A. Yes.

231:12 Q. Have you ever seen this before?

231:13 A. Yes.

231:14 Q. In what context did you see it?

231:15 A. The GAO committee came to Fort

231:16 Carson to learn about my program.

231:17 Q. Okay. If you'll -- If we can go

231:18 to page twenty-five, and look at the footnote

231:19 at the bottom of the page.

231:22 - 233:24 Battler, Leanne (2020-09-10) 3:34

231:22 Q. Have you ever seen this footnote Re: [233:22 to 234:11] Re: [233:22 to 234:11] Re: [233:22 to 234:11] SUSTAINED

231:23 before? Pltf Obj 04. 702, 11. SUSTAINED/SUSTAINED Pltf Obj 702; 602; 802

231:24 A. I saw it two days ago for the Foundation, 12. Hearsay DOC EXCLUDED

231:25 first time.

232:01 Q. Okay. So it came out in 2011,

232:02 and you just saw it for the first time two days

232:03 ago?

232:04 A. I never read the footnote before.

232:05 Q. Okay. And how did you come to

232:06 see this two days ago?

232:07 A. Major Wald told me to read it.

232:08 Q. Okay. Well, let's go through

232:09 what it says.

232:10 A. Uh-huh.

232:11 Q. Footnote 27, and this is -- This

232:12 is involving the study that you were talking

232:13 about earlier in your deposition; true?

232:14 A. Yes.

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232:15 Q. And Mr. Nomellini asked you about

232:16 it, and then I asked you a few questions about

232:17 it; right?

232:18 A. Yes.

232:19 Q. And it says: Cleveland, Leanne,

232:20 Captain, quote, Fort Carson: An Army Hearing

232:21 Program Success Story. Army Department Medical

232:22 Journal, April-June 2009.

232:23 This study describes the effect

232:24 of the addition of a second audiologist at the

232:25 Army base in Fort Carson, Colorado. While the

233:01 study proves that the addition of a second

233:02 audiologist would increase the number of

233:03 service members receiving testing and training,

233:04 it does not provide sufficient evidence to

233:05 support that an additional audiologist led to

233:06 reduced hearing loss.

233:07 For example, the study interprets

233:08 shifts in the hearing loss and readiness rates

233:09 as being directly attributable to the

233:10 availability of a second audiologist, but the

233:11 study does not consider other factors that

233:12 could have also have had effects, such as

233:13 overseas deployments, changes in equipment, and

233:14 changes in training.

233:15 Did I read that reasonably

233:16 carefully -- or accurately?

233:17 A. Yes.

233:18 Q. Do you believe that the points

233:19 that are made in this footnote are valid

233:20 points?

233:21 A. No.

233:22 Q. Okay. Do you think that whoever

233:23 -- Do you think that whoever was critical of

233:24 your study is just plain wrong?

234:03 - 235:23 Battler, Leanne (2020-09-10) 2:13

234:03 A. I mean, there was a definite Re: [233:22 to 234:11] Re: [233:22 to 234:11] Re: [233:22 to 234:11] SUSTAINED

234:04 correlation. Correlation does not imply Pltf Obj 04. 702, 11. SUSTAINED/SUSTAINED Pltf Obj 702; 602; 802

234:05 causation, but there's no -- there's no other Foundation, 12. Hearsay DOC EXCLUDED

234:06 -- The comment does not explain how other Re: [234:12 to 235:23] SUSTAINED

234:07 factors, such as overseas deployments, changes Re: [234:12 to 235:23] Re: [234:12 to 235:23] Pltf Obj 602; 702

234:08 in equipment, and changes in training -- it Pltf Obj 04. 702, 11. SUSTAINED

234:09 doesn't define what those were, and how they Foundation

234:10 could have resulted in the changes that I

234:11 documented.

234:12 Q. Okay. But in all fairness,

234:13 whoever authored footnote 27 notes that your

234:14 article did not consider factors that could

234:15 have -- could also have had effects, such as

234:16 overseas deployments. Yours did not consider

234:17 overseas deployments; true?

234:18 A. Of course it considered overseas

234:19 deployments.

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234:20 Q. Okay. Even though this article

234:21 says you're not considering overseas

234:22 deployments?

234:23 A. Who said it didn't consider

234:24 overseas deployments?

234:25 The Army Hearing Program Success

235:01 Story was documented during a time of overseas

235:02 deployments.

235:03 Q. It says here: But the study does

235:04 not consider other factors that could have also

235:05 had effects, such as overseas deployments,

235:06 changes in equipment, and changes in training.

235:07 Do you see that?

235:08 A. Yes, I see that.

235:09 Q. Did your article discuss changes

235:10 in training?

235:11 A. Yes.

235:12 Q. Did it discuss changes in

235:13 equipment?

235:14 A. Yes.

235:15 Q. And did it discuss overseas

235:16 deployments?

235:17 A. Yes.

235:18 Q. So even though the Army's United

235:19 States Government Accountability Office

235:20 evaluated your article and had those

235:21 criticisms, you believe that your article

235:22 discussed those things accurately and fully?

235:23 A. Yes.

235:24 - 236:01 Battler, Leanne (2020-09-10) 0:16

235:24 Q. Okay. And you didn't see this

235:25 footnote until two days ago; right?

236:01 A. Right.

237:18 - 238:02 Battler, Leanne (2020-09-10) 0:19

237:18 Q. Okay. Did you talk with anyone Re: [237:18 to 237:25] Re: [237:18 to 237:25] Re: [237:18 to 237:25] SUSTAINED

237:19 about this deposition other than the Major who Pltf Obj 01. 402, 15. 403 SUSTAINED Pltf Obj 402; 403

237:20 is here with us today? (Prejudicial vs Probative)

237:21 A. I told my ex-husband: Oh, my Re: [238:01 to 238:02] Re: [238:01 to 238:02] SUSTAINED

237:22 God, the email about the stun mullet that you Re: [238:01 to 238:02] SUSTAINED Pltf Obj 402

237:23 sent to Doug Ohlin was included in the Pltf Obj 01. 402

237:24 paperwork. So I did tell him that.

237:25 Q. Okay.

238:01 A. He thought that was pretty

238:02 awesome.

238:13 - 239:12 Battler, Leanne (2020-09-10) 2:30

238:13 Real quick. It appears -- We've

238:14 gone through some emails today where you were

238:15 having a back and forth with Brian Myers, with

238:16 Aearo, we saw his email address, you remember

238:17 that?

238:18 A. Uh-huh.

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238:19 Q. Correct?

238:20 A. Yes.

238:21 Q. And in those back and forths, you

238:22 were talking about some of the pros and cons of

238:23 the CAEv2; true?

238:24 A. Yes.

238:25 Q. And I'm categorizing it as a back

239:01 and forth. Do you think that's a fair

239:02 categorization?

239:03 A. As a quality assurance?

239:04 Q. Yes.

239:05 A. Yes.

239:06 Q. Okay. In those back-and-forth

239:07 emails with Brian Myers, or anyone else from

239:08 Aearo, did any of them ever share any problems

239:09 that they might have had with the CAEv2 with

239:10 you?

239:11 A. No. It was always what can we do

239:12 to help the soldier.

239:13 - 239:15 Battler, Leanne (2020-09-10) 0:11

239:13 Q. Okay. But they never shared any Re: [239:13 to 239:19] Re: [239:13 to 239:19] Re: [239:13 to 239:19] OVERRULED

239:14 of their internally known problems with the Def Obj improper counter OVERRULED Def Obj improper counter

239:15 plug with you; true statement? (lines 239:13-19 and 240:10-13 (lines 239:13-19 and 240:10-13

should be read to the jury should be read to the jury

together with 239:20-24 and together with 239:20-24 and

240:4-7. However, if 239:20-24 240:4-7. However, if 239:20-24

and 240:4-7 are excluded, then and 240:4-7 are excluded, then

239:13-19 and 240:10-13 should 239:13-19 and 240:10-13 should

be excluded on the same be excluded on the same

grounds). grounds).

239:18 - 239:19 Battler, Leanne (2020-09-10) 0:03

239:18 Q. Go ahead. You can answer. Re: [239:13 to 239:19] Re: [239:13 to 239:19] Re: [239:13 to 239:19] OVERRULED

239:19 A. That's true. Def Obj improper counter OVERRULED Def Obj improper counter

(lines 239:13-19 and 240:10-13 (lines 239:13-19 and 240:10-13

should be read to the jury should be read to the jury

together with 239:20-24 and together with 239:20-24 and

240:4-7. However, if 239:20-24 240:4-7. However, if 239:20-24

and 240:4-7 are excluded, then and 240:4-7 are excluded, then

239:13-19 and 240:10-13 should 239:13-19 and 240:10-13 should

be excluded on the same be excluded on the same

grounds). grounds).

239:20 - 239:24 Battler, Leanne (2020-09-10) 0:17

239:20 Q. Okay. If there had been some Re: [239:20 to 240:09] Re: [239:20 to 240:09] Re: [239:20 to 240:09] OVERRULED

239:21 problems with the plug that they knew about, Pltf Obj 11. Foundation, 17. OVERRULED Pltf Obj nonresponsive; 602;

239:22 the back and forth would have been an Objection Nonresponsive, 02. 702

239:23 opportunity for them to disclose that 602, 22. MIL G7 lay opinion on

239:24 information to you; true? efficacy of CAEv2

240:05 - 240:07 Battler, Leanne (2020-09-10) 0:07

240:05 A. I think if there was a problem Re: [239:20 to 240:09] Re: [239:20 to 240:09] Re: [239:20 to 240:09] OVERRULED

240:06 with the plug, I would have found it on my own, Pltf Obj 11. Foundation, 17. OVERRULED Pltf Obj nonresponsive; 602;

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240:07 regardless of them telling me or not. Objection Nonresponsive, 02. 702

602, 22. MIL G7 lay opinion on

240:10 - 240:13 Battler, Leanne (2020-09-10) 0:11 efficacy of CAEv2

240:10 My question is: They never Re: [240:10 to 240:13] Re: [240:10 to 240:13] Re: [240:10 to 240:13] OVERRULED

240:11 shared any of the problems that they knew about Def Obj improper counter OVERRULED Def Obj improper counter

240:12 the plug with you; true? (lines 239:13-19 and 240:10-13 (lines 239:13-19 and 240:10-13

240:13 A. That is true. should be read to the jury should be read to the jury

together with 239:20-24 and together with 239:20-24 and

240:4-7. However, if 239:20-24 240:4-7. However, if 239:20-24

and 240:4-7 are excluded, then and 240:4-7 are excluded, then

239:13-19 and 240:10-13 should 239:13-19 and 240:10-13 should

be excluded on the same be excluded on the same

grounds). grounds).

241:15 - 242:08 Battler, Leanne (2020-09-10) 1:50

241:15 Q. Good afternoon, Lieutenant Re: [241:21 to 241:25] Re: [241:21 to 241:25] Re: [241:21 to 241:25] SUSTAINED

241:16 Colonel Battler. You were shown a GAO study, Pltf Obj 03. 611; Leading, 04. SUSTAINED DOC Pltf Obj 611;702

241:17 Exhibit 24, that included some supposed 702, 11. Foundation EXCLUDED

241:18 criticisms of your report on the success story Re: [242:01 to 242:08] SUSTAINED

241:19 article that you wrote; correct? Re: [242:01 to 242:08] Re: [242:01 to 242:08] Pltf Obj 602; 611

241:20 A. Correct. Pltf Obj 11. Foundation, 03. SUSTAINED DOC

241:21 Q. And, in fact, that GAO had 611; Leading EXCLUDED

241:22 various criticisms that certain things weren't

241:23 in your report. But, in fact, every one of

241:24 those things was in your report; correct?

241:25 A. Correct.

242:01 Q. And you would agree with me that

242:02 even in the case of the government -- the

242:03 government reports, and the case of this GAO

242:04 report that criticized your report, sometimes

242:05 the government just gets it wrong; right?

242:06 A. Shockingly.

242:07 Q. So you would agree with that?

242:08 A. Yes, I agree.

242:15 - 243:05 Battler, Leanne (2020-09-10) 1:41

242:15 Q. You were asked questions by Mr. Re: [242:15 to 242:24] Re: [242:15 to 242:24] Re: [242:15 to 242:25] SUSTAINED

242:16 Monsour if there was a problem with the Combat Pltf Obj 11. Foundation OVERRULED Pltf Obj 602; 702

242:17 Arms Version 2, would that have been an

242:18 opportunity for Aearo to tell you, he was Re: [242:15 to 242:25] Re: [242:15 to 242:25]

242:19 referring to the back and forth of the emails. Pltf Obj 04. 702 OVERRULED

242:20 And your testimony was: If there was a problem

242:21 with the plug, I would have found it on my own.

242:22 What did you mean by that?

242:23 A. The soldiers -- The soldiers

242:24 would have told me. They would have told me.

242:25 Q. You were asked some questions

243:01 about your ex-husband and the picture that you

243:02 took of an earplug in his ear contacting his

243:03 tragus.

243:04 Do you recall that?

243:05 A. Yes.

243:20 - 244:02 Battler, Leanne (2020-09-10) 0:19

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243:20 Q. I'll just limit it to your Re: [243:20 to 244:02] Re: [243:20 to 244:02] Re: [243:20 to 244:02] SUSTAINED

243:21 experience. In your experience, why does it -- Pltf Obj 611 leading, OVERRULED Pltf Obj 611 leading,

243:22 with respect to your husband, whose plug vague/confusing and compound vague/confusing and compound

243:23 contacted his tragus; right? questions; speculation; questions; speculation;

243:24 A. Uh-huh. 701/702; 403 701/702; 403

243:25 Q. With respect to your ex-husband,

244:01 why didn't the plug -- the outer flange of the

244:02 plug contacting his tragus cause a problem?

244:07 - 244:20 Battler, Leanne (2020-09-10) 1:38

244:07 A. Because the -- The internal Re: [244:07 to 244:20] Re: [244:07 to 244:20] Re: [244:07 to 244:20] SUSTAINED

244:08 portion in his ear was -- was seated. Pltf Obj Speculation; 701/702; OVERRULED Pltf Obj Speculation; 701/702;

244:09 Q. And your husband used that plug 403; 802 403; 802

244:10 and did not sustain any hearing loss or

244:11 tinnitus; correct?

244:12 A. Correct.

244:13 Q. Okay. You were asked some

244:14 questions about the four surveys you did,

244:15 Exhibits 15 and 18, do you recall that?

244:16 A. Yes.

244:17 Q. And Exhibit 15, the first

244:18 individual, said there was nothing that he

244:19 would change about the plug; right?

244:20 A. Yes.

245:08 - 245:25 Battler, Leanne (2020-09-10) 1:38

245:08 Q. So one individual's response was Re: [245:08 to 245:25] Re: [245:08 to 245:25] Re: [245:08 to 245:25] SUSTAINED

245:09 that they wouldn't change anything; right? Pltf Obj 802; 402/403; SUSTAINED Pltf Obj 802; 402/403;

245:10 A. Right. 701/702; conjecture; 701/702; conjecture;

245:11 Q. One individual's response was speculation speculation

245:12 they were effective when they were worn;

245:13 correct?

245:14 A. Yes. Is that the one who lost

245:15 them?

245:16 Q. And then there were two

245:17 individuals who indicated that they were not

245:18 comfortable; right?

245:19 A. Right.

245:20 Q. Now, for individuals who

245:21 indicated that they were not comfortable, you

245:22 indicated that that would either be because

245:23 they didn't like the material or because of the

245:24 diameter. It's not clear; right?

245:25 A. Correct.

246:01 - 246:07 Battler, Leanne (2020-09-10) 0:16

246:01 Q. Is that correct? Re: [246:01 to 246:07] Re: [246:01 to 246:07] Re: [246:01 to 246:07] SUSTAINED

246:02 A. Yes. Correct. Pltf Obj 802; 402/403; SUSTAINED Pltf Obj 802; 402/403;

246:03 Q. And so if the diameter was too 602/701/702; incomplete 602/701/702; incomplete

246:04 big, for those individuals, of the plug, they hypothetical; hypothetical;

246:05 should not have been wearing the plug in the improper/incomplete improper/incomplete

246:06 first instance; correct? designation; speculation; 611 designation; speculation; 611

246:07 A. Correct. leading; conjecture leading; conjecture

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246:19 - 247:13 Battler, Leanne (2020-09-10) 1:06

246:19 Q. Well, let me ask you this: If Re: [246:19 to 247:13] Re: [246:19 to 247:13] Re: [246:19 to 247:13] SUSTAINED

246:20 the plugs were so big that they were Pltf Obj 402/403; 602/701/702; SUSTAINED Pltf Obj 402/403; 602/701/702;

246:21 uncomfortable, those soldiers should not have improper hypothetical; improper hypothetical;

246:22 been fitted with those earplugs; correct? speculation; conjecture; 406; speculation; conjecture; 406;

246:23 A. In my experience, if -- Right.

246:24 If we couldn't get the third flange flush with

246:25 the opening of the ear canal, or if it was too

247:01 uncomfortable to reach that point, then we

247:02 would not fit them with -- we would recommend

247:03 they not use that size medium Combat Arms

247:04 earplug.

247:05 Q. Okay. And if it was because the

247:06 -- If they were uncomfortable because of the

247:07 material, the individuals had other options to

247:08 choose from, in terms of material; right?

247:09 A. Right.

247:10 Q. And we talked about the SureFire

247:11 plug, it had a more comfortable material, but

247:12 your testimony was it did not provide the same

247:13 protection as the Combat Arms earplug; right?

247:16 - 247:25 Battler, Leanne (2020-09-10) 1:41

247:16 A. The SureFire earplug feels like a Re: [247:16 to 247:25] Re: [247:16 to 247:25] Re: [247:16 to 247:25] SUSTAINED

247:17 gummy bear in your ear. It's awesome. Pltf Obj Nonresponsive SUSTAINED Pltf Obj Nonresponsive

247:18 Q. But you testified earlier you answers; 611 leading answers; 611 leading

247:19 were concerned about statements made about questions; 701/702; 402/403; questions; 701/702; 402/403;

247:20 SureFire because, in fact, SureFire did not speculatuion; conjecture speculatuion; conjecture

247:21 provide the same protection for hearing as

247:22 Combat Arms; correct?

247:23 A. My experience was that it did not

247:24 -- that more hearing loss was incurred when

247:25 soldiers wore the SureFire earplug.

248:04 - 248:21 Battler, Leanne (2020-09-10) 1:46

248:04 Q. And that's based on your personal Re: [248:04 to 248:21] Re: [248:04 to 248:21] Re: [248:04 to 248:21] SUSTAINED

248:05 experience; correct? Pltf Obj 611 leading, vague, SUSTAINED Pltf Obj 611 leading, vague,

248:06 A. Yes, sir. asked/answered; 701/702; 802; asked/answered; 701/702; 802;

248:07 Q. And so looking -- looking back at 402/403; conjecture; calls for 402/403; conjecture; calls for

248:08 Exhibits 15 to 18, when I was asking you speculation speculation

248:09 questions, you called the Combat Arms Version 2

248:10 a great product; correct?

248:11 A. Yes.

248:12 Q. And did anything about the survey

248:13 responses you received from the soldiers, those

248:14 four survey responses, did anything in those

248:15 change your view that the Combat Arms Version 2

248:16 was a great product?

248:17 A. It's a great product if it's the

248:18 right size.

248:19 Q. Right. And the Army audiologists

248:20 knew that it was not the right size for

248:21 everybody; correct?

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248:24 - 249:16 Battler, Leanne (2020-09-10) 1:53

248:24 A. My training -- My training Re: [248:24 to 249:16] Re: [248:24 to 249:16] Re: [248:24 to 249:16] SUSTAINED

248:25 included that there's no such thing as one size Pltf Obj Nonresponsive SUSTAINED Pltf Obj Nonresponsive

249:01 fits all. answers; 611 leading answers; 611 leading

249:02 Q. You did not -- You did not need questions; 701/702; 402/403; questions; 701/702; 402/403;

249:03 Aearo to tell you, Lieutenant Colonel Battler, speculatuion; conjecture; 802 speculatuion; conjecture; 802

249:04 that the Combat Arms Version 2 did not fit

249:05 everybody; correct?

249:06 A. That's correct.

249:07 Q. You knew that based on your own

249:08 experience?

249:09 A. Correct.

249:10 Q. Mr. Monsour asked you some

249:11 questions about needing to constantly reassert

249:12 -- reinsert earplugs. But your experience was

249:13 that you did not need to reinsert the Combat

249:14 Arms Version 2 more than any other earplugs;

249:15 correct?

249:16 A. My experience, correct.

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