EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 1 of 427
Berger, Elliott 09-25-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 2 of 427
Berger, Elliott - 09-25-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

8:4 - 8:7 Berger, Elliott - 09-25-2020

 8 4 Q. Good morning, Mr. Berger. How are you

 8 5 doing?

 8 6 A. I am fairly well, thanks. Good morning,

 8 7 Neil.

9:1 - 9:9 Berger, Elliott - 09-25-2020

 9 1 So you are here today on behalf of the

 9 2 defendants in the case, 3M and Aearo, you understand

 9 3 that, right?

 9 4 A. Yes.

 9 5 Q. Okay. And you are going to be testifying

 9 6 on some topics that you've been designated to talk

 9 7 about and I understand that you have prepared to

 9 8 testify on -- on those topics, is that right?

 9 9 A. Yes.

9:21 - 9:24 Berger, Elliott - 09-25-2020

 9 21 Q. You understand that the testimony you give

 9 22 on these topics under the Federal Rules are binding on

 9 23 the company.

 9 24 Do you understand that?

Re: [9:21-9:24]

Def Objection - Vague 

(611, 403), Foundation 

(602)

Re: [9:21-9:24]

Def Objection -

Vague (611, 

403), Foundation 

(602)

OVERRULED

10:4 - 10:4 Berger, Elliott - 09-25-2020

 10 4 A. Yes.

11:5 - 11:16 Berger, Elliott - 09-25-2020

 11 5 Q. Okay. And generally can you tell me what

 11 6 types of documents it were -- it were that you

 11 7 reviewed to prepare to give testimony today?

 11 8 A. E-mails, memoranda, technical reports,

 11 9 technical drawings, patents.

 11 10 Q. Okay. And besides reviewing those

 11 11 documents that are going to be in this binder, did you

 11 12 speak to or conduct interviews or have conversations

 11 13 with people within the company to help you prepare for

 11 14 your testimony?

 11 15 A. Yes.

 11 16 Q. Okay. Who did you talk to?

Re: [11:10-11:24]

Def Objection -

Relevance (401, 402)

Re: [11:10-

11:24]

Def Objection -

Relevance (401, 

402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 3 of 427
Berger, Elliott - 09-25-2020 3

11:21 - 11:24 Berger, Elliott - 09-25-2020

 11 21 A. I talked to Brian Myers, Ted Madison, Cyd

 11 22 Kladden, Marc Santoro, Jeff Hamer, Dick Knauer, and

 11 23 through a Kirkland associate had a communication to

 11 24 get some data from Bob Zielinski.

Re: [11:10-11:24]

Def Objection -

Relevance (401, 402)

Re: [11:10-

11:24]

Def Objection -

Relevance (401, 

402)

OVERRULED

13:20 - 14:2 Berger, Elliott - 09-25-2020

 13 20 Q. Okay. And did you make notes of your

 13 21 conversations with those people in preparation for

 13 22 your testimony on behalf of the company?

 13 23 A. Yes.

 13 24 Q. Okay. And do you have those notes there

 14 1 with you?

 14 2 A. Yes.

14:20 - 15:4 Berger, Elliott - 09-25-2020

 14 20 Q. So, you have been designated on several

 14 21 topics, a lot of them were kind of legal, I tried to

 14 22 break them down here, but essentially one of the

 14 23 topics that you've been designated to talk about is

 14 24 the determination of language or other information

 15 1 contained within the published labels and packaging

 15 2 for earplugs.

 15 3 Do you understand that's one of the

 15 4 topics?

Re: [14:20-15:9]

Misstates, Argumentative

SUSTAINED

15:7 - 15:13 Berger, Elliott - 09-25-2020

 15 7 A. My understanding is that it's related to

 15 8 that topic, but there were limitations placed on that

 15 9 discussion.

 15 10 BY MR. OVERHOLTZ:

 15 11 Q. Okay. Tell me what your understanding of

 15 12 the limitation is, just so I can understand where --

 15 13 what your level of preparation is?

Re: [14:20-15:9]

Misstates, Argumentative

SUSTAINED

15:14 - 16:9 Berger, Elliott - 09-25-2020

 15 14 MS. ELIZABETH: I can just make a --

 15 15 BY THE WITNESS:

 15 16 A. I don't have the -- go ahead.

 15 17 MS. ELIZABETH: One second.

 15 18 I can just make a note for the record that

 15 19 my -- my notes reflect that both Topics 2, 5 and 10,

Re: [15:14-16:9]

Improper counter-designation;

includes argument by counsel; 

side bars; argumentative; 403.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 4 of 427
Berger, Elliott - 09-25-2020 4

 15 20 which Mr. Berger has been designated for, are limited

 15 21 to specifically pertaining to changes to the labeling,

 15 22 reasons for the change, when the changes were made,

 15 23 and who made them.

 15 24 BY MR. OVERHOLTZ:

 16 1 Q. Was that the basis of your understanding

 16 2 in preparation, Mr. Berger?

 16 3 A. Yes.

 16 4 Q. I don't know that we are going to have too

 16 5 much to fuss about on that. I think that's probably

 16 6 going to be the focus of any questions that we talk

 16 7 about that topic. If we get to a point where we have

 16 8 some disagreements on the scope, we can talk about it

 16 9 then, but there is no reason to fuss about that now.

16:10 - 16:15 Berger, Elliott - 09-25-2020

 16 10 Certainly we understand the topic is about

 16 11 information contained in the labels and when and how

 16 12 changes were made to the labels. That's certainly

 16 13 within the scope of what we are talking about, is that

 16 14 right?

 16 15 A. Yes.

EXCLUDED

18:3 - 18:5 Berger, Elliott - 09-25-2020

 18 3 Q. Okay. I tried to break it down to get rid

 18 4 of the legalese out of it and just have the -- the

 18 5 subject matter, okay.

EXCLUDED

18:6 - 18:11 Berger, Elliott - 09-25-2020

 18 6 I don't think we'll have much to fuss

 18 7 about. It sounds like you are prepared to talk about

 18 8 the company's evaluation of alternative designs and

 18 9 competing products as part of your testimony today.

 18 10 Is that fair?

 18 11 A. Yes.

EXCLUDED

19:2 - 19:16 Berger, Elliott - 09-25-2020

 19 2 Q. All right. So we see here a picture on

 19 3 the screen of a Combat Arms Version 2 plug there in

 19 4 the middle.

 19 5 Do you see that?

 19 6 A. Yes.

 19 7 Q. Okay. And you and I have talked about

Re: [19:7-19:19]

Def Objection -

Compound (611, 403)

Re: [19:7-19:19]

Def Objection -

Compound (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 5 of 427
Berger, Elliott - 09-25-2020 5

 19 8 this before, but we know that the Combat Arms plug is

 19 9 dual-ended, it has a yellow end and a green end. The

 19 10 yellow end is the end that has the nonlinear filter

 19 11 that allows the plug to provide passthrough hearing,

 19 12 situational awareness as sometimes we use the term, it

 19 13 has lower attenuation, a lower NRR, and but it also

 19 14 can provide level-dependent protection in the case of

 19 15 impulse noise.

 19 16 Is that fair?

19:19 - 19:19 Berger, Elliott - 09-25-2020

 19 19 A. Yes.

Re: [19:7-19:19]

Def Objection -

Compound (611, 403)

Re: [19:7-19:19]

Def Objection -

Compound (611, 

403)

OVERRULED

20:3 - 20:6 Berger, Elliott - 09-25-2020

 20 3 Q. And then the green end, that's the solid

 20 4 or closed end of the plug that's meant to provide

 20 5 higher level protection, higher NRR for steady state

 20 6 noise, is that fair?

20:9 - 20:15 Berger, Elliott - 09-25-2020

 20 9 A. Let me read your box there.

 20 10 BY MR. OVERHOLTZ:

 20 11 Q. Yep, sure thing.

 20 12 A. Yes.

 20 13 Q. Okay. And so you agree that that's

 20 14 generally the concept of the green end of the plug?

 20 15 A. Yes.

20:16 - 21:14 Berger, Elliott - 09-25-2020

 20 16 Q. And then we see on the right a cutaway

 20 17 drawing of the plug that cuts away halfway through so

 20 18 that we can see that connecting the two plugs, and we

 20 19 see the hole in the -- in the photograph, but in the

 20 20 cutaway we can see that there is a white plastic

 20 21 adapter in the middle that holds the two plugs, holds

 20 22 both ends of the plugs together, is that right?

 20 23 A. Yes.

 20 24 Q. And throughout the day I think we might

 21 1 refer to that part as the adapter or the adapter stem,

 21 2 I think were the primarily -- primary terms it was

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 6 of 427
Berger, Elliott - 09-25-2020 6

 21 3 used for, is that right?

 21 4 A. Yes.

 21 5 Q. Okay. And then the -- as we can see, the

 21 6 part of the plastic adapter that's in the yellow end

 21 7 has a black component part to it. That is actually

 21 8 the nonlinear filter, correct?

 21 9 A. Yes.

 21 10 Q. That's the -- that's the part of the

 21 11 Combat Arms Version 2 plug that's supposed to provide

 21 12 nonlinear protection in the case of impulse noise, is

 21 13 that right?

 21 14 A. Yes.

21:20 - 22:2 Berger, Elliott - 09-25-2020

 21 20 Is that a fair description of the filter?

 21 21 A. Yes, the two pieces fit together.

 21 22 Q. All right.

 21 23 A. And you continue to use the word

 21 24 "nonlinear," which is often a -- a term that describes

 22 1 this, you have also written in the slide

 22 2 "level-dependent" which is the term I prefer to use.

22:14 - 22:20 Berger, Elliott - 09-25-2020

 22 14 Q. Okay. Now, the filter part that you

 22 15 talked about, that filter, was that the same filter

 22 16 that was used in the Version 3?

 22 17 A. No.

 22 18 Q. Okay. So the filter was modified for the

 22 19 Version 3, is that right?

 22 20 A. Yes.

23:13 - 23:18 Berger, Elliott - 09-25-2020

 23 13 What was your understanding of the

 23 14 difference in the filter of the Version 3?

 23 15 A. It had a thinner diameter.

 23 16 Q. Okay. So the diameter of the filter in

 23 17 the Version 2 was about 3 millimeters, is that right?

 23 18 A. Yes.

25:11 - 25:14 Berger, Elliott - 09-25-2020

 25 11 Q. Okay. And -- and you and I have talked

 25 12 about this before, but the yellow end is an UltraFit

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 7 of 427
Berger, Elliott - 09-25-2020 7

 25 13 tip, right, a modified UltraFit tip?

 25 14 A. Yes.

25:21 - 26:6 Berger, Elliott - 09-25-2020

 25 21 Q. Yeah, is -- is that correct, is that --

 25 22 was that your understanding of the -- of the design of

 25 23 the yellow -- of the green end of the plug, that tip,

 25 24 that it has a hole that goes about two-thirds of the

 26 1 way through the plug?

 26 2 A. Yes.

 26 3 Q. And -- and that plug was generally

 26 4 described as the Ultra -- an UltraFlex plug which is

 26 5 also a modified UltraFit, is that right?

 26 6 A. Yes.

26:11 - 26:14 Berger, Elliott - 09-25-2020

 26 11 Q. These -- these -- these plug tips were not

 26 12 new designs specifically for the Combat Arms

 26 13 Version 2?

 26 14 A. Correct.

27:7 - 27:10 Berger, Elliott - 09-25-2020

 27 7 And then as Exhibit No. 2 we'll mark as

 27 8 MD 207 which is this group of drawings, the technical

 27 9 drawings of the component pieces of the Combat Arms

 27 10 Version 2.

27:16 - 27:23 Berger, Elliott - 09-25-2020

 27 16 Q. And Exhibit 2 has several different

 27 17 drawings in it, but the one that I've put on the

 27 18 screen to look at, Mr. Berger, is the 2041-3 drawing

 27 19 of the Combat Arms assembly, and if you look up there

 27 20 at the top right-hand corner, you see there is a

 27 21 listing of component parts of the Combat Arms.

 27 22 Do you see that?

 27 23 A. Not on the top right corner.

28:9 - 28:23 Berger, Elliott - 09-25-2020

 28 9 So you'll see that the -- the component

 28 10 pieces are listed as Parts A, B, C and D and the green

 28 11 end, Part B, is described as the UltraFlex earplug,

 28 12 correct?

 28 13 A. Yes.

 28 14 Q. And then Part A, the yellow tip, is

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 8 of 427
Berger, Elliott - 09-25-2020 8

 28 15 described as the nonlinear earplug or Part 2039-0,

 28 16 right?

 28 17 A. Yes.

 28 18 Q. And then we see that the -- the white

 28 19 plastic adapter stem that we looked at in the cutaway

 28 20 drawing, that's described as Part 4046-1 here, and

 28 21 it's described as the nonlinear UltraFit stem, barbed

 28 22 and reversible, right?

 28 23 A. Yes.

29:11 - 29:18 Berger, Elliott - 09-25-2020

 29 11 Q. Sure. I mean, it is called a barbed stem,

 29 12 and tell me what part of that stem is described as

 29 13 being barbed?

 29 14 A. There is a -- an edge that sticks out

 29 15 where the diameter has increased along the stem, part

 29 16 way down from the tip of the stem and closer to the

 29 17 base of the stem so that it has an edge on it that

 29 18 will catch.

31:12 - 31:19 Berger, Elliott - 09-25-2020

 31 12 Q. But the UltraFit tip had been around at

 31 13 the company for a while before we got around to the

 31 14 Combat Arms Version 2 plug in 1999.

 31 15 Is that fair?

 31 16 A. You made a statement. Do you have a

 31 17 question?

 31 18 Q. Yeah, is that right, is that fair?

 31 19 A. Yes.

48:6 - 48:15 Berger, Elliott - 09-25-2020

 48 6 Q. Okay. And the -- the concept behind that

 48 7 was using an UltraFit tip with a sound channel through

 48 8 the plug, is that right?

 48 9 A. Yes.

 48 10 Q. Okay. And your experience with that plug

 48 11 was providing low attenuation protection, that was --

 48 12 that technology was never used to provide high-level

 48 13 impulse noise protection or solid state protection,

 48 14 correct?

 48 15 A. Correct.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 9 of 427
Berger, Elliott - 09-25-2020 9

55:16 - 55:21 Berger, Elliott - 09-25-2020

 55 16 Q. Okay. Who would have been re -- when --

 55 17 whenever -- whenever it was determined that we needed

 55 18 a stem to hold the two pieces of the Combat Arms

 55 19 Version 2 together, who decided what that stem would

 55 20 be?

 55 21 A. I don't know.

61:11 - 61:15 Berger, Elliott - 09-25-2020

 61 11 Q. Okay. The -- the Etymotic Aearo/3M Hi Fi

 61 12 plug that uses this similar adapter design was never

 61 13 used to provide any form of solid steady state noise

 61 14 protection for a listener, right?

 61 15 A. Correct.

61:18 - 62:2 Berger, Elliott - 09-25-2020

 61 18 Q. Before the Combat Arms Version 2 --

 61 19 A. Actually, let me -- let me clarify that.

 61 20 It does provide steady state noise

 61 21 protection. It's not designed to be a level-dependent

 61 22 earplug. It was not designed for high levels of

 61 23 attenuation, but it functions in terms of blocking

 61 24 sound regardless of sound level in the same way that a

 62 1 solid plug would block sound, just with a different

 62 2 magnitude of noise attenuation.

62:3 - 62:12 Berger, Elliott - 09-25-2020

 62 3 Q. Right. It's a -- it's an earplug, the

 62 4 UltraTech Hi Fi plug, it's not a plug that's designed

 62 5 to be provided to soldiers to provide either

 62 6 level-dependent sound for impulse noise like blasts or

 62 7 for steady state noise like, as we saw described

 62 8 before, humvees, heavy gunfire, things like that.

 62 9 It is not designed for that purpose?

 62 10 A. And your question is?

 62 11 Q. Yeah. Is that right?

 62 12 A. Yes.

63:12 - 63:21 Berger, Elliott - 09-25-2020

 63 12 Before the introduction of the Combat Arms

 63 13 Version 2, had Aearo worked on any plugs using the

 63 14 UltraFit tips that used an adapter design like that

 63 15 with the -- like the UltraTech that we see there with

Re: [63:12-63:24]

Def Objection - Vague, 

Compound (611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 10 of 427
Berger, Elliott - 09-25-2020 10

 63 16 the hard plastic adapter stem fitting inside the tip

 63 17 with the barbed edge, had they been used in any plug

 63 18 that had been designed for or tested for either steady

 63 19 state noise protection of high magnitude sounds or

 63 20 level-dependent protection based on -- or impulse

 63 21 noise protection from things like blasts?

63:24 - 63:24 Berger, Elliott - 09-25-2020

 63 24 A. I'm not sure.

Re: [63:12-63:24]

Def Objection - Vague, 

Compound (611, 403)

OVERRULED

64:7 - 65:14 Berger, Elliott - 09-25-2020

 64 7 Q. Is -- are you aware of any evidence of a

 64 8 plug using that type of an adapter design ever being

 64 9 sold by Aearo or 3M before the Combat Arms Version 2?

 64 10 A. We made what are called semi-insert or

 64 11 canal cap hearing protectors, and those require a

 64 12 harder or hard plastic part to hold on a soft tip or

 64 13 bud and I don't recall the introduction dates or what

 64 14 those -- the exact shape of those parts onto which

 64 15 those soft pieces would have been attached. So I

 64 16 really can't answer your question.

 64 17 Q. Okay. So you can't -- you can't say

 64 18 whether or not any of those plugs that used inserts

 64 19 used an adapter, a hard plastic adapter stem like the

 64 20 UltraTech design or the CAEv2 adapter design?

 64 21 MS. ELIZABETH: Objection; form.

 64 22 BY MR. OVERHOLTZ:

 64 23 Q. You can't say whether they did or didn't?

 64 24 A. When you say "like," I'm not exactly clear

 65 1 which aspect of that stem you are referring to.

 65 2 Q. Sure. The -- the hard plastic material --

 65 3 the hard plastic material made of Delrin with the --

 65 4 with the barbed edge with a diameter of about, it

 65 5 looks like about .179 inches there for the UltraTech,

 65 6 something like that.

 65 7 A. We did not use anything that looked

 65 8 like -- exactly like either of those two parts, but

 65 9 there may have been parts that were used that had

 65 10 shapes that were similar to parts of those parts.

 65 11 When you say "part," you know, that --

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 11 of 427
Berger, Elliott - 09-25-2020 11

 65 12 there is a number of shapes, there is two ends, there

 65 13 is various things going on there. So, I'm not clear

 65 14 what you are referring to.

65:16 - 65:24 Berger, Elliott - 09-25-2020

 65 16 Any other plugs that you had -- that Aearo

 65 17 had sold that used the UltraFit -- soft UltraFit tip

 65 18 on any kind of insert would not have used an adapter

 65 19 shaped like the ones for the UltraTech or the Combat

 65 20 Arms adapter stem, is that fair?

 65 21 A. If you are saying shaped in its entirety

 65 22 like either of those parts, I believe that each of

 65 23 those parts in their entirety was unique to those two

 65 24 products.

66:15 - 66:19 Berger, Elliott - 09-25-2020

 66 15 Okay. So let's talk a little bit about

 66 16 that development. And then if we can go to Slide 29.

 66 17 I'm going to mark as an Exhibit No. 7 the

 66 18 MD-217. This is an ISL report from November of 1997,

 66 19 "Study and Production of Nonlinear Perforated Plugs."

68:22 - 69:8 Berger, Elliott - 09-25-2020

 68 22 Q. Okay. So, this is a report, Exhibit 7,

 68 23 from November 1997 by Armand Dancer and Pascal 

Hamery,

 68 24 that's how you pronounced it, right, Armand Dancer is

 69 1 Dancer?

 69 2 A. Yes, I say Armand Dancer.

 69 3 Q. Okay. And it's the "Study and Production

 69 4 of Nonlinear Perforated Earplugs." And it was

 69 5 originally put out in French but then there was a

 69 6 translation that was actually done by the E-A-RCAL

 69 7 Laboratory, is that right?

 69 8 A. We paid to have it translated, yes.

69:11 - 69:24 Berger, Elliott - 09-25-2020

 69 11 Q. Okay. So, this study essentially goes

 69 12 through the work of the ISL or the Saint-Louis Franco

 69 13 German Research Institute on the development that led

 69 14 to the development of the Combat Arms Version 2

 69 15 earplug and their decision to use the UltraFit tip

 69 16 from Aearo to house their filter, is that right?

Re: [69:11-69:24]

Improper counter designation; 

FRE 402/403; speculation; 

foundation; 701/702; 802.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 12 of 427
Berger, Elliott - 09-25-2020 12

 69 17 A. No.

 69 18 Q. All right. What's wrong about what I

 69 19 said?

 69 20 A. Well, keep in mind that we are looking at

 69 21 an 82-page document. My recollection of this document

 69 22 is that it led to the development of the filter that

 69 23 became part of the earplug. It did not end up in the

 69 24 Combat Arms Earplug per se.

70:4 - 70:8 Berger, Elliott - 09-25-2020

 70 4 Specifically this dealt with their

 70 5 decision as to which filter to settle on to use that

 70 6 became the filter that was used in the Combat Arms

 70 7 Version 2, right?

 70 8 A. Yes.

70:9 - 70:23 Berger, Elliott - 09-25-2020

 70 9 Q. And so the filter obviously is an

 70 10 important component part of the Combat Arms Earplug

 70 11 because it is that filter technology that is going to

 70 12 provide the impulse or level-dependent protection for

 70 13 the soldiers, correct?

 70 14 A. Yes.

 70 15 Q. Okay. And the filter, the ISL did

 70 16 research using different diameter filters, filters

 70 17 with different size holes, different disks,

 70 18 different -- different diameters, different

 70 19 thicknesses all as part of their research in -- in

 70 20 getting to the filter size that became the final

 70 21 filter dimensions and filter design that was used in

 70 22 the Combat Arms Version 2, correct?

 70 23 A. Yes.

75:3 - 76:7 Berger, Elliott - 09-25-2020

 75 3 Q. Right. Pascal Hamery and Armand Dancer

 75 4 described that there had been leaks during experiments

 75 5 on American soldiers and they then say that the

 75 6 reality of those leaks were that they were due to a

 75 7 lack of peripheral seal.

 75 8 Do you agree?

 75 9 A. That isn't exactly what it says. It says

 75 10 we decide -- it doesn't say we know why the leaks

Re: [75:3-76:9]

Plt Objection - Improper 

counter designation; 

nonresponsive; 403

Re: [75:3-76:9]

evasive/narrative answers; 

speculation; foundation; FRE 

402; 802; 805; 701/702 

improper opinion testimony. 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 13 of 427
Berger, Elliott - 09-25-2020 13

 75 11 occurred or where they occur. It says we decided to

 75 12 determine the impact of leaks, if they corresponded to

 75 13 a lack of peripheral seal. It doesn't say that that's

 75 14 what we knew caused the leak.

 75 15 MR. OVERHOLTZ: Well, I'm going to object as

 75 16 nonresponsive.

 75 17 BY MR. OVERHOLTZ:

 75 18 Q. But what it actually says is: "That is

 75 19 why we decided to determine the impact of these leaks

 75 20 (corresponding in reality to a lack of peripheral

 75 21 seal)."

 75 22 That's what this sentence said, right?

 75 23 A. So keep in mind this is a translation, but

 75 24 I can read that two ways, I can read it the way you

 76 1 are, which is that in reality in the soldiers there

 76 2 was a lack of a peripheral seal, or I can read it that

 76 3 we're going to determine the impact of a leak and we

 76 4 are going to presume that the real cause of the leak

 76 5 is a peripheral seal and we will explore it in that

 76 6 way. So the sentence is not clear. It can have two

 76 7 meanings.

77:18 - 77:23 Berger, Elliott - 09-25-2020

 77 18 Q. All right. And to try and put that into

 77 19 maybe better English that I can understand, they --

 77 20 they simulated a leak that's about the same size as

 77 21 the hole in the filter to see what would happen to the

 77 22 effect of the attenuation of the filter, right?

 77 23 A. Yes.

Re: [77:18-77:24]

Plt Objection - Improper 

counter designation; 802

Re: [77:18-

77:23]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, 602, 

802

SUSTAINED

Re: [77:18-77:24]

FRE 402/403; speculation; 

foundation.

SUSTAINED

77:24 - 77:24 Berger, Elliott - 09-25-2020

 77 24 Q. And they describe that, when they did

Re: [77:18-77:24]

Plt Objection - Improper 

counter designation; 802

Re: [77:18-

77:23]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, 602, 

802

Re: [77:18-77:24]

FRE 402/403; speculation; 

foundation.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 14 of 427
Berger, Elliott - 09-25-2020 14

SUSTAINED

79:3 - 79:11 Berger, Elliott - 09-25-2020

 79 3 Q. If we go to -- over to Page 20, it goes on

 79 4 and says: "This experiment does not completely

 79 5 reflect the reality, however. In fact, an earplug

 79 6 like the EAR UltraFit, poorly positioned in the

 79 7 auditory canal, may have leaks with lengths much

 79 8 smaller than the entire earplug, and thus may

 79 9 considerably reduce the filter's attenuation."

 79 10 Do you see that?

 79 11 A. I see that, yes.

79:22 - 79:24 Berger, Elliott - 09-25-2020

 79 22 And when I say "3M," you know I'm

 79 23 referring to 3M or Aearo, the defendants in this case?

 79 24 A. Yes.

Re: [79:22-79:24]

Def Objection -

Foundation (602)

OVERRULED

82:12 - 83:3 Berger, Elliott - 09-25-2020

 82 12 Okay. It was Aearo that gave those

 82 13 UltraFit earplugs to the guys in France to do these

 82 14 experiments, right?

 82 15 A. We did provide plugs with holes. At times

 82 16 they would modify those plugs for their -- so all

 82 17 their -- we didn't create all of the versions that

 82 18 were tested. Sometimes they made their own

 82 19 modifications of things that we sent them.

 82 20 Q. Sure.

 82 21 And you guys already had some with the

 82 22 central hole through as we saw before because you had

 82 23 worked on other versions of plugs that used an

 82 24 UltraFit with a central hole through them already,

 83 1 like the UltraTech plug.

 83 2 Is that right?

 83 3 A. Yes.

83:22 - 84:3 Berger, Elliott - 09-25-2020

 83 22 Q. If we can look at Slide 33, this is

 83 23 Page 26 of the ISL report, the French report from '97,

 83 24 and I'm looking at Section 3.2.5.5, Summary of Results

 84 1 Obtained with the Different Supports.

Re: [83:22-84:3]

Improper counter designation; 

FRE 402/403; 802; speculation; 

foundation.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 15 of 427
Berger, Elliott - 09-25-2020 15

 84 2 Do you see that?

 84 3 A. I'm going to take a moment to read that.

84:17 - 85:5 Berger, Elliott - 09-25-2020

 84 17 Q. "It is evident from these results that the

 84 18 PassTop S and the UltraFit (with the filter in forward

 84 19 position) equipped with filter No. 2 are the two

 84 20 solutions of most interest. These performances were

 84 21 confirmed for the UltraFit at the end of field tests

 84 22 done with marksmen using FAMAS assault rifles."

 84 23 Do you see that?

 84 24 A. Yes.

 85 1 Q. It says: "The EAR UltraFit earplug, which

 85 2 has good attenuation performances, is the solution

 85 3 with...best quality/cost ratio."

 85 4 Do you see that?

 85 5 A. Yes.

Re: [84:17-85:5]

Plt Objection - Improper 

counter designation

Re: [84:17-85:5]

FRE 402/403; 802; speculation; 

foundation.

SUSTAINED

85:16 - 85:24 Berger, Elliott - 09-25-2020

 85 16 Q. Yeah. I mean, from your -- from the

 85 17 experiments that you have done using UltraFit tips for

 85 18 different purposes in the E-A-R Lab up to this point

 85 19 in late 1997, do you have any reason to disagree with

 85 20 their statement that the UltraFit had shown good

 85 21 attenuation performances?

 85 22 A. We had tested the UltraFit as an earplug

 85 23 many times for its attenuation and felt that it was a

 85 24 well-designed earplug.

Re: [85:16-86:1]

FRE 402/402; 8502; 

speculation; foundation; 

improper bolstering; Plaintiffs 

MIL #12, 13

Confusing as 

to why 

Plaintiff is 

objecting to 

it’s own 

designation;

no ruling.

87:11 - 88:10 Berger, Elliott - 09-25-2020

 87 11 That's what Dancer and Hamery wrote in

 87 12 '97, right?

 87 13 A. Yes.

 87 14 Q. "It is clear that the filter should be

 87 15 able to find a support that could be mass-produced

 87 16 simply and inexpensively according to a model that

 87 17 would furthermore be satisfactory from an ergonomic

 87 18 standpoint."

 87 19 Do you see that?

 87 20 A. Yes.

 87 21 Q. And by "satisfactory from an ergonomic

 87 22 standpoint," what does that mean?

Re: [87:11-88:10]

Hearsay

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 16 of 427
Berger, Elliott - 09-25-2020 16

 87 23 A. That it would be functional, it would be

 87 24 usable by soldiers, it would be comfortable enough to

 88 1 wear, it would be able to be fitted properly.

 88 2 Q. "That is why the idea of designing" --

 88 3 they go on.

 88 4 "That is why the idea of designing a

 88 5 completely new earplug seemed difficult to implement.

 88 6 This solution could be used for a foam-type earplug,

 88 7 however, if the industrial partners decided to invest

 88 8 in this option."

 88 9 Do you see that?

 88 10 A. Yes.

88:11 - 88:21 Berger, Elliott - 09-25-2020

 88 11 Q. Now, there -- there was a consideration of

 88 12 using a foam-type earplug to house the ISL filter to

 88 13 provide nonlinear protection, wasn't there?

 88 14 A. They mentioned that option and it is

 88 15 discussed in years subsequent to this, yes.

 88 16 Q. Okay. Was there ever any development

 88 17 program put in place by Aearo or 3M to determine

 88 18 whether a foam earplug could be developed to use to

 88 19 provide nonlinear protection using a filter from ISL

 88 20 or another filter?

 88 21 A. Beyond discussing the possibilities, no.

89:16 - 89:19 Berger, Elliott - 09-25-2020

 89 16 Q. And the foam plugs were promoted by Aearo

 89 17 as being comfortable and being very satisfactory from

 89 18 an ergonomic standpoint, right?

 89 19 A. Yes.

89:20 - 91:5 Berger, Elliott - 09-25-2020

 89 20 Q. Was there -- was there ever a

 89 21 consideration of the economics involved in using a

 89 22 foam plug to house the filter? Would it be more --

 89 23 cost more or less than a preformed plug?

 89 24 MS. ELIZABETH: Objection; form.

 90 1 BY THE WITNESS:

 90 2 A. There was not an in-depth analysis. There

 90 3 was a -- were discussions at times. And one of the

 90 4 issues would be that, in terms of costs, would be that

Re: [89:20-91:5]

Plt Objection - Improper 

counter designation; 602

Re: [89:20-91:5]

FRE 402/403; 701/702 improper 

opinion testimony; 802; 805; 

speculation; foundation. 

Plaintiffs MIL # 15, 18. 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 17 of 427
Berger, Elliott - 09-25-2020 17

 90 5 you would need to dispose of the filter and the

 90 6 earplug on a routine basis. So that certainly drives

 90 7 up the cost for the military since the filter is an

 90 8 important part that needs to be made.

 90 9 BY MR. OVERHOLTZ:

 90 10 Q. You can't wash the foam earplugs is kind

 90 11 of the issue you are describing?

 90 12 A. Whether or not you could, the question is

 90 13 what would that do to the filter, the hole through the

 90 14 filter. You can't just put a filter in the earplug.

 90 15 You have to put the filter in a plastic holder in the

 90 16 earplug, and so you now have multiple parts, and the

 90 17 major deal breaker is that we have worked extensively

 90 18 over the years to try to put tubes through earplugs

 90 19 and still have them be able to be rolled down and

 90 20 inserted in an ear canal. We have found that the

 90 21 largest diameter that you can put through a plug and

 90 22 still have it rollable and insertable is 60

 90 23 thousandths of an inch.

 90 24 So this filter is larger than that by the

 91 1 time you put anything around it to mount it in an

 91 2 earplug, so it becomes ergonomically infeasible. You

 91 3 can't put something as big as you need in the plug and

 91 4 still have the plug to be usable as a roll down foam

 91 5 earplug.

91:9 - 91:13 Berger, Elliott - 09-25-2020

 91 9 Q. When you describe rolling down an earplug,

 91 10 you are referring to, for foamies, rolling them to

 91 11 make them skinnier than they come when they come out

 91 12 of the package?

 91 13 A. Yes.

93:11 - 94:10 Berger, Elliott - 09-25-2020

 93 11 Q. We'll go to the next slide, 36. This

 93 12 continues that section.

 93 13 "We therefore gave preference to the

 93 14 solution consisting in modifying an already existing

 93 15 earplug: The EAR UltraFit earplug, a

 93 16 one-size-fits-all earplug known for its performances

 93 17 in terms of comfort, insertion, and maintenance of

Re: [93:11-94:7]

Hearsay

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 18 of 427
Berger, Elliott - 09-25-2020 18

 93 18 position."

 93 19 Do you see that?

 93 20 A. Yes.

 93 21 Q. "This operation was facilitated by the

 93 22 participation of Aearo. "

 93 23 Do you see that?

 93 24 A. Yes.

 94 1 Q. And it says: "The most important

 94 2 modification to be introduced (compared to the

 94 3 standard UltraFit earplug) was to make a hole in the

 94 4 center of the earplug, which is not a difficult task

 94 5 and requires only that the existing mold be modified."

 94 6 Do you see that?

 94 7 A. Yes.

 94 8 Q. Now, we know that Aearo had already done

 94 9 that for other plugs, like the UltraTech plug, right?

 94 10 A. Yes.

95:13 - 95:19 Berger, Elliott - 09-25-2020

 95 13 Q. Okay. And are you familiar with this --

 95 14 this design drawing, proposed design for the ISL

 95 15 UltraFit ear --

 95 16 A. Yes.

 95 17 Q. Okay. And was -- did -- did folks at --

 95 18 at ISL in France come up with this proposed design or

 95 19 is this something that Aearo submitted to those guys?

95:22 - 95:24 Berger, Elliott - 09-25-2020

 95 22 A. We have a drawing of that part in our

 95 23 files. I don't recall if this was conceived of in

 95 24 Indianapolis or in France.

96:1 - 96:3 Berger, Elliott - 09-25-2020

 96 1 BY MR. OVERHOLTZ:

 96 2 Q. Okay.

 96 3 A. It was a collaborative effort.

Re: [96:1-96:3]

Improper counter designation; 

FRE 402/403; 802; speculation; 

foundation. Plaintiffs MIL #15, 

16, 17, 18, 21

OVERRULED

96:4 - 97:1 Berger, Elliott - 09-25-2020

 96 4 Q. Okay. So this drawing, though, makes it

 96 5 into this 1997 report by -- by Dancer and Hamery,

 96 6 correct, showing a single-ended UltraFit Plug with a

 96 7 place to house their filter and a knob to open and

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 19 of 427
Berger, Elliott - 09-25-2020 19

 96 8 close the hole for sound.

 96 9 Do you agree?

 96 10 A. Yes.

 96 11 Q. Okay. And you mentioned that the company

 96 12 has a drawing in their files of this plug design, and

 96 13 that was a drawing that was done by Bob Falco and Marc

 96 14 Doty, is that right?

 96 15 A. One or the other.

 96 16 Q. And is it true, in fact, that Bob Falco

 96 17 actually, soon thereafter this drawing appearing in

 96 18 this report from Dancer and Hamery, actually applied

 96 19 for a patent on this design of a single-ended plug

 96 20 that could be opened and closed for the UltraFit?

 96 21 A. Give me just a moment.

 96 22 He applied for a patent on a single-ended

 96 23 design.

 96 24 Q. Soon after this drawing appeared in this

 97 1 report from Dancer and Hamery, right, early 1998?

97:4 - 97:18 Berger, Elliott - 09-25-2020

 97 4 A. He applied in April of 1998.

 97 5 BY MR. OVERHOLTZ:

 97 6 Q. Okay. But you don't know whether Falco

 97 7 came up with this drawing himself or whether the

 97 8 French conceived of this type of design, this

 97 9 single-ended design, and then Falco just used it for

 97 10 the drawings in the patent.

 97 11 You don't know how that went down?

 97 12 A. Correct.

 97 13 Q. The -- you are aware that the French Army

 97 14 ended up choosing to use a single-ended UltraFit

 97 15 earplug housing the ISL filter as opposed to using the

 97 16 dual-ended Combat Arms Version 2 back in the 19 --

 97 17 late 1990s timeframe?

 97 18 A. Yes.

97:22 - 99:13 Berger, Elliott - 09-25-2020

 97 22 Do you recall, if we go back to Slide 31

 97 23 for a minute, I asked you about the leak and we saw

 97 24 that Berger -- I mean, I'm sorry -- that Hamery and

 98 1 Dancer, we saw that Hamery and Dancer indicated that

Re: [97:22-99:15]

Plt Objection - Improper 

counter designation

Re: [97:22-99:15]

nonresponsive/evasive/narrative 

answers; FRE 402/403; 

701/702; 802; 805; speculation; 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 20 of 427
Berger, Elliott - 09-25-2020 20

 98 2 they had not simulated a leak that would be much

 98 3 smaller than the entire earplug that might reduce the

 98 4 filter's attenuation, and you told me that you didn't

 98 5 recall that Aearo had done such experimentation

 98 6 themselves as well, right?

 98 7 MS. ELIZABETH: Objection; form.

 98 8 BY THE WITNESS:

 98 9 A. Yes.

 98 10 BY MR. OVERHOLTZ:

 98 11 Q. Yes?

 98 12 A. We did not -- I don't recall us doing

 98 13 experimentation on simulating that sort of leak.

 98 14 Q. In light of the information that had been

 98 15 written by the French from their experiments using

 98 16 this earplug and the fact that leaks had been detected

 98 17 in experiments on soldiers based on potential lack of

 98 18 seal of the plugs, would it have been responsible to

 98 19 have conducted some testing simulating those type of

 98 20 leaks and their effect on the filter's ability to

 98 21 provide level-dependent protection?

 98 22 MS. ELIZABETH: Objection; form.

 98 23 BY THE WITNESS:

 98 24 A. We were working with a leading acoustical

 99 1 laboratory that was a military-based research facility

 99 2 in France that had direct access to soldiers, and we

 99 3 were sharing results with them. We did the parts that

 99 4 we could do well and they did the parts that they

 99 5 could do well.

 99 6 And they did the experiments. To the

 99 7 extent they felt appropriate, they also did field

 99 8 trials with various types of nonlinear earplugs on

 99 9 soldiers shooting actual weapons and found that they

 99 10 were protective and found that they attained the

 99 11 performance they had hoped to attain. These were

 99 12 tested numerous times besides this one laboratory

 99 13 report.

foundation. Plaintiffs MIL #15, 

16, 17, 18, 21

99:17 - 99:21 Berger, Elliott - 09-25-2020

 99 17 Q. As you told me, the French ended up

 99 18 rejecting the Combat Arms Version 2, the French Army,

Re: [99:17-100:3]

602, Misstates

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 21 of 427
Berger, Elliott - 09-25-2020 21

 99 19 the French Version 2 plug, and went with the

 99 20 single-ended UltraFit Plug that contained no adapter

 99 21 and just the French ISL filter, correct?

99:24 - 100:7 Berger, Elliott - 09-25-2020

 99 24 A. The solution they chose was the simple

 100 1 single-ended version that was an UltraFit earplug with

 100 2 a pocket in the middle of it that would house the ISL

 100 3 filter.

 100 4 BY MR. OVERHOLTZ:

 100 5 Q. And they did not adopt the Combat Arms

 100 6 Version 2, right?

 100 7 A. Yes.

Re: [99:17-100:3]

602, Misstates

OVERRULED

104:15 - 104:21 Berger, Elliott - 09-25-2020

 104 15 Q. The -- and just so we're clear when we

 104 16 talk about that plug, sometimes you guys referred to

 104 17 that as the European plug, is that right?

 104 18 A. Yes.

 104 19 Q. Is it also sometimes referred to as the

 104 20 Version 1 of the Combat Arms?

 104 21 A. Yes.

105:24 - 106:8 Berger, Elliott - 09-25-2020

 105 24 Q. But what it's contemplating by that is

 106 1 a -- a plug that can be opened and closed, right, with

 106 2 some type of mechanism?

 106 3 A. Yes.

 106 4 Q. Okay. A plug that you don't have to take

 106 5 out and switch sides with but -- or take out and put a

 106 6 different plug in?

 106 7 Is that right?

 106 8 A. Yes.

106:19 - 106:22 Berger, Elliott - 09-25-2020

 106 19 Q. Okay. And in fact -- and in fact, we know

 106 20 that there were drawings made at Aearo's facilities by

 106 21 Falco and Doty, right?

 106 22 A. I believe they are made by Doty.

107:3 - 107:8 Berger, Elliott - 09-25-2020

 107 3 Q. And, in fact, prototypes were made by

 107 4 Aearo and sent over to Dancer and Hamery to test,

 107 5 right?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 22 of 427
Berger, Elliott - 09-25-2020 22

 107 6 A. Again, not necessarily this drawing, but

 107 7 single-ended prototypes that could be opened and

 107 8 closed.

107:10 - 107:20 Berger, Elliott - 09-25-2020

 107 10 Q. Okay. And it was that Falco patent that

 107 11 was applied for in 1998 that became the supporting

 107 12 patent for the Combat Arms Version 4, correct?

 107 13 A. I'm not certain of that.

 107 14 Q. Okay. Well, we'll look at some documents

 107 15 that may elucidate that a little bit more, but

 107 16 certainly the Combat Arms Version 4 was based around

 107 17 the design of a single-ended design involving a filter

 107 18 that could be opened and closed, correct?

 107 19 A. Involving a plug whose channel or orifice

 107 20 could be opened and closed leading to the filter.

108:9 - 108:11 Berger, Elliott - 09-25-2020

 108 9 Q. The -- the work on the Version 4 had

 108 10 actually started at least by 2006, correct?

 108 11 A. Plus or minus a year.

109:11 - 109:16 Berger, Elliott - 09-25-2020

 109 11 Q. The -- we talked about the fact that the

 109 12 French held the patent on the filter.

 109 13 The French also had applied for a patent

 109 14 on a two-ended design that would have a filter for

 109 15 nonlinear protection on one end and solid steady state

 109 16 protection on the other, correct?

109:19 - 110:5 Berger, Elliott - 09-25-2020

 109 19 A. Yeah.

 109 20 BY MR. OVERHOLTZ:

 109 21 Q. Yes, Mr. Berger?

 109 22 A. They applied for a patent on a two-ended

 109 23 design.

 109 24 Q. Right. And, in fact, Aearo licensed that

 110 1 patent for the two-ended design from Aearo -- from

 110 2 ISL, correct?

 110 3 A. Yes.

 110 4 Q. And Aearo supported their Combat Arms

 110 5 Version 2 sales with that patent, is that correct?

Re: [110:4-110:19]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 23 of 427
Berger, Elliott - 09-25-2020 23

110:8 - 110:19 Berger, Elliott - 09-25-2020

 110 8 A. I'm not sure what you mean by "supported,"

 110 9 but we sold our Combat Arms Version 2 and we had

 110 10 licensed the two ISL patents.

 110 11 BY MR. OVERHOLTZ:

 110 12 Q. Was -- and, in fact, the -- when it came

 110 13 to determining which patent supported the Combat Arms

 110 14 Version 2, whether it was packaging or the information

 110 15 kept by the company, it was the dual-ended patent that

 110 16 was -- that was used by Aearo to support the Combat

 110 17 Arms Version 2 technology, correct?

 110 18 A. We referred to that dual-ended patent,

 110 19 yes.

Re: [110:4-110:19]

602

OVERRULED

110:20 - 110:24 Berger, Elliott - 09-25-2020

 110 20 Q. Okay. Now, as we've talked about, of

 110 21 those three options, the French Army went with Option

 110 22 No. 1, correct, a nonlinear plug and a separate normal

 110 23 plug?

 110 24 A. Yes.

117:12 - 117:17 Berger, Elliott - 09-25-2020

 117 12 Q. Okay. If we can go to Slide 41, and we'll

 117 13 mark this as Exhibit No. 10. This is MD-020.

 117 14 (WHEREUPON, a certain document was

 117 15 marked Elliott Berger Deposition

 117 16 Exhibit No. 10, for identification,

 117 17 as of 09/25/2020.)

118:3 - 118:9 Berger, Elliott - 09-25-2020

 118 3 Q. All right. So we see this is a drawing.

 118 4 Again, it shows a 1998 date as the latest revision for

 118 5 the nonlinear UltraFit assembly.

 118 6 Do you see that?

 118 7 A. Yes.

 118 8 Q. Okay. And, again, if we look at the

 118 9 bottom left --

118:12 - 118:18 Berger, Elliott - 09-25-2020

 118 12 Q. -- it says on 1/23/1998 it was redesigned,

 118 13 so this was a -- a day later.

 118 14 This shows, again, a single-ended UltraFit

 118 15 Plug with a place for a filter, a hole for a sound

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 24 of 427
Berger, Elliott - 09-25-2020 24

 118 16 channel, and then some type of knob that can be used

 118 17 to open and close the filter, is that right?

 118 18 A. Yes.

120:4 - 120:15 Berger, Elliott - 09-25-2020

 120 4 Essentially you twist that knob to line up

 120 5 the holes that will allow the sound to enter into the

 120 6 plug and get to the filter to provide the nonlinear

 120 7 protection if the holes are aligned, or if they are

 120 8 not aligned to provide the steady state detection.

 120 9 Is that right?

 120 10 A. Yes.

 120 11 Q. Okay. And so this was certainly a drawing

 120 12 of a potential design for the plug, for a nonlinear

 120 13 plug using an ISL filter and an UltraFit Plug that was

 120 14 available to the company by January 23rd of 1998.

 120 15 Do you agree?

120:18 - 121:12 Berger, Elliott - 09-25-2020

 120 18 A. This was a drawing that was available at

 120 19 that time. I don't know that molds were purchased or

 120 20 that this plug was manufactured or available at that

 120 21 time.

 120 22 BY MR. OVERHOLTZ:

 120 23 Q. If we can go to Slide 46, we'll see

 120 24 that -- and we'll mark this as Exhibit No. 11. This

 121 1 is P1407.

 121 2 (WHEREUPON, a certain document was

 121 3 marked Elliott Berger Deposition

 121 4 Exhibit No. 11, for identification,

 121 5 as of 09/25/2020.)

 121 6 BY MR. OVERHOLTZ:

 121 7 Q. It is a 1998 patent application or patent

 121 8 document.

 121 9 Is this one of the patents that you had

 121 10 pulled for your preparation for the testimony today,

 121 11 Mr. Berger?

 121 12 A. Yes.

123:8 - 123:13 Berger, Elliott - 09-25-2020

 123 8 We are looking at Exhibit 11, Mr. Berger,

 123 9 and this is the patent for a selective nonlinear

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 25 of 427
Berger, Elliott - 09-25-2020 25

 123 10 attenuating earplug applied by Mr. Falco in April

 123 11 of 1998, and this is the Patent No. 6,148,821.

 123 12 Do you see that?

 123 13 A. Yes.

123:14 - 123:21 Berger, Elliott - 09-25-2020

 123 14 Q. And I've written it up above there a

 123 15 little larger so we can see it, but the '821 patent

 123 16 is -- that's the patent that was eventually used to

 123 17 back up the design for the Combat Arms Version 4 and

 123 18 Version 4.1, is that correct?

 123 19 A. You asked me that question before, and I'm

 123 20 not -- I didn't research that. I'm not clear whether

 123 21 that patent is claimed for those products or not.

123:22 - 124:10 Berger, Elliott - 09-25-2020

 123 22 Q. Okay. And if we -- all right. We'll come

 123 23 back around to that, but we do know that this '821

 123 24 patent and -- is -- was filed by April of 1998,

 124 1 correct?

 124 2 A. Yes, correct.

 124 3 Q. All right. And then if we look at the

 124 4 bottom of the first page there, and I have it on the

 124 5 left of the screen, we can see that the drawing,

 124 6 again, shows the twist mechanism to open and close, to

 124 7 align the holes with a place for a nonlinear filter to

 124 8 be placed and a sound channel running through the end

 124 9 of the tip of the UltraFit earplug, is that right?

 124 10 A. Correct.

124:20 - 125:7 Berger, Elliott - 09-25-2020

 124 20 Q. This was an exhibit from Mr. Falco's

 124 21 deposition, it is P0943 and we'll mark this as

 124 22 Exhibit 12.

 124 23 (WHEREUPON, a certain document was

 124 24 marked Elliott Berger Deposition

 125 1 Exhibit No. 12, for identification,

 125 2 as of 09/25/2020.)

 125 3 BY MR. OVERHOLTZ:

 125 4 Q. This is a brochure for a Combat Arms

 125 5 plugs. It has a copyright from 3M of 2010 and I think

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 26 of 427
Berger, Elliott - 09-25-2020 26

 125 6 it was information -- it has got a date on it of

 125 7 sometime in 2011.

125:15 - 125:22 Berger, Elliott - 09-25-2020

 125 15 Q. And we can see that there is a -- there is

 125 16 a page there, I think it is probably page -- is it 13

 125 17 of this exhibit, but it's -- I have it on the screen.

 125 18 It has got a picture of both the Version 4 and the

 125 19 Version 2 and an explanation of Hear-Through

 125 20 protection.

 125 21 Can you see that?

 125 22 A. Yes.

126:7 - 127:2 Berger, Elliott - 09-25-2020

 126 7 Q. Okay. And then if you can look with me at

 126 8 the bottom of the page with the 3M address

 126 9 information, we see that there is a listing of -- of

 126 10 patents.

 126 11 Do you see that?

 126 12 A. Yes.

 126 13 Q. And we have the 6,068,079 patent, right?

 126 14 A. Yes.

 126 15 Q. Okay. And then we have the 6,148,821

 126 16 patent.

 126 17 Do you see that?

 126 18 A. I do.

 126 19 Q. Okay. And the '821 patent, that was the

 126 20 Falco patent that we were looking at before that was

 126 21 filed in April of 1998, right?

 126 22 A. Yes.

 126 23 Q. So that was, in fact, a patent that was

 126 24 used to support the Combat Arms Version 4 by 3M and

 127 1 Aearo was the patent -- the Falco patent from 1998,

 127 2 correct?

127:5 - 127:6 Berger, Elliott - 09-25-2020

 127 5 A. It was one of the -- one of the patents,

 127 6 yes.

130:1 - 130:4 Berger, Elliott - 09-25-2020

 130 1 Q. And you would describe the ISL filter that

 130 2 was -- that is part of the Combat Arms Version 2 plug

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 27 of 427
Berger, Elliott - 09-25-2020 27

 130 3 as an acoustic filter, correct?

 130 4 A. Yes.

131:15 - 131:20 Berger, Elliott - 09-25-2020

 131 15 Q. And, in fact, other manufacturers came out

 131 16 with plugs that include -- that used different

 131 17 versions of acoustic filters that provided nonlinear

 131 18 level-dependent protection after 1998 besides the

 131 19 filter that ISL held the patent for, correct?

 131 20 A. Yes.

Re: [131:15-131:20]

401-403

OVERRULED

134:4 - 134:10 Berger, Elliott - 09-25-2020

 134 4 Q. Okay. So I want to talk a little bit now

 134 5 about the adapter stem for the plug.

 134 6 If we could go to Slide 49 for a minute.

 134 7 Do you recognize this as the white plastic

 134 8 adapter stem that holds the two pieces of the Combat

 134 9 Arms plug together in the middle with the hole?

 134 10 A. Yes.

137:19 - 138:2 Berger, Elliott - 09-25-2020

 137 19 The -- the design features of the adapter

 137 20 stem for the Combat Arms that we just looked at with

 137 21 the barbed edges and the increasing diameter from the

 137 22 tip that holds the filter, that's not what is

 137 23 demonstrated in these drawings and the patent drawing

 137 24 that we looked at before for the '821 patent or the

 138 1 single-ended design drawings, is that right?

 138 2 A. Correct.

138:4 - 138:7 Berger, Elliott - 09-25-2020

 138 4 So for this adapter stem, was there a

 138 5 concern about how wide are the dimensions of this

 138 6 adapter stem early on in the development of the Combat

 138 7 Arms plugs with ISL in France?

Re: [138:3-138:11]

Def Objection -

Argumentative, Vague 

(611, 403)

Re: [138:3-

138:11]

Def Objection -

Argumentative, 

Vague (611, 403)

SUSTAINED

138:10 - 138:21 Berger, Elliott - 09-25-2020

 138 10 A. There were discussions about the diameter

 138 11 of the stem of the earplug in general.

 138 12 BY MR. OVERHOLTZ:

 138 13 Q. Okay. If we can pull up Slide 51, this

 138 14 will be Exhibit No. 13. This is PO159.

 138 15 (WHEREUPON, a certain document was

Re: [138:3-138:11]

Def Objection -

Argumentative, Vague 

(611, 403)

Re: [138:3-

138:11]

Def Objection -

Argumentative, 

Vague (611, 403)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 28 of 427
Berger, Elliott - 09-25-2020 28

 138 16 marked Elliott Berger Deposition

 138 17 Exhibit No. 13, for identification,

 138 18 as of 09/25/2020.)

 138 19 BY MR. OVERHOLTZ:

 138 20 Q. This is an e-mail from July of 1997,

 138 21 Exhibit 13.

139:1 - 139:12 Berger, Elliott - 09-25-2020

 139 1 It's Exhibit 13. It is an e-mail from

 139 2 July of 1997.

 139 3 BY MR. OVERHOLTZ:

 139 4 Q. Let me know when you have it, Mr. Berger.

 139 5 A. I have it.

 139 6 Q. Okay. And we can see from the header of

 139 7 this e-mail that we have blown up, this is an e-mail

 139 8 that you sent yourself on July 11th, 1997, using your

 139 9 CompuServe e-mail address regarding the nonlinear

 139 10 plug.

 139 11 Do you see that?

 139 12 A. Yes.

140:3 - 140:6 Berger, Elliott - 09-25-2020

 140 3 Q. Right. And it -- it reflects the actual

 140 4 back and forth between yourself and Dancer and Hamery

 140 5 at ISL, is that right?

 140 6 A. I believe it does.

142:10 - 142:17 Berger, Elliott - 09-25-2020

 142 10 This -- based on this communication

 142 11 between you and Dancer and Hamery, it would indicate

 142 12 that -- that there had been some prototypes of the

 142 13 single-ended plug with a filter with a twist mechanism

 142 14 for opening and closing sent to ISL to evaluate.

 142 15 Do you see that -- do you -- do you agree

 142 16 with that?

 142 17 A. Yes.

144:17 - 145:17 Berger, Elliott - 09-25-2020

 144 17 All right. And so the -- the adapter that

 144 18 would be in these prototypes that would hold the

 144 19 filter, do you recall there being a concern about

 144 20 acoustic or sound traveling through that basically

 144 21 because the walls of the adapter are so thin to be

Re: [144:17-145:17]

Plt Objection - Improper 

counter designation

Re: [144:17-145:17]

Nonresponsive/evasive/narrative 

answers; FRE 402/403; 701/702 

improper opinion testimony; 

speculation; foundation. 

Plaintiffs MIL #18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 29 of 427
Berger, Elliott - 09-25-2020 29

 144 22 able to accommodate the filter?

 144 23 Do you recall that being an issue?

 144 24 MS. ELIZABETH: Objection; form.

 145 1 BY THE WITNESS:

 145 2 A. Let me answer it a little more generally.

 145 3 As we worked with these prototypes and

 145 4 developed the various versions of the 3 and 4 and 4.1

 145 5 with time, is that whenever you put something in an

 145 6 earplug, a hard piece of plastic, and you are

 145 7 replacing the softer elastomeric material that's

 145 8 there, you now create an opportunity for there to be

 145 9 alternative sound pathways.

 145 10 And so I don't recall all of the details

 145 11 here, I recall on Versions 3 and 4 that there were

 145 12 issues that we looked at, again, primarily pertaining

 145 13 to the plug in its closed operational condition where

 145 14 sound can penetrate these parts because they are

 145 15 hollow chambers, resonance can be created, and that

 145 16 can affect the ability of that plug to provide high

 145 17 levels of attenuation and steady noise.

149:5 - 149:22 Berger, Elliott - 09-25-2020

 149 5 Q. Okay. And can the materials also affect

 149 6 resonance, the materials used for an object?

 149 7 A. Depending on the dynamics of the

 149 8 mechanical system, the materials may affect. If their

 149 9 resonances fall into the range of interest, they could

 149 10 influence the performance as well.

 149 11 Q. Okay. And resonance, is it fair to say

 149 12 that it can occur at different frequencies?

 149 13 A. Yes.

 149 14 Q. Depending on the size of the cavity or the

 149 15 shape of the cavity, is that fair?

 149 16 A. Yes.

 149 17 Q. Okay. And -- and depending on where that

 149 18 resonance occurs in terms of frequency, does that mean

 149 19 that that resonance can affect attenuation of an

 149 20 earplug if an earplug is having resonance at those

 149 21 frequencies?

 149 22 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 30 of 427
Berger, Elliott - 09-25-2020 30

152:4 - 152:7 Berger, Elliott - 09-25-2020

 152 4 Q. Right. The UltraFit plugs generally had

 152 5 a -- had a rubber stem that extended beyond the last

 152 6 of the three flanges, correct?

 152 7 A. A rubber-like stem, not a rubber material.

154:21 - 155:22 Berger, Elliott - 09-25-2020

 154 21 Q. Okay. The question is: If it was

 154 22 critical that the stem and filter be withdrawn for

 154 23 cleaning, are you aware of that instruction ever being

 154 24 provided or added to the labeling for the Combat Arms

 155 1 plug or provided to the United States military or

 155 2 soldiers, that they would need to take the filter

 155 3 assembly out of the Combat Arms Version 2 plugs for

 155 4 cleaning?

 155 5 MS. ELIZABETH: Objection; form.

 155 6 BY THE WITNESS:

 155 7 A. So, this doesn't say that the filter needs

 155 8 cleaning. It says that you would need to clean the

 155 9 plug.

 155 10 So the problem is if debris gets in the

 155 11 plug, it becomes more noise attenuating at low sound

 155 12 levels. It affects situational awareness. It does

 155 13 not degrade its level-dependent attenuation. That

 155 14 would only improve.

 155 15 We do have, I know, at least one data

 155 16 sheet that talks about disassembling the plug and

 155 17 cleaning the channel of the plug once it's

 155 18 disassembled. I don't know if the military included

 155 19 that in the instructions that they created for their

 155 20 soldiers, but it is something that we would have

 155 21 discussed, you see it's being discussed here with the

 155 22 French military.

Re: [154:21-155:22]

Improper counter designation; 

nonresponsive/evasive/narrative 

answers; FRE 402/403; 

701/702; 802; speculation; 

foundation. Plaintiffs MIL #15, 

16, 17, 18, 21

SUSTAINED

156:4 - 157:4 Berger, Elliott - 09-25-2020

 156 4 You describe it being a -- being critical,

 156 5 right, that's the word you used in this -- in this

 156 6 sentence referring to the stem and the filter being

 156 7 attached, right?

 156 8 A. That's what it says, yes.

 156 9 Q. Okay.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 31 of 427
Berger, Elliott - 09-25-2020 31

 156 10 And it says: "We feel it is critical for

 156 11 the stem to be attached to the filter for withdrawal

 156 12 and cleaning," right?

 156 13 A. Again, parsing the words.

 156 14 Q. Just -- that's what it says.

 156 15 A. It doesn't -- it does not say that

 156 16 cleaning is critical. It says that to be able to

 156 17 clean it its critical that the filter be attached to

 156 18 the stem.

 156 19 Q. Okay.

 156 20 A. If you want to clean a plug, you cannot

 156 21 clean it, you can't pass something through that hole

 156 22 and get debris out of it while the filter is still in

 156 23 there and the stem is still in there. So the

 156 24 criticality is if you choose to clean it, you need to

 157 1 be able to do this.

 157 2 Q. Right.

 157 3 A. And I'm discussing how important the

 157 4 cleaning is.

161:5 - 161:8 Berger, Elliott - 09-25-2020

 161 5 Q. And was there any instruction that the

 161 6 filter assembly, meaning the filter and the stem that

 161 7 holds the filter, needed to be with -- removed to

 161 8 clean the plug?

161:12 - 161:16 Berger, Elliott - 09-25-2020

 161 12 A. There is at least one 3M product-related

 161 13 sheet, perhaps more, that do describe that.

 161 14 Q. Do you have a copy of that with you or do

 161 15 you know what document that would be?

 161 16 A. Um.

168:9 - 169:4 Berger, Elliott - 09-25-2020

 168 9 Q. We've been talking a little bit about the

 168 10 adapter stem piece of the plug, of the Combat Arms

 168 11 Version 2, that -- that both the green and the yellow

 168 12 end fit onto.

 168 13 Do you recall that?

 168 14 A. Yes.

 168 15 Q. Okay. So if we could go to Slide 55, and

 168 16 this is on Page 2 of Exhibit 13, the section that

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 32 of 427
Berger, Elliott - 09-25-2020 32

 168 17 starts with: "Another problem which concerns," that

 168 18 the French guys are writing to you.

 168 19 Do you see that?

 168 20 A. Yes.

 168 21 Q. So the Hamery and Dancer at ISL write:

 168 22 "Another problem which concerns the

 168 23 compulsory unisize requirement of the future plugs is

 168 24 the increase in diameter of the prototype plug because

 169 1 of the surrounding stem."

 169 2 Do you see that?

 169 3 A. Yes. I was just trying to find that in

 169 4 the overall document.

169:13 - 169:21 Berger, Elliott - 09-25-2020

 169 13 Q. Okay. When it says "surrounding stem,"

 169 14 it's talking about the part of the stem that surrounds

 169 15 the nonlinear filter, correct?

 169 16 A. Yes.

 169 17 Q. It says: "We are not at all sure that the

 169 18 present configuration will be suitable for most ears

 169 19 because of fitting problems."

 169 20 Do you see that?

 169 21 A. Yes.

169:22 - 170:2 Berger, Elliott - 09-25-2020

 169 22 Q. So they are concerned that the diameter of

 169 23 this stem that has to hold the filter and these

 169 24 prototypes wouldn't be suitable for most ears.

 170 1 That's the concern expressed to you in

 170 2 1997?

Re: [169:17-170:2]

Plt. Objection -Improper 

Counter Designation per 

PTO 64 

Re: [169:17-

170:2]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64 

OVERRULED

Re: [169:22-170:10]

Nonresponsive; conjecture; 

speculation; FRE 402; 802; 

improper opinion 602/701/702.

SUSTAINED

170:9 - 170:10 Berger, Elliott - 09-25-2020

 170 9 A. I think, once again, you're reading the

 170 10 language in a different way than it's intended.

Re: [170:9-170:10]

Plt. Objection -Improper 

Counter Designation per 

PTO 64, non-responsive, 

403 

Re: [170:9-

170:10]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, nonresponsive, 403 

OVERRULED

Re: [169:22-170:10]

conjecture; speculation; FRE 

402; 802; improper opinion 

602/701/702.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 33 of 427
Berger, Elliott - 09-25-2020 33

170:19 - 171:8 Berger, Elliott - 09-25-2020

 170 19 A. Please remember that this writer is

 170 20 someone whose native language is not English, you

 170 21 pointed out some of his odd use of words before, and

 170 22 what I understood this to mean was that if I wanted to

 170 23 create a plug that would fit the most ears possible,

 170 24 98, 99 percent of all ears, that this configuration

 171 1 might not do the job as well as another one.

 171 2 I think what you are reading is that for

 171 3 most ears, for 98 percent of ears it won't fit them,

 171 4 and that's not what he is saying. He is saying if I

 171 5 wanted to design a product that would be the best one

 171 6 possible in a unisize requirement to fit nearly all of

 171 7 the population, then I'm not sure that this is the

 171 8 best configuration.

Re: [170:19-171:8]

Plt. Objection -Improper 

Counter Designation per 

PTO 64, non-responsive, 

403 

Re: [170:19-

171:8]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, nonresponsive, 403 

SUSTAINED

Re: [170:16-171:13]

conjecture; speculation; FRE 

402; 802; 805; improper opinion 

602/701/702.

SUSTAINED

171:15 - 171:20 Berger, Elliott - 09-25-2020

 171 15 Q. What Dancer and Hamery wrote to you was:

 171 16 "We are not at all sure that the present

 171 17 configuration," talking about the prototype

 171 18 configuration that had been sent, "will be suitable

 171 19 for most ears because of fitting problems."

 171 20 That's what they wrote, right?

171:23 - 171:24 Berger, Elliott - 09-25-2020

 171 23 A. Those are the words that are written on

 171 24 the page.

172:2 - 172:10 Berger, Elliott - 09-25-2020

 172 2 Q. He says: "Should not it be possible to

 172 3 reduce the overall diameter of the stem and of the

 172 4 plug (the prototype plug is actually too big)?"

 172 5 Do you see that?

 172 6 A. Yes.

 172 7 Q. So he is saying, can we make the stem

 172 8 smaller, less diameter, which will result in the plug

 172 9 being less diameter because the prototype is too big,

 172 10 right?

172:13 - 174:5 Berger, Elliott - 09-25-2020

 172 13 A. What he said: "Should not it be possible

 172 14 to reduce the overall diameter of the stem and of the

 172 15 plug (the prototype plug is actually too big)?"

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 34 of 427
Berger, Elliott - 09-25-2020 34

 172 16 BY MR. OVERHOLTZ:

 172 17 Q. And then he actually provides the diameter

 172 18 of the plug that they are looking at, right, and the

 172 19 filter?

 172 20 A. He reports the filter diameter, which is

 172 21 the filter diameter they designed, 3 millimeters

 172 22 outside diameter, yes.

 172 23 Q. So he gives the --

 172 24 A. And then also the diameter --

 173 1 Q. Sure.

 173 2 A. -- of the stem.

 173 3 Q. Sure.

 173 4 So he says, the diameter of the filter is

 173 5 3 millimeters, right?

 173 6 A. Yes.

 173 7 Q. But the outside diameter of the stem at

 173 8 the filter position is 4.2 millimeters, right?

 173 9 A. Yes.

 173 10 Q. And so the stem has added an extra

 173 11 1.2 millimeters for this product, for this prototype

 173 12 for the diameter of the stem at the filter position,

 173 13 correct?

 173 14 A. Correct.

 173 15 Q. And he says: "Is it possible to decrease

 173 16 the diameter," right?

 173 17 A. He says that, yes.

 173 18 Q. And you say in response: "We already

 173 19 prevailed on you to reduce the diameter of the filter

 173 20 to allow us to reduce the diameter of the stem insert

 173 21 and the stem."

 173 22 Do you see that?

 173 23 A. Yes.

 173 24 Q. Now, the reason why you had prevailed on

 174 1 them to reduce the diameter of the filter in the

 174 2 beginning was so that the stem could be -- the stem

 174 3 insert, the adapter diameter, could be reduced because

 174 4 you were concerned about it being too big to be

 174 5 suitable for most ears, right?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 35 of 427
Berger, Elliott - 09-25-2020 35

174:8 - 174:22 Berger, Elliott - 09-25-2020

 174 8 A. I don't know that to be the case. I know

 174 9 that we were looking at having the maximum flexibility

 174 10 in terms of designing our plugs. And the larger his

 174 11 filter is, the larger the stem has to be that will

 174 12 encapsulate it.

 174 13 BY MR. OVERHOLTZ:

 174 14 Q. You say: "We see no easy way to reduce

 174 15 the plug diameter any further as long as the stem must

 174 16 hold the filter."

 174 17 Do you see that?

 174 18 A. Yes.

 174 19 Q. And then you say: "Take a look at how

 174 20 very thin the stem walls are in the current version."

 174 21 Do you see that?

 174 22 A. Yes.

174:23 - 175:18 Berger, Elliott - 09-25-2020

 174 23 Q. So there was, in fact, a concern about the

 174 24 thinness of the stem walls around the filter for the

 175 1 plug, right?

 175 2 MS. ELIZABETH: Objection; form.

 175 3 BY THE WITNESS:

 175 4 A. He was discussing should he make the stem

 175 5 thinner, and we were telling him that we see no easy

 175 6 way to reduce the thickness of the stem, OD, outside

 175 7 diameter, as long as it houses the filter.

 175 8 The thickness of those walls is on the

 175 9 order of 40 thousandths of an inch, so they are very

 175 10 thin plastic parts. They need to be moldable, they

 175 11 need to be durable, and they need to be able to retain

 175 12 that filter inside them. They need not to shatter or

 175 13 fracture.

 175 14 So we are saying that as long as the ID

 175 15 has to be equal to the OD of your filter, we need at

 175 16 least this much plastic to surround it. Could you

 175 17 please, if you want it smaller, look at reducing the

 175 18 filter diameter.

Re: [174:23-175:18]

Plt Objection - Improper 

counter designation; 802; 

602

Re: [174:23-

175:18]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, 602, 

802

OVERRULED

Re: [174:23-175:18]

nonresponsive/evasive answer; 

conjecture; speculation; FRE 

402/403; improper opinion 

/701/702.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 36 of 427
Berger, Elliott - 09-25-2020 36

175:24 - 176:17 Berger, Elliott - 09-25-2020

 175 24 Q. And -- and we've seen before thin stem

 176 1 walls around the filter could result in acoustical

 176 2 leaks, right?

 176 3 A. What we -- no.

 176 4 Q. You don't believe it is possible that

 176 5 acoustical leaks, acoustical short-circuits, as you

 176 6 put it, could apply when you have thin stem walls?

 176 7 MS. ELIZABETH: Objection; form.

 176 8 BY THE WITNESS:

 176 9 A. You are quoting from a different design on

 176 10 a different product, not this design.

 176 11 BY MR. OVERHOLTZ:

 176 12 Q. That was the other prototype that ISL was

 176 13 evaluating, right?

 176 14 A. The difference there was that there was a

 176 15 long length of wall that was unsupported and

 176 16 surrounded a hollow cavity. That's not the case with

 176 17 this plug.

Re: [175:24-176:17]

Plt Objection - Improper 

counter designation

Re: [175:24-176:17]

conjecture; speculation; FRE 

402/403; 802; improper opinion 

602/701/702.

SUSTAINED

176:18 - 177:1 Berger, Elliott - 09-25-2020

 176 18 Q. Okay. And if we go to the next slide, the

 176 19 takeaway from this communication to you is that the

 176 20 French have communicated to Aearo in 1997 that if the

 176 21 stem has to hold the filter and the diameter increases

 176 22 from 3 millimeters to 4.2 millimeters at the filter

 176 23 position, this configuration of this prototype that

 176 24 has this diameter may not be suitable for most ears

 177 1 because of fitting problems.

177:4 - 177:5 Berger, Elliott - 09-25-2020

 177 4 Q. That's what's been communicated in 1997

 177 5 from the folks at ISL, right?

177:8 - 177:20 Berger, Elliott - 09-25-2020

 177 8 A. You are reading the words. I'm not sure

 177 9 I -- you read them all exactly correctly, but, again,

 177 10 as I said to you, the meaning of that phrase is that

 177 11 if I'm trying to design a product to fit the largest

 177 12 proportion of the population, they would like it to be

 177 13 smaller, they think it would fit a larger proportion.

 177 14 They are not saying that this design will

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 37 of 427
Berger, Elliott - 09-25-2020 37

 177 15 fail to fit most people, meaning 80, 90, 100 percent

 177 16 of people, that is not what this sentence says.

 177 17 BY MR. OVERHOLTZ:

 177 18 Q. It says they are not sure it will be

 177 19 suitable to fit most ears, right?

 177 20 A. That is what the words said.

179:21 - 180:6 Berger, Elliott - 09-25-2020

 179 21 Q. Okay. So, Mr. Berger, you can see the

 179 22 blown up diameter measurements of the plastic adapter

 179 23 stem for the nonlinear UltraFit stem for the Combat

 179 24 Arms Version 2?

 180 1 A. Yes.

 180 2 Q. Okay. And if we see here, we see that the

 180 3 diameter of the stem at the largest barbed point where

 180 4 the filter would be held is .175 inches.

 180 5 Do you see that?

 180 6 A. Yes. Yes.

180:18 - 180:19 Berger, Elliott - 09-25-2020

 180 18 Q. Right. 4.45 millimeters?

 180 19 A. Yes.

181:1 - 181:22 Berger, Elliott - 09-25-2020

 181 1 Q. Okay. Now, if we can go to Slide 61.

 181 2 This is the MD-206, we'll mark this as Exhibit 14.

 181 3 (WHEREUPON, a certain document was

 181 4 marked Elliott Berger Deposition

 181 5 Exhibit No. 14, for identification,

 181 6 as of 09/25/2020.)

 181 7 BY MR. OVERHOLTZ:

 181 8 Q. This is a drawing of the Combat Arms

 181 9 Version 2 preliminary drawings in which the yellow end

 181 10 is the 2039 nonlinear plug but the green end is the

 181 11 UltraFlex plug 2032-B which has the longer rubber like

 181 12 stems extending beyond the flanges.

 181 13 Do you see that?

 181 14 A. Yes.

 181 15 Q. Okay. And eventually, as we've seen in

 181 16 the other drawings, that 2032-B, the drawing for the

 181 17 green end at the bottom is switched to the 2068 in

 181 18 which the rubber-like stems of the tip are cut off

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 38 of 427
Berger, Elliott - 09-25-2020 38

 181 19 even with those -- that third flange, right?

 181 20 A. I'm not sure if it's -- yes, it is 2068

 181 21 and -- yes, they are cut off even with the basal end

 181 22 of the third flange.

182:24 - 183:3 Berger, Elliott - 09-25-2020

 182 24 Q. Did Aearo ever conduct any REAT testing on

 183 1 this version of the Combat Arms plug with the 2032

 183 2 UltraFlex plug as part of the green end with this

 183 3 configuration?

183:10 - 183:16 Berger, Elliott - 09-25-2020

 183 10 A. I don't believe we have any REAT testing

 183 11 on that version.

 183 12 BY MR. OVERHOLTZ:

 183 13 Q. Okay. We do know that the green end as

 183 14 described by this drawing was based on an UltraFlex

 183 15 plug, correct?

 183 16 A. Yes.

184:2 - 184:21 Berger, Elliott - 09-25-2020

 184 2 Q. And this plug tip had been used by Aearo

 184 3 on other types of earplugs, correct?

 184 4 A. No.

 184 5 Q. Before the Combat Arms are you aware of it

 184 6 being used on other types of plugs, the UltraFlex

 184 7 plug?

 184 8 A. Not as an earplug.

 184 9 Q. Okay. And then if we can look at

 184 10 Slide 60 -- 64 -- 65, sorry.

 184 11 A. I was going to say I don't -- I don't

 184 12 recall that being used as an earplug, per se.

 184 13 Q. I understand.

 184 14 Do you have -- do you have any

 184 15 recollection of it being used as anything else but an

 184 16 earplug?

 184 17 A. Yes.

 184 18 Q. What was it used for?

 184 19 A. A canal cap.

 184 20 Q. A canal cap?

 184 21 A. Semi-insert, semi-aural device.

Re: [184:2-184:21]

401-403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 39 of 427
Berger, Elliott - 09-25-2020 39

187:8 - 187:17 Berger, Elliott - 09-25-2020

 187 8 Q. And by semi-aural, it just means it goes

 187 9 halfway around the head, right?

 187 10 A. No.

 187 11 Q. What does it mean?

 187 12 A. It goes partly into the ear canal.

 187 13 Q. Partly into the ear canal?

 187 14 A. That's what the wording means. Like I

 187 15 said, they've been called semi-aural, semi-insert,

 187 16 concha cap, concha seated, a variety of names, banded

 187 17 earplugs.

187:24 - 188:7 Berger, Elliott - 09-25-2020

 187 24 Q. Okay. Okay. So if we can go to Slide 69,

 188 1 we'll mark this as Exhibit No. 15. This is MD-102A,

 188 2 which includes the -- it is part of the -- one of

 188 3 morning Doty's notebooks that we found.

 188 4 (WHEREUPON, a certain document was

 188 5 marked Elliott Berger Deposition

 188 6 Exhibit No. 15, for identification,

 188 7 as of 09/25/2020.)

188:19 - 188:24 Berger, Elliott - 09-25-2020

 188 19 Q. Okay. And you can see that the

 188 20 description of this is the UltraFlex lower leg. It is

 188 21 the drawings that were made in it looks like between

 188 22 '96 and 1997 of the -- of the band that would hold

 188 23 the -- the UltraFlex tip on it, is that right?

 188 24 A. Yes.

190:19 - 191:20 Berger, Elliott - 09-25-2020

 190 19 Q. Okay. Now, the company conducted REAT

 190 20 testing on this device?

 190 21 A. Yes.

 190 22 Q. And it used the same UltraFlex tip that

 190 23 was used -- that ends up being used in the Combat Arms

 190 24 Version 2, correct?

 191 1 A. As we discussed in the two, the stem is

 191 2 cut off somewhat shorter.

 191 3 Q. Sure. But the tips --

 191 4 A. The front end is -- the front end portion

 191 5 is the same.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 40 of 427
Berger, Elliott - 09-25-2020 40

 191 6 Q. Okay. And if we look at Slide 72, this is

 191 7 a cut paste -- cut and paste from the 3M website, it

 191 8 describes that: "This E-A-RFlex hearing protector

 191 9 with UltraFit tips provides excellent attenuation in

 191 10 all three wearing positions."

 191 11 Do you see that?

 191 12 A. Yes.

 191 13 Q. And, in fact, it describes: "It can be

 191 14 worn over the head, under the chin or behind the

 191 15 neck," right?

 191 16 A. Yes.

 191 17 Q. And it has NRRs of 24 when worn over the

 191 18 head and 27 when worn under the chin.

 191 19 Do you see that?

 191 20 A. Yes.

191:21 - 192:7 Berger, Elliott - 09-25-2020

 191 21 Q. And if we can go to Slide 73, we'll can

 191 22 mark this as Exhibit 16. This is MD-010.

 191 23 (WHEREUPON, a certain document was

 191 24 marked Elliott Berger Deposition

 192 1 Exhibit No. 16, for identification,

 192 2 as of 09/25/2020.)

 192 3 BY MR. OVERHOLTZ:

 192 4 Q. This is the REAT results of the UltraFlex

 192 5 semi-insert device from March 28th of 1997, position

 192 6 under the chin.

 192 7 Do you see that?

192:18 - 192:24 Berger, Elliott - 09-25-2020

 192 18 You can see these REAT results for the

 192 19 semi-insert UltraFlex device?

 192 20 A. And the question is?

 192 21 Q. The question is: You are able -- I was --

 192 22 I was just making sure you could see these results and

 192 23 you had them up where you could see them?

 192 24 A. Yes.

193:14 - 194:7 Berger, Elliott - 09-25-2020

 193 14 Q. And the NRR is 27.4, correct?

 193 15 A. Yes.

 193 16 Q. Okay. And -- and the -- the procedure

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 41 of 427
Berger, Elliott - 09-25-2020 41

 193 17 used for fitting the semi-aural device and the tips in

 193 18 the people's ears that were tested, that was

 193 19 experimenter fit, correct?

 193 20 A. Yes.

 193 21 Q. That's just like the fit that was used

 193 22 when the Combat Arms Version 2 was tested, 

determining

 193 23 its NRR in the 213015 test and the 016 test in 1999,

 193 24 correct?

 194 1 A. Yes.

 194 2 Q. Okay. And you signed off on these results

 194 3 in March of '97 along with Ron Kieper, right?

 194 4 A. Yes.

 194 5 Q. And Mr. Kieper had been the -- he was the

 194 6 technician that did the testing, correct?

 194 7 A. Yes.

194:15 - 195:23 Berger, Elliott - 09-25-2020

 194 15 Q. Right. And we can -- I'll mark as

 194 16 Exhibits No. 16 and 17 MD 012 and MD 013 -- it will 

be

 194 17 Exhibit 17 and 18. Those are the REAT results for

 194 18 behind the head and the over the head measurements.

 194 19 (WHEREUPON, certain documents were

 194 20 marked Elliott Berger Deposition

 194 21 Exhibit No. 17 and No. 18, for

 194 22 identification, as of 09/25/2020.)

 194 23 BY MR. OVERHOLTZ:

 194 24 Q. And if we can look up -- look at Slide 74,

 195 1 we see the results for the behind the head testing

 195 2 where an NRR of 24.2 was reported.

 195 3 Can you see that?

 195 4 A. Could you go back one slide a minute,

 195 5 please?

 195 6 Q. Sure.

 195 7 Slide 73 was the under the chin that got

 195 8 an NRR of 27.4.

 195 9 A. Okay.

 195 10 Q. And then behind the head got an NRR of

 195 11 24.2, correct?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 42 of 427
Berger, Elliott - 09-25-2020 42

 195 12 A. Yes.

 195 13 Q. And then Slide 75 shows -- Exhibit 18,

 195 14 which is the over the head measurements, it got an NRR

 195 15 of 24.1, correct?

 195 16 A. Yes.

 195 17 Q. Okay.

 195 18 Now, those NRRs are all higher than the

 195 19 NRR that was obtained on the green end of the Combat

 195 20 Arms Version 2 in the 213015 test that was stopped

 195 21 after eight subjects that reported an 11 or even the

 195 22 213017 test that was -- reported an NRR of 22 that was

 195 23 in the label, correct?

196:2 - 196:14 Berger, Elliott - 09-25-2020

 196 2 A. Yes, these NRRs are higher than the NRRs

 196 3 on the Combat Arms closed end earplug.

 196 4 BY MR. OVERHOLTZ:

 196 5 Q. And, in fact, these NRRs attained using

 196 6 this UltraFlex tip on this UltraFlex semi-aural band

 196 7 device using the same UltraFlex tip that's used on the

 196 8 Combat Arms Version 2, there was the testing, the REAT

 196 9 testing that was done on those devices at that time

 196 10 were all available to you and Mr. Kieper when the

 196 11 21305 (sic) test was conducted in 1999, correct?

 196 12 MS. ELIZABETH: One second, please.

 196 13 BY THE WITNESS:

 196 14 A. Yes.

196:21 - 197:14 Berger, Elliott - 09-25-2020

 196 21 Q. The NRRs that would have been obtained

 196 22 using the UltraFlex semi-aural band device using the

 196 23 UltraFlex tip that was used on the Combat Arms

 196 24 Version 2, those REAT results were available to you

 197 1 and Mr. Kieper when the 213015 test was conducted in

 197 2 1999, correct?

 197 3 A. Yes. And let me remind you once again

 197 4 that the UltraFlex tip that was used on Combat Arms is

 197 5 a modification of this tip. It doesn't have the same

 197 6 length.

 197 7 Q. But -- but the -- the results were still

 197 8 available to you with the -- at that time, correct?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 43 of 427
Berger, Elliott - 09-25-2020 43

 197 9 A. Yes.

 197 10 Q. And the difference being here is that

 197 11 the -- this semi-aural band had actually used the --

 197 12 the tip, the UltraFlex tip that did not have the

 197 13 rubber -- the part of the rubber-like stem trimmed off

 197 14 even with the third flange, correct?

197:17 - 198:3 Berger, Elliott - 09-25-2020

 197 17 A. That was the difference in the UltraFlex

 197 18 stem, but there is obviously other differences in the

 197 19 product.

 197 20 BY MR. OVERHOLTZ:

 197 21 Q. So, the difference -- one -- one

 197 22 difference is that the -- the version of the UltraFlex

 197 23 tip that was tested with the UltraFlex ear band didn't

 197 24 have the rubber stem cut off, even with the third

 198 1 flanges, and it also had an adapter that was of a

 198 2 different shape and a lower diameter than the adapter

 198 3 used in the Combat Arms Version 2, correct?

Re: [197:20-198:10]

Compound

OVERRULED

198:6 - 198:10 Berger, Elliott - 09-25-2020

 198 6 A. You are pointing out two of the

 198 7 differences.

 198 8 The third difference that is important is

 198 9 that it was a longer piece of plastic that went more

 198 10 deeply into the earplug.

Re: [197:20-198:10]

Compound

OVERRULED

198:11 - 198:16 Berger, Elliott - 09-25-2020

 198 11 BY MR. OVERHOLTZ:

 198 12 Q. Yeah.

 198 13 A. And so indeed, to have it be at that large

 198 14 diameter in the earplug beyond the third flange in the

 198 15 area of the second flange would have made it more

 198 16 challenging.

199:9 - 200:2 Berger, Elliott - 09-25-2020

 199 9 Q. Okay. Now, you mentioned that the stem is

 199 10 different, and we looked at the drawing and we saw the

 199 11 difference in the shape.

 199 12 The other difference is it's made out of a

 199 13 different material than the stem that's used in the

 199 14 Combat Arms Version 2, right?

 199 15 A. I'd have to go back and look again at the

Re: [199:24-200:6]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 44 of 427
Berger, Elliott - 09-25-2020 44

 199 16 drawings. I'm not certain of that, but that probably

 199 17 is the case.

 199 18 Q. The Combat Arms Version 2 adapter stem is

 199 19 made out of a product developed by DuPont called

 199 20 Delrin, right?

 199 21 A. I would need to look at the drawing and

 199 22 see if it's stated there. I don't have that

 199 23 information in my head.

 199 24 Q. All right. Would you just -- Mr. Falco

 200 1 told me it was Delrin, do you have any reason to

 200 2 disagree with him that it was Delrin?

200:5 - 200:10 Berger, Elliott - 09-25-2020

 200 5 A. If Mr. Falco reported it that way, I

 200 6 wouldn't have a reason to disagree with him.

 200 7 BY MR. OVERHOLTZ:

 200 8 Q. All right. And you know Delrin is a hard

 200 9 plastic material, right?

 200 10 A. Yes.

Re: [199:24-200:6]

602

OVERRULED

200:17 - 200:19 Berger, Elliott - 09-25-2020

 200 17 Q. Okay. But it's not flexible, it is very

 200 18 difficult to bend and to move.

 200 19 Do you agree?

200:22 - 201:4 Berger, Elliott - 09-25-2020

 200 22 A. It is definitely a more rigid plastic

 200 23 material.

 200 24 BY MR. OVERHOLTZ:

 201 1 Q. Okay. The adapter that was used on the

 201 2 semi-aural band, UltraFlex band, it can be bent and

 201 3 flexed, even though it extends pretty far deep into

 201 4 the plug, right? It's a long adapter.

201:10 - 202:3 Berger, Elliott - 09-25-2020

 201 10 A. It can be flexed and the reason that

 201 11 that's necessary is that it's now attached to a sub

 201 12 arm assembly and it's providing additional degrees of

 201 13 freedom to move relative to that sub arm assembly so

 201 14 that it can be directed into the ear canal.

 201 15 The back end of the Combat Arms, when it's

 201 16 inserted into an ear is not constrained in the same

 201 17 way that the back end of that product is constrained

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 45 of 427
Berger, Elliott - 09-25-2020 45

 201 18 by the sub arm assembly, and the head band to which

 201 19 it's attached.

 201 20 BY MR. OVERHOLTZ:

 201 21 Q. But irrespective of its ability to move

 201 22 because of the head band, the actual stem itself is

 201 23 made out of a flexible material, correct?

 201 24 A. It's more flexible than the material that

 202 1 is the stem adapter in the Combat Arms 2.

 202 2 Q. So if there are any bends in the ear

 202 3 canal, they can flex through those ear bends, right?

202:6 - 202:11 Berger, Elliott - 09-25-2020

 202 6 A. It is penetrating the earplug more deeply

 202 7 and so that becomes important in that design.

 202 8 BY MR. OVERHOLTZ:

 202 9 Q. Okay. All right.

 202 10 A. The adapter in the Combat Arms does not

 202 11 penetrate as deeply into the earplug.

202:15 - 202:22 Berger, Elliott - 09-25-2020

 202 15 Q. And this is back to Page 11 of the final

 202 16 Combat Arms assembly drawing of Exhibit 2.

 202 17 As we discussed, for the actual Combat

 202 18 Arms Version 2, the section of the green end UltraFlex

 202 19 end of the plug were cut off even with the third

 202 20 flange and that made that change from Part 2032 to the

 202 21 2068, correct?

 202 22 A. Yes.

203:8 - 203:12 Berger, Elliott - 09-25-2020

 203 8 Q. And if we look at the change from 4/27/99

 203 9 at the bottom, it says that Part B was 2032-B and its

 203 10 overall length was 1.588, it has now been made

 203 11 shorter, correct?

 203 12 A. Yes.

204:19 - 205:19 Berger, Elliott - 09-25-2020

 204 19 If we look at Slide 90, you recall looking

 204 20 at Exhibit 13, in which Dancer and Hamery said that

 204 21 they were not sure that the present configuration of

 204 22 the prototype that had a stem at the filter position

 204 23 of a diameter of 4.2 millimeters would be suitable for

 204 24 most ears.

Re: [205:14-205:16]

Plt Objection - Plaintiff 

MIL G3, Improper 

Counter Designation per 

PTO 64

Re: [205:14-

205:16]

Plt Objection -

Plaintiff MIL 

G3, Improper 

Counter 

Re: [205:14-205:16]

FRE 402/403; 802; Plaintiffs 

MIL #1, 2, 15, 16, 17, 21 -

objection is as to military 

involvement and knowledge and 

alleged directives.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 46 of 427
Berger, Elliott - 09-25-2020 46

 205 1 Do you recall that?

 205 2 MS. ELIZABETH: Objection; form.

 205 3 BY THE WITNESS:

 205 4 A. Yes.

 205 5 BY MR. OVERHOLTZ:

 205 6 Q. Okay. But if we look at the drawing from

 205 7 Exhibit 2 of the adapter stem used in the Combat Arms

 205 8 Version 2, that has a -- a diameter at the filter

 205 9 position of 4.45 millimeters, even bigger than the one

 205 10 Armand Dancer and Hamery were looking at back in 

1997,

 205 11 correct?

 205 12 A. It also does not penetrate as deeply into

 205 13 the earplug, I don't believe. We'd need to look at

 205 14 that drawing. But regardless, this is the design that

 205 15 we provided to and worked with the US military on, the

 205 16 one that they asked -- they asked us to work with.

 205 17 Also, as I can tell you, we, in subsequent

 205 18 years, made thinner designs and then ended up going

 205 19 back to thicker designs.

Designation per 

PTO 64

SUSTAINED

206:2 - 206:8 Berger, Elliott - 09-25-2020

 206 2 Q. You agree that the diameter of this plug,

 206 3 of this plug adapter, the white adapter used in Combat

 206 4 Arms Version 2, was bigger than the 4.2-millimeter

 206 5 diameter position that Dancer and Hamery expressed

 206 6 concerns about in their 1997 communication with you as

 206 7 not being sure it would be suitable for most ears

 206 8 because of fitting problems, correct?

206:11 - 206:14 Berger, Elliott - 09-25-2020

 206 11 A. You are comparing two different earplugs,

 206 12 but, yes, the diameter of this adapter is larger than

 206 13 the diameter, slightly larger than the diameter

 206 14 mentioned in that correspondence.

206:16 - 207:7 Berger, Elliott - 09-25-2020

 206 16 Q. And as we saw before in Exhibit -- in

 206 17 Slide 88, that diameter, the 4.45 millimeters, has

 206 18 been pushed deeper into the plug up to the -- within

 206 19 the third flanges, a part of the plug that can

 206 20 reasonably be inserted in a user's ear, correct?

Re: [206:16-207:7]

Plt Objection – Improper 

Counter Designation per 

PTO 64, non-responsive.

Re: [206:16-

207:7]

Plt Objection –

Improper 

Counter 

Designation per 

Re: [206:16-207:9]

conjecture; foundation; 

speculation; FRE 402/403; 802; 

improper opinion 602/701/702.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 47 of 427
Berger, Elliott - 09-25-2020 47

 206 21 MS. ELIZABETH: Objection; form.

 206 22 BY THE WITNESS:

 206 23 A. One of the things to keep in mind with

 206 24 they -- the answer is yes, it could be inserted into a

 207 1 user's ear, but one of the things to keep in mind in a

 207 2 single-sized three-flange earplug is that the depth or

 207 3 fit of the plug for a proper fit varies with the size

 207 4 of the ear canal.

 207 5 So it would be in the larger ear canal

 207 6 that you might anticipate that being -- that adapter

 207 7 being within a portion of the external ear canal.

PTO 64, nonresponsive.

OVERRULED

211:13 - 211:21 Berger, Elliott - 09-25-2020

 211 13 Q. Mr. Berger, when you got the REAT results

 211 14 from the 213015 test using the UltraFlex plug tip

 211 15 where you had gotten great results on the semi-aural

 211 16 band device, in that -- in that -- in that -- in that

 211 17 test you get a 11 NRR, you have to stop the test after

 211 18 eight subjects, you've got high variability and a high

 211 19 standard deviation, did any red flags go up that

 211 20 maybe -- that maybe you had made some design 

decisions

 211 21 that weren't best for the plug?

Re: [211:13-212:10]

Vague

OVERRULED

211:24 - 212:10 Berger, Elliott - 09-25-2020

 211 24 A. You are comparing, as I said before, two

 212 1 completely different designs. You are comparing a

 212 2 design that is held into the ear under pressure by a

 212 3 lightweight plastic band, a design that has a somewhat

 212 4 rigid but flexible stem in it that extends further

 212 5 into the plug. So that was one particular approach.

 212 6 We are now looking at a completely

 212 7 different design earplug, and when the results were

 212 8 low we started questioning why were they low and that

 212 9 was the result, the result was that was the time we

 212 10 looked into the testing and the instruction sets.

Re: [211:13-212:10]

Vague

OVERRULED

212:12 - 213:19 Berger, Elliott - 09-25-2020

 212 12 Q. Okay. You had gotten a lot better results

 212 13 with this design, the semi-aural band design with that

 212 14 longer flexible adapter stem inside it than you had

 212 15 gotten in the 213015 with a different design, correct?

Re: [212:12-213:19]

Plt Objection – Improper 

Counter Designation per 

PTO 64

Re: [211:13-

213:19]

Plt Objection –

Improper 

Counter 

Re: [212:12-213:21]

nonresponsive/evasive answer; 

conjecture; speculation; FRE 

402/403; 802; improper opinion 

602/701/702.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 48 of 427
Berger, Elliott - 09-25-2020 48

 212 16 MS. ELIZABETH: Objection; form.

 212 17 BY THE WITNESS:

 212 18 A. And in the past we would have had other

 212 19 products that when they were mounted on a semi-aural

 212 20 band had different results, sometimes better,

 212 21 sometimes poorer than those same products used

 212 22 independently of the band. So you are comparing

 212 23 completely different designs.

 212 24 BY MR. OVERHOLTZ:

 213 1 Q. Well, did the company consider, maybe we

 213 2 should use the adapter stem that's used in the

 213 3 semi-aural band for the Combat Arms Version 2, use a

 213 4 similar design to that and we might get better

 213 5 results?

 213 6 Was that a consideration that was made?

 213 7 A. You have shown the two of them on screen

 213 8 and they have demonstrably different shapes. The

 213 9 adapter part for the UltraFlex band could not be

 213 10 adapted to holding the nonlinear filter. It also --

 213 11 we don't want the part to be as long, it needs to be

 213 12 symmetric, dual-ended, and also there are issues when

 213 13 you are putting plastic materials together from --

 213 14 plastic parts together from dissimilar materials, how

 213 15 they go together in production, whether they stay

 213 16 together. The materials selected for the UltraFlex

 213 17 were for that particular application. So you are

 213 18 trying to completely reengineer the product at this

 213 19 point.

Designation per 

PTO 64

SUSTAINED

214:14 - 215:22 Berger, Elliott - 09-25-2020

 214 14 Q. The company didn't -- your -- so your

 214 15 answer to my question was the company didn't consider

 214 16 using a design of the adapter stem for the green end

 214 17 of the plug more similar to the adapter stem design

 214 18 and material that had been used for the UltraFlex

 214 19 semi-aural band device?

 214 20 MS. ELIZABETH: Objection; form.

 214 21 BY MR. OVERHOLTZ:

 214 22 Q. This device.

 214 23 A. I don't know if we explicitly didn't

Re: [214:14-215:22]

Plt Objection – Improper 

counter designation; 602

Re: [214:14-

215:22]

Plt Objection –

Improper 

Counter 

Designation per 

PTO 64, 602

SUSTAINED

Re: [214:14-215:24]

nonresponsive/evasive answer; 

conjecture; speculation; FRE 

402/403; 802; improper opinion 

701/702.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 49 of 427
Berger, Elliott - 09-25-2020 49

 214 24 consider that, but that particular design, material

 215 1 and shape would not be adaptive to the Combat Arms 2

 215 2 earplug.

 215 3 Q. Okay. Now, after --

 215 4 A. So that particular part was not suitable.

 215 5 I do not know when the materials were selected for the

 215 6 stem adapter, what was the thinking that went into

 215 7 that. There are multiple reasons why you pick

 215 8 materials. One of them is can you mold the part to

 215 9 the tolerances that it needs to be molded to. There

 215 10 is more rigid tolerances needed for this part because

 215 11 it's holding the nonlinear filter because of the

 215 12 orifice is through it than are the tolerances required

 215 13 for that stem in the UltraFlex part.

 215 14 I don't know what went into the

 215 15 discussions, but it is -- in all likelihood that

 215 16 material would not be adapted to molding this part.

 215 17 You can't just say, Oh, I want this part, I'll make it

 215 18 out of that material, it is the cheapest to produce,

 215 19 the most flexible. You need to select the material

 215 20 that can be molded and that will give you the feature

 215 21 that you need. So there is a number of considerations

 215 22 that need to be accounted for.

216:2 - 216:11 Berger, Elliott - 09-25-2020

 216 2 Q. The answer is -- do you -- there -- the

 216 3 truth is, there is no evidence of any consideration of

 216 4 any of the issues that you just brought up regarding

 216 5 whether or not the design of the adapter stem used in

 216 6 the semi-aural UltraFlex band device could have been

 216 7 used for the green end of the Combat Arms Version 2,

 216 8 there is no evidence that Aearo made any of those

 216 9 determinations that that material or that design or a

 216 10 more similar design could not have been used for the

 216 11 Combat Arms Version 2, correct?

Re: [216:2-216:22]

Def Objection -

Compound.

OVERRULED

216:16 - 216:22 Berger, Elliott - 09-25-2020

 216 16 A. You said there is no evidence. There is

 216 17 no written documentation. I do not know that there

 216 18 weren't multiple conversations between Dick Knauer,

 216 19 Bob Falco, Marc Doty or others in the technical

Re: [216:2-216:22]

Def Objection -

Compound.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 50 of 427
Berger, Elliott - 09-25-2020 50

 216 20 department or materials people about the selection of

 216 21 that material and the other aspects that went into

 216 22 creating that particular stem adapter.

224:8 - 224:17 Berger, Elliott - 09-25-2020

 224 8 Q. So, Mr. Berger, when the company received

 224 9 the results of the 213015 test of the Combat Arms

 224 10 Version 2 green end of the plug that had to be stopped

 224 11 after eight subjects, did this raise a consideration

 224 12 within the company that an alternative design should

 224 13 be considered of the adapter stem that might more

 224 14 closely approximate a design that had shown good

 224 15 results like those seen in the UltraFlex semi-aural

 224 16 band that used a similar UltraFlex plug tip that had

 224 17 received good results?

Re: [224:8-224:22]

Def Objection - Scope

OVERRULED

224:20 - 224:24 Berger, Elliott - 09-25-2020

 224 20 BY THE WITNESS:

 224 21 A. My review of the records doesn't reveal

 224 22 that particular conversation.

 224 23 BY MR. OVERHOLTZ:

 224 24 Q. Okay.

Re: [224:8-224:22]

Def Objection - Scope

OVERRULED

225:1 - 225:12 Berger, Elliott - 09-25-2020

 225 1 A. We certainly did consider issues of the

 225 2 design of the plug, and as I answered to you before,

 225 3 the UltraFlex piece on the sub arm assembly that fits

 225 4 into the earplug, because of its materials and shape,

 225 5 is not one that could be adapted to enclosing the

 225 6 nonlinear filter and the nonlinear design. There is

 225 7 so much dissimilarity between those parts and their

 225 8 functions and the devices that they are used to.

 225 9 But, yes, we did consider what might be

 225 10 the issue. I don't have written documentation on it.

 225 11 I know that it was a project that transpired over a

 225 12 few months. I don't recall all of the conversations.

Re: [225:1-225:12]

Plt Objection - Improper 

counter designation; 

nonresponsive/evasive 

answer

Re: [225:1-

225:12]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, 

incomplete 

designation, nonresponsive

OVERRULED

Re: [225:1-225:12]

foundation; conjecture; 

speculation; FRE 402/403; 802; 

improper opinion 602/701/702.

OVERRULED

225:18 - 226:9 Berger, Elliott - 09-25-2020

 225 18 Q. All right. Let's go to Slide 104. This

 225 19 is the UltraFit Plus earplug.

 225 20 Are you familiar with its design?

 225 21 A. Yes.

 225 22 Q. Okay. And the E-A-R UltraFit Plus uses an

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 51 of 427
Berger, Elliott - 09-25-2020 51

 225 23 UltraFlex tip with a plastic insert stem connected to

 225 24 it, correct?

 226 1 A. Yes.

 226 2 Q. And it looks like it comes in multiple

 226 3 colors at some point in time, correct?

 226 4 A. Yes.

 226 5 Q. And if we look at this packaging for the

 226 6 UltraFit, besides letting me know that E-A-R is an

 226 7 official earplug of the Indianapolis 500, it tells me

 226 8 that it has got a higher NRR of 26-dB, right?

 226 9 A. Yes.

227:1 - 227:11 Berger, Elliott - 09-25-2020

 227 1 Q. Okay. Well, let's look at the Slide 106,

 227 2 which is EB-601, we'll mark this as Exhibit No. 19.

 227 3 (WHEREUPON, a certain document was

 227 4 marked Elliott Berger Deposition

 227 5 Exhibit No. 19, for identification,

 227 6 as of 09/25/2020.)

 227 7 BY MR. OVERHOLTZ:

 227 8 Q. This is a March 23rd, 1999 drawing of the

 227 9 UltraFit Plus plug.

 227 10 And you see it describes using the 2032-B

 227 11 UltraFit tip, correct, UltraFlex?

228:13 - 228:20 Berger, Elliott - 09-25-2020

 228 13 The -- the drawing shows that this 2067

 228 14 UltraFit Plus plug as originally designed in

 228 15 March 23rd of '99 in this drawing was going to use the

 228 16 UltraFlex tip Part 2032-B without the rubber legs of

 228 17 the stem of the plug tip being cut off, just like the

 228 18 original drawing of the Combat Arms Version 2 before

 228 19 it was switched to the Part 2068-B with those legs of

 228 20 the rubber stem cut off, correct?

228:23 - 228:23 Berger, Elliott - 09-25-2020

 228 23 A. Yes.

229:3 - 229:6 Berger, Elliott - 09-25-2020

 229 3 Q. Okay. And the drawing also shows an

 229 4 UltraFit stem being inserted into the plug as well,

 229 5 right? Part 4055-0?

 229 6 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 52 of 427
Berger, Elliott - 09-25-2020 52

232:9 - 232:15 Berger, Elliott - 09-25-2020

 232 9 Q. Okay. And so the exact -- the -- the plug

 232 10 itself, the rubber tip of the plug, the rubber-like

 232 11 tip of the plug from the 2032-B that had the stem

 232 12 extend beyond the third flange is now cut off flush

 232 13 with the third flange, just like the Combat Arms

 232 14 Version 2, correct?

 232 15 A. Yes.

233:2 - 233:7 Berger, Elliott - 09-25-2020

 233 2 3M or Aearo would not make any claim that

 233 3 using a cut off version of the UltraFlex tip of the

 233 4 green end of the plug with the rubber part of the stem

 233 5 cut off even with the third flange, that the military

 233 6 had anything to do with that decision for the UltraFit

 233 7 Plus plugs?

Re: [233:2-233:12]

Def Objection - Scope

OVERRULED

233:11 - 233:12 Berger, Elliott - 09-25-2020

 233 11 A. I don't believe that that was responsive

 233 12 to a military request.

Re: [233:2-233:12]

Def Objection - Scope

OVERRULED

235:24 - 236:11 Berger, Elliott - 09-25-2020

 235 24 Q. Do you recognize that plug?

 236 1 A. Yes.

 236 2 Q. And this is the UltraFit Plus, right?

 236 3 A. Yes.

 236 4 Q. Using the UltraFlex -- the UltraFit Plus

 236 5 stem inside of an UltraFlex plug, correct?

 236 6 A. Yes.

 236 7 Q. And as we saw from the drawings, the

 236 8 yellow -- the plug on the end of the UltraFit Plus, so

 236 9 this is the UltraFit Plus, this is the CAEv2, the tips

 236 10 of those plugs, besides the color, they are identical,

 236 11 right?

236:14 - 236:17 Berger, Elliott - 09-25-2020

 236 14 A. Yes.

 236 15 BY MR. OVERHOLTZ:

 236 16 Q. Okay. And that was a yes, right?

 236 17 A. Yes.

237:7 - 237:13 Berger, Elliott - 09-25-2020

 237 7 Q. One end has the filter, that's supposed to

 237 8 go in the yellow end, the other end is supposed to go

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 53 of 427
Berger, Elliott - 09-25-2020 53

 237 9 in the green end, right?

 237 10 A. Yes.

 237 11 Q. And, in fact, you guys came up with a test

 237 12 to make sure that someone hadn't assembled it

 237 13 backwards, right?

237:18 - 238:2 Berger, Elliott - 09-25-2020

 237 18 A. We do conduct 100 percent quality control

 237 19 testing on the plugs.

 237 20 Q. Right. That was what was called for.

 237 21 All right. So, back to this situation,

 237 22 you -- you mentioned that this is somewhat flexible.

 237 23 Just so you see, even though that stem goes deep into

 237 24 the UltraFit Plus, it bends, left, right, it is very

 238 1 flexible.

 238 2 Do you see that?

238:6 - 238:11 Berger, Elliott - 09-25-2020

 238 6 Q. Do you agree that the --

 238 7 A. I see that.

 238 8 Q. Do you agree that the stem that's in the

 238 9 UltraFit Plus plug that has the UltraFlex tip

 238 10 identical to the Combat Arms Version 2 is very

 238 11 flexible?

238:14 - 238:15 Berger, Elliott - 09-25-2020

 238 14 A. I agree that you are able to bend that

 238 15 easily.

239:4 - 240:2 Berger, Elliott - 09-25-2020

 239 4 Q. Did -- did the -- did Aearo ever consider

 239 5 making the tip of the ultra -- of the -- of this

 239 6 Combat Arms Version 2 plastic adapter more rounded

 239 7 instead of having the stiff barbed edges that we saw

 239 8 in the drawing so that it would be more comfortable

 239 9 when it was worn?

 239 10 MS. ELIZABETH: Objection; form.

 239 11 BY THE WITNESS:

 239 12 A. As I said, you are comparing two

 239 13 dissimilar products. The tip of the stem in your hand

 239 14 penetrates that earplug much more deeply than the tip

 239 15 of the adapter stem in the Combat Arms. So there are

 239 16 different requirements for its shape and flexibility.

Re: [239:4-240:4]

Plt Objection - Improper 

counter designation; 

nonresponsive

Re: [239:4-

240:2]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, nonresponsive 

SUSTAINED

Re: [239:4-240:4]

evasive answer; conjecture; 

speculation; FRE 402/403; 

improper opinion 602/701/702.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 54 of 427
Berger, Elliott - 09-25-2020 54

 239 17 Also, you are continuing to compare those

 239 18 parts and because the stem for the Combat Arms needs

 239 19 to meet certain design tolerances and be able to

 239 20 maintain a nonlinear filter in it, there are other

 239 21 requirements for that material.

 239 22 So to an uninformed observer, they might

 239 23 say, Oh, why can't I just make it out of this thin

 239 24 material and change the shape, and the issue is that

 240 1 there are many end hearing design considerations that

 240 2 go into each of those products.

240:6 - 240:8 Berger, Elliott - 09-25-2020

 240 6 Q. Did the company ever conduct any analysis

 240 7 as to whether or not this stem design or this stem

 240 8 material could be made to house a nonlinear filter?

240:11 - 240:20 Berger, Elliott - 09-25-2020

 240 11 A. I have no written records on that.

 240 12 Whether such conversations took place during material

 240 13 selection process, I don't know.

 240 14 BY MR. OVERHOLTZ:

 240 15 Q. And by the way, the green end of the

 240 16 Combat Arms version plug that uses the same tip as the

 240 17 UltraFit Plus, it doesn't have a filter in it at all,

 240 18 right, it is just supposed to provide protection for

 240 19 steady state noise?

 240 20 A. Correct.

243:15 - 243:19 Berger, Elliott - 09-25-2020

 243 15 Q. Just let me ask you this: Did the -- did

 243 16 the lab's policies and procedures contemplate that the

 243 17 company will evaluate design decisions and their

 243 18 effects on real-ear attenuation testing of their

 243 19 earplugs?

244:1 - 244:3 Berger, Elliott - 09-25-2020

 244 1 A. Part of the design process of the earplug

 244 2 is evaluating the results of a real-ear attenuation

 244 3 test.

246:23 - 248:12 Berger, Elliott - 09-25-2020

 246 23 Did -- did this testing result, this REAT

 246 24 testing result of the UltraFit Plus plug, did that

 247 1 provide confidence to Aearo that this design of the

Re: [246:23-248:12]

Plt Objection - Improper 

counter designation

Re: [246:23-

248:12]

Plt Objection -

Improper 

Re: [246:23-248:12]

nonresponsive/evasive answer; 

foundation; FRE 402/403; 802; 

improper opinion 602/701/702.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 55 of 427
Berger, Elliott - 09-25-2020 55

 247 2 plug, even using the UltraFlex tip identical to the

 247 3 Combat Arms -- Combat Arms Version 2, was an 

effective

 247 4 design for providing attenuation or protection from

 247 5 steady state noise?

 247 6 MS. ELIZABETH: Objection; form.

 247 7 BY THE WITNESS:

 247 8 A. So I don't recall. What I -- what you

 247 9 need to look at here is that this is a two-size plug,

 247 10 the military wanted a one-size earplug. So this is a

 247 11 two-size plug. You can see, if you look down the

 247 12 right-hand side, that two of the subjects used a small

 247 13 size, the other eight used a regular size.

 247 14 BY MR. OVERHOLTZ:

 247 15 Q. Okay. And -- and just to be clear on

 247 16 that --

 247 17 (Simultaneous talking.)

 247 18 BY MR. OVERHOLTZ:

 247 19 Q. I'm sorry. But just to be clear on that,

 247 20 the only people that used the small size were these

 247 21 people were extra small ear canals, correct?

 247 22 A. Yes.

 247 23 MS. ELIZABETH: Objection; form.

 247 24 BY MR. OVERHOLTZ:

 248 1 Q. Okay.

 248 2 A. I don't recall how this plug was

 248 3 introduced.

 248 4 Q. All right.

 248 5 A. Or whether it was introduced as a

 248 6 two-sized earplug or a single-sized earplug. And so

 248 7 in terms of the results of that test in forming what

 248 8 was going to go to market, I can't tell you. We'd

 248 9 have to look at the marketing materials and remind me

 248 10 how this was introduced. This may have been an

 248 11 exploration of how different sizes affect the

 248 12 performance of the plug.

Counter 

Designation per 

PTO 64

SUSTAINED

250:1 - 251:7 Berger, Elliott - 09-25-2020

 250 1 BY MR. OVERHOLTZ:

 250 2 Q. All right. Let's go back to Slide 114.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 56 of 427
Berger, Elliott - 09-25-2020 56

 250 3 Did the company, in evaluating the design

 250 4 of the Combat Arms Version 2 earplug and whether or

 250 5 not alternative safer designs were potential and

 250 6 available, consider the fact that identical subjects

 250 7 had been tested on both the UltraFit Plus plug and the

 250 8 Combat Arms Version 2 plug and achieved dramatically

 250 9 different results?

 250 10 MS. ELIZABETH: Objection; form, outside the

 250 11 scope.

 250 12 BY THE WITNESS:

 250 13 A. I'm not certain that the identical

 250 14 subjects were selected. I do recognize some of those

 250 15 initials. An individual subject can have a strong

 250 16 influence. We see here an example where one subject

 250 17 who simply failed the two frequencies, changed the 

NRR

 250 18 by about a dB and a half. If a subject has a problem

 250 19 on one fit and changes the variability, it can

 250 20 substantially alter the results.

 250 21 So I don't know that that group of ten was

 250 22 exactly the same -- same group of ten. You'd have to

 250 23 show me them side by side. We did have a listener

 250 24 panel of about, at that time, 20 to 30 subjects, and

 251 1 Ron would obtain them as they were available. Working

 251 2 with human subjects, you can't always say I'm going to

 251 3 use these ten people and get the test done in this

 251 4 timeframe. You are kind of at the whim of people's

 251 5 individual -- they are not 100 percent captive

 251 6 listeners. They have another life, do other jobs.

 251 7 This is a part-time side job.

251:9 - 251:15 Berger, Elliott - 09-25-2020

 251 9 Q. Let me ask you this: Did -- did -- at any

 251 10 point did Mr. Kieper raise a concern with you that he

 251 11 had seen dramatically lower attenuation results in

 251 12 some of the hearing subjects that had been tested

 251 13 using the exact same UltraFlex fit and the UltraFit

 251 14 Plus plug when he tested the Combat Arms Version 2

 251 15 plug?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 57 of 427
Berger, Elliott - 09-25-2020 57

251:24 - 252:7 Berger, Elliott - 09-25-2020

 251 24 A. I don't recall if we had the conversation

 252 1 framed in the way you describe it. We did have

 252 2 conversations about why the results on the Combat Arms

 252 3 Version 2 were showing more variability and hence we

 252 4 spent some time over the period of a few months

 252 5 looking into that. I believe we may also have looked

 252 6 into other issues in the lab related to that, but I

 252 7 have no documents on that.

253:9 - 254:8 Berger, Elliott - 09-25-2020

 253 9 Q. Okay. Did the company consider whether or

 253 10 not an alternative design for the green end of the

 253 11 plug that more closely resembled the design used in

 253 12 the UltraFit Plus that used the exact same UltraFlex

 253 13 tip might provide a safer level of attenu --

 253 14 attenuation for the soldiers for which the Combat Arms

 253 15 Version 2 was intended?

 253 16 MS. ELIZABETH: Objection; form.

 253 17 BY THE WITNESS:

 253 18 A. I don't recall the exact conversations. I

 253 19 don't know that this test informs testing on the

 253 20 Combat Arms.

 253 21 And I'll summarize again for you the

 253 22 reasons that is. This is a -- has a flexible stem of

 253 23 a substantially different design, a material that

 253 24 likely could not be used to house the nonlinear

 254 1 filter. I don't believe there would have been a

 254 2 feasibility to make the stem that houses the filter

 254 3 out of two dissimilar materials, I don't know if that

 254 4 was discussed, but I don't believe that's feasible.

 254 5 And the stem is of such that it has rigid tolerances

 254 6 on it because it's housing another part and containing

 254 7 orifices. So there isn't a carryover from this design

 254 8 to that design.

Re: [253:19-254:8]

Plt Objection - Nonresponsive

Re: [235:19-

254:8]

Plt Objection -

Non-responsive

SUSTAINED

Re: [253:21-254:11]

Improper counter designation; 

foundation; conjecture; 

speculation; FRE 402/403; 802; 

improper opinion 602/701/702.

SUSTAINED

254:15 - 254:21 Berger, Elliott - 09-25-2020

 254 15 Q. So, if we are looking at the Combat Arms

 254 16 plug and then the UltraFit Plus again, okay.

 254 17 The difference is -- we know the tips are

 254 18 identical, right?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 58 of 427
Berger, Elliott - 09-25-2020 58

 254 19 A. Yes.

 254 20 Q. The differences in design is the UltraFit

 254 21 Plus has a longer but more flexible stem, right?

254:24 - 255:8 Berger, Elliott - 09-25-2020

 254 24 Q. That's one difference?

 255 1 A. Yes.

 255 2 Q. Okay. No. 2, it doesn't have a second end

 255 3 with opposing flanges, right?

 255 4 A. Yes.

 255 5 Q. And yet the UltraFit Plus in its NRR -- in

 255 6 its attenuation testing got a 20 -- got a 26 NRR, 26,

 255 7 and the CAEv2 on the 213015 got an 11 the first time

 255 8 around on eight subjects?

255:11 - 255:24 Berger, Elliott - 09-25-2020

 255 11 A. You need to add an Item 3 down there.

 255 12 BY MR. OVERHOLTZ:

 255 13 Q. Okay.

 255 14 A. Which is that the UltraFit Plus test you

 255 15 are referring to, I'm not sure if you are referring to

 255 16 the label or the test that we discussed, but that was

 255 17 done with a two-size product.

 255 18 Q. Yeah, they had a -- they had a -- the --

 255 19 the UltraFit Plus at least in the testing had a

 255 20 small -- a small version that was used in two extra

 255 21 small size ear canal subjects, right?

 255 22 A. Yes, and our goal in testing was always to

 255 23 include a full range of ear canals in the test panel,

 255 24 range of ear canal sizes.

256:1 - 256:8 Berger, Elliott - 09-25-2020

 256 1 Q. And I guess maybe the -- the other

 256 2 difference in the UltraFit Plus, it doesn't have the

 256 3 opposing flange and it's -- it's not dual-ended,

 256 4 right, so therefore it doesn't have the opposing

 256 5 flanges?

 256 6 A. Yes. I can't read everything you are

 256 7 writing. You are dropping off screen, but I heard

 256 8 what you said with that.

256:18 - 257:1 Berger, Elliott - 09-25-2020

 256 18 Q. And we know by 1997 -- we know by 1990 --

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 59 of 427
Berger, Elliott - 09-25-2020 59

 256 19 '99, I'm sorry, that the company had -- had designed

 256 20 and developed prototypes, Aearo had a patent and had

 256 21 designed a single-ended version, right?

 256 22 A. Yes.

 256 23 Q. And they had the ability to produce stems,

 256 24 plastic stems that were more flexible, correct?

 257 1 A. Yes.

257:10 - 257:16 Berger, Elliott - 09-25-2020

 257 10 Q. All right. Let's look, before we take our

 257 11 break, at 127, Slide 127, Exhibit 23, which will be

 257 12 P0193-A.

 257 13 (WHEREUPON, a certain document was

 257 14 marked Elliott Berger Deposition

 257 15 Exhibit No. 23, for identification,

 257 16 as of 09/25/2020.)

257:24 - 259:19 Berger, Elliott - 09-25-2020

 257 24 Q. All right. So if we look at here, you are

 258 1 familiar with this e-mail that you sent in November

 258 2 of 2004 regarding Combat Arms Earplugs comfort 

issues?

 258 3 A. Yes.

 258 4 Q. You sent it to Doug Ohlin and copied Brian

 258 5 Myers and Dick Knauer, right?

 258 6 A. Yes.

 258 7 Q. And you say:

 258 8 "Good to see you at the Beach. I took

 258 9 back your concerns on the CAE and have some thoughts.

 258 10 In over 20 years of selling the UltraFit, which is the

 258 11 best selling premolded earplug on the market, we have

 258 12 rarely received comfort-related complaints. Thus, it

 258 13 is hard for us to fathom that the plug flanges and

 258 14 shape are contributing to the comfort problems you

 258 15 report for some soldiers."

 258 16 Do you see that?

 258 17 A. Yes.

 258 18 Q. "To that end we have some ideas," and you

 258 19 have a list provided, correct?

 258 20 A. Yes.

 258 21 Q. No. 1: "We think the principal reason for

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 60 of 427
Berger, Elliott - 09-25-2020 60

 258 22 discomfort is the plastic insert in the earplug stem.

 258 23 The problem is exacerbated since we had to shorten the

 258 24 stem to fit in the earplug case. This causes the

 259 1 insert to fit closer to the flanges themselves.

 259 2 However, this issue requires further examination."

 259 3 Do you see that?

 259 4 A. Yes.

 259 5 Q. Okay. When you talk about the insert

 259 6 there, you are talking about the white plastic adapter

 259 7 that we've looked at before that connects the two

 259 8 sides of the Combat Arms, right?

 259 9 A. Yes.

 259 10 Q. And as we saw in the drawings that we

 259 11 looked at before, this resulted in, if we can go back

 259 12 quickly to Slide 88, this resulted in that adapter

 259 13 fitting much deeper to the flanges, right, like we

 259 14 talked about?

 259 15 A. It fitted further into the plug, yes.

 259 16 Q. Right. And that's what you describe in

 259 17 this see-you-at-the-beach e-mail to Doug Ohlin in

 259 18 November of 2004, correct?

 259 19 A. Yes.

259:20 - 259:24 Berger, Elliott - 09-25-2020

 259 20 Q. Now, were you thinking back to what Dancer

 259 21 and Hamery had told back in '97, that if the adapter

 259 22 is bigger than 4.2 millimeters that holds the filter

 259 23 that goes in the ear, that that might not be suitable

 259 24 for most ears due to fitting problems?

Re: [259:20-260:4]

Def Objection - Misstates 

(611, 403)

Re: [259:20-

260:4]

Def Objection -

Scope

OVERRULED

260:4 - 260:23 Berger, Elliott - 09-25-2020

 260 4 A. I don't recall.

 260 5 BY MR. OVERHOLTZ:

 260 6 Q. And if we look at what you said next, you

 260 7 even bring up another point that was in that e-mail,

 260 8 you say:

 260 9 "If the filter were smaller in diameter,

 260 10 we could make the diameter of the plastic insert

 260 11 smaller as well. However, Armand," talking about

 260 12 Armand Dancer, right, "says that it is not possible to

 260 13 reduce the filter's diameter. An alternative might be

Re: [259:20-260:4]

Def Objection - Misstates 

(611, 403)

Re: [259:20-

260:4]

Def Objection -

Scope

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 61 of 427
Berger, Elliott - 09-25-2020 61

 260 14 to have the filter be an integral part of the hard

 260 15 plastic insert. This would save some plastic and

 260 16 reduce dimensions since it wouldn't require inserting

 260 17 the filter in a plastic tube of even larger diameter."

 260 18 Right?

 260 19 A. Yes.

 260 20 Q. So, this was the same thing that had been

 260 21 discussed between you and Armand Dancer back in 

1997

 260 22 as a solution for the wide adapter, correct?

 260 23 A. Yes.

260:24 - 261:6 Berger, Elliott - 09-25-2020

 260 24 Q. Now, you don't say in this e-mail anything

 261 1 about the fact that we've used these same tips on

 261 2 other plugs, like the UltraFit Plus, and got good

 261 3 attenuation values, but when we tested the same tip on

 261 4 the green end of the plug using that hard wide

 261 5 adapter, we got an 11 NRR in December of 1999 just

 261 6 five months later, right?

261:10 - 261:19 Berger, Elliott - 09-25-2020

 261 10 Q. Yes. You didn't say that to Mr. Ohlin,

 261 11 right?

 261 12 A. It's not in that e-mail, no.

 261 13 Q. You also say: "It might be possible to

 261 14 lengthen the stem on the plug and insert the filter

 261 15 ahead of the insert, like it is in the Euro version,

 261 16 and then not have to have the plastic insert fitted so

 261 17 deeply."

 261 18 Right?

 261 19 A. Yes.

261:20 - 262:20 Berger, Elliott - 09-25-2020

 261 20 Q. So at least by November of 2004, the same

 261 21 issues with respect to the plastic insert when fitted

 261 22 deeply causing problems with the suitability of the

 261 23 plug and achieving fit, you're discussing in this

 261 24 e-mail, is that right?

 262 1 MS. ELIZABETH: Objection; form.

 262 2 BY THE WITNESS:

 262 3 A. I am discussing them in that e-mail and

Re: [261:20-262:20]

Plt Objection - Improper 

counter designation; 

nonresponsive

Re: [261:20-

262:20]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, nonresponsive 

OVERRULLED

Re: [261:20-262:20]

conjecture; speculation; FRE 

402/403; 802; improper opinion 

602/701/702. Plaintiffs MIL # 1, 

2, 15, 16, 17, 18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 62 of 427
Berger, Elliott - 09-25-2020 62

 262 4 whether there would be the feasibility to look into --

 262 5 excuse me -- whether there would be the feasibility to

 262 6 look into them and make any changes, which is

 262 7 something we did look into in subsequent years at the

 262 8 military's request when we made Versions 3 and 4,

 262 9 which by the way did not implement those features.

 262 10 Version 4 has the same diameter filter, they have

 262 11 long, hard plastic inserts, not flexible inserts, they

 262 12 have filters that are part of the adapter and not

 262 13 ahead of the adapter.

 262 14 So as we looked into those features, they

 262 15 found -- we found that they were not feasible to

 262 16 implement. The biggest change moving forward in

 262 17 Versions 3 and 4 was a multiple-sized product which

 262 18 was something that the military specifically did not

 262 19 want at the time of the introduction of the Combat

 262 20 Arms 2.

263:2 - 263:4 Berger, Elliott - 09-25-2020

 263 2 So the Version 4 and the Version 3 had

 263 3 multiple sizes, right?

 263 4 A. Yes.

264:13 - 264:16 Berger, Elliott - 09-25-2020

 264 13 Q. Did -- did you tell Doug Ohlin in this

 264 14 e-mail that the French were also concerned about the

 264 15 diameter of this adapter and how it might affect the

 264 16 performance of the plug?

264:19 - 264:19 Berger, Elliott - 09-25-2020

 264 19 A. That is not contained in this e-mail.

265:6 - 265:11 Berger, Elliott - 09-25-2020

 265 6 Q. Okay. When you have a -- a hard, wide

 265 7 adapter that's fitting in someone's ear canal, if

 265 8 there are forces that are pushing or pulling the

 265 9 earplug out of the ear, can having a hard plastic

 265 10 piece make it easier for that plug to become dislodged

 265 11 or loosened?

Re: [265:6-266:16]

Plt Objection - Improper 

counter designation; 

nonresponsive

Re: [265:6-

265:11]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, nonresponsive 

SUSTAINED

Re: [265:6-266:16]

conjecture; speculation; FRE 

402/403; 802; improper opinion 

602/701/702.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 63 of 427
Berger, Elliott - 09-25-2020 63

265:21 - 266:14 Berger, Elliott - 09-25-2020

 265 21 A. You describe it as a hard, wide adapter.

 265 22 It was a hard adapter. It was an adapter that fitted

 265 23 into the stem of that earplug. If the adapter was

 265 24 sufficiently large in a smaller ear, it could have

 266 1 some effect.

 266 2 I also remind you that with the

 266 3 three-flange earplug, it does not get inserted into

 266 4 the same depth in everybody's earplug. That's

 266 5 something we knew when you have a one-sized plug,

 266 6 that's something we knew since the time of the

 266 7 UltraFit.

 266 8 So it could well be that in a smaller ear

 266 9 canal you only are inserting it up to the leading edge

 266 10 of the third flange which is about the point at which

 266 11 that stem is inside the earplug.

 266 12 In a larger ear canal where it is inserted

 266 13 further, there is, of course, more diameter available

 266 14 for the stem of that plug to be urged into the canal.

Re: [265:6-266:16]

Plt Objection - Improper 

counter designation; 

nonresponsive

Re: [265:21-

266:14]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64, nonresponsive

SUSTAINED

Re: [265:6-266:16]

conjecture; speculation; FRE 

402/403; 802; improper opinion 

602/701/702.

SUSTAINED

266:18 - 266:23 Berger, Elliott - 09-25-2020

 266 18 Q. You agree that if there is a hard material

 266 19 in the ear canal, if there are forces that are pushing

 266 20 or pulling the plug that contains the hard material,

 266 21 the fact that that material is hard and not more

 266 22 flexible, that can have an effect on the ability of

 266 23 that plug to become dislodged, right?

Re: [266:18-267:4]

Def Objection - Scope

Re: [266:18-

267:4]

Def Objection -

Scope

OVERRULED

267:2 - 267:4 Berger, Elliott - 09-25-2020

 267 2 A. Depending on the size of that material, it

 267 3 could have some effect on the sit of the plug and

 267 4 potentially its stability.

Re: [266:18-267:4]

Def Objection - Scope

Re: [266:18-

267:4]

Def Objection -

Scope

OVERRULED

267:8 - 267:10 Berger, Elliott - 09-25-2020

 267 8 Q. Mr. Berger, you have been involved in the

 267 9 issues related to earplug design, testing, labeling

 267 10 for your entire career, correct?

267:13 - 268:10 Berger, Elliott - 09-25-2020

 267 13 A. My career has been involved always with

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 64 of 427
Berger, Elliott - 09-25-2020 64

 267 14 earplug design and testing among other things.

 267 15 BY MR. OVERHOLTZ:

 267 16 Q. And you've even provide -- you've even

 267 17 provided commentary to the EPA regarding the noise

 267 18 labeling requirements for hearing protectors, right?

 267 19 A. Yes.

 267 20 Q. Okay. We can go to Slide 96. This is

 267 21 EB-2015.

 267 22 (WHEREUPON, a certain document was

 267 23 marked Elliott Berger Deposition

 267 24 Exhibit No. 24, for identification,

 268 1 as of 09/25/2020.)

 268 2 BY MR. OVERHOLTZ:

 268 3 Q. This is a 1997 report from the EPA, and it

 268 4 is a big document, so let me know when you get it

 268 5 downloaded, but just for the record, I'm identifying

 268 6 it as a US EPA agency report entitled: "Noise.

 268 7 Regulatory Analysis Supporting the Noise Labeling

 268 8 Requirements For Hearing Protectors."

 268 9 MS. ELIZABETH: Is it Exhibit 23?

 268 10 MR. OVERHOLTZ: I think it will be Exhibit 24.

269:21 - 270:2 Berger, Elliott - 09-25-2020

 269 21 Q. All right. So I'm going to ask you a

 269 22 couple of just questions to identify this document for

 269 23 us, Mr. Berger.

 269 24 Do you see the first page here on the

 270 1 screen. Do you recognize this document?

 270 2 A. Yes. It's a document from our files.

270:8 - 270:13 Berger, Elliott - 09-25-2020

 270 8 Q. If we go to Page 2, the next page, we see

 270 9 that the -- the title of the document, which is the

 270 10 "EPA Regulatory Analysis of This Noise Labeling

 270 11 Requirements For Hearing Protectors."

 270 12 Do you see that?

 270 13 A. Yes.

271:21 - 272:7 Berger, Elliott - 09-25-2020

 271 21 Q. Okay. And I'm sure that's been quite a

 271 22 whiles back, but that was not uncommon for you to

 271 23 attend a public meeting of the EPA regarding hearing

Re: [272:3-272:7]

Counsel is testifying

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 65 of 427
Berger, Elliott - 09-25-2020 65

 271 24 protecting labeling requirements, correct?

 272 1 A. I tried to be involved and aware of that

 272 2 process.

 272 3 Q. Okay. And, in fact, you provided

 272 4 comments. If we go to Page 182, there is a comments

 272 5 and at the very bottom left there is a -52 L, Elliott

 272 6 Berger Acoustical Engineer, E-A-R Corporation, and

 272 7 some comments start at No. 1 there.

282:8 - 282:21 Berger, Elliott - 09-25-2020

 282 8 Q. All right. Before we get going, I want to

 282 9 make sure that we attach -- do a little housekeeping.

 282 10 The binder that -- of documents that you

 282 11 reviewed, Mr. Berger, I want to attach that binder as

 282 12 Exhibit 25 to this deposition. All right?

 282 13 (WHEREUPON, a certain document was

 282 14 marked Elliott Berger Deposition

 282 15 Exhibit No. 25, for identification,

 282 16 as of 09/25/2020.)

 282 17 BY MR. PIRTLE:

 282 18 Q. Mr. Berger, are these the documents that

 282 19 you reviewed in preparation for your 30(b)(6)

 282 20 deposition?

 282 21 A. Yes.

283:20 - 284:9 Berger, Elliott - 09-25-2020

 283 20 Q. Okay. And then that will be Exhibit 26.

 283 21 (WHEREUPON, a certain document was

 283 22 marked Elliott Berger Deposition

 283 23 Exhibit No. 26, for identification,

 283 24 as of 09/25/2020.)

 284 1 BY MR. PIRTLE:

 284 2 Q. And then Exhibit 27, I understand that you

 284 3 have promised data from a Bob Zielinski.

 284 4 Do you remember talking to Mr. Overholtz

 284 5 about that?

 284 6 A. Yes.

 284 7 Q. So then we will make that exhibit

 284 8 Exhibit 27, all right?

 284 9 A. Okay.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 66 of 427
Berger, Elliott - 09-25-2020 66

284:15 - 284:24 Berger, Elliott - 09-25-2020

 284 15 Q. I want to talk to you about package

 284 16 inserts or inserts that were with the earplugs and I

 284 17 want to start out by saying, I've looked at some of

 284 18 your documents and I see you did investigate when the

 284 19 Combat Arms Version 2 earplug was sold, didn't you?

 284 20 A. Yes.

 284 21 Q. And that's beginning in 1999, according to

 284 22 your document that you produced, correct?

 284 23 A. According to corporate documents, the

 284 24 first products went out in 1999.

285:1 - 285:15 Berger, Elliott - 09-25-2020

 285 1 Q. And those sales of -- of Combat Arms

 285 2 Version 2 consist -- continued all of the way to

 285 3 through 2015?

 285 4 A. Correct.

 285 5 Q. All right. Now, in terms of -- of the

 285 6 warnings or the inserts, I have looked at what you

 285 7 have produced starting with a document which I've

 285 8 titled as C1. It is being used in the Myers

 285 9 deposition as Exhibit 34. It looks like it has an

 285 10 insert attached to it. I'll pull it up as Exhibit 28.

 285 11 This is Control No. C1.

 285 12 (WHEREUPON, a certain document was

 285 13 marked Elliott Berger Deposition

 285 14 Exhibit No. 28, for identification,

 285 15 as of 09/25/2020.)

286:20 - 286:24 Berger, Elliott - 09-25-2020

 286 20 Q. Okay. This document appears to be written

 286 21 in 2005, late 2005, right? Right up on the top, we'll

 286 22 highlight it if need be. This is December the 13th of

 286 23 2005, right?

 286 24 A. Yes.

287:21 - 288:3 Berger, Elliott - 09-25-2020

 287 21 Q. Okay.

 287 22 A. All I can tell you is that we -- is that

 287 23 my investigations have confirmed that our

 287 24 understanding was that the military was not requesting

 288 1 that, they were interested in our input but they were

Re: [287:21-288:3]

Plt Objection -

nonresponsive

Re: [287:21-

288:3]

Plt Objection -

non-responsive 

SUSTAINED

Re: [287:21-288:3]

Improper counter designation; 

conjecture; speculation; FRE 

402/403; 802; improper opinion 

602/701/702. Plaintiffs MIL 1, 

2, 15, 16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 67 of 427
Berger, Elliott - 09-25-2020 67

 288 2 creating their own instructions, such as the wallet

 288 3 card and their instructions to their troops.

288:4 - 288:13 Berger, Elliott - 09-25-2020

 288 4 Q. Mr. Berger, if I understand you correctly,

 288 5 the answer to my question is: 3M provided no

 288 6 instructions in 1999 in written form to soldiers

 288 7 getting this earplug, correct?

 288 8 A. Correct, we did not provide written

 288 9 instructions to the military in 1999.

 288 10 Q. All right. The same is true of the year

 288 11 2000, correct, that 3M provided no written

 288 12 instructions to anyone getting this earplug in 2000,

 288 13 correct?

Re: [288:4-288:17]

Def Objection - Scope

Re: [288:4-

288:17]

Def Objection -

Scope

OVERRULED

288:16 - 288:17 Berger, Elliott - 09-25-2020

 288 16 A. We didn't provide instructions to the

 288 17 US military.

Re: [288:4-288:17]

Def Objection - Scope

Re: [288:4-

288:17]

Def Objection -

Scope

OVERRULED

289:9 - 289:12 Berger, Elliott - 09-25-2020

 289 9 Q. What I'm trying to get to is what did 3M

 289 10 do? You may have an answer for why 3M didn't do it,

 289 11 but for those years there were no written inserts

 289 12 provided, fair?

Re: [289:9-289:19]

Def Objection - Scope

Re: [289:9-

289:19]

Def Objection -

Scope

OVERRULED

289:17 - 289:19 Berger, Elliott - 09-25-2020

 289 17 A. I believe I did. For those years we did

 289 18 not provide written inserts because we were guided not

 289 19 to do that and they were not requested.

Re: [289:9-289:19]

Def Objection - Scope

Re: [289:9-

289:19]

Def Objection -

Scope

OVERRULED

290:1 - 290:7 Berger, Elliott - 09-25-2020

 290 1 Q. I said in 2005, late 2005, 3M did develop

 290 2 an insert for a blister pack that contained the Combat

 290 3 Arms Version 2 earplugs, correct?

 290 4 A. Yes.

 290 5 Q. And that was -- that insert was provided

 290 6 by 3M in blister packs from late 2005 forward,

 290 7 correct?

Re: [290:5-290:12]

MIL 21, Baker MIL 1

OVERRULED

290:10 - 290:18 Berger, Elliott - 09-25-2020

 290 10 A. It was provided beginning in 2005 and, as

Re: [290:5-290:12]

MIL 21, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 68 of 427
Berger, Elliott - 09-25-2020 68

 290 11 you say, forward, I'm not sure what the end date would

 290 12 be on that, but it was created in 2005.

 290 13 BY MR. PIRTLE:

 290 14 Q. Yes. What --

 290 15 A. Actually, it looks like this would be the

 290 16 end of 2005, so it might not have appeared until 2006.

 290 17 Q. And that insert was directed towards the

 290 18 soldiers, was it not?

291:2 - 291:14 Berger, Elliott - 09-25-2020

 291 2 A. This was not directed towards bulk sales

 291 3 for the US military. It was for individual packaging

 291 4 that could have been sold on or near military bases

 291 5 that soldiers might have personally acquired, but it

 291 6 was not intended for the sales for the primary

 291 7 distribution that the US military was providing to

 291 8 their soldiers.

 291 9 BY MR. PIRTLE:

 291 10 Q. I'm going to get to the bulk sales in just

 291 11 a second, but what I want to -- what I -- what I had

 291 12 asked you was, this insert that 3M developed in late

 291 13 2005 for the blister pack was directed towards the

 291 14 soldiers, correct?

Re: [291:10-291:20]

Outside scope pf 30(b) (6)

OVERRULED

291:18 - 291:20 Berger, Elliott - 09-25-2020

 291 18 A. It was directed to individual users who

 291 19 would have been purchasing that package. Among them

 291 20 could have been soldiers.

Re: [291:10-291:20]

Outside scope pf 30(b) (6)

OVERRULED

292:5 - 292:20 Berger, Elliott - 09-25-2020

 292 5 Q. All right. Since this -- this -- part of

 292 6 this document was unreadable, pull up Exhibit 118

 292 7 which I'm going to mark as Exhibit 29, I think now.

 292 8 Control No. 118.

 292 9 (WHEREUPON, a certain document was

 292 10 marked Elliott Berger Deposition

 292 11 Exhibit No. 29, for identification,

 292 12 as of 09/25/2020.)

 292 13 BY MR. PIRTLE:

 292 14 Q. Second page.

 292 15 The reason why I asked you, Mr. Berger,

 292 16 was it directed towards the soldier, right up at the

Re: [292:5-293:5]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 69 of 427
Berger, Elliott - 09-25-2020 69

 292 17 left-hand side, that looks like a soldier standing

 292 18 there next to Combat Arms Earplugs.

 292 19 That's a silhouette of a soldier, isn't

 292 20 it?

292:24 - 293:5 Berger, Elliott - 09-25-2020

 292 24 A. It would appear to be a silhouette of a

 293 1 soldier.

 293 2 BY MR. PIRTLE:

 293 3 Q. And it says right up at the top, it says:

 293 4 "Reading This Could Save Your Life."

 293 5 That's a statement to a soldier, correct?

Re: [292:5-293:5]

602

OVERRULED

294:7 - 294:23 Berger, Elliott - 09-25-2020

 294 7 A. This document would appear to be primarily

 294 8 directed towards soldiers.

 294 9 BY MR. PIRTLE:

 294 10 Q. All right. And this is a document that

 294 11 was created by 3M, at that time Aearo, correct?

 294 12 A. Yes, this is still pre 2008, which the

 294 13 prior memo was, I'm not sure, let me download that,

 294 14 but if it is pre 2008 it would be Aearo, if it is

 294 15 subsequent to that, it would be 3M.

 294 16 Q. This is the attachment to the

 294 17 December 2005 document that you produced to me that

 294 18 you confirmed was in your binder.

 294 19 A. Okay. So this is a readable version.

 294 20 Q. Yes.

 294 21 A. Is this Exhibit 29?

 294 22 Q. And it was created by Aearo, correct?

 294 23 A. Yes.

Re: [294:7-294:8]

Def Objection - 602

Re: [294:7-294:15]

Def Objection - Scope

Re: [294:3-

294:8]

Def Objection -

3M MIL No. 21

OVERRULED

Re: [294:3-

294:15]

Def Objection -

3M MIL No. 21

OVERRULED

298:10 - 298:18 Berger, Elliott - 09-25-2020

 298 10 Q. Now, did -- were you involved in placing

 298 11 warnings on Combat Arms Version 2 product while you

 298 12 were at Aearo and 3M personally?

 298 13 A. I was one of the people involved in

 298 14 creating instruction sets and guidance on packaging.

 298 15 Q. Do you call these inserts or instructions?

 298 16 What do you call them, Mr. Berger?

 298 17 A. I would call this instructions, labeling

 298 18 and caution statements.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 70 of 427
Berger, Elliott - 09-25-2020 70

299:3 - 299:15 Berger, Elliott - 09-25-2020

 299 3 Q. Let me show you what I'm going to mark as

 299 4 Exhibit, I think we are at 31, which is my control

 299 5 No. 33.

 299 6 (WHEREUPON, a certain document was

 299 7 marked Elliott Berger Deposition

 299 8 Exhibit No. 31, for identification,

 299 9 as of 09/25/2020.)

 299 10 BY THE WITNESS:

 299 11 A. Excuse me. There is one other caution on

 299 12 that package, if you want to take a moment to look at

 299 13 that, and that is also not something I created because

 299 14 that is required EPA wording that accompanies the

 299 15 example of how to use the NRR.

300:20 - 300:23 Berger, Elliott - 09-25-2020

 300 20 Q. Sure, I'm asking Mr. Berger was he

 300 21 involved in any of the warnings that were placed on

 300 22 the 3M double-ended Combat Arms, this is CAE 

Version 2

 300 23 for the UK?

Re: [300:20-300:24]

401-403

OVERRULED

301:2 - 301:14 Berger, Elliott - 09-25-2020

 301 2 A. I don't recall. I did have communications

 301 3 with the person responsible for these. I don't recall

 301 4 if we discussed warnings or if he showed me any

 301 5 warnings or cautions for those documents.

 301 6 BY MR. PIRTLE:

 301 7 Q. Who was the person, Mohammed Saleem?

 301 8 A. Yes.

 301 9 Q. You did have correspondence with him,

 301 10 didn't you?

 301 11 A. As I said, I did, and I know I provided

 301 12 him some information, but I don't recall if we

 301 13 discussed cautions or warnings or if I had an

 301 14 opportunity to review their final documents.

Re: [301:2-301:5]

401-403

OVERRULED

301:15 - 301:21 Berger, Elliott - 09-25-2020

 301 15 Q. Mohammed Saleem was your corollary in the

 301 16 UK, wasn't he?

 301 17 MS. ELIZABETH: Objection; form, foundation.

 301 18 BY THE WITNESS:

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 71 of 427
Berger, Elliott - 09-25-2020 71

 301 19 A. No.

 301 20 BY MR. PIRTLE:

 301 21 Q. Fair enough.

303:15 - 303:17 Berger, Elliott - 09-25-2020

 303 15 Q. Were you involved in these -- the

 303 16 decisions or the technical work behind these warnings

 303 17 for the EU version of the Combat Arms Version 2?

Re: [303:15-304:18]

Asked and answered, 401-403

OVERRULED

303:20 - 304:16 Berger, Elliott - 09-25-2020

 303 20 A. I don't recall being involved with

 303 21 creating this page.

 303 22 BY MR. PIRTLE:

 303 23 Q. If you look down into the text of the

 303 24 warning, it says:

 304 1 "With the yellow colored ear tip in the

 304 2 ear, the product may not offer adequate protection in

 304 3 all operating environments, which may lead to

 304 4 noise-induced hearing loss."

 304 5 Did I read that reasonably correct?

 304 6 A. Yes.

 304 7 Q. "Although test data from the ISL

 304 8 laboratory for peak noise reduction shows that the

 304 9 product offers increasing protection against peak

 304 10 impulse noise up to 190-dB, it is recommended that

 304 11 this product should be restricted to a maximum

 304 12 external level of 160-dB peak in order to ensure the

 304 13 level effective to the ear remains below the peak

 304 14 exposure value (of 140-dB(C)."

 304 15 Did I read that correctly?

 304 16 A. Yes.

Re: [303:15-304:18]

Asked and answered, 401-403

Re: [303:20-304:16]

401-403

OVERRULED

306:16 - 306:21 Berger, Elliott - 09-25-2020

 306 16 MR. PIRTLE: Control No. 117, please. And I

 306 17 believe this will be Exhibit 32.

 306 18 (WHEREUPON, a certain document was

 306 19 marked Elliott Berger Deposition

 306 20 Exhibit No. 32, for identification,

 306 21 as of 09/25/2020.)

Re: [306:16-306:21]

401-403

OVERRULED

307:5 - 307:23 Berger, Elliott - 09-25-2020

 307 5 This is from you, isn't it?

 307 6 A. Yes, this is an e-mail from me to Mohammed

Re: [307:5-307:23]

401-403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 72 of 427
Berger, Elliott - 09-25-2020 72

 307 7 Saleem.

 307 8 Q. You call him Sal, correct?

 307 9 A. That's how he was called by people at 3M,

 307 10 yes.

 307 11 Q. It is dated 11/18 of 2011, correct?

 307 12 A. Yes.

 307 13 Q. It looks like that Sal or Mohammed Saleem

 307 14 had shared some data with you, correct?

 307 15 A. Yes.

 307 16 Q. Let's go back to the document. And do you

 307 17 say, "Sal, Thanx for sharing the data."

 307 18 In the third paragraph you say: "I think

 307 19 your 160 dBC peak value is reasonable re the 140-dB

 307 20 limit value for exposure to large numbers of

 307 21 impulses."

 307 22 Did I read that correct?

 307 23 A. Yes.

308:13 - 309:5 Berger, Elliott - 09-25-2020

 308 13 Q. All right. And, in fact, you said that

 308 14 you have interviewed Ted Madison, didn't you?

 308 15 A. Yes.

 308 16 Q. Ted Madison was the -- a technical service

 308 17 specialist at 3M?

 308 18 A. Yes. Yes.

 308 19 Q. Let me show you a document that's marked

 308 20 C-12, and it's going to be Exhibit 33. Control

 308 21 No. C-12.

 308 22 (WHEREUPON, a certain document was

 308 23 marked Elliott Berger Deposition

 308 24 Exhibit No. 33, for identification,

 309 1 as of 09/25/2020.)

 309 2 BY MR. PIRTLE:

 309 3 Q. This appears to be a group of e-mails.

 309 4 You are included on it in 2014. I'm interested in

 309 5 Bates No. 141 which is the second page.

Re: [308:13-309:5]

401-403

OVERRULED

309:14 - 309:20 Berger, Elliott - 09-25-2020

 309 14 Q. And in Mr. Madison's comments, he is

 309 15 writing: "Also, we need to be very clear that CAEs

 309 16 will not reduce 19" -- "190 dB explosions to a safe

Re: [309:14-311:15]

401-403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 73 of 427
Berger, Elliott - 09-25-2020 73

 309 17 level of 140 dB or less."

 309 18 Do you see where I -- where the

 309 19 highlighting is started?

 309 20 A. Yes.

310:20 - 310:24 Berger, Elliott - 09-25-2020

 310 20 Q. My question is: Is there a warning or a

 310 21 caution or a statement in any insert that was provided

 310 22 to any US soldier between 1999 and 2015 that 3M did

 310 23 not recommend the use of this product with the yellow

 310 24 end above 160 dBP?

Re: [309:14-311:15]

401-403

OVERRULED

311:2 - 311:8 Berger, Elliott - 09-25-2020

 311 2 BY THE WITNESS:

 311 3 A. We did not provide inserts to the

 311 4 US military, so, no, there would not have been this

 311 5 claim since there was no insert.

 311 6 BY MR. PIRTLE:

 311 7 Q. This -- this information was internal to

 311 8 3M, was it not?

Re: [309:14-311:15]

401-403

OVERRULED

311:10 - 311:15 Berger, Elliott - 09-25-2020

 311 10 BY THE WITNESS:

 311 11 A. This is an internal e-mail. I need to

 311 12 take a look at -- okay. Larry Dick is a salesperson,

 311 13 and if you go back to the beginning of the e-mail,

 311 14 this whole topic arises, and let me just go back there

 311 15 and look for a moment.

Re: [309:14-311:15]

401-403

OVERRULED

316:4 - 316:7 Berger, Elliott - 09-25-2020

 316 4 Q. You know what an AR-15 is, don't you?

 316 5 A. Yes.

 316 6 Q. Most soldiers in the United States Army

 316 7 are issued AR-15s, aren't they?

Re: [316:4-316:12]

602, Relevance

OVERRULED

316:11 - 316:15 Berger, Elliott - 09-25-2020

 316 11 A. I believe that is a commonly used weapon

 316 12 in the US military.

 316 13 BY MR. PIRTLE:

 316 14 Q. You have personally done testing on AR-15s

 316 15 to see how loud they are, haven't you?

Re: [316:4-316:12]

602, Relevance

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 74 of 427
Berger, Elliott - 09-25-2020 74

316:19 - 316:19 Berger, Elliott - 09-25-2020

 316 19 A. Yes, I have.

Re: [316:19-316:19]

Relevance, 602, Outside scope 

of 30(b)(6)

OVERRULED

317:3 - 317:8 Berger, Elliott - 09-25-2020

 317 3 Q. Pull up Exhibit Control No. 36. I believe

 317 4 the exhibit number is going to be now 34.

 317 5 (WHEREUPON, a certain document was

 317 6 marked Elliott Berger Deposition

 317 7 Exhibit No. 34, for identification,

 317 8 as of 09/25/2020.)

317:23 - 318:10 Berger, Elliott - 09-25-2020

 317 23 Q. You are the author of this paper, aren't

 317 24 you, or one of them, correct?

 318 1 A. Yes.

 318 2 Q. "Spectral analysis of hearing protector

 318 3 impulsive insertion loss," and the second author is

 318 4 Elliott Berger, correct?

 318 5 A. Yes.

 318 6 Q. And what happened is you and some other of

 318 7 these people went out to Jeff Hamer's farm and did

 318 8 some testing on, among other things, an AR-15, didn't

 318 9 you?

 318 10 A. Yeah.

318:14 - 319:13 Berger, Elliott - 09-25-2020

 318 14 Q. I'm sorry. Can you answer, Mr. Berger? I

 318 15 think you said yes?

 318 16 A. Yes, we -- yes.

 318 17 Q. On Page 10 of your article -- let's see if

 318 18 I've got a better one. I'm sorry. Why don't we just

 318 19 do Page 5. It's better.

 318 20 Page 5, you and the other authors write:

 318 21 "For impulses generated with the AR-15 rifle, the

 318 22 impulse peak level was controlled by varying the

 318 23 distance from the rifle's muzzle to the location of

 318 24 the ATF and free-field microphone. The ISL ATF

 319 1 described above measured the in-ear waveforms," and

 319 2 the -- and it goes on.

 319 3 You said: "To capture impulses with an

 319 4 nominal peak level of 168 dB, the ATF and free-field

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 75 of 427
Berger, Elliott - 09-25-2020 75

 319 5 microphone were positioned approximately 1.8 meters to

 319 6 the side and slightly behind the AR-15's muzzle."

 319 7 Did I read that correctly?

 319 8 A. Yes.

 319 9 Q. So when you position a microphone 1.8

 319 10 meters to the side and slightly behind an AR-15

 319 11 muzzle, the sound level that was captured was 168-dB

 319 12 peak, correct?

 319 13 A. Yes.

319:16 - 319:18 Berger, Elliott - 09-25-2020

 319 16 Q. And this is just math, 168 is louder than

 319 17 160-dB peak, correct?

 319 18 A. Yes.

320:2 - 320:5 Berger, Elliott - 09-25-2020

 320 2 Q. Is it reasonable to assume that a soldier

 320 3 at a shooting range or in a combat situation is going

 320 4 to be exposed to multiple bursts of AR-15 fire?

 320 5 A. Yes.

Re: [320:2-320:5]

602

OVERRULED

320:20 - 321:11 Berger, Elliott - 09-25-2020

 320 20 Q. I want to drop and -- I want to talk about

 320 21 something that is in some of these inserts, which is

 320 22 this fitting tip.

 320 23 You're familiar with where I'm talking

 320 24 about?

 321 1 A. I believe I'm familiar with the fitting

 321 2 tip, but let's make sure we are talking about the same

 321 3 thing.

 321 4 Q. Yeah, the rolling back of the flanges,

 321 5 right? We are talking about the same thing?

 321 6 A. I'm -- yes.

 321 7 Q. Did you discover when that tip was taken

 321 8 out of the -- the blister packs or the -- even the

 321 9 range plug packs by 3M?

 321 10 A. That was removed from the packaging in

 321 11 2012.

Re: [320:20-321:11]

Def Objection - 3M MIL 

No. 21

OVERRULED

321:12 - 322:8 Berger, Elliott - 09-25-2020

 321 12 Q. Why?

 321 13 A. In my conversations with Ted Madison who

 321 14 was creating those instructions -- well, let me go

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 76 of 427
Berger, Elliott - 09-25-2020 76

 321 15 back.

 321 16 Once we became part of 3M, the instruction

 321 17 lead moved to technical service in St. Paul, and so by

 321 18 around 2010, Ted Madison had taken that responsibility

 321 19 and was assembling a set of instructions for all of

 321 20 our passive insert earplugs.

 321 21 And he was creating, based on his

 321 22 experience, what he felt were a good set of adequate

 321 23 and complete instructions for this range of products.

 321 24 He was the one who drafted the instructions at that

 322 1 time for the Combat Arms Earplug and put together what

 322 2 he felt was a series of instructions and methods of

 322 3 checking the fit.

 322 4 He had not been familiar with the Combat

 322 5 Arms existing instructions at that time or hadn't gone

 322 6 back to look at them, so he was unaware of that

 322 7 pullback instruction, so it did not get included at

 322 8 that time.

322:18 - 322:23 Berger, Elliott - 09-25-2020

 322 18 Q. Well, it's called a tip. It came out in

 322 19 2012, correct?

 322 20 MS. ELIZABETH: Objection; form.

 322 21 BY THE WITNESS:

 322 22 A. It no longer appears beginning in 2012.

 322 23 BY MR. PIRTLE:

322:24 - 323:3 Berger, Elliott - 09-25-2020

 322 24 Q. And it --

 323 1 A. That had no effect on what was being

 323 2 provided to the US military because we were not

 323 3 providing instructions to the US military.

323:4 - 323:9 Berger, Elliott - 09-25-2020

 323 4 Q. I'm fine with that. I'm just trying to

 323 5 get to the bottom of it. I've already established you

 323 6 all didn't give the military anything.

 323 7 What I want to know now is, this tip was

 323 8 out in 2012 and stayed out through October of 2015,

 323 9 correct?

Re: [323:7-323:13]

Def Objection - 3M MIL 

No. 21

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 77 of 427
Berger, Elliott - 09-25-2020 77

323:12 - 323:13 Berger, Elliott - 09-25-2020

 323 12 A. Correct. The tip did not appear in 2012

 323 13 or thereafter.

Re: [323:7-323:13]

Def Objection - 3M MIL 

No. 21

OVERRULED

325:19 - 326:2 Berger, Elliott - 09-25-2020

 325 19 Q. Okay. We were talking about you don't

 325 20 recall whether or not Mr. Madison was shown the flange

 325 21 report?

 325 22 A. Correct.

 325 23 Q. And you certainly didn't show him the

 325 24 flange report, did you?

 326 1 A. I don't recall showing him the flange

 326 2 report.

329:9 - 329:18 Berger, Elliott - 09-25-2020

 329 9 MR. PIRTLE: Pull up Control No. 48. Mark it as

 329 10 Exhibit 34.

 329 11 (WHEREUPON, a certain document was

 329 12 marked Elliott Berger Deposition

 329 13 Exhibit No. 35, for identification,

 329 14 as of 09/25/2020.)

 329 15 MR. PIRTLE: This is a test report of Combat

 329 16 Arms Earplugs in 2011 at ISL, and I'll leave it at

 329 17 that, and then I'll make my statement. This is

 329 18 Exhibit 34.

334:1 - 334:11 Berger, Elliott - 09-25-2020

 334 1 So I want to shift and talk a little bit

 334 2 about Topic 5, which is again about packaging,

 334 3 labeling for the Combat Arms earplugs, and I want to

 334 4 walk through just on a very high level the timeline

 334 5 for the packaging and the labeling, but I'm going to

 334 6 specifically focus on the time period from roughly

 334 7 1999 to 2004.

 334 8 So the initial sales of the Combat Arms

 334 9 Version 2 plugs were made before, and I'm talking the

 334 10 1999-2000 time period, those were made before Aearo

 334 11 had a noise reduction rating for the product?

Re: [334:1-334:11]

Attorney testifying

OVERRULED

335:8 - 335:10 Berger, Elliott - 09-25-2020

 335 8 Q. So your answer to my question is: Yes,

 335 9 the Combat Arms Version 2 earplugs were sold before

 335 10 there was a noise reduction rating?

Re: [335:8-335:19]

Asked, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 78 of 427
Berger, Elliott - 09-25-2020 78

335:14 - 335:21 Berger, Elliott - 09-25-2020

 335 14 A. I guess the issue is whether you

 335 15 considered it sold when there were limited quantities

 335 16 that the military procured for their evaluation

 335 17 purposes. But, yes, those would have gone out the

 335 18 door before that time.

 335 19 BY MR. COOPER:

 335 20 Q. And, in fact, you wrote an e-mail in

 335 21 November 20 -- in 1999 to that effect?

Re: [335:8-335:19]

Asked, 403

Re: [335:20-335:21]

Relevance, 602, attorney 

testifying

OVERRULED

343:8 - 343:11 Berger, Elliott - 09-25-2020

 343 8 Wouldn't it have been safer to

 343 9 individually package and label the Combat Arms

 343 10 Version 2 earplugs that were going to the private

 343 11 distributors?

Re: [343:8-343:22]

Argumenative, Relevance, 403, 

602, Outside scope of 30 (b) (6)

OVERRULED

343:16 - 343:22 Berger, Elliott - 09-25-2020

 343 16 A. I believe you said would it not have been

 343 17 safer to individually package and label products that

 343 18 were going to consumers outside the military?

 343 19 BY MR. COOPER:

 343 20 Q. Correct.

 343 21 A. Is that what you said?

 343 22 Q. Yes.

Re: [343:8-343:22]

Argumenative, Relevance, 403, 

602, Outside scope of 30 (b) (6)

OVERRULED

344:1 - 344:7 Berger, Elliott - 09-25-2020

 344 1 A. I -- I don't know that bulk package

 344 2 products went to consumers outside of the military. I

 344 3 know that the product we intended to go to consumers

 344 4 was packaged in accordance with EPA requirements and

 344 5 with our desire to have it in individual blister packs

 344 6 with -- and all of our labels and supplementary

 344 7 information.

344:15 - 344:17 Berger, Elliott - 09-25-2020

 344 15 Q. Yes. Was the bulk product, was that

 344 16 50 pairs of Combat Arms Version 2 Earplugs in a box,

 344 17 was that the sales unit?

344:20 - 345:5 Berger, Elliott - 09-25-2020

 344 20 A. From reviewing other documents not related

 344 21 to my responsibility, I do believe it was 50 pairs in

 344 22 a plastic bag in a cardboard box.

 344 23 BY MR. COOPER:

Re: [344:23-345:5]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 79 of 427
Berger, Elliott - 09-25-2020 79

 344 24 Q. Was there any further individualized

 345 1 packaging within the bag, the plastic bag? So, let me

 345 2 ask a better question.

 345 3 Were there -- was it 100 earplugs in a

 345 4 plastic bag or was it 50 unlabeled clear plastic

 345 5 baggies tossed in a cardboard box?

345:22 - 345:23 Berger, Elliott - 09-25-2020

 345 22 A. I don't know the answer to that. It's not

 345 23 something that I researched.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 80 of 427
Kieper, Ronald 12-19-2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 81 of 427
Kieper, Ronald - 12-19-2019 Objection Report 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

8:21 - 8:25 Kieper, Ronald 12-19-2019

 8 21 Q. Good morning, Mr. Kieper. Could you state

 8 22 your full name for the record?

 8 23 A. Ronald William Kieper.

 8 24 Q. Great.

 8 25 My name is Dave Buchanan. .

11:5 - 11:25 Kieper, Ronald 12-19-2019

 11 5 Q. When did you start with Aearo?

 11 6 A. June of 1981.

 11 7 Q. And you stayed there until the date of

 11 8 your retirement, is that right?

 11 9 A. Yes.

 11 10 Q. Okay. And when did you retire, sir?

 11 11 A. June of 2016.

 11 12 Q. So 35 years?

 11 13 A. Yes.

 11 14 Q. Is that right?

 11 15 A. That's correct.

 11 16 Q. A full career with Aearo?

 11 17 A. Yes.

 11 18 Q. And there -- the company had a series of

 11 19 transactions over the years. It was at one point

 11 20 Cabot, it was at one point Aearo, at a later point it

 11 21 was 3M, but have you always gone to a location 

with a

 11 22 sign over the door that said Aearo?

 11 23 A. It -- initially it was E-A-R, Division of

 11 24 Cabot, and then, as you said, it transitioned through

 11 25 several names, but I was always in the same 

building.

12:9 - 12:12 Kieper, Ronald 12-19-2019

 12 9 Q. During the entire time that you worked for

 12 10 Aearo in the laboratory, was it called the E-ARCAL

 12 11 Laboratory?

 12 12 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 82 of 427
Kieper, Ronald - 12-19-2019 Objection Report 3

13:13 - 13:15 Kieper, Ronald 12-19-2019

 13 13 Q. And what was your function when you moved

 13 14 over there, sir?

 13 15 A. My title was Acoustic Technician.

13:20 - 13:24 Kieper, Ronald 12-19-2019

 13 20 Q. And please tell us, sir, kind of the

 13 21 training process that you went through before you

 13 22 moved into the lab?

 13 23 A. Before I moved into the lab, I had no

 13 24 training.

Re: [13:20-13:24]

Def Objection - Relevance 

(401, 402)

Re: [13:20-

13:24]

Def Objection -

Relevance 

(401, 402)

OVERRULED

14:9 - 14:13 Kieper, Ronald 12-19-2019

 14 9 Q. Okay. Certainly throughout your career,

 14 10 sir, you've conducted a series of different I'll call

 14 11 them acoustic or audiologic tests in that lab.

 14 12 Would that be fair?

 14 13 A. Yes.

Re: [14:4-14:13]

401; 403

OVERRULED

14:21 - 15:4 Kieper, Ronald 12-19-2019

 14 21 Q. Mr. Kieper, I'm passing you Exhibit 1 to

 14 22 your deposition. It's a copy of a PowerPoint from

 14 23 2012, or a portion of a PowerPoint. This being

 14 24 e-mailed from Mr. Berger to a Jeff Hamer, and it 

says:

 14 25 "Subject: Updated capabilities file.

 15 1 E-A-RCAL overview 2012 PowerPoint."

 15 2 It is internally numbered P 221.

 15 3 Do you see that first page, sir?

 15 4 A. Yes, I do.

Re: [14:21-15:4]

401; 403; 602

OVERRULED

16:9 - 17:2 Kieper, Ronald 12-19-2019

 16 9 Q. Do you see the heading: "Staff,

 16 10 Indianapolis Acoustics"?

 16 11 A. Yes, I do.

 16 12 Q. Okay. And there's pictures of four

 16 13 individuals there?

 16 14 A. Yes.

 16 15 Q. Without the names in this version.

 16 16 Top left, would that be Elliott Berger?

 16 17 A. Yes, that is Elliott.

 16 18 Q. Okay. And he is the person who brought

 16 19 you into the lab in 1988?

Re: [16:9-17:2]

401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 83 of 427
Kieper, Ronald - 12-19-2019 Objection Report 4

 16 20 A. Yes.

 16 21 Q. Okay. And you worked under him for your

 16 22 entire time?

 16 23 A. Yes.

 16 24 Q. You retired before he retired, fair?

 16 25 A. That's correct.

 17 1 Q. Okay. Bottom left, that would be you?

 17 2 A. Yes.

17:7 - 17:12 Kieper, Ronald 12-19-2019

 17 7 Q. "Acoustics" -- "Acoustics Technician, B.S.

 17 8 Computer Technology," at that point "24 years in

 17 9 E-A-RCAL," and "responsible for all label/NRR 

tests,

 17 10 expert in REAT, MIRE, and ATF tests."

 17 11 Did I read that correctly?

 17 12 A. Yes, you did.

Re: [17:7-17:12]

401; 403

OVERRULED

17:13 - 17:15 Kieper, Ronald 12-19-2019

 17 13 Q. And at what point in time did you complete

 17 14 your B.S. in computer technology?

 17 15 A. It was in the 1990s.

Re: [17:13-18:14]

Plt Objection - Beyond the 

scope of clarification counter

Re: [17:13-

18:14]

Plt Objection -

Beyond the 

scope of 

clarification 

counter

SUSTAINED

17:16 - 17:18 Kieper, Ronald 12-19-2019

 17 16 Q. Okay. So while you were working in the

 17 17 lab you were kind of also pursuing your degree?

 17 18 A. That's correct.

Re: [17:13-18:14]

Plt Objection - Beyond the 

scope of clarification counter

Re: [17:13-

18:14]

Plt Objection -

Beyond the 

scope of 

clarification 

counter

SUSTAINED

17:19 - 17:21 Kieper, Ronald 12-19-2019

 17 19 Q. And where did you obtain your degree from,

 17 20 sir?

 17 21 A. Purdue University.

Re: [17:13-18:14]

Plt Objection - Beyond the 

scope of clarification counter

Re: [17:13-

18:14]

Plt Objection -

Beyond the 

scope of 

clarification 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 84 of 427
Kieper, Ronald - 12-19-2019 Objection Report 5

counter

SUSTAINED

17:22 - 18:3 Kieper, Ronald 12-19-2019

 17 22 Q. Okay. And did you obtain any certificates

 17 23 or other training, you know, formal training outside

 17 24 of on-the-job training in audiology or acoustics?

 17 25 A. I -- right after I was hired, I took a

 18 1 20-hour course given by Larry and Julie Royster on a

 18 2 hearing conservation program, how to run a hearing

 18 3 conservation program.

Re: [17:13-18:14]

Plt Objection - Beyond the 

scope of clarification counter

Re: [17:13-

18:14]

Plt Objection -

Beyond the 

scope of 

clarification 

counter

SUSTAINED

18:4 - 18:14 Kieper, Ronald 12-19-2019

 18 4 Q. Okay. And what is a hearing conservation

 18 5 program?

 18 6 A. In workplaces where the employees are

 18 7 exposed to hazardous noise levels, the -- my

 18 8 understanding is they -- they maybe legally have to

 18 9 have a hearing conservation program which monitors 

--

 18 10 well, it -- they give audiograms to the employees,

 18 11 typically annually, they monitor and measure the 

noise

 18 12 levels that the employees are exposed to, there is

 18 13 education of the employees, and there may be one or

 18 14 two other facets of the hearing conservation 

program.

Re: [17:13-18:14]

Plt Objection - Beyond the 

scope of clarification counter

Re: [17:13-

18:14]

Plt Objection -

Beyond the 

scope of 

clarification 

counter

SUSTAINED

18:15 - 19:9 Kieper, Ronald 12-19-2019

 18 15 Q. Thank you for that, sir.

 18 16 And within Aearo, did you have

 18 17 responsibility for managing or assisting in managing

 18 18 the company's hearing conservation program?

 18 19 A. Yes, for the first several years I did the

 18 20 entire hearing conservation program. We were in 

one

 18 21 building and then we expanded to a second building 

and

 18 22 I continued doing the hearing conservation program

 18 23 with those employees. And then after a period of

 18 24 time, the hearing conservation program went out of

 18 25 house.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 85 of 427
Kieper, Ronald - 12-19-2019 Objection Report 6

 19 1 Q. It was overseen by somebody outside the

 19 2 firm?

 19 3 A. Correct.

 19 4 Q. Okay. And in your answer, sir, you were

 19 5 describing a little bit of the characteristics of a

 19 6 hearing conservation program. Would it be fair that

 19 7 one of them is assessing, if you will, the noise

 19 8 levels that people are exposed to in the workplace?

 19 9 A. That's correct.

19:19 - 19:23 Kieper, Ronald 12-19-2019

 19 19 Do you have an understanding, sir, that

 19 20 the military has hearing conservation programs

 19 21 concerning its noises and the exposures that its

 19 22 service members and -- and other contractors and 

such

 19 23 are exposed to?

20:1 - 20:14 Kieper, Ronald 12-19-2019

 20 1 A. Yes, I -- I know that the military has a

 20 2 hearing conservation program.

 20 3 BY MR. BUCHANAN:

 20 4 Q. And so one aspect of a hearing

 20 5 conservation program is assessing really the extent 

of

 20 6 exposure to loud noises, fair?

 20 7 A. Yes, that's -- that -- I would agree with

 20 8 that.

 20 9 Q. And the other aspect or other aspects

 20 10 include measures to reduce the extent of exposure to

 20 11 those lab noises, fair?

 20 12 A. Measures to...

 20 13 Yes, they -- you are tasked with reducing

 20 14 the noise levels as much as possible.

20:17 - 21:5 Kieper, Ronald 12-19-2019

 20 17 There are several ways that you can

 20 18 attempt to reduce the extent of noise exposure, true?

 20 19 A. Yes, that's true.

 20 20 Q. You can try and reduce the extent of the

 20 21 noise at the source, right?

 20 22 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 86 of 427
Kieper, Ronald - 12-19-2019 Objection Report 7

 20 23 Q. You can provide hearing protection devices

 20 24 that will protect the ears from loud noises, true?

 20 25 A. If -- if your noise control efforts don't

 21 1 reduce the noise levels sufficiently, then hearing

 21 2 protection can be used, yes.

 21 3 Q. And hearing protection can be used to

 21 4 reduce an individual's exposure to noise to what are

 21 5 deemed safe levels, right?

21:8 - 21:17 Kieper, Ronald 12-19-2019

 21 8 A. Yes.

 21 9 BY MR. BUCHANAN:

 21 10 Q. And other ways to try and prevent harm

 21 11 from loud noises is to reduce not only noise at the

 21 12 source and not only through the use of hearing

 21 13 protection, the extent of noise that reaches a person,

 21 14 but the length of time that somebody is exposed to

 21 15 noise.

 21 16 Would that be fair?

 21 17 A. Yes.

23:6 - 23:25 Kieper, Ronald 12-19-2019

 23 6 Q. And we saw on the screen a few minutes ago

 23 7 that, you know, you were familiar and had 

involvement

 23 8 for running all label/NRR tests for the E-A-RCAL 

Lab,

 23 9 right?

 23 10 A. Yes, for many years I was.

 23 11 Q. Certainly as of the point of time of this

 23 12 PowerPoint, a point in time you were still at the

 23 13 company, or with Aearo, you were responsible for 

all

 23 14 label/NRR tests, right?

 23 15 A. Yes.

 23 16 Q. Okay. So when we are talking about

 23 17 hearing protection devices and I was talking about a

 23 18 characteristic of them, one of the outputs of the test

 23 19 that you ran while you were at Aearo were tests that

 23 20 would generate an NRR, correct?

 23 21 A. Yes, an NRR could be calculated.

Re: [23:6-23:25]

401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 87 of 427
Kieper, Ronald - 12-19-2019 Objection Report 8

 23 22 Q. And that's what it says on the screen here

 23 23 in Exhibit 1 that you were responsible for all of the

 23 24 label/NRR tests, right?

 23 25 A. Yes, that's what it says right here.

24:9 - 24:12 Kieper, Ronald 12-19-2019

 24 9 Q. Are you familiar, sir, that the EPA

 24 10 specifies a label that is to accompany the sale of

 24 11 hearing protection devices in this country?

 24 12 A. That -- that sounds right, yes.

Re: [24:9-24:12]

Def Objection - Relevance 

(401, 402)

Re: [24:9-

24:12]

Def Objection -

Relevance 

(401, 402)

OVERRULED

24:21 - 25:6 Kieper, Ronald 12-19-2019

 24 21 Q. Okay. But you do understand, though, that

 24 22 the tests that you were running, so-called REAT 

tests,

 24 23 which we'll discuss in greater detail today, one of

 24 24 the outputs of that, a finding of that was the NRR 

for

 24 25 the particular hearing protection device, right?

 25 1 A. Yes, an NRR could be the result of the --

 25 2 the testing.

 25 3 Q. And while that's called out here in the

 25 4 description of your responsibilities, really the first

 25 5 one listed is responsible for all label/NRR tests,

 25 6 right?

Re: [24:21-25:6]

701; 403; 401

OVERRULED

25:10 - 25:10 Kieper, Ronald 12-19-2019

 25 10 A. Yes, that's what it says here, right.

Re: [25:10-25:18]

403; 401

OVERRULED

25:19 - 25:21 Kieper, Ronald 12-19-2019

 25 19 Q. And that was a primary responsibility of

 25 20 yours?

 25 21 A. It was one of several responsibilities.

Re: [25:19-25:21]

nonresponsive

SUSTAINED

26:16 - 26:23 Kieper, Ronald 12-19-2019

 26 16 Q. Some hearing protection devices provide

 26 17 more attenuation or more protection from sound --

loud

 26 18 noises than others, right?

 26 19 A. I think that's accurate, yes.

 26 20 Q. And that's really one of the things that

 26 21 you were measuring when you were doing label and 

NRR

Re: [26:20-26:23]

Def Objection - Vague (611, 

403)

Re: [26:20-

27:1]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [26:16-26:19]

401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 88 of 427
Kieper, Ronald - 12-19-2019 Objection Report 9

 26 22 tests is the extent of attenuation or protection that

 26 23 the hearing protection device provided, right?

27:1 - 27:1 Kieper, Ronald 12-19-2019

 27 1 A. Yes.

Re: [27:1-27:1]

Def Objection - Vague (611, 

403)

Re: [26:20-

27:1]

Def Objection -

Vague (611, 

403)

OVERRULED

27:3 - 27:6 Kieper, Ronald 12-19-2019

 27 3 Q. And that was the goal of label and NRR

 27 4 tests was to come forward with numbers or metrics 

that

 27 5 people could use in assessing the extent of protection

 27 6 that your hearing protection devices provided, right?

27:9 - 27:13 Kieper, Ronald 12-19-2019

 27 9 A. The NRR -- the testing I did resulted in

 27 10 an NRR, and that was obtained by obtaining a best 

fit

 27 11 of the hearing protector. And in general use, from 

my

 27 12 experience, not everyone can fit the hearing 

protector

 27 13 as well as I would fit it in a -- in a label test.

27:19 - 27:23 Kieper, Ronald 12-19-2019

 27 19 One of the goals of generating an NRR was

 27 20 to provide a measure that people could use in

 27 21 assessing the protection that your hearing protection

 27 22 devices provided.

 27 23 Would that be fair?

Re: [27:19-27:23]

Def Objection - Misstates 

(611, 403); foundation (602)

Re: [27:19-

28:3]

Def Objection -

Misstates (611, 

403); 

foundation 

(602)

OVERRULED

28:1 - 28:11 Kieper, Ronald 12-19-2019

 28 1 A. Yes, you could use the NRR of a variety of

 28 2 products to assess their comparative protective

 28 3 ability.

 28 4 BY MR. BUCHANAN:

 28 5 Q. And so just so we understand, if you will,

 28 6 the scheme correctly, higher NRRs convey greater

 28 7 attenuation or protection, correct?

Re: [28:1-28:3]

Def Objection - Misstates 

(611, 403); foundation (602)

Re: [27:19-

28:3]

Def Objection -

Misstates (611, 

403); 

foundation 

(602)

OVERRULED

Re: [28:5-28:13]

401; 403; 602; 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 89 of 427
Kieper, Ronald - 12-19-2019 Objection Report 10

 28 8 A. Yes.

 28 9 Q. Lower NRRs convey less attenuation or less

 28 10 protection, correct?

 28 11 A. Yes.

29:3 - 29:12 Kieper, Ronald 12-19-2019

 29 3 Q. I'm passing you, sir, a picture of a

 29 4 hearing protection device. I'm wondering if you 

could

 29 5 identify it for us?

 29 6 A. This looks like the Combat Arms Earplug.

 29 7 Q. Okay. And we'll see documents today

 29 8 talking about this particular product.

 29 9 Do you refer to this at least to your

 29 10 understanding and your nomenclature, sir, as

 29 11 Version 2?

 29 12 A. Yes.

32:11 - 33:25 Kieper, Ronald 12-19-2019

 32 11 Q. I'm passing you Exhibit 5 to your

 32 12 deposition, sir. It is internally numbered P 978b.

 32 13 Do you know what hearing protection device

 32 14 is reflected on Exhibit 5, sir?

 32 15 A. That looks like a Combat Arms Earplug

 32 16 Version 3.

 32 17 Q. And this is the -- a single-ended version,

 32 18 is that right?

 32 19 A. This is a single-ended version.

 32 20 Q. And you could adjust whether it was open

 32 21 or closed by swiveling that little toggle on the end

 32 22 with the gun?

 32 23 A. The -- the internal where the gun is would

 32 24 rotate and you could rotate it so that the path, the

 32 25 sound path was open or closed.

 33 1 Q. Thank you.

 33 2 I'm going to pass us another one, sir, so

 33 3 we can kind of get our terminology down before we 

get

 33 4 going today.

 33 5 (WHEREUPON, a certain document was

 33 6 marked Ron Kieper Deposition Exhibit

Re: [32:11-33:25]

Baker MIL 1; 401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 90 of 427
Kieper, Ronald - 12-19-2019 Objection Report 11

 33 7 No. 6, for identification, as of

 33 8 12/19/2019.)

 33 9 BY MR. BUCHANAN:

 33 10 Q. I'm passing you Exhibit 6.

 33 11 And this is yet another earplug hearing

 33 12 protection device, correct, sir?

 33 13 A. Yes.

 33 14 Q. And do you know what device this is?

 33 15 A. This looks like Combat Arms Earplug

 33 16 Version 4.

 33 17 Q. And like the Version 3 that we just looked

 33 18 at, this is a single-ended plug?

 33 19 A. Yes, it is.

 33 20 Q. You were describing a characteristic of

 33 21 the Version 3 that you could turn the dial or turn the

 33 22 gun in a certain direction and it would change from

 33 23 the open position to the closed position.

 33 24 Do you recall that?

 33 25 A. Yes.

34:8 - 35:2 Kieper, Ronald 12-19-2019

 34 8 Q. And that was really a characteristic of

 34 9 the entire line of Combat Arms devices, correct, 

there

 34 10 is an open position and a closed position?

 34 11 A. For Versions 2, 3 and 4 there were open

 34 12 and closed positions, but in Version 1 it was a

 34 13 single-ended plug and it was always in the open

 34 14 position.

 34 15 Q. And now when you say in the open position,

 34 16 that sounds like that's not going to provide any

 34 17 hearing protection.

 34 18 What do you mean by that, "in the open

 34 19 position"?

 34 20 A. I mean that instead of being a solid plug

 34 21 it has a channel through the plug and in the channel

 34 22 the filter was placed and the filter would lower the

 34 23 sound levels to some degree.

 34 24 Q. Okay. And is it your understanding, sir,

 34 25 that the solid end or when it was in the closed

Re: [34:8-35:2]

401; 403; 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 91 of 427
Kieper, Ronald - 12-19-2019 Objection Report 12

 35 1 position, that was designed to provide attenuation or

 35 2 protection like an UltraFit Plug?

35:6 - 35:8 Kieper, Ronald 12-19-2019

 35 6 A. Yes, it was based on the UltraFit and in

 35 7 the closed position it -- it provided similar

 35 8 protection to the UltraFit.

Re: [35:6-35:8]

401; 403; 701; 602

OVERRULED

35:16 - 36:11 Kieper, Ronald 12-19-2019

 35 16 So in Exhibit 2, sir, you see a

 35 17 double-ended design. That's the Version 2 that we 

are

 35 18 going to spend most of our time talking about today.

 35 19 Was there an open and closed position with

 35 20 this double-ended design?

 35 21 A. The yellow end of the plug is the open

 35 22 part and the green end of this plug is the closed

 35 23 part.

 35 24 Q. Okay. So I guess you can kind of see it

 35 25 there on the yellow end in the tip. It looks like

 36 1 there is a little hole in the end.

 36 2 Do you see that?

 36 3 A. Yes.

 36 4 Q. And you can also see in the middle there

 36 5 is like a lighter, maybe white plastic stem that looks

 36 6 like it has a hole in it.

 36 7 Do you see that?

 36 8 A. Yes.

 36 9 Q. And what's your understanding, sir, of

 36 10 how -- if a user put the yellow end in their ear how

 36 11 sound would get to their ear?

Re: [36:9-36:11]

401; 403; 602; 701

OVERRULED

36:14 - 36:16 Kieper, Ronald 12-19-2019

 36 14 A. Well, sound would go in through the hole

 36 15 in the side and go through the filter and then come

 36 16 out the end of the plug that's in their ear.

Re: [36:14-36:16]

401; 403; 602; 701

OVERRULED

39:3 - 39:5 Kieper, Ronald 12-19-2019

 39 3 Q. When were people from the company's

 39 4 perspective recommended to use the yellow end 

versus

 39 5 the green end?

Re: [39:3-39:10]

vague, nonresponsive, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 92 of 427
Kieper, Ronald - 12-19-2019 Objection Report 13

39:8 - 39:10 Kieper, Ronald 12-19-2019

 39 8 A. That was beyond the scope of my job. I --

 39 9 I just tested the plugs. I don't know how they were

 39 10 used.

Re: [39:3-39:10]

vague, nonresponsive, 403

SUSTAINED

39:20 - 40:3 Kieper, Ronald 12-19-2019

 39 20 Q. Sir, I am passing you over Exhibit 7 to

 39 21 your deposition. It is P 715 for the tech and our

 39 22 internal reference. I am also passing you Exhibit 8.

 39 23 I'll say Exhibit 8 is the black and white and less

 39 24 pretty version. I think the color version which we

 39 25 were able to find, that is Exhibit 7, does have the

 40 1 additional footnote: "Download More PDF From

 40 2 www.IranSafety.com," but I'm going to reference the

 40 3 color one because I think it is easier to see.

Re: [39:20-40:3]

Baker MIL 1; 602; 401; 403

OVERRULED

40:7 - 40:10 Kieper, Ronald 12-19-2019

 40 7 Q. And, so, sir, have you ever seen marketing

 40 8 or sell sheets for the Combat Arms?

 40 9 A. I -- I may have seen some. I don't recall

 40 10 seeing these before.

40:11 - 41:12 Kieper, Ronald 12-19-2019

 40 11 Q. Okay. And on the cover here we see a

 40 12 soldier and he has got obviously the yellow end in 

and

 40 13 he has got the green end out.

 40 14 Do you see that?

 40 15 A. I don't see the yellow end, but if he has

 40 16 that plug on, then, yes, the yellow end is in his ear.

 40 17 Q. Well, on the bottom left, sir, I mean,

 40 18 just to satisfy yourself, we are talking about the

 40 19 Combat Arms Version 2, right, that's what this ad is

 40 20 about?

 40 21 A. Yes, that's correct.

 40 22 Q. Okay. It says: "Dual-ended design." It

 40 23 says: "Insert the plug's yellow end for ambient

 40 24 'hear-through' protection."

 40 25 Do you see that?

 41 1 A. Yes, that's what it states right there.

 41 2 Q. And then underneath that, it says:

 41 3 "Insert the green end when exposed to steady high

Re: [40:11-41:12]

602; 401; 403; Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 93 of 427
Kieper, Ronald - 12-19-2019 Objection Report 14

 41 4 level noise," and then it lists "(aircraft, armored

 41 5 vehicles, et cetera) and the Combat Arms plug will

 41 6 provide a constant NRR of 22 dB."

 41 7 Do you see that, sir?

 41 8 A. Yes.

 41 9 Q. Okay. And you'd agree that, you know,

 41 10 aircraft, armored -- armored vehicles, et cetera, are

 41 11 going to be loud noises, right?

 41 12 A. Yes, they can generate a lot of noise.

42:5 - 42:9 Kieper, Ronald 12-19-2019

 42 5 Q. Thank you.

 42 6 And on the back there is more details on

 42 7 this particular plug.

 42 8 Do you see those?

 42 9 A. Yes, I see.

Re: [42:1-43:25]

403; 401; 602

OVERRULED

42:14 - 43:7 Kieper, Ronald 12-19-2019

 42 14 Q. There you go.

 42 15 And underneath it says: "Insert the

 42 16 yellow end," and then it has got some explanation, 

and

 42 17 on the right it says: "Insert the green end."

 42 18 Do you see those arrows going left and

 42 19 right up top?

 42 20 A. Yes.

 42 21 Q. So on the left, it says: "No jang" -- "No

 42 22 dangerous hearing impairment" under "insert the 

yellow

 42 23 end."

 42 24 Do you see that?

 42 25 A. Yes.

 43 1 Q. Okay. "Other earplugs can put soldiers or

 43 2 police officers in increased danger by suppressing

 43 3 their ability to hear critical ambient sounds around

 43 4 their" -- "around them during their tactical

 43 5 maneuvers."

 43 6 Do you see that?

 43 7 A. I see that.

Re: [42:1-43:25]

403; 401; 602

OVERRULED

43:8 - 44:16 Kieper, Ronald 12-19-2019

 43 8 Q. Okay. And then it says: "The yellow

Re: [42:1-43:25]

403; 401; 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 94 of 427
Kieper, Ronald - 12-19-2019 Objection Report 15

 43 9 Combat Arms plug features a nonlinear acoustical

 43 10 design with a calibrated filter within its stem. The

 43 11 result? Most low level sounds are heard clearly

 43 12 during wear...virtually unaffected."

 43 13 Do you see that?

 43 14 A. Yes, that's right here.

 43 15 Q. Okay. And then it talks about "instant

 43 16 protection" with the yellow end.

 43 17 Do you see that?

 43 18 A. Yes, it says that.

 43 19 Q. "No switch time delay," that's what it

 43 20 reads, right?

 43 21 A. Yes.

 43 22 Q. "When loud impulse noises such as weapons

 43 23 fire or explosives occur, the filter 'reacts'

 43 24 instantly and suppresses the noise to a safer level.

 43 25 The chance of permanent hearing damage or

 44 1 disorientation from explosion is greatly reduced or

 44 2 eliminated."

 44 3 Do you see that?

 44 4 A. Yes, that's what's written here.

 44 5 Q. Impulse noises, when loud impulse noises

 44 6 occur, that's what this is talking about with regard

 44 7 to the yellow end, right?

 44 8 A. It's talking about -- it mentions

 44 9 explosions and then it also earlier it talked about

 44 10 the high noise levels of -- of the Army vehicles

 44 11 and -- and aircraft.

 44 12 Q. Well, on the yellow side again, staying

 44 13 with me, on "insert the yellow end," do you see 

there

 44 14 is like a left hand and then a right-hand side to the

 44 15 page, sir?

 44 16 A. I see that.

Re: [44:1-44:16]

Baker MIL 1; 602; 401; 403

44:19 - 45:2 Kieper, Ronald 12-19-2019

 44 19 Directing your attention to on the yellow

 44 20 side, sir.

 44 21 "Instant Protection - No Switch Time

 44 22 Delay," do you see that paragraph towards the 

Re: [44:19-45:2]

Baker MIL 1; 602; 401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 95 of 427
Kieper, Ronald - 12-19-2019 Objection Report 16

bottom?

 44 23 A. Yes.

 44 24 Q. "When loud impulse noises such as weapons

 44 25 fire or explosives occur," and then it continues.

 45 1 Do you see that?

 45 2 A. Yes, I do.

45:3 - 45:9 Kieper, Ronald 12-19-2019

 45 3 Q. Okay. Impulse noises, did you ever have

 45 4 any role or involvement in testing the protection

 45 5 provided by the Combat Arms from impulse noises?

 45 6 A. No, I don't believe I did.

 45 7 Q. There is testing that can be done to

 45 8 evaluate the protection provided from impulse noise,

 45 9 true?

45:12 - 45:24 Kieper, Ronald 12-19-2019

 45 12 A. I don't know. There -- there probably is.

 45 13 I may or may -- I don't recall specifically how that

 45 14 would be done.

 45 15 BY MR. BUCHANAN:

 45 16 Q. Well, during your tenure at -- at Aearo

 45 17 labs, did you ever get involved in impulse testing,

 45 18 generally?

 45 19 A. No.

 45 20 Q. So with regards to any claims about the

 45 21 protection afforded by the Combat Arms from 

impulse

 45 22 noise, you did not conduct any testing on that?

 45 23 A. No, I don't recall doing any testing on

 45 24 that.

45:25 - 47:4 Kieper, Ronald 12-19-2019

 45 25 Q. Okay. And we see at the bottom here a

 46 1 table of data. It says: "Octave Band Attenuation

 46 2 Data."

 46 3 Do you see that?

 46 4 A. Yes.

 46 5 Q. And it results in the report of an NRR.

 46 6 Do you see that?

 46 7 A. Yes.

 46 8 Q. Okay. Am I correct, sir, that your role

Re: [47:2-47:8]

Def Objection - Vague (611, 

403); foundation (602)

Re: [47:2-

47:8]

Def Objection -

Vague (611, 

403); 

foundation 

(602)

OVERRULED

Re: [45:25-47:1]

Baker MIL 1; 602; 401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 96 of 427
Kieper, Ronald - 12-19-2019 Objection Report 17

 46 9 and involvement with regard to the Combat Arms 

would

 46 10 have been around generating this kind of data, 

octave

 46 11 band attenuation data?

 46 12 A. These -- this type of data would be the

 46 13 result of doing a real-ear test on this plug or

 46 14 another hearing protection device.

 46 15 Q. Okay. So in terms of protection afforded

 46 16 by the Combat Arms Version 2, to the extent there 

was

 46 17 testing done on it by Aearo, your function would 

have

 46 18 been around real-ear attenuation data, is that fair?

 46 19 A. That's correct.

 46 20 Q. So-called REAT testing?

 46 21 A. Yes.

 46 22 Q. I've seen it written out like that. Is

 46 23 that how you pronounced it in your day-to-day

 46 24 practice?

 46 25 A. The letters stand for real-ear attenuation

 47 1 at threshold.

 47 2 Q. Okay. And those are tests that can be

 47 3 done in different ways, but those are tests the output

 47 4 of which can be an NRR, correct?

47:7 - 47:8 Kieper, Ronald 12-19-2019

 47 7 A. Yes, the real-ear test can result in an

 47 8 NRR being computed.

Re: [47:2-47:8]

Def Objection - Vague (611, 

403); foundation (602)

Re: [47:2-

47:8]

Def Objection -

Vague (611, 

403); 

foundation 

(602)

OVERRULED

47:10 - 47:19 Kieper, Ronald 12-19-2019

 47 10 Q. Okay. Now, I'd like to take us up top

 47 11 again and you see "Insert the Green End."

 47 12 Do you see that heading?

 47 13 A. Yes.

 47 14 Q. Okay. And it's underneath where it says:

Re: [47:9-47:18]

Baker MIL 1; 602; 401; 403

Re: [47:10-47:19]

Baker MIL 1; 602; 401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 97 of 427
Kieper, Ronald - 12-19-2019 Objection Report 18

 47 15 "'Stealth' Green Color" and we've got the pictures of

 47 16 the soldiers and stuff with guns.

 47 17 This would be the end that you told us was

 47 18 for protection from continuous or steady noise, is

 47 19 that right?

47:25 - 48:2 Kieper, Ronald 12-19-2019

 47 25 A. That's what it says on this sheet,

 48 1 "exposed to constant high-level sound sources (85 

dB

 48 2 and above)."

Re: [47:25-48:7]

Baker MIL 1; 602; 401; 403

OVERRULED

48:4 - 48:7 Kieper, Ronald 12-19-2019

 48 4 Q. Okay. And we see there that the company

 48 5 actually calls out in its marketing its NRR for this

 48 6 product, right?

 48 7 A. Yes.

Re: [47:25-48:7]

Baker MIL 1; 602; 401; 403

OVERRULED

48:9 - 48:18 Kieper, Ronald 12-19-2019

 48 9 It says: "Insert the green end: Constant

 48 10 protection for constant noise. The green end of the

 48 11 Combat Arms Earplug provides steady protection 

with an

 48 12 NRR of 22 dB."

 48 13 Did I read that correctly?

 48 14 A. I believe you did.

 48 15 Q. Okay. So the company calls out the result

 48 16 of some of your REAT testing in its marketing

 48 17 materials for the Combat Arms, fair?

 48 18 A. Yes.

Re: [48:9-48:18]

Baker MIL 1; 602; 401; 403

OVERRULED

53:12 - 53:23 Kieper, Ronald 12-19-2019

 53 12 Q. And then it continues.

 53 13 "This is the ideal wearing position when

 53 14 exposed to constant high-level sound sources (85 dB

 53 15 and above) such as aircraft, watercraft, armored

 53 16 vehicles or machinery."

 53 17 Did I read that correctly?

 53 18 A. Yes.

 53 19 Q. Okay. And so these types of sound

 53 20 exposures, aircraft, watercraft, armored vehicles or

 53 21 machinery, I mean, they have a -- they have a sound

Re: [53:12-53:23]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 98 of 427
Kieper, Ronald - 12-19-2019 Objection Report 19

 53 22 fingerprint in terms of a sound pressure level that's

 53 23 associated with them, correct?

54:1 - 54:1 Kieper, Ronald 12-19-2019

 54 1 A. Yes.

Re: [54:1-54:1]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

54:13 - 55:3 Kieper, Ronald 12-19-2019

 54 13 Q. Okay. And what we see here is a statement

 54 14 that use the closed end or the end that provides the

 54 15 22 dBs when you are going to be exposed to 

constant

 54 16 high-level sound sources.

 54 17 Do you see that?

 54 18 A. Yes, "when exposed to constant high-level

 54 19 sound sources."

 54 20 Q. Okay. And it lists aircraft and

 54 21 watercraft and armored vehicles and machinery, 

right?

 54 22 A. Yes.

 54 23 Q. Okay. And you'd agree, sir, that it would

 54 24 be reasonable for someone reading this to 

understand

 54 25 if they are being -- if it's being suggested to use

 55 1 this, and that's the ideal wearing position for the

 55 2 green end, that if they put the green end in they'd

 55 3 actually get protection down to safe levels?

Re: [54:13-57:19]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

55:6 - 55:8 Kieper, Ronald 12-19-2019

 55 6 A. It depends on how they put them, the plugs

 55 7 in, whether they'd get protection to what would be

 55 8 considered safe levels.

Re: [54:13-57:19]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

55:12 - 55:13 Kieper, Ronald 12-19-2019

 55 12 It is providing, of course, an assurance

 55 13 of a 22 dB attenuation, right?

Re: [54:13-57:19]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

55:15 - 55:18 Kieper, Ronald 12-19-2019

 55 15 BY THE WITNESS:

 55 16 A. The sheet -- yeah, the sheet says that

 55 17 "the Combat Arms Earplug provides steady 

protection

 55 18 with an NRR of 22 dB."

Re: [54:13-57:19]

Baker MIL 1, 401, 403, 602, 

701

Defendants object to

Plaintiffs’ removal of 

testimony from lines 55:20-

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 99 of 427
Kieper, Ronald - 12-19-2019 Objection Report 20

55:23 and 56:15-57:19 as 

confusing and misleading, 

and therefore renders the 

designations incomplete. 

Plaintiff disagrees, and 

reserves the right to play the 

originally designated 

testimony should 

completeness require.

55:24 - 56:4 Kieper, Ronald 12-19-2019

 55 24 Q. I mean, you wouldn't fault somebody, sir,

 55 25 for reading this and believing that if they wore your

 56 1 earplugs, the Aearo Combat Arms Version 2 

earplugs,

 56 2 that they would, in fact, be safe from noises such as

 56 3 aircraft, watercraft, armored vehicles and machinery,

 56 4 would you?

Re: [54:13-57:19]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

56:7 - 56:14 Kieper, Ronald 12-19-2019

 56 7 A. I don't know what they would think.

 56 8 BY MR. BUCHANAN:

 56 9 Q. Well, we just read it, right?

 56 10 A. We read it.

 56 11 Q. Okay. And you'd agree that it's quoting

 56 12 an NRR of 22, right?

 56 13 A. It's -- yes, it is talking about an NRR of

 56 14 22.

Re: [54:13-57:19]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

58:5 - 58:14 Kieper, Ronald 12-19-2019

 58 5 Q. Sir, we spent some time talking about the

 58 6 difference between the green end and the yellow 

end?

 58 7 A. Yes.

 58 8 Q. Just so the record is clear, you did what

 58 9 you called real-ear attenuation at threshold testing

 58 10 or REAT testing on the green end, correct?

 58 11 A. I tested both ends, yes.

 58 12 Q. Okay. You tested both ends for the

 58 13 attenuation using REAT tests, correct?

 58 14 A. Yes, I did.

Re: [58:5-58:14]

Baker MIL 1, 401, 403, 602, 

701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 100 of 427
Kieper, Ronald - 12-19-2019 Objection Report 21

58:15 - 58:16 Kieper, Ronald 12-19-2019

 58 15 Q. We also talked about impulse noise

 58 16 testing.

58:19 - 58:20 Kieper, Ronald 12-19-2019

 58 19 Q. Is impulse testing done under a separate

 58 20 stet -- set of tests or standards?

58:24 - 59:1 Kieper, Ronald 12-19-2019

 58 24 A. I have not -- I have not done impulse

 58 25 testing, so I don't know what -- how that would be

 59 1 done.

59:3 - 59:5 Kieper, Ronald 12-19-2019

 59 3 Q. If you haven't done impulse testing

 59 4 generally, you certainly have done no impulse testing

 59 5 on the Combat Arms Version 2, fair?

Re: [59:3-59:11]

602, 401, 403

OVERRULED

59:8 - 59:11 Kieper, Ronald 12-19-2019

 59 8 A. That's correct.

 59 9 BY MR. BUCHANAN:

 59 10 Q. Have you done any other testing on the

 59 11 performance of the Combat Arms Version 2?

Re: [59:3-59:11]

602, 401, 403

OVERRULED

59:14 - 59:18 Kieper, Ronald 12-19-2019

 59 14 A. Yes.

 59 15 BY MR. BUCHANAN:

 59 16 Q. What type of testing would that be, sir?

 59 17 A. Well, on -- I've tested the plugs on an

 59 18 acoustical test fixture.

Re: [59:14-59:18]

602, 401, 403, 701

OVERRULED

62:4 - 62:24 Kieper, Ronald 12-19-2019

 62 4 Q. And when we see "insertion loss results,"

 62 5 that's referring to tests on a mannequin or on a 

dummy

 62 6 head, right?

 62 7 A. Yes.

 62 8 Q. Okay. Sometimes called a "test fixture"?

 62 9 A. Test fixture, yes.

 62 10 Q. Is the test fixture always in the shape of

 62 11 a head or is it sometimes something that just looks

 62 12 like a piece of equipment?

 62 13 A. The first one that I worked with was a --

 62 14 I think it's a 16-pound block of aluminum and it had 

Re: [62:4-63:2]

602, 401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 101 of 427
Kieper, Ronald - 12-19-2019 Objection Report 22

a

 62 15 microphone inside and a -- an ear and actually some

 62 16 artificial skin on it. We -- I used that primarily

 62 17 for measuring insertion loss on earmuffs, but the

 62 18 mannequins or the test fixtures that I would test the

 62 19 earplugs on, the insert type earplugs, would be more

 62 20 like a mannequin head, a human head.

 62 21 Q. Okay. So a big block of aluminum with

 62 22 kind of an ear on the outside. That's -- that's a

 62 23 little less like a human being than some other things,

 62 24 right?

63:2 - 63:2 Kieper, Ronald 12-19-2019

 63 2 A. Yes, yes.

Re: [62:4-63:2]

602, 401, 403, 701

OVERRULED

63:16 - 63:19 Kieper, Ronald 12-19-2019

 63 16 Q. Sir, you were primarily responsible

 63 17 certainly as of 2012 for REAT testing at E-ARCAL,

 63 18 right?

 63 19 A. Yes.

63:23 - 63:25 Kieper, Ronald 12-19-2019

 63 23 Q. Okay. Label/NRR tests are done with

 63 24 people as the subjects, correct?

 63 25 A. Yes.

64:23 - 65:8 Kieper, Ronald 12-19-2019

 64 23 Q. Did you draft the labeling for the Combat

 64 24 Arms?

 64 25 A. I'm sorry. Did I draft labeling?

 65 1 Q. Yes.

 65 2 A. I'm not sure what you mean "labeling."

 65 3 The what goes on the product?

 65 4 Q. Yeah. With regard to this is how you

 65 5 should fit this device, this -- these are the

 65 6 Instructions for Use, did you draft the labeling for

 65 7 the product?

 65 8 A. No, I didn't.

65:9 - 65:18 Kieper, Ronald 12-19-2019

 65 9 Q. I'm guessing you paused because you were

 65 10 involved in conducting REAT testing that generated 

an

Re: [65:9-65:18]

401, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 102 of 427
Kieper, Ronald - 12-19-2019 Objection Report 23

 65 11 NRR that you understood would have gone with the

 65 12 product, right?

 65 13 A. That would be my understanding, yes.

 65 14 Q. But in terms of writing the words that

 65 15 would instruct how to use the product or instruct 

how

 65 16 to fit or cautions or warnings, you didn't do any of

 65 17 that for the Combat Arms products, right?

 65 18 A. That's right.

66:6 - 67:1 Kieper, Ronald 12-19-2019

 66 6 Q. Any other role or involvement with the

 66 7 Combat Arms Version 2?

 66 8 A. I would measure the plugs on what -- what

 66 9 we called the Acoustic -- let's see, what was it --

 66 10 Acoustic Resistance Measurement Module.

 66 11 Q. Understood.

 66 12 And is that something you did in

 66 13 connest -- in connection with your testing function,

 66 14 in other words, before you would conduct a test on

 66 15 human subjects, you would qualify the plugs to see

 66 16 whether they met a certain tolerance using ARC

 66 17 testing?

 66 18 A. Yes, I'd measure the -- the acoustic

 66 19 resistance of the plug -- of the yellow end of the

 66 20 plugs on this box. And, in fact, my measurements --

I

 66 21 believe my measurements were guiding for the

range of

 66 22 the plugs, in other words, if the plugs had to fall

 66 23 within a range on this particular test to be

 66 24 considered in -- good as -- yeah, if -- to make sure

 66 25 that the plug was assembled properly and that it was

 67 1 functioning.

Re: [66:6-67:1]

401, 403, Baker MIL 1

OVERRULED

77:18 - 78:13 Kieper, Ronald 12-19-2019

 77 18 Q. And to the best of your knowledge, sir,

 77 19 and through the time of your departure in 2016, did

 77 20 the HPDA database contain your testing information 

on

 77 21 the various REAT tests that you conducted?

Re: [77:18-78:13]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 103 of 427
Kieper, Ronald - 12-19-2019 Objection Report 24

 77 22 A. Yes.

 77 23 Q. At the point in time of your departure or

 77 24 retirement in 2016, was the HPDA database still the

 77 25 platform you were using to maintain REAT testing 

data?

 78 1 A. Yes.

 78 2 Q. Did you use the HPDA database yourself?

 78 3 A. Yes.

 78 4 Q. How did you use it, sir, for what

 78 5 purposes?

 78 6 A. Well, I would -- I would put the new test

 78 7 report data into the system and I could call up

 78 8 other -- I could call up previous reports, both tests

 78 9 that I had conducted and tests that were done by the

 78 10 previous lab technician.

 78 11 Q. Kind of the system of record for the

 78 12 company's test results, would that be fair?

 78 13 A. That sounds fair, yes.

79:5 - 79:25 Kieper, Ronald 12-19-2019

 79 5 Q. I see. And we are going to go into the

 79 6 REAT testing, you know, kind of workflow in 

greater

 79 7 detail in a moment, but we got there a little earlier.

 79 8 As I understand it, certainly in the time,

 79 9 the late -- late '90s, early 2000s when you conducted

 79 10 REAT testing, you would generate cards for each 

test

 79 11 iteration that you ran on a given subject, is that

 79 12 fair?

 79 13 A. Yes.

 79 14 Q. Okay. And then you would extract the data

 79 15 from the cards, put it on an Excel spreadsheet, is

 79 16 that right?

 79 17 A. Yes.

 79 18 Q. And then you would -- once the data was on

 79 19 the Excel spreadsheet, then you would bring it over

 79 20 into the HPDA database, right?

 79 21 A. Yes.

 79 22 Q. And the HPDA database could essentially

Re: [79:5-79:25]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 104 of 427
Kieper, Ronald - 12-19-2019 Objection Report 25

 79 23 import data from the spreadsheet to populate the

 79 24 various fields in the HPDA database, correct?

 79 25 A. Yes, that sounds right.

82:25 - 83:5 Kieper, Ronald 12-19-2019

 82 25 Q. And they would come in and they would look

 83 1 at your procedures, right?

 83 2 A. They looked at our operations manual, they

 83 3 looked at our equipment, our calibration records.

 83 4 They looked at our -- the format of our test reports

 83 5 and a number of other things.

85:1 - 85:14 Kieper, Ronald 12-19-2019

 85 1 Q. I'm passing you, sir, what we are marking

 85 2 as Exhibit 9 to your deposition. And this, sir, is a

 85 3 manual from the National -- National Voluntary

 85 4 Laboratory Accreditation Program.

 85 5 Do you see that?

 85 6 A. Yes.

 85 7 Q. NIST Handbook 150-8. This is the 2005

 85 8 edition. It says: "Acoustical Testing Services."

 85 9 Do you see that, sir?

 85 10 A. Yes.

 85 11 Q. Okay. I guess it is written by a

 85 12 Ms. Betty Ann Torres.

 85 13 Do you know her, sir?

 85 14 A. I do not.

Re: [85:1-85:14]

401, 403, 602

OVERRULED

86:2 - 87:9 Kieper, Ronald 12-19-2019

 86 2 Q. Yeah. Can I make a suggestion to you,

 86 3 sir, and obviously you are free to always turn the

 86 4 pages if you'd like, but I'll try and orient you so

 86 5 you know where we are going.

 86 6 If we can go to the Table of Contents at

 86 7 .3. This will help orient you to the contents of the

 86 8 document.

 86 9 There is different sections, "General

 86 10 information," "Accreditation process," 

"Management

 86 11 requires" -- "requirements for accreditation,"

 86 12 Section 4, "Technical requirements for 

accreditation,"

Re: [86:2-87:9]

602, 403, 401

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 105 of 427
Kieper, Ronald - 12-19-2019 Objection Report 26

 86 13 and then "Additional requirements."

 86 14 Do you see that?

 86 15 A. Yes, I see all of those.

 86 16 Q. And then we have under Technical

 86 17 requirements for accreditation, there is a series of

 86 18 headings: "General, Personnel, Accommodation 

and

 86 19 environmental conditions, Test and calibration 

methods

 86 20 and method validation, Equipment, Measurement

 86 21 traceability, Sampling, Handling of test and

 86 22 calibration items, Assuring the quality of test and

 86 23 calibration results," and then Section 5.10,

 86 24 "Reporting the results."

 86 25 Do you see that?

 87 1 A. I see those.

 87 2 Q. And are those the types of areas of

 87 3 inquiry that would occur during the accreditation --

 87 4 the periodic accreditation reviews by NVLAP?

 87 5 A. Yes, that was some of the things that we

 87 6 talked about.

 87 7 Q. Okay. Let's go to Technical requirements

 87 8 for accreditation.

 87 9 A. Okay.

87:14 - 88:3 Kieper, Ronald 12-19-2019

 87 14 Q. Let's see. At .18 hopefully on your

 87 15 screen. We are getting there. If we could blow up

 87 16 5.10, Reporting the results.

 87 17 Are you with me now, sir, at Section 5.10?

 87 18 A. I see 5.10, yes.

 87 19 Q. Yeah, it says:

 87 20 "Section 5.10 Reporting the results.

 87 21 "5.10.1 Test reports shall provide all

 87 22 necessary information to permit the same or another

 87 23 laboratory to reproduce the test plan and obtain

 87 24 comparable results."

 87 25 Do you see that, sir?

 88 1 A. Yes, I do.

Re: [87:14-88:19]

401, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 106 of 427
Kieper, Ronald - 12-19-2019 Objection Report 27

 88 2 Q. You understand that to be a component of

 88 3 NVLAP certification, correct?

88:6 - 88:11 Kieper, Ronald 12-19-2019

 88 6 A. It's -- it's in this report. I -- other

 88 7 than that, I -- I don't know. That's what it says.

 88 8 BY MR. BUCHANAN:

 88 9 Q. Okay. I mean, you are not fussing with

 88 10 that as something that an NVLAP certified lab 

should

 88 11 do, are you?

Re: [87:14-88:19]

401, 403, 602

OVERRULED

88:14 - 88:19 Kieper, Ronald 12-19-2019

 88 14 A. No.

 88 15 BY MR. BUCHANAN:

 88 16 Q. And test reports should provide all

 88 17 necessary information to permit your lab or another

 88 18 lab to reproduce the test plan and obtain comparable

 88 19 results, right?

Re: [87:14-88:19]

401, 403, 602

OVERRULED

88:22 - 88:25 Kieper, Ronald 12-19-2019

 88 22 A. That's -- that's what it says here, yes.

 88 23 BY MR. BUCHANAN:

 88 24 Q. Right. I mean, you agree with that, don't

 88 25 you, sir?

Re: [88:23-88:25]

401, 403, 602, 106

OVERRULED

89:3 - 89:4 Kieper, Ronald 12-19-2019

 89 3 A. That's the requirement or that's what they

 89 4 are saying in this document.

89:6 - 89:7 Kieper, Ronald 12-19-2019

 89 6 Q. And that's something that you should do

 89 7 with your test reports, correct?

89:11 - 89:11 Kieper, Ronald 12-19-2019

 89 11 A. We complied with this, yes.

89:23 - 89:24 Kieper, Ronald 12-19-2019

 89 23 And I was just asking you whether you

 89 24 agree that that's an important thing?

Re: [89:23-89:24]

Leading, 401, 403, 602, 701

OVERRULED

90:2 - 90:3 Kieper, Ronald 12-19-2019

 90 2 A. It's -- it is in this document, so, yes,

 90 3 it's important.

Re: [90:2-90:3]

Leading, 401, 403, 602, 701

OVERRULED

90:5 - 90:7 Kieper, Ronald 12-19-2019

 90 5 Q. Okay. Certainly something that an NVLAP

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 107 of 427
Kieper, Ronald - 12-19-2019 Objection Report 28

 90 6 certified lab should do with its test reports,

 90 7 correct?

90:11 - 90:12 Kieper, Ronald 12-19-2019

 90 11 A. We were -- yes, we were certified by

 90 12 NVLAP, so that is -- this is what we did, yes.

91:4 - 92:10 Kieper, Ronald 12-19-2019

 91 4 Q. Okay. So going back, please, to

 91 5 Exhibit 1, and we went down that, if you will, fork in

 91 6 the road while we were talking about NVLAP

 91 7 accreditation on this -- on this particular slide

 91 8 talking about your E-A-RCAL facility.

 91 9 "Established 1978 and NVLAP accredited in

 91 10 1992."

 91 11 Do you see that?

 91 12 A. Yes.

 91 13 Q. Okay. It says: "Real-ear attenuation at

 91 14 threshold per ANSI S3.19 and S12.6."

 91 15 Do you see that, sir?

 91 16 A. Yes.

 91 17 Q. Okay. What do those ANSI numbers

 91 18 represent?

 91 19 A. Those are test standards.

 91 20 Q. Okay. And the jury may have already heard

 91 21 about these, but maybe you could help us out, sir.

 91 22 ANSI S3.19, what is that?

 91 23 A. It's a document, I believe, that was

 91 24 created in 1974 and it outlines test procedures and a

 91 25 number of other things that are required to do

 92 1 real-ear testing on people. I believe it also talks

 92 2 about insertion loss testing.

 92 3 Q. Okay. And with regard to real attenuation

 92 4 at threshold (REAT) per ANSI S3.19, is that 

referring

 92 5 to so-called human testing in that standard?

 92 6 A. Yes.

 92 7 Q. Okay. And that would be if you are doing

 92 8 label testing on most US products under ANSI 

S3.19,

Re: [92:7-92:13]

Def Objection - Vague (611, 

403)

Re: [92:7-

92:13]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [91:4-91:16]

602

Re: [91:17-92:6]

602, 701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 108 of 427
Kieper, Ronald - 12-19-2019 Objection Report 29

 92 9 you'd be using a particular subpart of that standard,

 92 10 right?

92:13 - 92:18 Kieper, Ronald 12-19-2019

 92 13 A. Yes.

 92 14 BY MR. BUCHANAN:

 92 15 Q. You'd be using what's been called

 92 16 Experimenter-Fit as the procedure, is that right?

 92 17 A. Yes, for labeling tests we would use

 92 18 Experimenter-Fit.

Re: [92:7-92:13]

Def Objection - Vague (611, 

403)

Re: [92:7-

92:13]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [92:14-92:25]

602, 701, 401, 403

OVERRULED

92:19 - 93:14 Kieper, Ronald 12-19-2019

 92 19 Q. And then am I correct then if you were

 92 20 doing Experimenter-Fit on labeling tests under that

 92 21 particular standard, you would be the experimenter?

 92 22 A. I would be the experimenter.

 92 23 Q. And you would be then the one doing the

 92 24 fit?

 92 25 A. Yes, I would.

 93 1 Q. How many hundreds or thousands of label

 93 2 tests, sir, have you done in your career?

 93 3 A. I have no idea.

 93 4 Q. Hundreds?

 93 5 A. I -- possibly, but I don't know. I really

 93 6 don't know.

 93 7 Q. I mean, were you running them most of the

 93 8 weeks you were there in the lab?

 93 9 MS. ELIZABETH: Objection; form.

 93 10 BY THE WITNESS:

 93 11 A. I would say not -- not most of the weeks.

 93 12 You know, it is hard to quantify. I did a lot of

 93 13 label tests, a lot of product development tests, and

 93 14 as it says here, I conducted over 2200 full tests.

Re: [93:1-93:6]

Def Objection - Relevance 

(401, 402)

Re: [93:7-93:14]

Def Objection - Vague; 

misstates (611, 403); 

relevance (401, 402)

Re: [93:1-

93:6]

Def Objection -

Relevance 

(401, 402)

SUSTAINED

Re: [93:7-

93:14]

Def Objection -

Vague; 

misstates (611, 

403); relevance 

(401, 402)

OVERRULED

Re: [92:14-92:25]

602, 701, 401, 403

OVERRULED

95:21 - 96:5 Kieper, Ronald 12-19-2019

 95 21 Q. Okay. Can we go to .5.

 95 22 I'm wondering, sir, if you can help us

 95 23 understand this REAT test by looking at the 

pictures.

 95 24 The pictures show a gentleman left sitting

 95 25 in a room. There is a -- obviously a plastic head on

 96 1 the right, bot -- lower right, and some kind of

Re: [95:21-96:5]

602, 701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 109 of 427
Kieper, Ronald - 12-19-2019 Objection Report 30

 96 2 apparatus at the top right.

 96 3 Which of these three testing scenarios or

 96 4 four testing scenarios concern REAT testing?

 96 5 A. The picture on the left.

96:9 - 96:12 Kieper, Ronald 12-19-2019

 96 9 Q. All right. I guess we'll just orient

 96 10 ourselves to the picture on the left is the gentleman

 96 11 sitting in the middle of a room?

 96 12 A. Yes.

Re: [96:9-96:13]

602, 701, 401, 403

OVERRULED

97:7 - 97:20 Kieper, Ronald 12-19-2019

 97 7 Q. And so how does that work, sir? He is

 97 8 sitting there and how does the test run?

 97 9 A. In the room there are three sets of loud

 97 10 speakers, and for real-ear testing, the person sits

 97 11 there, sits in the chair and responds to the test

 97 12 tones when they are presented in the room.

 97 13 Q. Okay. And he is holding something in his

 97 14 hand. What's that?

 97 15 A. We call that our -- the hand switch.

 97 16 Q. And what's that?

 97 17 A. It has a light that goes -- that a person

 97 18 can place his or her thumb or finger in and that --

 97 19 that allows the person to control the loudness of the

 97 20 test tones.

Re: [97:2-98:10]

602, 701, 401, 403

OVERRULED

98:18 - 99:12 Kieper, Ronald 12-19-2019

 98 18 Q. But before they are actually, you know,

 98 19 starting this test, I guess if you are measuring a

 98 20 hearing protection device, and you are running let's

 98 21 call it an Experimenter-Fit, this ANSI S3.12 

standard

 98 22 you were talking about before, S3.19 standard, what 

do

 98 23 you do before you start the test?

 98 24 A. Well, our normal procedure would be to

 98 25 talk to the person outside the room, explain what --

 99 1 what device we are testing, and then we'd go into the

 99 2 room and get the person situated, and we would 

either

 99 3 begin to test with an open condition of their ears,

Re: [98:18-99:25]

602, 701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 110 of 427
Kieper, Ronald - 12-19-2019 Objection Report 31

 99 4 meaning there is nothing in their ears, or covering

 99 5 their ears, or a protected condition with the hearing

 99 6 protector either inserted if it's a plug or over their

 99 7 ears if it's an earmuff, so.

 99 8 Q. Now, are they actually sitting in that

 99 9 chair that we are looking at on the screen when you 

as

 99 10 the experimenter fit them with hearing protection to

 99 11 test?

 99 12 A. Yes.

99:13 - 99:16 Kieper, Ronald 12-19-2019

 99 13 Q. So if they are in the open position, as I

 99 14 understand it, an open position means they don't 

have

 99 15 any hearing protection on them, right?

 99 16 A. Yes.

Re: [98:18-99:25]

602, 701, 401, 403

OVERRULED

99:17 - 100:12 Kieper, Ronald 12-19-2019

 99 17 Q. And so what you are doing when you run

 99 18 these tests is you are measuring the open position,

 99 19 you know, how -- what's the earliest point in time

 99 20 they can hear versus not hear particular tones, right?

 99 21 A. Yes.

 99 22 Q. And then you put the hearing protection on

 99 23 and you see what's the earlier point in time that they

 99 24 can hear or not hear particular tones when they have

 99 25 the hearing protection on, right?

 100 1 A. Yes.

 100 2 Q. And then what you do is you measure -- you

 100 3 subtract those two sound levels and compute an

 100 4 attenuation at that given tone for that particular

 100 5 test observation?

 100 6 A. That's accurate, yes.

 100 7 Q. And if you were running, as you said, an

 100 8 ANSI '74 test for labeling purposes, you would

 100 9 actually do three tests like that, open and closed,

 100 10 for each test subject, correct?

 100 11 A. Yes, three repetitions of the open and

 100 12 closed testing.

Re: [98:18-99:25]

602, 701, 401, 403

Re: [100:1-101:25]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 111 of 427
Kieper, Ronald - 12-19-2019 Objection Report 32

100:13 - 101:3 Kieper, Ronald 12-19-2019

 100 13 Q. And so when you go in to fit the hearing

 100 14 protection device to test the closed attenuation 

value

 100 15 for somebody, describe that process for me?

 100 16 A. I would go into the room and insert the

 100 17 hearing protector in their ears. If it's a foam plug,

 100 18 we'd let it expand until it is fully expanded, then

 100 19 the person can turn on what we call fitting noise.

 100 20 This -- the room itself is soundproof, it is very low

 100 21 level, there is no HVAC noises or other machinery

 100 22 noises. It is very quiet. So we would -- we'd turn

 100 23 on the fitting noise and the person, the test subject

 100 24 has been trained on using the fitting noise to assess

 100 25 the fit of the hearing protector. And they would

 101 1 cover and uncover their ears and do other things to

 101 2 confirm that the hearing protector was donned

 101 3 appropriately, that we were getting a good fit.

Re: [100:1-101:25]

401, 403, 701

OVERRULED

101:4 - 101:18 Kieper, Ronald 12-19-2019

 101 4 Q. I see.

 101 5 So before you start administering the

 101 6 tones to somebody, let's say it's the first -- the

 101 7 first iteration of a closed test on a REAT test --

 101 8 A. Yes.

 101 9 Q. -- the person sitting in the chair, we see

 101 10 the picture on the screen, you would walk in and 

say,

 101 11 Okay. Now we are going to do the closed end. 

Here is

 101 12 the hearing protection device I am going to insert.

 101 13 And then you would insert it in the subject's ears for

 101 14 them, is that correct?

 101 15 A. Yes.

 101 16 Q. And then you would play what you called

 101 17 "fitting noise," is that right?

 101 18 A. Yes.

Re: [100:1-101:25]

401, 403, 701

OVERRULED

102:1 - 102:4 Kieper, Ronald 12-19-2019

 102 1 Q. And so the goal then is you fit them.

 102 2 Do you visually check to make sure they

Re: [102:1-102:7]

Def Objection - Vague; 

misstates (611, 403)

Re: [102:1-

102:7]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 112 of 427
Kieper, Ronald - 12-19-2019 Objection Report 33

 102 3 are seated the way they are supposed to be seated 

from

 102 4 your perspective as an expert fitter?

Vague; 

misstates (611, 

403)

OVERRULED

102:7 - 102:7 Kieper, Ronald 12-19-2019

 102 7 A. I -- I do a visual check, yes.

Re: [102:1-102:7]

Def Objection - Vague; 

misstates (611, 403)

Re: [102:1-

102:7]

Def Objection -

Vague; 

misstates (611, 

403)

OVERRULED

102:16 - 102:20 Kieper, Ronald 12-19-2019

 102 16 Q. So step one is you go in, you insert the

 102 17 earplugs, you assure yourself to your satisfaction

 102 18 that you have a good fit from optical inspection, 

from

 102 19 you looking at the fit in the ear, fair?

 102 20 A. Yes.

102:21 - 102:23 Kieper, Ronald 12-19-2019

 102 21 Q. Then either you turn on the fitting noise

 102 22 or the subject turns on the fitting noise and they can

 102 23 check to see whether they are discerning 

attenuation?

103:1 - 103:3 Kieper, Ronald 12-19-2019

 103 1 A. They -- yes, they can assess how well the

 103 2 hearing protector is fitting them by listening to the

 103 3 fitting noise.

103:5 - 103:7 Kieper, Ronald 12-19-2019

 103 5 Q. And after you determine that the subject

 103 6 has a good or an adequate fit, then you step out and

 103 7 administer the test?

Re: [103:5-103:12]

Def Objection - Misstates 

(611, 403)

Re: [103:5-

103:12]

Def Objection -

Misstates (611, 

403)

OVERRULED

103:10 - 103:21 Kieper, Ronald 12-19-2019

 103 10 A. If it's the first test, as you were

 103 11 talking about, we would let them sit in the room for

 103 12 five minutes before the test began.

 103 13 BY MR. BUCHANAN:

Re: [103:5-103:12]

Def Objection - Misstates 

(611, 403)

Re: [103:5-

103:12]

Def Objection -

Misstates (611, 

Re: [103:14-103:21]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 113 of 427
Kieper, Ronald - 12-19-2019 Objection Report 34

 103 14 Q. Okay. And you can see them when they are

 103 15 in the room, right?

 103 16 A. Yes. There is a window through which I

 103 17 can see them.

 103 18 Q. And you'd be sitting kind of on the other

 103 19 side of that window administering the test from the

 103 20 other side of the glass, so to speak?

 103 21 A. Yes.

403)

OVERRULED

103:25 - 104:3 Kieper, Ronald 12-19-2019

 103 25 Q. Are the instructions to the subject to sit

 104 1 still and don't touch the hearing protectors after

 104 2 they've been fit?

 104 3 A. Yes.

Re: [103:25-104:3]

401, 403, 701

OVERRULED

104:4 - 104:16 Kieper, Ronald 12-19-2019

 104 4 Q. Okay. And so the conducting a test,

 104 5 according to the ANSI '74 standard, you would fit 

the

 104 6 device, you would check with the subject to make 

sure

 104 7 the subject discerned an appropriate fit, you would

 104 8 turn on the fitting noise, and then you would leave

 104 9 the room and let the person sit there for a period of

 104 10 time. Five minutes, I think you said?

 104 11 A. Before the first test, five minutes, yes.

 104 12 Q. Okay. And so then you play the tones and

 104 13 you describe the process of the person's thumb 

going

 104 14 up and down to discern when they heard or didn't 

hear

 104 15 particular tones, right?

 104 16 A. Yes.

104:17 - 104:22 Kieper, Ronald 12-19-2019

 104 17 Q. Then as I understand it, there are -- the

 104 18 subject has as part of an ANSI '74 test, they'll go

 104 19 through these series of tones three times, right, open

 104 20 and closed?

 104 21 A. A total of six times, yes, three open,

 104 22 three closed, correct.

Re: [104:17-104:22]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 114 of 427
Kieper, Ronald - 12-19-2019 Objection Report 35

104:23 - 105:13 Kieper, Ronald 12-19-2019

 104 23 Q. Okay. So then when you come back the

 104 24 second time to do the second test to closed, how do

 104 25 you do that?

 105 1 A. We would do the same procedure as the

 105 2 first time with the exception of not waiting the five

 105 3 minutes.

 105 4 Q. Oh, so you'd go back in and even though

 105 5 you've put them in once for the person, and the 

person

 105 6 probably nows what -- knows what they feel like, 

you

 105 7 go back and you put them in for each of the next 

two

 105 8 tests as well when you are testing closed position?

 105 9 A. Yes, Experimenter-Fit.

 105 10 Q. Same process, visual inspection, fitting

 105 11 noise either controlled by you or the subject, and 

you

 105 12 confirm with the subject that they are properly fit,

 105 13 correct?

105:16 - 105:25 Kieper, Ronald 12-19-2019

 105 16 A. Yes.

 105 17 BY MR. BUCHANAN:

 105 18 Q. You don't run the tests if you don't think

 105 19 they are adequately fit, right?

 105 20 A. I -- I fit them to the -- for best fit and

 105 21 then we run the test.

 105 22 Q. Right.

 105 23 And the way you check and confirm the fit

 105 24 is both visually, right, that's one way?

 105 25 A. That's one way, yes.

105:18 - 106:9 Kieper, Ronald 12-19-2019

 105 18 Q. You don't run the tests if you don't think

 105 19 they are adequately fit, right?

 105 20 A. I -- I fit them to the -- for best fit and

 105 21 then we run the test.

 105 22 Q. Right.

 105 23 And the way you check and confirm the fit

Re: [105:18-106:8]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 115 of 427
Kieper, Ronald - 12-19-2019 Objection Report 36

 105 24 is both visually, right, that's one way?

 105 25 A. That's one way, yes.

 106 1 Q. Through the use of fitting noise is

 106 2 another way, right?

 106 3 A. Yes.

 106 4 Q. And then through confirmation with the

 106 5 subject, right?

 106 6 A. Yes.

 106 7 Q. Each of those three ways each time you run

 106 8 a closed test, right?

 106 9 A. Yes, a combination.

106:15 - 106:18 Kieper, Ronald 12-19-2019

 106 15 Q. I'm advised through searching for your

 106 16 initials in that database, sir, we identify almost

 106 17 2,000 tests that you ran over the years, 1924.

 106 18 Does that sound about right to you?

Re: [106:15-106:22]

Def Objection - Vague (611, 

403); foundation (602)

Re: [106:15-

106:22]

Def Objection -

Vague (611, 

403); 

foundation 

(602)

OVERRULED

106:21 - 106:22 Kieper, Ronald 12-19-2019

 106 21 A. That's as good an estimate as I could

 106 22 make, yes.

Re: [106:15-106:22]

Def Objection - Vague (611, 

403); foundation (602)

Re: [106:15-

106:22]

Def Objection -

Vague (611, 

403); 

foundation 

(602)

OVERRULED

107:18 - 108:4 Kieper, Ronald 12-19-2019

 107 18 I am passing you Exhibit 10, sir, to your

 107 19 deposition. It is a PowerPoint called Hearing

 107 20 Protector Attenuation. This has the 3M logo on it.

 107 21 And do you recall, sir, 3M bought Aearo in

 107 22 2000 -- 2007-2008?

 107 23 A. 2008, I believe, yes.

 107 24 Q. That's when it went final in 2008?

 107 25 A. That's my understanding, yes.

 108 1 Q. Okay. We see some PowerPoints obviously

 108 2 with 3M logos, sometimes Cabot logos, sometimes 

Aearo,

Re: [107:18-108:4]

Baker MIL 1, 401, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 116 of 427
Kieper, Ronald - 12-19-2019 Objection Report 37

 108 3 but effectively the same lab the whole time, right?

 108 4 A. Yes. The lab didn't change.

111:25 - 112:10 Kieper, Ronald 12-19-2019

 111 25 Q. Okay. And Mr. Berger would come down 

from

 112 1 time to time and watch the test being conducted?

 112 2 A. Yes, he could, sure.

 112 3 Q. Come down from time to time and talk to

 112 4 you when you were conducting tests?

 112 5 A. Yes.

 112 6 Q. And he was the lab director?

 112 7 A. That -- yeah, I think that may be what he

 112 8 was called in -- in the NVLAP, but, yes, that's a --

 112 9 he was the -- he oversaw the construction and -- and

 112 10 was, yeah, the lab director.

Re: [111:25-112:10]

Def Objection - Relevance 

(401, 402)

Re: [111:25-

112:10]

Def Objection -

Relevance 

(401, 402)

OVERRULED

112:11 - 112:12 Kieper, Ronald 12-19-2019

 112 11 Q. And he -- he guided the tests that you

 112 12 conducted, fair?

Re: [112:11-112:17]

Plt Objection - beyond the 

scope of a clarification counter 

and answer is non responsive 

beyond the answer "no"

Re: [112:11-

112:17]

Plt Objection -

beyond the 

scope of a 

clarification 

counter and 

answer is non 

responsive 

beyond the 

answer "no"

SUSTAINED 

as to [112:14-

112:17] 

OVERRULED 

in all other 

respects

112:15 - 112:17 Kieper, Ronald 12-19-2019

 112 15 A. No. The -- the tests, if you are talking

 112 16 about a labeling test, a real-ear test, I was guided

 112 17 by the ANSI standard.

Re: [112:11-112:17]

Plt Objection - beyond the 

scope of a clarification counter 

and answer is non responsive 

beyond the answer "no"

Re: [112:11-

112:17]

Plt Objection -

beyond the 

scope of a 

clarification 

counter and 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 117 of 427
Kieper, Ronald - 12-19-2019 Objection Report 38

answer is non 

responsive 

beyond the 

answer "no"

SUSTAINED 

as to [112:14-

112:17] 

OVERRULED 

in all other 

respects

112:21 - 113:6 Kieper, Ronald 12-19-2019

 112 21 In terms of telling you what product you

 112 22 were going to test or what testing was going to be

 112 23 done this week, I mean, he would essentially 

marshal

 112 24 out the testing for you to do, fair?

 112 25 A. He -- yes, he guided -- he told me what he

 113 1 wanted done, yes.

 113 2 Q. Right.

 113 3 This week we are going to test Combat Arms

 113 4 Version 2, he'd tell you that, and it's a labeling

 113 5 test, and you would go about doing so, fair?

 113 6 A. Sure.

Re: [112:21-113:13]

701, 401, 403, 602

OVERRULED

113:7 - 113:10 Kieper, Ronald 12-19-2019

 113 7 Q. Okay. If you go to the .8, we see

 113 8 real-ear attenuation at threshold. That's the gold

 113 9 standard for hearing protection attenuation

 113 10 measurement, isn't it, sir?

Re: [112:21-113:13]

701, 401, 403, 602

OVERRULED

113:13 - 113:13 Kieper, Ronald 12-19-2019

 113 13 A. That's what it says on this document.

Re: [112:21-113:13]

701, 401, 403, 602

OVERRULED

116:3 - 116:11 Kieper, Ronald 12-19-2019

 116 3 Q. Okay. When you were doing label testing

 116 4 for the company's products, were you allowed to use

 116 5 company employees in the testing?

 116 6 A. Yes.

 116 7 Q. Your procedures permitted that?

 116 8 A. Yes.

 116 9 Q. Did your policy and procedure manual

 116 10 describe that you would use company employees to 

Re: [116:3-116:17]

Def Objection - Relevance 

(401, 402)

Re: [116:9-116:17]

Def Objection - Foundation 

(602); relevance (401, 402)

Re: [116:3-

116:17]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [116:9-

116:17]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 118 of 427
Kieper, Ronald - 12-19-2019 Objection Report 39

test

 116 11 your own products?

Foundation 

(602); 

relevance (401, 

402)

OVERRULED

116:14 - 116:17 Kieper, Ronald 12-19-2019

 116 14 A. I don't recall specifically what it says

 116 15 in the -- in the manual regarding that, but some of

 116 16 the test subjects were employees or relatives of

 116 17 employees.

Re: [116:3-116:17]

Def Objection - Relevance 

(401, 402)

Re: [116:9-116:17]

Def Objection - Foundation 

(602); relevance (401, 402)

Re: [116:3-

116:17]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [116:9-

116:17]

Def Objection -

Foundation 

(602); 

relevance (401, 

402)

OVERRULED

116:19 - 116:25 Kieper, Ronald 12-19-2019

 116 19 Q. Separating what you were allowed to do,

 116 20 what was in the procedure manual, what NVLAP 

would

 116 21 have permitted, as a practice when the company 

was

 116 22 testing its products, quite often the test subjects

 116 23 included company employees, is that true?

 116 24 A. Yes, company employees were on our test

 116 25 panel.

117:13 - 117:14 Kieper, Ronald 12-19-2019

 117 13 Q. Who -- who created the policies for the

 117 14 lab?

Re: [117:13-117:17]

Def Objection - Vague (611, 

403)

Re: [117:13-

117:17]

Def Objection -

Vague (611, 

403)

OVERRULED

117:17 - 118:1 Kieper, Ronald 12-19-2019

 117 17 A. Elliott Berger.

 117 18 BY MR. BUCHANAN:

 117 19 Q. He created the policies for the lab at all

Re: [117:13-117:17]

Def Objection - Vague (611, 

403)

Re: [117:13-

117:17]

Def Objection -

Vague (611, 

Re: [117:18-117:21]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 119 of 427
Kieper, Ronald - 12-19-2019 Objection Report 40

 117 20 times you were there?

 117 21 A. As far as I remember, yes.

 117 22 Q. So when you were running testing in the

 117 23 Aearo lab, it was your understanding there was no

 117 24 prohibition against using company employees to do

 117 25 labeling tests for company products, is that right?

 118 1 A. That's correct.

Re: [117:22-118:1]

Def Objection - Relevance 

(401, 402)

403)

OVERRULED

Re: [117:22-

118:1]

Def Objection -

Relevance 

(401, 402)

OVERRULED

118:2 - 118:5 Kieper, Ronald 12-19-2019

 118 2 Q. From your perspective, it was consistent

 118 3 with the policies that Mr. Berger had laid out for

 118 4 company employees to participate in REAT testing 

on

 118 5 products they may have had involvement with?

118:8 - 118:8 Kieper, Ronald 12-19-2019

 118 8 A. I don't know about that.

119:18 - 119:20 Kieper, Ronald 12-19-2019

 119 18 Q. Exhibit 10. I'd like to direct your

 119 19 attention to ratings. It is on .19 -- .16. Excuse

 119 20 me.

Re: [119:18-119:20]

401, 403, 602

OVERRULED

119:24 - 120:4 Kieper, Ronald 12-19-2019

 119 24 Q. "HPD Ratings," .16.

 119 25 It says: "How are attenuation data used

 120 1 and calculated" -- "to calculate a single numbered

 120 2 rating?"

 120 3 Do you see that?

 120 4 A. Yes.

Re: [119:24-119:25]

401, 403, 602

Re: [120:1-120:24]

401, 403, 602

OVERRULED

120:5 - 120:18 Kieper, Ronald 12-19-2019

 120 5 Q. Okay. And then it goes through how

 120 6 "Ratings are based" -- "are all based on REAT

 120 7 measurements (human subjects)."

 120 8 Do you see that?

 120 9 A. Yes.

 120 10 Q. "Measurement differences between

 120 11 standards."

 120 12 Do you see that?

 120 13 A. Yes.

 120 14 Q. Because there are different ways that you

 120 15 can run REAT tests, right?

Re: [120:1-120:24]

401, 403, 602

Re: [120:14-120:18]

701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 120 of 427
Kieper, Ronald - 12-19-2019 Objection Report 41

 120 16 A. There is different rules for different --

 120 17 from different standards and different countries and

 120 18 et cetera.

120:19 - 120:25 Kieper, Ronald 12-19-2019

 120 19 Q. It says: "The Goal: The rating is

 120 20 intended to be subtracted from noise exposure

 120 21 information to determine if attenuation is adequate

 120 22 for each worker."

 120 23 Do you see that?

 120 24 A. I see that.

 120 25 Q. Do you agree with that?

Re: [120:25-121:4]

Def Objection - Foundation 

(602); 702

Re: [120:25-

121:4]

Def Objection -

Foundation 

(602); 702

OVERRULED

Re: [120:1-120:24]

401, 403, 602

OVERRULED

121:3 - 121:4 Kieper, Ronald 12-19-2019

 121 3 A. That's -- that's one way to -- to use the

 121 4 NRR.

Re: [120:25-121:4]

Def Objection - Foundation 

(602); 702

Re: [120:25-

121:4]

Def Objection -

Foundation 

(602); 702

OVERRULED

121:6 - 121:16 Kieper, Ronald 12-19-2019

 121 6 Q. And it says the goal -- the next goal:

 121 7 "Rating should represent most users."

 121 8 Do you see that?

 121 9 A. I see that, yes.

 121 10 Q. Okay. And then on the next page we

 121 11 actually see example of some attenuation data from 

a

 121 12 test, right?

 121 13 A. Yes.

 121 14 Q. And this is the .17.

 121 15 These -- the subject initials are actually

 121 16 folks from your E-A-RCAL Lab, right?

Re: [121:15-121:19]

Def Objection - Foundation 

(602); relevance (401, 402)

Re: [121:15-

121:19]

Def Objection -

Foundation 

(602); 

relevance (401, 

402)

OVERRULED

Re: [121:6-121:14]

401, 402, 602

OVERRULED

121:19 - 121:19 Kieper, Ronald 12-19-2019

 121 19 A. I recognize the initials, yes.

Re: [121:15-121:19]

Def Objection - Foundation 

(602); relevance (401, 402)

Re: [121:15-

121:19]

Def Objection -

Foundation 

(602); 

relevance (401, 

402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 121 of 427
Kieper, Ronald - 12-19-2019 Objection Report 42

121:21 - 122:16 Kieper, Ronald 12-19-2019

 121 21 Q. Okay. Any of those folks Aearo employees

 121 22 during your time at Aearo, sir?

 121 23 A. One, two --

 121 24 Q. To your memory?

 121 25 A. -- three. Three were employees that I

 122 1 recall.

 122 2 Q. Three. Who were they?

 122 3 A. GWG, TLS and BAK.

 122 4 Q. Any of those folks on the list family

 122 5 members of employees?

 122 6 A. Yes.

 122 7 Q. Who?

 122 8 A. I could be wrong, but I believe KJC was

 122 9 married to an employee, whoever she was married 

to

 122 10 they divorced, but she wasn't married at the time

that

 122 11 I worked with her. She was on the test panel before 

I

 122 12 came. And DVF is the wife of an employee.

 122 13 Q. Who is the employee?

 122 14 A. Robert Falco.

 122 15 CRF is my stepson. CRR is Christopher

 122 16 Rowland of whom we spoke earlier.

Re: [121:21-122:16]

Def Objection - Relevance 

(401, 402)

Re: [121:21-

122:16]

Def Objection -

Relevance 

(401, 402)

OVERRULED

122:22 - 122:25 Kieper, Ronald 12-19-2019

 122 22 Q. Okay. So from the -- of the ten people on

 122 23 this example attenuation report, there are three

 122 24 employees and four family members of employees?

 122 25 A. Yes.

Re: [122:22-122:25]

Def Objection - Relevance 

(401, 402)

Re: [122:22-

122:25]

Def Objection -

Relevance 

(401, 402)

OVERRULED

124:12 - 124:21 Kieper, Ronald 12-19-2019

 124 12 Q. So you'd reuse -- excuse the language --

 124 13 but these test subjects could be used over and over

 124 14 and over again to test Aearo products?

 124 15 A. They could test Aearo products and

 124 16 other -- other products also, yes.

 124 17 Q. And did that happen, did any of these

 124 18 people participate in multiple tests, these employees

Re: [124:12-124:21]

Def Objection - Relevance 

(401, 402)

Re: [124:12-

124:21]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 122 of 427
Kieper, Ronald - 12-19-2019 Objection Report 43

 124 19 and family members?

 124 20 A. Well, all of the -- all of the test

 124 21 subjects participated in multiple tests, yes.

124:22 - 125:5 Kieper, Ronald 12-19-2019

 124 22 Q. So when you were running a -- a labeling

 124 23 test or -- you didn't just go out into the community

 124 24 and work with someone to bring in test subjects that

 124 25 you would fit?

 125 1 A. New test subjects came in throughout my

 125 2 tenure there, so they would come in and they would 

be

 125 3 trained to be a test subject, and they -- then they

 125 4 could be -- once they were trained, they could be 

used

 125 5 in -- in the real-ear testing.

127:7 - 127:11 Kieper, Ronald 12-19-2019

 127 7 Q. Okay. And you understand, really, the

 127 8 concept of this NRR is based on a normal 

population

 127 9 distribution, right?

 127 10 A. I -- I am not familiar with, you know,

 127 11 that distribution. I don't know.

132:6 - 132:8 Kieper, Ronald 12-19-2019

 132 6 Q. And so the concept of the NRR, sir, is

 132 7 that 98 percent of the population should get

 132 8 protection greater than that NRR, right?

132:12 - 132:13 Kieper, Ronald 12-19-2019

 132 12 A. I don't -- I don't know that that's the

 132 13 case.

132:15 - 132:15 Kieper, Ronald 12-19-2019

 132 15 Q. You didn't have that understanding?

132:18 - 132:18 Kieper, Ronald 12-19-2019

 132 18 Q. Or nobody told you that?

132:21 - 132:21 Kieper, Ronald 12-19-2019

 132 21 A. No.

132:23 - 133:2 Kieper, Ronald 12-19-2019

 132 23 Q. Okay. I'm just wondering, sir, in

 132 24 connection with these tests, when you were 

Re: [132:23-133:5]

Def Objection - Foundation 

Re: [132:23-

133:5]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 123 of 427
Kieper, Ronald - 12-19-2019 Objection Report 44

composing

 132 25 your test panels, did you attempt to get a random

 133 1 sample of the users who would be using the product 

as

 133 2 your test subjects?

(602); vague (611, 403); 

prejudicial (403)

Foundation 

(602); vague 

(611, 403); 

prejudicial 

(403)

OVERRULED

133:5 - 133:5 Kieper, Ronald 12-19-2019

 133 5 A. No.

Re: [132:23-133:5]

Def Objection - Foundation 

(602); vague (611, 403); 

prejudicial (403)

Re: [132:23-

133:5]

Def Objection -

Foundation 

(602); vague 

(611, 403); 

prejudicial 

(403)

OVERRULED

133:7 - 133:10 Kieper, Ronald 12-19-2019

 133 7 Q. What measures did you take, sir, to ensure

 133 8 that the test subjects actually represented a normal

 133 9 distribution of the population that would be exposed

 133 10 to the product?

Re: [133:7-133:13]

Def Objection - Vague (611, 

403); prejudicial (403)

Re: [133:7-

133:13]

Def Objection -

Vague (611,

403); 

prejudicial 

(403)

OVERRULED

133:13 - 133:13 Kieper, Ronald 12-19-2019

 133 13 A. I didn't do anything like that.

Re: [133:7-133:13]

Def Objection - Vague (611, 

403); prejudicial (403)

Re: [133:7-

133:13]

Def Objection -

Vague (611, 

403); 

prejudicial 

(403)

OVERRULED

133:15 - 133:23 Kieper, Ronald 12-19-2019

 133 15 Q. Mr. Berger never instructed you to do

 133 16 that?

 133 17 A. I don't recall that, no.

 133 18 Q. You understand for this to work, sir, for

 133 19 the NRRs to have real-world implications, the test

 133 20 subjects have -- actually have to be sampled in a

 133 21 manner that represents a normal sample of the

Re: [133:18-134:1]

Def Objection - Foundation 

(602); 702; prejudicial (403); 

vague; argumentative (611, 

403)

Re: [133:18-

134:1]

Def Objection -

Foundation 

(602); 702; 

prejudicial 

(403); vague; 

argumentative 

Re: [133:15-133:17]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 124 of 427
Kieper, Ronald - 12-19-2019 Objection Report 45

 133 22 population that's going to be exposed to the 

product.

 133 23 Did you know that?

(611, 403)

OVERRULED

134:1 - 134:1 Kieper, Ronald 12-19-2019

 134 1 A. No, I didn't know that.

Re: [133:18-134:1]

Def Objection - Foundation 

(602); 702; prejudicial (403); 

vague; argumentative (611, 

403)

Re: [133:18-

134:1]

Def Objection -

Foundation 

(602); 702; 

prejudicial 

(403); vague; 

argumentative 

(611, 403)

OVERRULED

134:3 - 134:7 Kieper, Ronald 12-19-2019

 134 3 Q. What assurance, sir, do we have then if

 134 4 you didn't do that that the NRRs the company put on

 134 5 its products would indeed provide that minimum 

level

 134 6 of protection to 98 percent of the people that used

 134 7 it?

Re: [134:3-134:10]

Def Objection - Foundation 

(602); 702; vague; misstates; 

argumentative (611, 403)

Re: [134:3-

134:10]

Def Objection -

Foundation 

(602); 702; 

vague; 

misstates; 

argumentative 

(611, 403)

OVERRULED

134:10 - 134:10 Kieper, Ronald 12-19-2019

 134 10 A. I don't know.

Re: [134:3-134:10]

Def Objection - Foundation 

(602); 702; vague; misstates; 

argumentative (611, 403)

Re: [134:3-

134:10]

Def Objection -

Foundation 

(602); 702; 

vague; 

misstates; 

argumentative 

(611, 403)

OVERRULED

136:12 - 136:22 Kieper, Ronald 12-19-2019

 136 12 Moving beyond some of the preliminary

 136 13 issues, as I understand your testimony to this point,

 136 14 your -- your testing with regard to the Combat 

Arms

 136 15 involved really three areas: REAT testing, insertion

Re: [136:20-136:25]

Def Objection - Vague; 

misstates (611, 403)

Re: [136:20-

136:25]

Def Objection -

Vague; 

misstates (611, 

Re: [136:12-136:19]

701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 125 of 427
Kieper, Ronald - 12-19-2019 Objection Report 46

 136 16 loss testing and I'll call it acoustic resistance

 136 17 measurement of the Combat Arms.

 136 18 Fair?

 136 19 A. Yes.

 136 20 Q. Okay. With regard to human testing or

 136 21 gold standard testing, what type of tests would 

those

 136 22 be?

403)

OVERRULED

136:25 - 137:7 Kieper, Ronald 12-19-2019

 136 25 A. Human testing is real-ear testing.

 137 1 BY MR. BUCHANAN:

 137 2 Q. Is what testing, sir? I'm sorry.

 137 3 A. Real-ear.

 137 4 Q. Real-ear testing.

 137 5 We've seen the acronym in documents "REAT"

 137 6 testing?

 137 7 A. Yes.

Re: [136:20-136:25]

Def Objection - Vague; 

misstates (611, 403)

Re: [136:20-

136:25]

Def Objection -

Vague; 

misstates (611, 

403)

OVERRULED

Re: [137:1-137:7]

701, 401, 403

OVERRULED

142:6 - 142:7 Kieper, Ronald 12-19-2019

 142 6 Q. Okay. In fact, the product went to market

 142 7 with no REAT testing, right?

Re: [142:6-142:10]

Def Objection - Foundation 

(602); vague; misstates (611, 

403)

Re: [142:6-

142:10]

Def Objection -

Foundation 

(602); vague; 

misstates (611, 

403)

OVERRULED

142:10 - 142:10 Kieper, Ronald 12-19-2019

 142 10 A. I don't know that.

Re: [142:6-142:10]

Def Objection - Foundation 

(602); vague; misstates (611, 

403)

Re: [142:6-

142:10]

Def Objection -

Foundation

(602); vague; 

misstates (611, 

403)

OVERRULED

143:14 - 143:16 Kieper, Ronald 12-19-2019

 143 14 Q. Certainly as of several months after the

 143 15 product had already been sold, you still didn't have

 143 16 any REAT testing on this product, right?

Re: [143:14-143:23]

602, 401, 403

OVERRULED

143:19 - 143:23 Kieper, Ronald 12-19-2019

 143 19 A. I don't know when it was begun to be sold.

Re: [143:14-143:23]

602, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 126 of 427
Kieper, Ronald - 12-19-2019 Objection Report 47

 143 20 BY MR. BUCHANAN:

 143 21 Q. Let's say as of November of 1999, you

 143 22 didn't have any REAT testing on this product, right,

 143 23 sir?

144:1 - 144:1 Kieper, Ronald 12-19-2019

 144 1 A. I don't know.

Re: [144:1-144:1]

602, 401, 403

OVERRULED

144:3 - 144:4 Kieper, Ronald 12-19-2019

 144 3 Q. Well, when did you all start the testing

 144 4 on this product, sir, REAT testing?

144:7 - 144:9 Kieper, Ronald 12-19-2019

 144 7 A. I don't know. I'd have to look at the

 144 8 test reports to -- to tell me when the testing was

 144 9 done.

144:15 - 144:19 Kieper, Ronald 12-19-2019

 144 15 Q. I'm passing you Exhibit 12, sir.

 144 16 This is an e-mail from Mr. Berger at his,

 144 17 I guess his personal e-mail account to Brian Myers.

 144 18 Do you see that?

 144 19 A. Yes.

Re: [144:15-144:19]

401, 403, 602, Baker MIL 1

OVERRULED

144:20 - 144:22 Kieper, Ronald 12-19-2019

 144 20 Q. Did Mr. Berger from time to time use his

 144 21 personal e-mail account to correspond on company

 144 22 business?

144:25 - 144:25 Kieper, Ronald 12-19-2019

 144 25 A. I don't know.

145:4 - 145:6 Kieper, Ronald 12-19-2019

 145 4 Q. Okay. And you see the heading "Combat

 145 5 Arms plug"?

 145 6 A. Yes, that's under subject, yes.

Re: [145:4-145:6]

401, 403, 602, Baker MIL 1

OVERRULED

145:17 - 145:22 Kieper, Ronald 12-19-2019

 145 17 Q. And it is an e-mail to a -- addressed in

 145 18 the body to an Armand.

 145 19 Did you ever deal with an Armand Dancer

 145 20 from ISL concerning the Combat Arms plug?

 145 21 A. I may have met Mr. Dancer, but I don't

 145 22 recall.

Re: [145:17-145:22]

401, 403, 602, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 127 of 427
Kieper, Ronald - 12-19-2019 Objection Report 48

146:25 - 147:10 Kieper, Ronald 12-19-2019

 146 25 Q. Okay. This e-mail drafted to an Armand,

 147 1 it says:

 147 2 "It recently occurred to us that we have

 147 3 no data on the actual version of the nonlinear 

earplug

 147 4 that we are now selling in the US, namely, the

 147 5 dual-ended Combat Arms plug."

 147 6 Do you see that, sir?

 147 7 A. I see that.

 147 8 Q. Does that help clarify for you, sir, that

 147 9 at least as of this point in time in November 19,

 147 10 1999, the company was already selling the plug?

Re: [146:25-147:7]

Def Objection - Foundation 

(602)

Re: [147:8-147:15]

Def Objection - Foundation 

(602); asked; argumentative 

(611, 403)

Re: [146:25-

147:7]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [147:8-

147:15]

Def Objection -

Foundation 

(602); asked; 

argumentative 

(611, 403)

OVERRULED

Re: [146:25-147:15]

Baker MIL 1

OVERRULED

147:14 - 147:15 Kieper, Ronald 12-19-2019

 147 14 A. I don't know. That's -- that's what this

 147 15 says.

Re: [147:8-147:15]

Def Objection - Foundation 

(602); asked; argumentative 

(611, 403)

Re: [147:8-

147:15]

Def Objection -

Foundation 

(602); asked; 

argumentative 

(611, 403)

OVERRULED

Re: [146:25-147:15]

Baker MIL 1

Re: [147:15-147:23]

Baker MIL 1

OVERRULED

147:17 - 147:18 Kieper, Ronald 12-19-2019

 147 17 Q. Okay. I mean, you worked with Mr. Berger.

 147 18 Do you have a reason to disagree with him on it?

Re: [147:17-147:23]

Def Objection - Foundation 

(602); asked; argumentative 

(611, 403)

Re: [147:17-

147:23]

Def Objection -

Foundation 

(602); asked; 

argumentative 

(611, 403)

OVERRULED

Re: [147:15-147:23]

Baker MIL 1

OVERRULED

147:22 - 147:23 Kieper, Ronald 12-19-2019

 147 22 A. I don't have a reason to agree or disagree

 147 23 with him.

Re: [147:17-147:23]

Def Objection - Foundation 

(602); asked; argumentative 

(611, 403)

Re: [147:17-

147:23]

Def Objection -

Foundation 

(602); asked; 

argumentative 

(611, 403)

OVERRULED

Re: [147:15-147:23]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 128 of 427
Kieper, Ronald - 12-19-2019 Objection Report 49

148:5 - 148:7 Kieper, Ronald 12-19-2019

 148 5 Q. Okay. And so Mr. Berger writes in this

 148 6 e-mail that they -- "we," you understand that to be

 148 7 Aearo, "we"?

148:10 - 148:10 Kieper, Ronald 12-19-2019

 148 10 A. I don't know.

148:12 - 148:25 Kieper, Ronald 12-19-2019

 148 12 Q. Okay.

 148 13 "It recently occurred to us that we have

 148 14 no data on the actual version of the nonlinear 

earplug

 148 15 that we are now selling."

 148 16 Are you aware of any data the company had

 148 17 on the Combat Arms Earplug that you were selling

 148 18 November 19, 1999, concerning testing on humans?

 148 19 A. I'm not aware of -- of any.

 148 20 Q. Okay. All right. So that's helpful, sir.

 148 21 So you'd agree with me that you are not

 148 22 aware of any testing that had been conducted, 

REAT

 148 23 testing concerning the Combat Arms Earplug prior 

to

 148 24 November 19, 1999, right?

 148 25 A. No, I'm not aware of any.

Re: [148:12-148:25]

Def Objection - Relevance 

(401, 402)

Re: [148:12-

148:25]

Def Objection -

Relevance 

(401, 402)

OVERRULED

148:13 - 149:6 Kieper, Ronald 12-19-2019

 148 13 "It recently occurred to us that we have

 148 14 no data on the actual version of the nonlinear 

earplug

 148 15 that we are now selling."

 148 16 Are you aware of any data the company had

 148 17 on the Combat Arms Earplug that you were selling

 148 18 November 19, 1999, concerning testing on humans?

 148 19 A. I'm not aware of -- of any.

 148 20 Q. Okay. All right. So that's helpful, sir.

 148 21 So you'd agree with me that you are not

 148 22 aware of any testing that had been conducted, 

REAT

 148 23 testing concerning the Combat Arms Earplug prior 

to

Re: [148:12-148:25]

Def Objection - Relevance 

(401, 402)

Re: [149:1-149:6]

Def Objection - Relevance 

(401, 402)

Re: [148:12-

148:25]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [149:1-

149:6]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 129 of 427
Kieper, Ronald - 12-19-2019 Objection Report 50

 148 24 November 19, 1999, right?

 148 25 A. No, I'm not aware of any.

 149 1 Q. Okay. And then it continues:

 149 2 "Therefore, we will be conducting REAT

 149 3 evaluations in the near future on both ends of the

 149 4 plug."

 149 5 Do you see that?

 149 6 A. I see that, yes.

149:16 - 149:24 Kieper, Ronald 12-19-2019

 149 16 "Therefore, we will be conducting REAT

 149 17 evaluations in the near future on both ends of the

 149 18 plug."

 149 19 Do you see that?

 149 20 A. Yes, I see that.

 149 21 Q. And did you, in fact, conduct REAT

 149 22 evaluations in the near future on both ends of the

 149 23 plug, you, sir?

 149 24 A. I did.

Re: [149:16-149:20]

Def Objection - Relevance 

(401, 402)

Re: [149:16-

149:20]

Def Objection -

Relevance 

(401, 402)

SUSTAINED

149:25 - 150:2 Kieper, Ronald 12-19-2019

 149 25 Q. Okay. Does that help you understand who

 150 1 he is referring to when he says "we," does that mean

 150 2 Aearo?

150:5 - 150:6 Kieper, Ronald 12-19-2019

 150 5 A. It may have been. It may have been Aearo,

 150 6 yes. It may have been.

150:8 - 150:13 Kieper, Ronald 12-19-2019

 150 8 Q. Because that's in fact what happened,

 150 9 right? I mean, shortly -- shortly after this e-mail

 150 10 where Mr. Berger says you have no data on the 

actual

 150 11 version of the nonlinear earplug, the dual-ended

 150 12 Combat Arms, you, sir, were asked to conduct 

REAT

 150 13 evaluations on the dual-ended Combat Arms, right?

150:16 - 150:21 Kieper, Ronald 12-19-2019

 150 16 A. I did REAT tests on both ends of the plug,

 150 17 yes.

 150 18 BY MR. BUCHANAN:

 150 19 Q. And those were your first tests that you

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 130 of 427
Kieper, Ronald - 12-19-2019 Objection Report 51

 150 20 conducted on both ends of the plugs, right?

 150 21 A. I'm not sure.

150:22 - 150:23 Kieper, Ronald 12-19-2019

 150 22 Q. Okay. And you first conducted those tests

 150 23 after this e-mail, November 19, 1999, right?

Re: [150:22-151:2]

Def Objection - Foundation 

(602); asked; argumentative 

(611, 403)

Re: [150:22-

151:2]

Def Objection -

Foundation 

(602); asked; 

argumentative 

(611, 403)

OVERRULED

150:25 - 151:2 Kieper, Ronald 12-19-2019

 150 25 BY THE WITNESS:

 151 1 A. I tested the Combat Arms plug in de --

 151 2 starting in December of 1999.

Re: [150:22-151:2]

Def Objection - Foundation 

(602); asked; argumentative 

(611, 403)

Re: [150:22-

151:2]

Def Objection -

Foundation 

(602); asked; 

argumentative 

(611, 403)

OVERRULED

151:4 - 151:6 Kieper, Ronald 12-19-2019

 151 4 Q. Okay. So that would obviously be after

 151 5 this and consistent with the fact that there had not

 151 6 been a REAT test done prior to this e-mail, right?

Re: [151:4-151:9]

Def Objection - Asked (611, 

403); foundation (602)

Re: [151:4-

151:9]

Def Objection -

Asked (611, 

403); 

foundation 

(602)

OVERRULED

151:8 - 151:9 Kieper, Ronald 12-19-2019

 151 8 BY THE WITNESS:

 151 9 A. That's what this says.

Re: [151:4-151:9]

Def Objection - Asked (611, 

403); foundation (602)

Re: [151:4-

151:9]

Def Objection -

Asked (611, 

403); 

foundation 

(602)

OVERRULED

151:11 - 151:13 Kieper, Ronald 12-19-2019

 151 11 Q. Okay. Does that concern you a little bit,

 151 12 sir, that you are selling a hearing protection device

 151 13 without having conducted testing on it before?

Re: [151:11-151:16]

Def Objection - Foundation 

(602); misstates; asked; 

argumentative (611, 403)

Re: [151:11-

151:16]

Def Objection -

Foundation 

(602); 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 131 of 427
Kieper, Ronald - 12-19-2019 Objection Report 52

misstates; 

asked; 

argumentative 

(611, 403)

OVERRULED

151:16 - 151:18 Kieper, Ronald 12-19-2019

 151 16 BY THE WITNESS:

 151 17 A. No, I have no opinion on that. That's

 151 18 beyond my -- the scope of my job.

Re: [151:11-151:16]

Def Objection - Foundation 

(602); misstates; asked; 

argumentative (611, 403)

Re: [151:17-151:18]

Def Objection - Foundation 

(602); misstates; asked; 

argumentative (611, 403)

Re: [151:11-

151:16]

Def Objection -

Foundation 

(602); 

misstates; 

asked; 

argumentative 

(611, 403)

OVERRULED

Re: [151:17-

151:18]

Def Objection -

Foundation 

(602); 

misstates; 

asked; 

argumentative 

(611, 403)

OVERRULED

151:20 - 151:22 Kieper, Ronald 12-19-2019

 151 20 Q. And there wasn't another REAT lab where

 151 21 these kind of tests would be run without your

 151 22 knowledge at Aearo, right?

151:25 - 152:8 Kieper, Ronald 12-19-2019

 151 25 A. There -- there were other labs that did

 152 1 REAT testing that I believe Aearo and 3M and 

Elliott

 152 2 used for some label testing.

 152 3 BY MR. BUCHANAN:

 152 4 Q. Okay. Let's talk about with regard to the

 152 5 Combat Arms Version 2, sir.

 152 6 Was there any REAT testing conducted on

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 132 of 427
Kieper, Ronald - 12-19-2019 Objection Report 53

 152 7 the Combat Arms Version 2 before you did it in

 152 8 December of 1999?

152:11 - 152:11 Kieper, Ronald 12-19-2019

 152 11 A. I don't know.

152:16 - 152:17 Kieper, Ronald 12-19-2019

 152 16 Q. Okay. And so that had to be a little

 152 17 concerning, right?

Re: [152:16-152:22]

Def Objection - Foundation 

(602); asked; misstates (611, 

403)

Re: [152:16-

152:22]

Def Objection -

Foundation 

(602); asked; 

misstates (611, 

403)

SUSTAINED

152:20 - 152:22 Kieper, Ronald 12-19-2019

 152 20 BY THE WITNESS:

 152 21 A. I wasn't aware of it, so I couldn't be

 152 22 concerned.

Re: [152:16-152:22]

Def Objection - Foundation 

(602); asked; misstates (611, 

403)

Re: [152:16-

152:22]

Def Objection -

Foundation 

(602); asked; 

misstates (611, 

403)

SUSTAINED

157:18 - 157:19 Kieper, Ronald 12-19-2019

 157 18 Q. And you started that testing, sir, and you

 157 19 started on the open end in December of 1999, right?

Re: [157:18-157:24]

Def Objection - Vague (611, 

403)

Re: [157:18-

157:24]

Def Objection -

Vague (611, 

403)

OVERRULED

157:22 - 157:24 Kieper, Ronald 12-19-2019

 157 22 A. My recollection is that I tested both

 157 23 ends. I may have begun the same day or in

 157 24 approximately the same timeframe, yes.

Re: [157:18-157:24]

Def Objection - Vague (611, 

403)

Re: [157:18-

157:24]

Def Objection -

Vague (611, 

403)

OVERRULED

158:1 - 158:8 Kieper, Ronald 12-19-2019

 158 1 Q. Okay. You tested both ends. When you say

 158 2 "the ends," there is the open end or the yellow end,

 158 3 the nonlinear end, right?

 158 4 A. Yes.

 158 5 Q. And you tested the closed end or the green

Re: [158:1-158:8]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 133 of 427
Kieper, Ronald - 12-19-2019 Objection Report 54

 158 6 end or the continuous noise end in a separate set of

 158 7 tests, right?

 158 8 A. Yes.

158:23 - 159:2 Kieper, Ronald 12-19-2019

 158 23 Q. Let's kind of orient where we are at this

 158 24 point, sir, when you are starting this test.

 158 25 You have a product that is being sold on

 159 1 the market in late 1999, accepting Mr. Berger's email

 159 2 as accurate, correct, sir?

Re: [158:23-159:2]

401, 403, 602

OVERRULED

159:10 - 159:11 Kieper, Ronald 12-19-2019

 159 10 A. Again, I -- I was not aware of this memo

 159 11 before today.

Re: [159:10-159:11]

401, 403, 602

OVERRULED

159:15 - 159:16 Kieper, Ronald 12-19-2019

 159 15 You started running this test in December

 159 16 of 1999, and who killed the study on the closed 

end?

Re: [159:15-159:20]

Def Objection - Misstates; 

argumentative (611, 403)

Re: [159:15-

159:20]

Def Objection -

Misstates; 

argumentative 

(611, 403)

OVERRULED

159:19 - 159:20 Kieper, Ronald 12-19-2019

 159 19 A. Elliott would have told me to stop the

 159 20 test on the closed end.

Re: [159:15-159:20]

Def Objection - Misstates; 

argumentative (611, 403)

Re: [159:15-

159:20]

Def Objection -

Misstates; 

argumentative 

(611, 403)

OVERRULED

159:21 - 160:10 Kieper, Ronald 12-19-2019

 159 21 BY MR. BUCHANAN:

 159 22 Q. Because that's what happened, right?

 159 23 So you start running this study in

 159 24 December of 1999 and you have ten people 

identified

 159 25 for -- to test on both ends of the plug, isn't that

 160 1 right?

 160 2 A. I don't know how many people I had

 160 3 scheduled at the time.

 160 4 Q. You've identified test subjects to come in

 160 5 for testing on these plugs, right?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 134 of 427
Kieper, Ronald - 12-19-2019 Objection Report 55

 160 6 A. The test subjects come into the lab and

 160 7 they test whatever hearing protector. If you are

 160 8 talking about these, yes, they would have come to 

the

 160 9 lab and we would have tested one or the other end of

 160 10 this plug.

160:12 - 160:13 Kieper, Ronald 12-19-2019

 160 12 And did you test the open and the closed

 160 13 end on the same day?

160:16 - 160:16 Kieper, Ronald 12-19-2019

 160 16 A. I don't recall.

160:19 - 161:1 Kieper, Ronald 12-19-2019

 160 19 Q. And so how is this working? I mean, is

 160 20 Mr. Berger getting like real-time data from you on 

the

 160 21 NRRs you are getting with each subject as it goes

 160 22 along?

 160 23 Is that what you are doing?

 160 24 A. I communicate with Mr. Berger --

 160 25 communicated with him on a daily basis. I don't

 161 1 remember specifics.

Re: [160:19-161:21]

401, 403, 701

OVERRULED

161:2 - 161:10 Kieper, Ronald 12-19-2019

 161 2 Q. Well, see, I guess there is one way to run

 161 3 the study where you would try and figure out what

 161 4 attenuation your product had, and so you would run 

a

 161 5 test to discern what that attenuation is and you'd

 161 6 test everybody, you collect the data, and then you

 161 7 analyze the data to see what is NR -- what is our 

NRR

 161 8 we achieved by our test.

 161 9 That's one way to do the testing, you'd

 161 10 agree?

Re: [160:19-161:21]

401, 403, 701

OVERRULED

161:13 - 161:18 Kieper, Ronald 12-19-2019

 161 13 A. We could do the test that way.

 161 14 BY MR. BUCHANAN:

 161 15 Q. You could do it that way, right?

 161 16 A. Yes.

Re: [160:19-161:21]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 135 of 427
Kieper, Ronald - 12-19-2019 Objection Report 56

 161 17 Q. That sounds kind of scientific, doesn't

 161 18 it?

161:21 - 161:21 Kieper, Ronald 12-19-2019

 161 21 A. I don't know.

Re: [160:19-161:21]

401, 403, 701

OVERRULED

162:11 - 162:12 Kieper, Ronald 12-19-2019

 162 11 Q. You didn't test your products that way,

 162 12 did you?

Re: [162:11-162:15]

Def Objection - Misstates; 

vague; argumentative (611, 

403); 3M MIL No. 18

Re: [162:11-

162:15]

Def Objection -

Misstates; 

vague; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

162:14 - 162:24 Kieper, Ronald 12-19-2019

 162 14 BY THE WITNESS:

 162 15 A. Yes.

 162 16 BY MR. BUCHANAN:

 162 17 Q. The way you did it, you would test a

 162 18 subject, you would see what the NRR was for that

 162 19 particular subject, you would then test another

 162 20 subject, run your calculation to see what that NRR

 162 21 was, you'd be in real-time communication with

 162 22 Mr. Berger on what direction the test was going in,

 162 23 and then sometimes Mr. Berger would say, Kill the

 162 24 study, right?

Re: [162:11-162:15]

Def Objection - Misstates; 

vague; argumentative (611, 

403); 3M MIL No. 18

Re: [162:17-163:3]

Def Objection -

Argumentative; misstates 

(611, 403); foundation (602); 

3M MIL No. 18

Re: [162:11-

162:15]

Def Objection -

Misstates; 

vague; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

Re: [162:17-

163:3]

Def Objection -

Argumentative; 

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

162:17-24 

EXCLUDED as 

repetitive.

162:17 - 162:24 Kieper, Ronald 12-19-2019

 162 17 Q. The way you did it, you would test a

 162 18 subject, you would see what the NRR was for that

 162 19 particular subject, you would then test another

 162 20 subject, run your calculation to see what that NRR

 162 21 was, you'd be in real-time communication with

 162 22 Mr. Berger on what direction the test was going in,

Re: [162:17-163:3]

Def Objection -

Argumentative; misstates 

(611, 403); foundation (602); 

3M MIL No. 18

Re: [162:17-

163:3]

Def Objection -

Argumentative; 

misstates (611, 

403); 

foundation 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 136 of 427
Kieper, Ronald - 12-19-2019 Objection Report 57

 162 23 and then sometimes Mr. Berger would say, Kill the

 162 24 study, right?

(602); 3M MIL 

No. 18

OVERRULED

163:1 - 163:3 Kieper, Ronald 12-19-2019

 163 1 BY THE WITNESS:

 163 2 A. There were times when Elliott would stop a

 163 3 test.

Re: [162:17-163:3]

Def Objection -

Argumentative; misstates 

(611, 403); foundation (602); 

3M MIL No. 18

Re: [162:17-

163:3]

Def Objection -

Argumentative; 

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

163:5 - 163:7 Kieper, Ronald 12-19-2019

 163 5 Q. And you're giving him real-time data on

 163 6 what direction the study is going with regard to the

 163 7 NRR?

163:10 - 163:12 Kieper, Ronald 12-19-2019

 163 10 Q. Right?

 163 11 A. I don't recall talking to him specifically

 163 12 every day about any given test.

163:17 - 163:20 Kieper, Ronald 12-19-2019

 163 17 Q. You were keeping the lab director updated

 163 18 at his request, at Mr. Berger's request, on the NRRs

 163 19 you were getting as the study was going along, isn't

 163 20 that right?

Re: [163:17-163:24]

Def Objection - Misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [163:17-

163:24]

Def Objection -

Misstates; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

163:23 - 163:24 Kieper, Ronald 12-19-2019

 163 23 A. My recollection is that I would update him

 163 24 on how many people I had tested.

Re: [163:17-163:24]

Def Objection - Misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [163:17-

163:24]

Def Objection -

Misstates; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 137 of 427
Kieper, Ronald - 12-19-2019 Objection Report 58

164:1 - 164:1 Kieper, Ronald 12-19-2019

 164 1 Q. And the NRR you were getting, right?

Re: [164:1-164:5]

Def Objection - Misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [164:1-

164:5]

Def Objection -

Misstates; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

164:4 - 164:5 Kieper, Ronald 12-19-2019

 164 4 A. I would show him the results that we were

 164 5 getting, yes.

Re: [164:1-164:5]

Def Objection - Misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [164:1-

164:5]

Def Objection -

Misstates; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

164:7 - 164:10 Kieper, Ronald 12-19-2019

 164 7 Q. And you were computing the NRRs as each

 164 8 subject went through the tests, right?

 164 9 A. That wasn't my normal way to do things,

 164 10 no.

164:11 - 164:13 Kieper, Ronald 12-19-2019

 164 11 Q. Well, you were certainly checking in with

 164 12 Elliott before the test was final with the NRR you 

got

 164 13 as of that point in time, weren't you?

164:16 - 164:16 Kieper, Ronald 12-19-2019

 164 16 A. I was checking in with Elliott every day.

165:2 - 165:3 Kieper, Ronald 12-19-2019

 165 2 Q. And Elliott if he didn't like the NRR you

 165 3 were getting would sometimes kill the study, right?

Re: [165:2-165:7]

Def Objection - Foundation 

(602); misstates; 

argumentative; asked (611, 

403); 3M MIL No. 18

Re: [165:2-

165:7]

Def Objection -

Foundation

(602); 

misstates; 

argumentative; 

asked (611, 

403); 3M MIL 

No. 18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 138 of 427
Kieper, Ronald - 12-19-2019 Objection Report 59

165:6 - 165:7 Kieper, Ronald 12-19-2019

 165 6 A. I don't recall why -- I don't know why he

 165 7 would stop studies. He didn't tell me.

Re: [165:2-165:7]

Def Objection - Foundation 

(602); misstates; 

argumentative; asked (611, 

403); 3M MIL No. 18

Re: [165:2-

165:7]

Def Objection -

Foundation 

(602); 

misstates; 

argumentative; 

asked (611, 

403); 3M MIL 

No. 18

OVERRULED

165:9 - 165:11 Kieper, Ronald 12-19-2019

 165 9 Q. Who stopped 213015, the study you started

 165 10 in December of 2000 -- excuse me -- December of 

1999?

 165 11 Who gave the order?

Re: [165:9-165:15]

Def Objection - Foundation 

(602); 3M MIL No. 18; asked 

(611, 403)

Re: [165:9-

165:15]

Def Objection -

Foundation 

(602); 3M MIL 

No. 18; asked 

(611, 403)

OVERRULED

165:14 - 165:15 Kieper, Ronald 12-19-2019

 165 14 A. I would assume it was Elliott that told me

 165 15 to stop the test.

Re: [165:9-165:15]

Def Objection - Foundation 

(602); 3M MIL No. 18; asked

(611, 403)

Re: [165:9-

165:15]

Def Objection -

Foundation 

(602); 3M MIL 

No. 18; asked 

(611, 403)

OVERRULED

165:17 - 165:19 Kieper, Ronald 12-19-2019

 165 17 Q. Please tell the jury how many subjects you

 165 18 had already tested in that 10-person study?

 165 19 A. I believe we had tested eight people.

Re: [165:17-165:19]

Def Objection - 3M MIL No. 

18

Re: [165:17-

165:19]

Def Objection -

3M MIL No. 

18

OVERRULED

166:10 - 166:12 Kieper, Ronald 12-19-2019

 166 10 Please tell the jury the NRR you had

 166 11 computed for the eight people in the study that was

 166 12 killed or terminated by Mr. Berger?

Re: [166:10-166:16]

Def Objection - Misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [166:10-

166:16]

Def Objection -

Misstates; 

argumentative 

(611, 403); 3M 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 139 of 427
Kieper, Ronald - 12-19-2019 Objection Report 60

MIL No. 18

OVERRULED

166:15 - 166:16 Kieper, Ronald 12-19-2019

 166 15 A. For the eight subjects we had tested, the

 166 16 NRR would compute to around an 11.

Re: [166:10-166:16]

Def Objection - Misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [166:10-

166:16]

Def Objection -

Misstates; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

166:19 - 166:20 Kieper, Ronald 12-19-2019

 166 19 Q. How is that going to do with airplane

 166 20 noise --

Re: [166:19-167:3]

701, 401, 403, 602

OVERRULED

166:23 - 166:24 Kieper, Ronald 12-19-2019

 166 23 Q. -- and track vehicles and watercraft in

 166 24 terms of protection, sir?

Re: [166:19-167:3]

701, 401, 403, 602

OVERRULED

167:2 - 167:3 Kieper, Ronald 12-19-2019

 167 2 A. I don't know. It depends on how the

 167 3 person fits the plug.

Re: [166:19-167:3]

701, 401, 403, 602

OVERRULED

167:7 - 167:9 Kieper, Ronald 12-19-2019

 167 7 At the point in time Mr. Berger killed

 167 8 study 213015, you had already tested eight people,

 167 9 right?

Re: [167:7-167:12]

Def Objection - Misstates; 

asked (611, 403); 3M MIL No. 

18

Re: [167:7-

167:12]

Def Objection -

Misstates; 

asked (611, 

403); 3M MIL 

No. 18

OVERRULED

167:12 - 167:12 Kieper, Ronald 12-19-2019

 167 12 A. Yes, we tested eight people.

Re: [167:7-167:12]

Def Objection - Misstates; 

asked (611, 403); 3M MIL No. 

18

Re: [167:7-

167:12]

Def Objection -

Misstates; 

asked (611, 

403); 3M MIL 

No. 18

OVERRULED

167:14 - 167:15 Kieper, Ronald 12-19-2019

 167 14 Q. There was a need to get data out because

 167 15 the product was already being sold, right?

Re: [167:14-167:19]

Def Objection - Asked; 

Re: [167:14-

167:19]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 140 of 427
Kieper, Ronald - 12-19-2019 Objection Report 61

misstates (611, 403); 

foundation (602)

Asked; 

misstates (611, 

403); 

foundation 

(602)

SUSTAINED

167:19 - 167:19 Kieper, Ronald 12-19-2019

 167 19 A. I wasn't aware of it.

Re: [167:14-167:19]

Def Objection - Asked; 

misstates (611, 403); 

foundation (602)

Re: [167:14-

167:19]

Def Objection -

Asked; 

misstates (611, 

403); 

foundation 

(602)

SUSTAINED

167:25 - 168:2 Kieper, Ronald 12-19-2019

 167 25 Q. You see that certainly in Mr. Berger's

 168 1 correspondence that the product was already being

 168 2 sold, correct?

Re: [167:25-168:5]

Def Objection - Misstates; 

asked (611, 403); foundation 

(602)

Re: [167:25-

168:5]

Def Objection -

Misstates; 

asked (611, 

403); 

foundation 

(602)

OVERRULED

168:5 - 168:5 Kieper, Ronald 12-19-2019

 168 5 A. This e-mail says that, yes.

Re: [167:25-168:5]

Def Objection - Misstates; 

asked (611, 403); foundation 

(602)

Re: [167:25-

168:5]

Def Objection -

Misstates; 

asked (611, 

403); 

foundation 

(602)

OVERRULED

168:7 - 168:9 Kieper, Ronald 12-19-2019

 168 7 Q. Okay. So rather than get that data in

 168 8 January of 2000 with the NRR of 11, Mr. Berger did

 168 9 what?

Re: [168:7-168:13]

Def Objection - Misstates; 

asked; argumentative (611, 

403); foundation (602); 3M 

MIL No. 18

Re: [168:7-

168:13]

Def Objection -

Misstates; 

asked; 

argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 141 of 427
Kieper, Ronald - 12-19-2019 Objection Report 62

(611, 403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

168:12 - 168:16 Kieper, Ronald 12-19-2019

 168 12 A. Mr. Berger told me to stop the test after

 168 13 eight subjects.

 168 14 BY MR. BUCHANAN:

 168 15 Q. He was happy with the numbers he was

 168 16 getting on the open end?

Re: [168:7-168:13]

Def Objection - Misstates; 

asked; argumentative (611, 

403); foundation (602); 3M 

MIL No. 18

Re: [168:15-168:20]

Def Objection - Misstates 

(611, 403); foundation (602)

Re: [168:7-

168:13]

Def Objection -

Misstates; 

asked; 

argumentative 

(611, 403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

Re: [168:15-

168:20]

Def Objection -

Misstates (611, 

403); 

foundation 

(602)

OVERRULED

168:19 - 168:24 Kieper, Ronald 12-19-2019

 168 19 A. I don't recall him saying anything about

 168 20 it.

 168 21 BY MR. BUCHANAN:

 168 22 Q. Well, did he -- did he terminate the study

 168 23 on the open end?

 168 24 A. No.

Re: [168:15-168:20]

Def Objection - Misstates

(611, 403); foundation (602)

Re: [168:22-168:24]

Def Objection -

Argumentative (611, 403); 3M 

MIL No. 18

Re: [168:15-

168:20]

Def Objection -

Misstates (611, 

403); 

foundation 

(602)

OVERRULED

Re: [168:22-

168:24]

Def Objection -

Argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 142 of 427
Kieper, Ronald - 12-19-2019 Objection Report 63

169:17 - 169:22 Kieper, Ronald 12-19-2019

 169 17 Q. Okay. So with your testimony, sir, and in

 169 18 absence of any memory of a difference in the way 

you

 169 19 were fitting the yellow end from the green end, why

 169 20 did Mr. Berger, to your understanding, allow the

 169 21 yellow end of the study to continue but not the 

green

 169 22 end?

Re: [169:17-170:1]

Def Objection - Foundation 

(602); argumentative (611, 

403); 3M MIL No. 18

Re: [169:17-

170:1]

Def Objection -

Foundation 

(602); 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

169:25 - 170:3 Kieper, Ronald 12-19-2019

 169 25 A. He just allowed me to finish the test.

 170 1 I -- I don't recall specifically.

 170 2 BY MR. BUCHANAN:

 170 3 Q. Did he like that NRR better?

Re: [169:17-170:1]

Def Objection - Foundation 

(602); argumentative (611, 

403); 3M MIL No. 18

Re: [170:3-170:6]

Def Objection - Foundation 

(602); misstates; 

argumentative; vague (611, 

403)

Re: [169:17-

170:1]

Def Objection -

Foundation 

(602); 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

Re: [170:3-

170:6]

Def Objection -

Foundation 

(602); 

misstates; 

argumentative; 

vague (611, 

403)

SUSTAINED

170:6 - 170:6 Kieper, Ronald 12-19-2019

 170 6 A. I don't know.

Re: [170:3-170:6]

Def Objection - Foundation 

(602); misstates; 

argumentative; vague (611, 

403)

Re: [170:3-

170:6]

Def Objection -

Foundation 

(602); 

misstates; 

argumentative; 

vague (611, 

403)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 143 of 427
Kieper, Ronald - 12-19-2019 Objection Report 64

170:8 - 170:10 Kieper, Ronald 12-19-2019

 170 8 Q. Did he tell you that?

 170 9 A. I don't recall him saying anything about

 170 10 it.

192:3 - 192:8 Kieper, Ronald 12-19-2019

 192 3 Q. And you're moving through the testing

 192 4 process and you are testing the open end and you are

 192 5 testing the closed end and generating your data, and

 192 6 at some point in time, sir, before you've completed

 192 7 the test on the closed end you learn that you've got a

 192 8 problem, right?

192:11 - 192:11 Kieper, Ronald 12-19-2019

 192 11 A. No. I didn't have a problem, no.

192:13 - 192:13 Kieper, Ronald 12-19-2019

 192 13 Q. There was a problem with the plug, right?

192:16 - 192:22 Kieper, Ronald 12-19-2019

 192 16 A. No. The plugs were fine.

 192 17 BY MR. BUCHANAN:

 192 18 Q. Well, I guess sitting on a table they were

 192 19 fine, but when they were put in people, if the goal 

of

 192 20 the plug is to stay sealed and to prevent loud noises

 192 21 from getting in, the plug had a problem, right?

 192 22 MS. ELIZABETH: Objection; form, asked and

192:25 - 192:25 Kieper, Ronald 12-19-2019

 192 25 A. I didn't have a problem with it, no.

193:2 - 193:16 Kieper, Ronald 12-19-2019

 193 2 Q. Okay, sir. Let's just be clear. In

 193 3 December 1999, January 2000, you shared data 

from your

 193 4 first test on the closed end of the plug with

 193 5 Mr. Berger, right?

 193 6 A. That sounds right, yes.

 193 7 Q. He told you to stop the study, right?

 193 8 A. That's my recollection, yes.

 193 9 Q. He allowed the study or allowed you to

 193 10 continue the study with the open end, right?

 193 11 A. Yes, I finished that study.

Re: [193:12-193:20]

Def Objection - Misstates; 

argumentative (611, 403)

Re: [193:12-

193:20]

Def Objection -

Misstates; 

argumentative 

(611, 403)

OVERRULED

Re: [193:2-193:11]

802, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 144 of 427
Kieper, Ronald - 12-19-2019 Objection Report 65

 193 12 Q. Two studies going on at the same time, one

 193 13 on the open end, one on the closed end, and you 

show

 193 14 the data to Mr. Berger before you've completed 

either

 193 15 of them, he said, Terminate the study on the closed

 193 16 end, right?

193:19 - 193:20 Kieper, Ronald 12-19-2019

 193 19 A. That's -- I stopped the test at his

 193 20 direction, yes.

Re: [193:12-193:20]

Def Objection - Misstates; 

argumentative (611, 403)

Re: [193:12-

193:20]

Def Objection -

Misstates; 

argumentative 

(611, 403)

OVERRULED

193:25 - 194:2 Kieper, Ronald 12-19-2019

 193 25 You had observed some problems with the

 194 1 closed end of the plug, right, with your testing of

 194 2 the closed end of the plug, isn't that right, sir?

Re: [193:25-194:6]

Def Objection - Vague; asked; 

misstates (611, 403)

Re: [193:25-

194:6]

Def Objection -

Vague; asked; 

misstates (611, 

403)

OVERRULED

194:6 - 194:6 Kieper, Ronald 12-19-2019

 194 6 A. I don't recall that.

Re: [193:25-194:6]

Def Objection - Vague; asked; 

misstates (611, 403)

Re: [193:25-

194:6]

Def Objection -

Vague; asked; 

misstates (611, 

403)

OVERRULED

195:23 - 196:4 Kieper, Ronald 12-19-2019

 195 23 (WHEREUPON, a certain document was

 195 24 marked Ron Kieper Deposition Exhibit

 195 25 No. 14, for identification, as of

 196 1 12/19/2019.)

 196 2 BY MR. BUCHANAN:

 196 3 Q. I'm passing you Exhibit 14 to your

 196 4 deposition, sir.

Re: [195:23-196:4]

401, 403

OVERRULED

196:12 - 197:16 Kieper, Ronald 12-19-2019

 196 12 Q. Sir, before you is Exhibit 14. It is a

 196 13 memo from yourself to Mr. Elliott Berger.

Re: [196:12-197:16]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 145 of 427
Kieper, Ronald - 12-19-2019 Objection Report 66

 196 14 Do you see that?

 196 15 A. Yes, I do.

 196 16 Q. He was your boss at this point in time,

 196 17 right?

 196 18 A. Yes, he was.

 196 19 Q. It says: "Results of short-stemmed

 196 20 UltraFit Plug tests."

 196 21 Do you see that?

 196 22 A. Yes.

 196 23 Q. Okay. It says: "A short-stemmed UltraFit

 196 24 plug evaluated in tests 213015 and 213017 is the

 196 25 opposite end of the Combat Arms plug." It says:

 197 1 "(See attached drawing)." He continues further in 

the

 197 2 paragraph.

 197 3 Do you see where it talks about the

 197 4 initial test results?

 197 5 A. The initial test 213015.

 197 6 Q. Do you see that?

 197 7 A. I do.

 197 8 Q. Okay. "The initial test 213015 was

 197 9 stopped after eight subjects..."

 197 10 Do you see that?

 197 11 A. Yes.

 197 12 Q. And it says why, right?

 197 13 A. It says -- yes, it says "because."

 197 14 Q. "...because the results were variable and

 197 15 the NRR was" what, sir?

 197 16 A. It says "quite low."

197:21 - 197:22 Kieper, Ronald 12-19-2019

 197 21 In your words, sir, an NRR of 11 for a

 197 22 plug like this was quite low, right, sir?

Re: [197:21-197:25]

Def Objection - Misstates; 

argumentative (611, 403)

Re: [197:21-

197:25]

Def Objection -

Misstates; 

argumentative 

(611, 403)

OVERRULED

197:24 - 198:3 Kieper, Ronald 12-19-2019

 197 24 BY THE WITNESS:

 197 25 A. That's what I wrote in the memo, yes.

Re: [197:21-197:25]

Def Objection - Misstates; 

argumentative (611, 403)

Re: [197:21-

197:25]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 146 of 427
Kieper, Ronald - 12-19-2019 Objection Report 67

 198 1 BY MR. BUCHANAN:

 198 2 Q. And that test was stopped by Mr. Berger

 198 3 with knowledge of that, right, sir?

Re: [198:2-198:7]

Def Objection - Misstates; 

argumentative (611, 403); 

foundation (602); 3M MIL 

No. 18

Misstates;

argumentative 

(611, 403)

OVERRULED

Re: [198:2-

198:7]

Def Objection -

Misstates; 

argumentative 

(611, 403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

198:6 - 199:4 Kieper, Ronald 12-19-2019

 198 6 A. I don't know what his knowledge was, but

 198 7 he is the one that stopped the test, yes.

 198 8 BY MR. BUCHANAN:

 198 9 Q. Okay. And then you did a retest, right?

 198 10 A. Yes, we tested the plug again.

 198 11 Q. Okay. And you note there at the bottom:

 198 12 "For test 213017," again, you're testing the green 

end

 198 13 in test 213017, the closed end, right?

 198 14 A. Yes, that's correct.

 198 15 Q. And what you wrote, sir, was for that

 198 16 test: "The yellow flanges of the Combat Arms end 

of

 198 17 the plug were folded back prior to the plug being

 198 18 fit."

 198 19 Do you see that, sir?

 198 20 A. This is down at the bottom of Paragraph 2,

 198 21 yes.

 198 22 Q. That's correct, right?

 198 23 A. "The folded black" -- "The folded-back

 198 24 flanges provided a longer stem for the experimenter 

to

 198 25 grasp and allowed for a deeper and more consistent 

fit

Re: [198:2-198:7]

Def Objection - Misstates; 

argumentative (611, 403); 

foundation (602); 3M MIL 

No. 18

Re: [199:2-199:8]

Def Objection - Vague (611, 

403)

Re: [198:2-

198:7]

Def Objection -

Misstates; 

argumentative 

(611, 403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

Re: [199:2-

199:8]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [198:9-199:1]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 147 of 427
Kieper, Ronald - 12-19-2019 Objection Report 68

 199 1 of the plugs for test 213017."

 199 2 Q. And my question to you, sir, is that is

 199 3 what you did when you fit the plugs for test 213017,

 199 4 correct, sir?

199:7 - 199:11 Kieper, Ronald 12-19-2019

 199 7 A. That's what it says here. I don't recall

 199 8 the specific test.

 199 9 BY MR. BUCHANAN:

 199 10 Q. Well, you're not fussing with what you

 199 11 wrote, right?

Re: [199:2-199:8]

Def Objection - Vague (611, 

403)

Re: [199:10-199:14]

Def Objection -

Argumentative (611, 403); 

cumulative ( 403)

Re: [199:2-

199:8]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [199:10-

199:14]

Def Objection -

Argumentative 

(611, 403); 

cumulative ( 

403)

SUSTAINED

199:14 - 199:14 Kieper, Ronald 12-19-2019

 199 14 A. I'm saying that that's what I wrote, yes.

Re: [199:10-199:14]

Def Objection -

Argumentative (611, 403); 

cumulative ( 403)

Re: [199:10-

199:14]

Def Objection -

Argumentative 

(611, 403); 

cumulative ( 

403)

SUSTAINED

199:24 - 200:10 Kieper, Ronald 12-19-2019

 199 24 Q. Sir, what you -- this was a memo to your

 199 25 boss, correct?

 200 1 A. Yes.

 200 2 Q. About what you did, right?

 200 3 A. Yes.

 200 4 Q. In part about study 213017, correct, sir?

 200 5 A. Yes.

 200 6 Q. And what you wrote was for that test, "the

 200 7 yellow flanges of the Combat Arms end of the plug 

were

 200 8 folded back prior to the plug being fit."

Re: [199:24-200:10]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 148 of 427
Kieper, Ronald - 12-19-2019 Objection Report 69

 200 9 Did I read that correctly?

 200 10 A. Yes, you did.

201:15 - 201:17 Kieper, Ronald 12-19-2019

 201 15 Q. Okay. And sitting here today, sir, you

 201 16 don't have any different recollection of what you

 201 17 wrote, right?

201:18 - 201:19 Kieper, Ronald 12-19-2019

 201 18 A. I have no recollection on either side,

 201 19 yes.

Re: [201:18-201:19]

Plt Objection - beyond the 

scope of confirmation counter

Re: [201:18-

201:19]

Plt Objection -

beyond the 

scope of 

confirmation 

counter

SUSTAINED

201:22 - 201:24 Kieper, Ronald 12-19-2019

 201 22 Q. All right. And the problem that you had

 201 23 observed when you didn't fold back the flanges is 

also

 201 24 noted in this memo, right?

Re: [201:22-202:5]

Def Objection -

Argumentative (611, 403); 

cumulative (403)

Re: [201:22-

202:5]

Def Objection -

Argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

202:2 - 202:16 Kieper, Ronald 12-19-2019

 202 2 A. Let me look.

 202 3 Yes, it -- it lists some of the -- it

 202 4 says: "It was difficult to fit the plug deeply in

 202 5 some subjects' ear canals."

 202 6 BY MR. BUCHANAN:

 202 7 Q. Right.

 202 8 And so you had difficulty fitting the plug

 202 9 deeply in some subjects' ear canals, especially

 202 10 subjects with what size ear canals, sir?

 202 11 A. This states: "Especially those subjects

 202 12 with medium and larger ear canals."

 202 13 Q. Right.

 202 14 So you had difficulty fitting the plug

 202 15 deeply in subjects who had ear canals that were 

medium

 202 16 size, right?

Re: [201:22-202:5]

Def Objection -

Argumentative (611, 403); 

cumulative (403)

Re: [202:13-202:19]

Def Objection - Cumulative 

(403)

Re: [201:22-

202:5]

Def Objection -

Argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

Re: [202:13-

202:19]

Def Objection -

Cumulative 

(403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 149 of 427
Kieper, Ronald - 12-19-2019 Objection Report 70

202:19 - 202:21 Kieper, Ronald 12-19-2019

 202 19 A. It -- yeah, that's what it states here.

 202 20 BY MR. BUCHANAN:

 202 21 Q. Large size?

Re: [202:13-202:19]

Def Objection - Cumulative 

(403)

Re: [202:21-202:25]

Def Objection - Foundation 

(602)

Re: [202:13-

202:19]

Def Objection -

Cumulative 

(403)

OVERRULED

Re: [202:21-

202:25]

Def Objection -

Foundation 

(602)

OVERRULED

202:24 - 203:3 Kieper, Ronald 12-19-2019

 202 24 A. Yes. It says "medium and larger ear

 202 25 canals."

 203 1 BY MR. BUCHANAN:

 203 2 Q. And that would also include extra large,

 203 3 right?

Re: [202:21-202:25]

Def Objection - Foundation 

(602)

Re: [203:2-203:7]

Def Objection - Cumulative 

(403)

Re: [202:21-

202:25]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [203:2-

203:7]

Def Objection -

Cumulative 

(403)

OVERRULED

203:6 - 203:12 Kieper, Ronald 12-19-2019

 203 6 A. Larger would, yes, it would include large

 203 7 and extra large.

 203 8 BY MR. BUCHANAN:

 203 9 Q. And, please, sir, I mean, you fit a lot of

 203 10 folks over the years, what is it, about 70, 80 percent

 203 11 of the people have medium, large, extra large ear

 203 12 canals?

Re: [203:2-203:7]

Def Objection - Cumulative 

(403)

Re: [203:9-203:15]

Def Objection - Foundation 

(602)

Re: [203:2-

203:7]

Def Objection -

Cumulative 

(403)

OVERRULED

Re: [203:9-

203:15]

Def Objection -

Foundation 

(602)

SUSTAINED

203:15 - 204:3 Kieper, Ronald 12-19-2019

 203 15 A. I -- I don't know that data.

 203 16 BY MR. BUCHANAN:

Re: [203:9-203:15]

Def Objection - Foundation 

(602)

Re: [203:9-

203:15]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 150 of 427
Kieper, Ronald - 12-19-2019 Objection Report 71

 203 17 Q. You don't have those stats, sir?

 203 18 A. No, I don't.

 203 19 Q. You also noted here in your memo, sir --

 203 20 and you wrote this memo, right?

 203 21 A. Yes, I believe I did.

 203 22 Q. Okay. You also wrote: "Additionally, the

 203 23 geometry of the ear canal opening sometimes 

inhibited

 203 24 the deep plug insertion required for maximum

 203 25 attenuation values."

 204 1 Did I read that correctly?

 204 2 A. You did.

 204 3 Q. And that was true, right?

Re: [203:15-203:18]

Def Objection - Foundation 

(602)

Re: [204:3-204:7]

Def Objection -

Argumentative (611, 403); 

cumulative (403)

Foundation 

(602)

SUSTAINED

Re: [203:15-

203:18]

Def Objection -

Foundation 

(602)

SUSTAINED

Re: [204:3-

204:7]

Def Objection -

Argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

204:6 - 204:9 Kieper, Ronald 12-19-2019

 204 6 A. That's what I wrote, so I believed that to

 204 7 be true at that time, yes.

 204 8 BY MR. BUCHANAN:

 204 9 Q. You wrote it because it happened, right?

Re: [204:3-204:7]

Def Objection -

Argumentative (611, 403); 

cumulative (403)

Re: [204:9-204:14]

Def Objection - Asked; 

misstates; argumentative (611, 

403); cumulative (403)

Re: [204:3-

204:7]

Def Objection -

Argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

Re: [204:9-

204:14]

Def Objection -

Asked; 

misstates; 

argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

204:12 - 204:14 Kieper, Ronald 12-19-2019

 204 12 A. Yes, sometimes the plug -- sometimes the

 204 13 geometry of the ear canal opening would inhibit the

 204 14 deep insertion of the plug.

Re: [204:9-204:14]

Def Objection - Asked; 

misstates; argumentative (611, 

403); cumulative (403)

Re: [204:9-

204:14]

Def Objection -

Asked; 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 151 of 427
Kieper, Ronald - 12-19-2019 Objection Report 72

misstates; 

argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

204:15 - 204:20 Kieper, Ronald 12-19-2019

 204 15 BY MR. BUCHANAN:

 204 16 Q. And you note that: "When this plug was

 204 17 fitted," and when we are talking about this plug, we

 204 18 are talking about the Combat Arms plug, right?

 204 19 A. We are talking about the green end of the

 204 20 Combat Arms plug.

Re: [204:15-204:20]

401, 403

OVERRULED

204:21 - 204:22 Kieper, Ronald 12-19-2019

 204 21 Q. Right. And with the -- this is referring,

 204 22 of course, to the first test 213015, right?

204:25 - 204:25 Kieper, Ronald 12-19-2019

 204 25 A. It speaks to both tests, so I don't know.

205:2 - 205:11 Kieper, Ronald 12-19-2019

 205 2 Q. It speaks to the situation when the third

 205 3 flange isn't folded back, right?

 205 4 A. It says: "The third flange of the Combat

 205 5 Arms plug could press against the subject's ear canal

 205 6 opening and fold up."

 205 7 Q. Right.

 205 8 You understand that to be referring to the

 205 9 opposite side of the Combat Arms, in this case the

 205 10 yellow, the third yellow flange when you are 

inserting

 205 11 the green flanges in?

Re: [205:8-205:14]

Def Objection - Vague (611, 

403)

Re: [205:8-

205:14]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [205:2-205:7]

401, 403

OVERRULED

205:14 - 205:17 Kieper, Ronald 12-19-2019

 205 14 A. Yes, I think that's -- that's true.

 205 15 BY MR. BUCHANAN:

 205 16 Q. And that was in fact true, right, that's

 205 17 what happened?

Re: [205:8-205:14]

Def Objection - Vague (611, 

403)

Re: [205:16-205:20]

Def Objection - Asked; 

argumentative (611, 403); 

cumulative (403)

Re: [205:8-

205:14]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [205:16-

205:20]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 152 of 427
Kieper, Ronald - 12-19-2019 Objection Report 73

Asked; 

argumentative 

(611, 403); 

cumulative 

(403)

SUSTAINED

205:20 - 205:22 Kieper, Ronald 12-19-2019

 205 20 A. That's what I wrote, yes.

 205 21 BY MR. BUCHANAN:

 205 22 Q. And you wrote it because it happened?

Re: [205:16-205:20]

Def Objection - Asked; 

argumentative (611, 403); 

cumulative (403)

Re: [205:22-205:25]

Def Objection -

Argumentative (611, 403); 

foundation (602)

Re: [205:16-

205:20]

Def Objection -

Asked; 

argumentative 

(611, 403); 

cumulative 

(403)

SUSTAINED

Re: [205:22-

205:25]

Def Objection -

Argumentative 

(611, 403); 

foundation 

(602)

SUSTAINED 

through 206:1

205:25 - 206:8 Kieper, Ronald 12-19-2019

 205 25 A. I -- I don't recall, but I probably

 206 1 observed that, that's why I would write that, yes.

 206 2 BY MR. BUCHANAN:

 206 3 Q. Okay. And then it continues: "When the

 206 4 inward pressure to the UltraFit Plug was released, 

the

 206 5 Combat Arms flanges tended to return to their

original

 206 6 shape."

 206 7 That was an observation you had when you

 206 8 were working with this product in people, sir?

Re: [205:22-205:25]

Def Objection -

Argumentative (611, 403); 

foundation (602)

Re: [205:22-

205:25]

Def Objection -

Argumentative 

(611, 403); 

foundation 

(602)

SUSTAINED 

through 206:1

Re: [206:1-206:12]

401, 403, 602

OVERRULED

206:11 - 206:18 Kieper, Ronald 12-19-2019

 206 11 A. I probably saw it and that's why I wrote

 206 12 it down. I don't recall specifically.

Re: [206:14-206:18]

Def Objection - cumulative 

(403)

Re: [206:14-

206:18]

Def Objection -

Re: [206:1-206:12]

401, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 153 of 427
Kieper, Ronald - 12-19-2019 Objection Report 74

 206 13 BY MR. BUCHANAN:

 206 14 Q. Well, you certainly memorialized that

 206 15 observation in a memo that you sent to your boss,

 206 16 true, sir?

 206 17 A. I wrote down what I observed in this memo

 206 18 and gave it to my boss.

cumulative 

(403)

OVERRULED

206:19 - 206:20 Kieper, Ronald 12-19-2019

 206 19 Q. Because it was -- you thought it was

 206 20 important for him to have it, right?

206:23 - 206:25 Kieper, Ronald 12-19-2019

 206 23 A. I don't know what my thinking was. That

 206 24 was -- this is what I would typically do to follow up

 206 25 with a test.

207:2 - 207:4 Kieper, Ronald 12-19-2019

 207 2 Q. You also characterized what could happen

 207 3 as a result of inserting the plug without folding back

 207 4 the flanges on the opposing side, right?

Re: [207:2-207:19]

602, 701

OVERRULED

207:7 - 207:8 Kieper, Ronald 12-19-2019

 207 7 A. This could happen in some -- in some

 207 8 cases.

Re: [207:2-207:19]

602, 701

OVERRULED

207:10 - 207:20 Kieper, Ronald 12-19-2019

 207 10 Q. What you said was that this third flan --

 207 11 flange pressing against the user's ear could loosen

 207 12 the plug.

 207 13 Didn't you write that, sir?

 207 14 A. Let's see.

 207 15 "The third flange could press against the

 207 16 subject's ear canal opening and fold up. When 

inward

 207 17 pressure on the plug was released, the flanges 

tended

 207 18 to return to their original shape and this could

 207 19 loosen the plugs," yes.

 207 20 Q. Okay. And that's not a good thing, right?

Re: [207:20-207:23]

Def Objection - vague; 

argumentative (611, 403)

Re: [207:20-

207:23]

Def Objection -

vague;

argumentative 

(611, 403)

OVERRULED

Re: [207:2-207:19]

602, 701

OVERRULED

207:23 - 208:8 Kieper, Ronald 12-19-2019

 207 23 A. You want the plug to be in securely, yes.

 207 24 BY MR. BUCHANAN:

 207 25 Q. Right, because you want to provide

Re: [207:20-207:23]

Def Objection - vague; 

argumentative (611, 403)

Re: [207:20-

207:23]

Def Objection -

vague; 

Re: [207:24-208:4]

403, 401, 701, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 154 of 427
Kieper, Ronald - 12-19-2019 Objection Report 75

 208 1 protection with a hearing protection device, right?

 208 2 A. My goal was to obtain a best fit and get

 208 3 the most protection that the person could get with

 208 4 that plug.

 208 5 Q. And what you found, sir, is that if you

 208 6 didn't flip back the flanges, the plug or the opposing

 208 7 flanges would press against the ear and loosen the

 208 8 plug, right?

Re: [208:5-208:11]

Def Objection -

argumentative; misstates (611, 

403)

argumentative 

(611, 403)

OVERRULED

Re: [208:5-

208:11]

Def Objection -

argumentative; 

misstates (611, 

403)

OVERRULED

208:11 - 208:17 Kieper, Ronald 12-19-2019

 208 11 A. In some cases that happened.

 208 12 BY MR. BUCHANAN:

 208 13 Q. You don't have any recollection of your

 208 14 results apart from your memos, right, sir?

 208 15 A. No, that's correct.

 208 16 Q. And what you wrote is that this could

 208 17 happen imperceptibly to the test subject, right?

Re: [208:5-208:11]

Def Objection -

argumentative; misstates (611, 

403)

Re: [208:5-

208:11]

Def Objection -

argumentative; 

misstates (611, 

403)

OVERRULED

Re: [208:13-208:20]

602, 401, 403, leading

OVERRULED

208:19 - 208:20 Kieper, Ronald 12-19-2019

 208 19 BY THE WITNESS:

 208 20 A. Yes, that's what I wrote.

Re: [208:13-208:20]

602, 401, 403, leading

OVERRULED

210:12 - 210:20 Kieper, Ronald 12-19-2019

 210 12 Q. Okay. And the observation you noted in

 210 13 your memo at the time, and before, frankly, this

 210 14 became a bit of a situation for the company, is that

 210 15 this issue with the opposing flanges pressing on the

 210 16 ears could cause the plugs to loosen in an

 210 17 imperceptible way to the subjects, right, sir?

 210 18 A. That's what is written, yes.

 210 19 Q. Okay. And you don't disagree with that,

 210 20 do you, sir?

Re: [210:12-210:25]

Def Objection - asked; 

argumentative (611, 403), 

cumulative (403)

Re: [210:12-

210:25]

Def Objection -

asked; 

argumentative 

(611, 403), 

cumulative 

(403)

SUSTAINED

210:23 - 211:4 Kieper, Ronald 12-19-2019

 210 23 A. That it sometimes happened and it was

 210 24 imperceptible to the subjects, no, I don't disagree

 210 25 with that.

 211 1 BY MR. BUCHANAN:

 211 2 Q. People were unaware that hearing

 211 3 protection that they thought was seated was not

 211 4 seated, correct?

Re: [210:12-210:25]

Def Objection - asked; 

argumentative (611, 403), 

cumulative (403)

Re: [211:2-211:8]

Def Objection - foundation 

(602); vague (611, 403)

Re: [210:12-

210:25]

Def Objection -

asked; 

argumentative 

(611, 403), 

cumulative 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 155 of 427
Kieper, Ronald - 12-19-2019 Objection Report 76

(403)

SUSTAINED

Re: [211:2-

211:8]

Def Objection -

foundation 

(602); vague 

(611, 403)

OVERRULED

211:7 - 211:8 Kieper, Ronald 12-19-2019

 211 7 A. They were not aware that the plug had

 211 8 loosened.

Re: [211:2-211:8]

Def Objection - foundation 

(602); vague (611, 403)

Re: [211:2-

211:8]

Def Objection -

foundation 

(602); vague 

(611, 403)

OVERRULED

211:16 - 211:20 Kieper, Ronald 12-19-2019

 211 16 BY MR. BUCHANAN:

 211 17 Q. When you don't get a good seal.

 211 18 A. Yes.

 211 19 Q. An outside noise gets around the hearing

 211 20 protector, what happens when that happens?

Re: [211:10-211:23]

401, 403, 701, 602

OVERRULED

211:23 - 211:23 Kieper, Ronald 12-19-2019

 211 23 A. The person hears the noise.

Re: [211:10-211:23]

401, 403, 701, 602

OVERRULED

212:15 - 212:19 Kieper, Ronald 12-19-2019

 212 15 Q. So the problem you observed with the green

 212 16 end being in the ear and imperceptibly loosening 

when

 212 17 the yellow flanges contacted the ear -- let's pause

 212 18 for a second.

 212 19 You agree that's what you observed, right?

Re: [212:10-212:19]

401, 403, 701

OVERRULED

212:22 - 213:1 Kieper, Ronald 12-19-2019

 212 22 A. Yes, that's what I wrote in the memo, yes.

 212 23 BY MR. BUCHANAN:

 212 24 Q. Also applies when you try to put the

 212 25 yellow end in and you have the green end pressing

 213 1 against the ear, right, sir?

Re: [212:22-213:5]

401, 403, 701, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 156 of 427
Kieper, Ronald - 12-19-2019 Objection Report 77

213:4 - 213:5 Kieper, Ronald 12-19-2019

 213 4 A. I don't -- I don't know. I don't recall

 213 5 seeing that.

Re: [212:22-213:5]

401, 403, 701, 602

OVERRULED

213:15 - 213:18 Kieper, Ronald 12-19-2019

 213 15 BY MR. BUCHANAN:

 213 16 Q. You can't think of any reason why the

 213 17 problem wouldn't exist with both ends of the plug,

 213 18 right, sir?

Re: [213:7-213:15]

Def Objection - 701; 

foundation (602); asked (611, 

403)

Re: [213:16-213:21]

Def Objection -

argumentative, asked (611, 

403); foundation (602)

Re: [213:7-

213:15]

Def Objection -

701; foundation 

(602); asked 

(611, 403)

OVERRULED

Re: [213:16-

213:21]

Def Objection -

argumentative, 

asked (611, 

403); 

foundation 

(602)

OVERRULED

213:21 - 213:21 Kieper, Ronald 12-19-2019

 213 21 A. It could -- it could be a problem, yes.

Re: [213:16-213:21]

Def Objection -

argumentative, asked (611, 

403); foundation (602)

Re: [213:16-

213:21]

Def Objection -

argumentative, 

asked (611, 

403); 

foundation 

(602)

OVERRULED

213:23 - 214:3 Kieper, Ronald 12-19-2019

 213 23 Q. Well, based on your experience in fitting

 213 24 the plug, knowing that the flanges on both sides are

 213 25 the same, you can't think of any reason why the

 214 1 observation you had when the green end was being

 214 2 inserted wouldn't also apply to when the yellow end

 214 3 was inserted, correct, sir?

214:6 - 214:7 Kieper, Ronald 12-19-2019

 214 6 A. I don't recall seeing a problem when I was

 214 7 fitting the yellow end.

Re: [214:6-214:6]

Plt Objection - beyond the 

scope of clarification counter 

Re: [214:6-

214:7]

Plt Objection -

beyond the 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 157 of 427
Kieper, Ronald - 12-19-2019 Objection Report 78

and is non responsive to the 

question

Re: [214:7-214:7]

Plt Objection - beyond the 

scope of clarification counter 

and is non responsive to the 

question

scope of 

clarification 

counter and is 

non responsive 

to the question

OVERRULED

214:9 - 214:13 Kieper, Ronald 12-19-2019

 214 9 Q. Well, I'm wondering, sir, you got a 0 NRR

 214 10 on the yellow end, right?

 214 11 A. Yes.

 214 12 Q. Your boss was happy with that one, wasn't

 214 13 he?

Re: [214:12-214:16]

Def Objection - foundation 

(602); argumentative (611, 

403)

Re: [214:12-

214:16]

Def Objection -

foundation 

(602); 

argumentative 

(611, 403)

SUSTAINED

214:16 - 214:16 Kieper, Ronald 12-19-2019

 214 16 A. I don't know.

Re: [214:12-214:16]

Def Objection - foundation 

(602); argumentative (611, 

403)

Re: [214:12-

214:16]

Def Objection -

foundation 

(602); 

argumentative 

(611, 403)

SUSTAINED

215:8 - 215:10 Kieper, Ronald 12-19-2019

 215 8 When you brought to him the results of the

 215 9 first eight subjects with the green end and the yellow

 215 10 end, which study did Mr. Berger say could 

continue?

Re: [215:8-215:10]

401, 403, 802

OVERRULED

215:13 - 215:16 Kieper, Ronald 12-19-2019

 215 13 A. I completed the yellow end test.

 215 14 BY MR. BUCHANAN:

 215 15 Q. Okay. And which study did he say to stop?

 215 16 A. The green end test.

Re: [215:13-215:21]

401, 403

OVERRULED

221:1 - 221:7 Kieper, Ronald 12-19-2019

 221 1 BY MR. BUCHANAN:

 221 2 Q. Okay. Did your boss express to you that

 221 3 you clearly had a problem with this product?

 221 4 A. I don't recall him -- I don't recall any

 221 5 conversations about this product.

Re: [221:6-221:11]

Def Objection -

argumentative; misstates (611, 

403); foundation (602)

Re: [221:6-

221:11]

Def Objection -

argumentative; 

misstates (611, 

403); 

Re: [221:2-221:5]

602, 401, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 158 of 427
Kieper, Ronald - 12-19-2019 Objection Report 79

 221 6 Q. There was a problem with the product. Did

 221 7 you know it was perceived that way by your boss?

foundation 

(602)

SUSTAINED

221:10 - 221:11 Kieper, Ronald 12-19-2019

 221 10 A. No, I didn't know that was what his

 221 11 thinking was.

Re: [221:6-221:11]

Def Objection -

argumentative; misstates (611, 

403); foundation (602)

Re: [221:6-

221:11]

Def Objection -

argumentative; 

misstates (611, 

403); 

foundation 

(602)

SUSTAINED

221:13 - 222:4 Kieper, Ronald 12-19-2019

 221 13 (WHEREUPON, a certain document was

 221 14 marked Ron Kieper Deposition Exhibit

 221 15 No. 15, for identification, as of

 221 16 12/19/2019.)

 221 17 BY MR. BUCHANAN:

 221 18 Q. I am passing you, sir, Exhibit 15 to your

 221 19 deposition.

 221 20 Exhibit 15, sir, is an e-mail from

 221 21 Mr. Berger. That's your boss at the time, right?

 221 22 A. Yes.

 221 23 Q. To Brian Myers.

 221 24 Who is he, sir?

 221 25 A. Another employee of 3M. He may have been

 222 1 Elliott's boss at that time. I don't recall.

 222 2 Q. Okay. And the lab was actually reporting

 222 3 in to Mr. Myers at this point in time, isn't that

 222 4 true?

Re: [221:18-222:1]

Def Objection - relevance 

(401, 402); Prejudice (403)

Re: [222:2-222:8]

Def Objection - vague (611, 

403); foundation (602)

Re: [221:18-

222:1]

Def Objection -

relevance (401, 

402); Prejudice 

(403)

OVERRULED

Re: [222:2-

222:8]

Def Objection -

vague (611, 

403); 

foundation 

(602)

OVERRULED

Re: [221:13-221:16]

602

OVERRULED

222:7 - 222:8 Kieper, Ronald 12-19-2019

 222 7 A. If he was Elliott's boss, that -- that

 222 8 could be the case, yes.

Re: [222:2-222:8]

Def Objection - vague (611, 

403); foundation (602)

Re: [222:2-

222:8]

Def Objection -

vague (611, 

403); 

foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 159 of 427
Kieper, Ronald - 12-19-2019 Objection Report 80

222:10 - 222:10 Kieper, Ronald 12-19-2019

 222 10 Q. And he was a business guy, right?

Re: [222:10-222:14]

Def Objection - vague (611, 

403); foundation (602)

Re: [222:10-

222:14]

Def Objection -

vague (611, 

403); 

foundation 

(602)

OVERRULED

222:13 - 223:1 Kieper, Ronald 12-19-2019

 222 13 A. I'm -- I don't know what his background or

 222 14 what his specific job was.

 222 15 BY MR. BUCHANAN:

 222 16 Q. The memo from -- or the e-mail from

 222 17 Mr. Berger to Mr. Myers dated the day after the 

memo

 222 18 we just looked at, the one you wrote, do you see 

that?

 222 19 A. Yes, I see that.

 222 20 Q. Okay. It says: "Here are data on the

 222 21 UltraFit end of the Combat Arms. Note the original

 222 22 study was stopped with eight subjects. The second

 222 23 study was with the folded-back flanges on the end

 222 24 sticking out of the ear."

 222 25 Did I read that correctly?

 223 1 A. Yes, you did.

Re: [222:10-222:14]

Def Objection - vague (611, 

403); foundation (602)

Re: [222:16-223:1]

Def Objection - relevance 

(401, 402); Prejudice (403)

Re: [222:10-

222:14]

Def Objection -

vague (611, 

403); 

foundation 

(602)

OVERRULED

Re: [222:16-

223:1]

Def Objection -

relevance (401, 

402); Prejudice 

(403)

OVERRULED

223:2 - 223:2 Kieper, Ronald 12-19-2019

 223 2 Q. And that's how you ran the study, right?

223:5 - 223:6 Kieper, Ronald 12-19-2019

 223 5 A. That's what the memo says. I don't have a

 223 6 direct recollection of -- of doing this test.

223:8 - 223:13 Kieper, Ronald 12-19-2019

 223 8 Q. You don't have a different understanding

 223 9 of how you did that test, do you, sir?

 223 10 A. I don't have any understanding of how I

 223 11 did it.

 223 12 Q. Okay. No reason to disagree with that

 223 13 sentence then, fair?

223:16 - 223:18 Kieper, Ronald 12-19-2019

 223 16 A. No, there is no reason for me to -- I

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 160 of 427
Kieper, Ronald - 12-19-2019 Objection Report 81

 223 17 don't -- I don't know -- I hadn't seen this before, so

 223 18 I wasn't aware of this, no.

223:20 - 223:21 Kieper, Ronald 12-19-2019

 223 20 Q. You hadn't seen this before today?

 223 21 A. I don't believe so.

223:22 - 224:11 Kieper, Ronald 12-19-2019

 223 22 Q. Okay. It says: "The second" -- "The

 223 23 second study was with the folded-back flanges on 

the

 223 24 end sticking out of the ear."

 223 25 Do you see that?

 224 1 A. Yes.

 224 2 Q. And then there is a question to Mr. Myers

 224 3 from Mr. Berger.

 224 4 "Should I share this with Ohlin?"

 224 5 Do you see that?

 224 6 A. Yes.

 224 7 Q. And then it continues.

 224 8 "It looks like the existing product has

 224 9 problems." Let's pause there.

 224 10 Did Mr. Berger ever share with you his

 224 11 view that the existing product had problems?

Re: [224:7-224:14]

Def Objection - prejudice 

(403); foundation (602); 

vague; misstates (611, 403)

Re: [224:7-

224:14]

Def Objection -

prejudice 

(403); 

foundation 

(602); vague; 

misstates (611, 

403)

OVERRULED

Re: [223:22-224:6]

602, 401, 403

OVERRULED

224:14 - 224:14 Kieper, Ronald 12-19-2019

 224 14 A. Not that I recall.

Re: [224:7-224:14]

Def Objection - prejudice 

(403); foundation (602); 

vague; misstates (611, 403)

Re: [224:7-

224:14]

Def Objection -

prejudice 

(403); 

foundation 

(602); vague; 

misstates (611, 

403)

OVERRULED

224:16 - 224:18 Kieper, Ronald 12-19-2019

 224 16 Q. Did he ever share with you at this point

 224 17 in time that you were already selling this version of

 224 18 the product?

Re: [224:16-224:22]

Def Objection - vague; 

misstates; asked (611, 403); 

foundation (602)

Re: [224:16-

224:22]

Def Objection -

vague; 

misstates; 

asked (611, 

403); 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 161 of 427
Kieper, Ronald - 12-19-2019 Objection Report 82

foundation 

(602)

OVERRULED

224:22 - 224:22 Kieper, Ronald 12-19-2019

 224 22 A. No.

Re: [224:16-224:22]

Def Objection - vague; 

misstates; asked (611, 403); 

foundation (602)

Re: [224:16-

224:22]

Def Objection -

vague; 

misstates; 

asked (611, 

403); 

foundation 

(602)

OVERRULED

225:4 - 225:6 Kieper, Ronald 12-19-2019

 225 4 Q. Did you direct anybody, sir, that the

 225 5 Combat Arms when worn should have the flanges 

folded

 225 6 back in the same manner that you tested them?

Re: [225:4-225:10]

Def Objection - misstates 

(611, 403); MIL No. 18

Re: [225:4-

225:10]

Def Objection -

misstates (611, 

403); MIL No. 

18

OVERRULED

225:9 - 225:10 Kieper, Ronald 12-19-2019

 225 9 A. I didn't have any input on the

 225 10 instructions or...

Re: [225:4-225:10]

Def Objection - misstates 

(611, 403); MIL No. 18

Re: [225:4-

225:10]

Def Objection -

misstates (611, 

403); MIL No.

18

OVERRULED

226:4 - 226:13 Kieper, Ronald 12-19-2019

 226 4 (WHEREUPON, a certain document was

 226 5 marked Ron Kieper Deposition Exhibit

 226 6 No. 16, for identification, as of

 226 7 12/19/2019.)

 226 8 BY MR. BUCHANAN:

 226 9 Q. Before you now, sir, is Exhibit --

 226 10 Exhibit 16 to your examination. It's a technical

 226 11 report. It's got a number in the middle. Do you see

 226 12 that? E-A-R 00-12/HP. Do you see that?

 226 13 A. Yes.

Re: [226:4-226:13]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 162 of 427
Kieper, Ronald - 12-19-2019 Objection Report 83

226:19 - 227:4 Kieper, Ronald 12-19-2019

 226 19 Q. Okay. And you are the lead author on

 226 20 this?

 226 21 A. Yes.

 226 22 Q. Okay. For the record, Exhibit 16 is a

 226 23 report entitled: "How Folding the Flanges Back

 226 24 Affects REAT Results of the UltraFit Earplug End 

of

 226 25 the Combat Arms Plug."

 227 1 Do you see that, sir?

 227 2 A. Yes.

 227 3 Q. It is dated July 10, 2000?

 227 4 A. Yes.

Re: [226:19-227:12]

401, 403

OVERRULED

228:15 - 228:24 Kieper, Ronald 12-19-2019

 228 15 Q. I take it, sir, that before you came in to

 228 16 talk to us today on the record with our jury, you had

 228 17 a chance to review this?

 228 18 A. Yes, I've looked at this.

 228 19 Q. As part of your preparation for today?

 228 20 A. Yes.

 228 21 Q. Okay. Let's look at this.

 228 22 And this is kind of a beefed up version of

 228 23 that memo that we looked at from May of 2000 that 

you

 228 24 wrote yourself to Mr. Berger, is that right?

Re: [228:21-229:3]

Def Objection -

argumentative; vague (611, 

403)

Re: [228:21-

229:3]

Def Objection -

argumentative; 

vague (611, 

403)

OVERRULED

Re: [228:15-228:20]

401, 403

OVERRULED

229:2 - 230:4 Kieper, Ronald 12-19-2019

 229 2 A. There is -- there is more to it than just

 229 3 the memo, yes.

 229 4 BY MR. BUCHANAN:

 229 5 Q. Okay. And I'd like to -- this -- I'd like

 229 6 to start with the test procedure, okay?

 229 7 A. Okay.

 229 8 Q. Under the heading Test Procedure, you are

 229 9 talking about these two tests 213015 and 213017,

 229 10 correct, sir?

 229 11 A. Yes.

 229 12 Q. Okay. It says: "Both tests followed the

 229 13 S3.19-1974, Experimenter-Fit, protocol."

 229 14 Do you see that?

Re: [228:21-229:3]

Def Objection -

argumentative; vague (611, 

403)

Re: [229:25-230:4]

Def Objection - relevance 

(401, 402)

Re: [228:21-

229:3]

Def Objection -

argumentative; 

vague (611, 

403)

OVERRULED

Re: [229:25-

230:4]

Def Objection -

relevance (401, 

402)

OVERRULED

Re: [229:4-229:24]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 163 of 427
Kieper, Ronald - 12-19-2019 Objection Report 84

 229 15 A. Yes.

 229 16 Q. And you described what you did.

 229 17 They were tested three times each on the

 229 18 subjects from your lab test panel, right?

 229 19 A. Yes.

 229 20 Q. Okay. So that means these are those folks

 229 21 that you have already prescreened and qualified, not

 229 22 some sample from the general population, right?

 229 23 A. Yes, these were test subjects on our test

 229 24 panel.

 229 25 Q. Okay. Some of whom were employees, right?

 230 1 A. Yes.

 230 2 Q. Some of whom were relatives of employees,

 230 3 right?

 230 4 A. Yes.

230:18 - 230:23 Kieper, Ronald 12-19-2019

 230 18 Q. It says: "For 213015, the plugs were fit

 230 19 according to the standard plug's fitting

 230 20 instructions," right?

 230 21 A. Yes, it says that.

 230 22 Q. "With no modifications," right?

 230 23 A. That's what it says, yes.

Re: [230:18-231:2]

401, 403, 602

OVERRULED

232:12 - 232:19 Kieper, Ronald 12-19-2019

 232 12 Q. "Because the stem of the green, solid end

 232 13 of the plug is so short, it was difficult for the

 232 14 experimenter to insert the plug deeply into some

 232 15 subjects' ear canals, especially those subjects with

 232 16 medium and larger canals," right?

 232 17 A. That's what it says, yes.

 232 18 Q. Okay. And that was true, of course,

 232 19 right?

Re: [232:4-233:6]

401, 403, 701

OVERRULED

232:22 - 233:1 Kieper, Ronald 12-19-2019

 232 22 A. That's -- that's what I wrote.

 232 23 BY MR. BUCHANAN:

 232 24 Q. And you wrote it because it was --

 232 25 A. So I -- at that time I believed that, yes.

 233 1 Q. And you still believe it, don't you?

Re: [232:4-233:6]

401, 403, 701

OVERRULED

233:4 - 233:6 Kieper, Ronald 12-19-2019

 233 4 A. I believe that it -- it was difficult for

Re: [232:4-233:6]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 164 of 427
Kieper, Ronald - 12-19-2019 Objection Report 85

 233 5 me to insert the plug deeply into some subjects' ear

 233 6 canals.

233:18 - 234:17 Kieper, Ronald 12-19-2019

 233 18 Q. And then it continues.

 233 19 "Additionally, the geometry of the ear

 233 20 canal opening sometimes prevented the deep plug

 233 21 insertion required for maximum attenuation 

values,"

 233 22 right?

 233 23 A. That's -- that's -- you read that right.

 233 24 Q. And then you continue to describe the

 233 25 observation you had in your memo from a few 

months

 234 1 earlier. You state:

 234 2 "When the solid plug was fitted during the

 234 3 first test, the basal edge of the third flange of the

 234 4 yellow level-dependent plug sometimes pressed 

against

 234 5 the subject's ear canal opening and folded up."

 234 6 Did I read that correctly?

 234 7 A. Yes, you did.

 234 8 Q. "When the inward pressure on the plug was

 234 9 released, the yellow plug's flanges tended to return

 234 10 to their original shape and this sometimes loosened

 234 11 the plug."

 234 12 Do you see that?

 234 13 A. I see that.

 234 14 Q. Okay. And this loosening, sir, was often

 234 15 imperceptible to the subject, isn't that true?

 234 16 A. That's what it says here.

 234 17 Q. And that was true?

Re: [233:18-235:7]

401, 403, 701

OVERRULED

234:20 - 235:9 Kieper, Ronald 12-19-2019

 234 20 A. That's what I believed, yes.

 234 21 BY MR. BUCHANAN:

 234 22 Q. That's what you wrote contemporaneous --

 234 23 A. That's what I wrote.

 234 24 Q. -- with the study?

 234 25 A. That's correct.

 235 1 Q. When you ran test 213017, as you

Re: [235:8-235:13]

Def Objection - foundation 

(602)

Re: [235:8-

235:13]

Def Objection -

foundation 

(602)

OVERRULED

Re: [233:18-235:7]

401, 403, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 165 of 427
Kieper, Ronald - 12-19-2019 Objection Report 86

 235 2 documented in this report, "the yellow flanges of a

 235 3 level-dependent end of the plug were folded back 

prior

 235 4 to the green, solid plug being inserted into the

 235 5 subjects' ears."

 235 6 Do you see that, sir?

 235 7 A. Yes.

 235 8 Q. And that's how you ran test 213017, right,

 235 9 sir?

235:12 - 235:16 Kieper, Ronald 12-19-2019

 235 12 A. I don't recall. I hold -- I wrote that

 235 13 here, so that's -- that's what I wrote at that time.

 235 14 BY MR. BUCHANAN:

 235 15 Q. You don't doubt that's what you did,

 235 16 right?

Re: [235:8-235:13]

Def Objection - foundation 

(602)

Re: [235:15-235:19]

Def Objection - argumentative 

(611, 403); cumulative (403)

Re: [235:8-

235:13]

Def Objection -

foundation 

(602)

OVERRULED

Re: [235:15-

235:19]

Def Objection -

argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

235:18 - 235:19 Kieper, Ronald 12-19-2019

 235 18 BY THE WITNESS:

 235 19 A. No, I don't doubt that.

Re: [235:15-235:19]

Def Objection - argumentative 

(611, 403); cumulative (403)

Re: [235:15-

235:19]

Def Objection -

argumentative 

(611, 403); 

cumulative 

(403)

OVERRULED

236:13 - 236:13 Kieper, Ronald 12-19-2019

 236 13 Q. True then, true now, right?

Re: [236:13-236:17]

Plt Objection - it is cumulative 

and therefore not clarification 

counter

Re: [236:13-

236:17]

Plt Objection -

it is cumulative 

and therefore 

not clarification 

counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 166 of 427
Kieper, Ronald - 12-19-2019 Objection Report 87

236:16 - 236:17 Kieper, Ronald 12-19-2019

 236 16 A. I don't know. I haven't done any

 236 17 experimenting in the last several years.

Re: [236:13-236:17]

Plt Objection - it is cumulative 

and therefore not clarification 

counter

Re: [236:13-

236:17]

Plt Objection -

it is cumulative 

and therefore 

not clarification 

counter

SUSTAINED

246:22 - 246:25 Kieper, Ronald 12-19-2019

 246 22 BY MR. BUCHANAN:

 246 23 Q. Elliott was your immediate boss, but the

 246 24 laboratory reported in to marketing, isn't that right,

 246 25 sir?

Re: [246:4-247:24]

Baker MIL 1, 401, 403, 602

OVERRULED

247:3 - 247:6 Kieper, Ronald 12-19-2019

 247 3 A. I don't know. I don't remember that.

 247 4 BY MR. BUCHANAN:

 247 5 Q. You don't remember this becoming an issue

 247 6 for you guys?

Re: [246:4-247:24]

Baker MIL 1, 401, 403, 602

OVERRULED

247:9 - 247:9 Kieper, Ronald 12-19-2019

 247 9 A. No.

Re: [246:4-247:24]

Baker MIL 1, 401, 403, 602

OVERRULED

247:13 - 247:14 Kieper, Ronald 12-19-2019

 247 13 Q. Because your lab is supposed to be

 247 14 independent, not be tied to the business folks, right?

Re: [246:4-247:24]

Baker MIL 1, 401, 403, 602

OVERRULED

247:17 - 247:21 Kieper, Ronald 12-19-2019

 247 17 A. Our lab is -- yes, it was independent.

 247 18 BY MR. BUCHANAN:

 247 19 Q. Well, I see. I mean, who did -- who did

 247 20 Mr. Berger send an e-mail to about the problems 

with

 247 21 the product --

Re: [246:4-247:24]

Baker MIL 1, 401, 403, 602

OVERRULED

247:24 - 247:24 Kieper, Ronald 12-19-2019

 247 24 Q. -- on May 12th, 2000, sir?

Re: [246:4-247:24]

Baker MIL 1, 401, 403, 602

OVERRULED

248:2 - 248:5 Kieper, Ronald 12-19-2019

 248 2 A. He sent an e-mail to Brian Myers.

 248 3 BY MR. BUCHANAN:

 248 4 Q. The project manager for the Combat Arms,

 248 5 right?

Re: [248:2-248:10]

Baker MIL 1, 401, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 167 of 427
Kieper, Ronald - 12-19-2019 Objection Report 88

248:8 - 248:10 Kieper, Ronald 12-19-2019

 248 8 A. According to this, yeah, this sheet Brian

 248 9 Myers was the project manager for the Combat 

Arms

 248 10 plug.

Re: [248:2-248:10]

Baker MIL 1, 401, 403, 602

OVERRULED

249:15 - 249:16 Kieper, Ronald 12-19-2019

 249 15 Q. And Mr. Myers actually had supervisory

 249 16 responsibility over Mr. Berger for the lab?

Re: [249:15-249:24]

602, 403, 401

OVERRULED

249:20 - 249:24 Kieper, Ronald 12-19-2019

 249 20 Q. Right?

 249 21 A. I don't know.

 249 22 Q. You don't remember this becoming an issue

 249 23 with your NVLAP certification that you had your 

lab

 249 24 reporting in to the marketing group?

Re: [249:15-249:24]

602, 403, 401

OVERRULED

250:2 - 250:4 Kieper, Ronald 12-19-2019

 250 2 A. No.

 250 3 BY MR. BUCHANAN:

 250 4 Q. NVLAP wrote you up on it, right?

Re: [250:2-250:7]

602, 403, 401

OVERRULED

250:7 - 250:7 Kieper, Ronald 12-19-2019

 250 7 A. I don't recall.

Re: [250:2-250:7]

602, 403, 401

OVERRULED

257:13 - 259:15 Kieper, Ronald 12-19-2019

 257 13 Q. I am passing you over Exhibit 20, sir.

 257 14 Exhibit 20, sir, is a document produced by

 257 15 your former employer to us. It is titled 

"Annotations

 257 16 from E-A-R checklist with assessment annotations."

 257 17 Do you see that, sir?

 257 18 A. Yes.

 257 19 Q. Do you recall as part of your audit

 257 20 process with the NVLAP folks that there would be

a

 257 21 back and forth where they shared their observations

 257 22 and you got to respond?

 257 23 A. Yes.

 257 24 Q. Okay. Here we are looking at an

 257 25 annotation from Jeff G. Schmitt. This is from

 258 1 June 13th, 2001.

 258 2 Do you see that?

Re: [258:18-258:23]

Def Objection -

argumentative; misstates (611, 

403); foundation (602)

Re: [259:2-259:9]

Def Objection - foundation 

(602); relevance (401, 402)

Re: [258:18-

258:23]

Def Objection -

argumentative; 

misstates (611, 

403); 

foundation

(602)

SUSTAINED

Re: [259:2-

259:9]

Def Objection -

foundation 

(602); 

relevance (401, 

402)

OVERRULED

Re: [257:7-258:17]

401, 403, Baker MIL 1

Re: [259:10-259:12]

401, 403, 602

Re: [259:15-259:15]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 168 of 427
Kieper, Ronald - 12-19-2019 Objection Report 89

 258 3 A. Yes.

 258 4 Q. It says: "The org chart of 12/1/2000

 258 5 shows the lab director reporting through a marketing

 258 6 manager."

 258 7 Do you see that?

 258 8 A. Yes.

 258 9 Q. "While it is acceptable on a business

 258 10 management basis, this creates a potential for a

 258 11 conflict of interest at the laboratory testing level."

 258 12 Do you see that, sir?

 258 13 A. Yes.

 258 14 Q. Were you involved in discussions between

 258 15 Mr. Berger and Mr. Myers about whether to share

 258 16 results from your testing with the military?

 258 17 A. No.

 258 18 Q. Do you know there is no evidence that your

 258 19 research reports concerning folding back the 

flanges

 258 20 was shared with Dr. Ohlin?

 258 21 MS. ELIZABETH: Objection; form.

 258 22 BY THE WITNESS:

 258 23 A. I'm sorry. With whom?

 258 24 BY MR. BUCHANAN:

 258 25 Q. Do you know who Dr. Ohlin is?

 259 1 A. No.

 259 2 Q. In that document we looked at, sir, there

 259 3 was a question: "Should we tell owe Ohlin?" 

between

 259 4 Mr. Berger and Mr. Myers.

 259 5 Did you see that?

 259 6 MS. ELIZABETH: Objection; form.

 259 7 BY THE WITNESS:

 259 8 A. Yes, I remember doctor -- I didn't realize

 259 9 he was a doctor.

 259 10 BY MR. BUCHANAN:

 259 11 Q. Were you ever instructed, sir, to share

 259 12 your report with Dr. Ohlin?

 259 13 MS. ELIZABETH: Objection; form.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 169 of 427
Kieper, Ronald - 12-19-2019 Objection Report 90

 259 14 BY THE WITNESS:

 259 15 A. Not that I recall.

260:16 - 260:20 Kieper, Ronald 12-19-2019

 260 16 You've got the marketing folks overseeing

 260 17 the lab folks who were testing the company's own

 260 18 products with the company's own employees as test

 260 19 subjects. That is the state of play as of 2000,

 260 20 correct, sir?

Re: [260:1-262:3]

401, 403, Baker MIL 1

OVERRULED

260:23 - 261:7 Kieper, Ronald 12-19-2019

 260 23 A. Well, to correct you a little bit, we used

 260 24 both employees and non-employees as test subjects.

 260 25 BY MR. BUCHANAN:

 261 1 Q. Yeah. Among those non-employees were

 261 2 employee relatives, right?

 261 3 A. Some of them were, yes.

 261 4 Q. Okay. And you've got Mr. Berger checking

 261 5 in with the project manager about whether you 

should

 261 6 share the results with the military.

 261 7 Do you see that?

Re: [260:1-262:3]

401, 403, Baker MIL 1

OVERRULED

261:10 - 261:10 Kieper, Ronald 12-19-2019

 261 10 A. I saw Mr. Berger's e-mail.

Re: [260:1-262:3]

401, 403, Baker MIL 1

OVERRULED

271:14 - 271:18 Kieper, Ronald 12-19-2019

 271 14 Q. I am passing you, sir, what we are marking

 271 15 as Exhibit 22.

 271 16 The truth is, sir, that 22 that you HAD

 271 17 been putting on the package was a bit of a problem,

 271 18 wasn't it, sir?

Re: [271:14-271:25]

Def Objection - asked; 

misstates; argumentative (611, 

403); foundation (602)

Re: [271:14-

271:25]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403); 

foundation 

(602)

OVERRULED

Re: [271:14-271:25]

Baker MIL 1

OVERRULED

271:21 - 271:21 Kieper, Ronald 12-19-2019

 271 21 BY MR. BUCHANAN:

Re: [271:14-271:25]

Def Objection - asked; 

misstates; argumentative (611, 

403); foundation (602)

Re: [271:14-

271:25]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403); 

Re: [271:14-271:25]

Baker MIL 1

No testimony; 

no ruling 

necessary.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 170 of 427
Kieper, Ronald - 12-19-2019 Objection Report 91

foundation 

(602)

OVERRULED

271:25 - 271:25 Kieper, Ronald 12-19-2019

 271 25 A. No.

Re: [271:14-271:25]

Def Objection - asked; 

misstates; argumentative (611, 

403); foundation (602)

Re: [271:14-

271:25]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403); 

foundation 

(602)

OVERRULED

Re: [271:14-271:25]

Baker MIL 1

OVERRULED

272:2 - 272:5 Kieper, Ronald 12-19-2019

 272 2 Q. Nobody came to you to ask you how you did

 272 3 the testing and how did you come up with the 22, 

why

 272 4 did you test the left end different than the right end

 272 5 or the yellow end different from the green end?

Re: [272:2-272:11]

leading, 401, 403

OVERRULED

272:8 - 272:8 Kieper, Ronald 12-19-2019

 272 8 Q. Nobody came to the drill down on that?

Re: [272:2-272:11]

leading, 401, 403

OVERRULED

272:11 - 273:16 Kieper, Ronald 12-19-2019

 272 11 A. Not that I recall, no.

 272 12 BY MR. BUCHANAN:

 272 13 Q. Okay. I'd like to direct your attention,

 272 14 sir, in this e-mail exchange, it's including Mr. 

Myers

 272 15 again. I'm directing your attention to .2.

 272 16 There is an e-mail at the bottom from

 272 17 Mr. Myers to a series of folks concerning an order

 272 18 from -- an order for 500 packages with the SKU 

number

 272 19 370-1011 for the Combat Arms Earplug.

 272 20 Do you see that e-mail at the very bottom,

 272 21 sir?

 272 22 A. I see the heading, yes.

 272 23 Q. And it continues on to Page 3, and it

 272 24 says: "Divinder, either way as I explained to you, 

we

Re: [272:2-272:11]

leading, 401, 403

Re: [272:13-274:18]

401, 403, Baker MIL 1, 3M 

MIL 16

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 171 of 427
Kieper, Ronald - 12-19-2019 Objection Report 92

 272 25 cannot distribute this with the current NRR on the

 273 1 package."

 273 2 Do you see that?

 273 3 A. Yes, I see that.

 273 4 Q. And that NRR you had computed for the

 273 5 green end was 22, right?

 273 6 A. Yeah, the NRR for the green end of the

 273 7 Combat Arms was 22.

 273 8 Q. Okay. Let's go to Page 1. There is more

 273 9 back and forth in here.

 273 10 Mr. Myers is commenting to his colleagues

 273 11 and he communicates that it is not going to be a 

phase

 273 12 out but an abrupt stop and they are going to start

 273 13 selling a new version, and then he continues.

 273 14 "We cannot ship any further products with

 273 15 the current labeling."

 273 16 Did I read that correctly, sir?

273:19 - 273:25 Kieper, Ronald 12-19-2019

 273 19 A. Yes.

 273 20 BY MR. BUCHANAN:

 273 21 Q. Were you aware the company stopped

 273 22 shipping Combat Arms with your NRR of 22 in 

2015?

 273 23 A. No.

 273 24 Q. Were you aware that rather than sell out

 273 25 the stock they actually held it and destroyed it?

Re: [272:13-274:18]

401, 403, Baker MIL 1, 3M 

MIL 16

SUSTAINED as 

to 273:24-274:3. 

Otherwise 

OVERRULED.

274:3 - 274:13 Kieper, Ronald 12-19-2019

 274 3 A. No, I was not aware of that.

 274 4 BY MR. BUCHANAN:

 274 5 Q. Nobody called you and had a discussion

 274 6 with you at that point in time about how you had 

done

 274 7 the testing or whether there was some alternate

 274 8 interpretation of your test results, right?

 274 9 A. I don't recall any phone calls.

 274 10 Q. And that 22 that you were quoting on the

 274 11 package for the closed end that we looked at in 

some

Re: [272:13-274:18]

401, 403, Baker MIL 1, 3M 

MIL 16

SUSTAINED as 

to 273:24-274:3. 

Otherwise 

OVERRULED.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 172 of 427
Kieper, Ronald - 12-19-2019 Objection Report 93

 274 12 marketing today, that was twice as high as the result

 274 13 on the end the first time you tested, right?

274:16 - 274:18 Kieper, Ronald 12-19-2019

 274 16 A. It was the 015 test that was stopped after

 274 17 eight subjects had an NRR of 11 for those eight

 274 18 subjects.

Re: [272:13-274:18]

401, 403, Baker MIL 1, 3M 

MIL 16

OVERRULED

274:20 - 274:22 Kieper, Ronald 12-19-2019

 274 20 Q. As I remember your testimony, sir, you had

 274 21 an NRR of 11 on study 015 at the point in time

 274 22 Mr. Berger told you to stop testing, right?

Re: [274:20-275:1]

Def Objection - misstates; 

asked; argumentative (611, 

403); cumulative (403)

Re: [274:20-

275:1]

Def Objection -

misstates; 

asked; 

argumentative 

(611, 403); 

cumulative 

(403)

SUSTAINED

274:25 - 275:1 Kieper, Ronald 12-19-2019

 274 25 A. Yes, he asked me to stop testing after

 275 1 eight subjects.

Re: [274:20-275:1]

Def Objection - misstates; 

asked; argumentative (611, 

403); cumulative (403)

Re: [274:20-

275:1]

Def Objection -

misstates; 

asked; 

argumentative 

(611, 403); 

cumulative 

(403)

SUSTAINED

276:14 - 276:15 Kieper, Ronald 12-19-2019

 276 14 Q. No one came back to you and told you that

 276 15 it was improper to fold the flanges?

Re: [276:13-276:18]

401, 403, Baker MIL 1, 3M 

MIL 16

OVERRULED

276:18 - 276:18 Kieper, Ronald 12-19-2019

 276 18 A. No.

Re: [276:13-276:18]

401, 403, Baker MIL 1, 3M 

MIL 16

OVERRULED

276:25 - 277:4 Kieper, Ronald 12-19-2019

 276 25 Q. Do you recognize the individual on the

 277 1 screen, sir?

 277 2 A. Yes.

 277 3 Q. At a point in time, sir, did he ultimately

 277 4 become somebody to whom the lab reported to?

Re: [276:25-277:18]

401, 403, Baker MIL 1, 3M 

MIL 16

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 173 of 427
Kieper, Ronald - 12-19-2019 Objection Report 94

277:7 - 277:18 Kieper, Ronald 12-19-2019

 277 7 A. Yes. He was a technical director.

 277 8 BY MR. BUCHANAN:

 277 9 Q. Okay. What's his name?

 277 10 A. Jeff Hamer.

 277 11 Q. Okay. And so Mr. Berger in your group

 277 12 would have reported in to him, the technical 

director,

 277 13 certainly as of the date of this deposition, 2015,

 277 14 right?

 277 15 A. I believe so, yes.

 277 16 Q. Okay. You were still working at Aearo at

 277 17 this time, right?

 277 18 A. Yes, I was.

Re: [276:25-277:18]

401, 403, Baker MIL 1, 3M 

MIL 16

OVERRULED

277:21 - 278:16 Kieper, Ronald 12-19-2019

 277 21 Q. You can also read it, sir, if you'd like

 277 22 on the screen, but it is going to be there for the

 277 23 jury to see if they would like.

 277 24 (Video played, as follows:

 277 25 "Q. Okay. Would it be fair to

 278 1 say that if they did not test the

 278 2 open mode with the flange rolled

 278 3 back, but they did test the closed

 278 4 end with the flange rolled back, that

 278 5 that would be improper because the

 278 6 two tests were using the product in

 278 7 two different ways?

 278 8 "A. My opinion is that testing

 278 9 the product with the flange rolled

 278 10 back is improper.")

 278 11 BY MR. BUCHANAN:

 278 12 Q. So we have that testimony from 2015, sir.

 278 13 I'm just wondering, did Mr. Hamer give you a call

 278 14 around the time of his deposition, before or after,

 278 15 ask you what were you thinking testing these plugs

 278 16 with the flanges folded back?

Re: [277:21-278:19]

3M MIL 6, 401, 403

OVERRULED

278:19 - 278:19 Kieper, Ronald 12-19-2019

 278 19 A. No.

Re: [277:21-278:19]

3M MIL 6, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 174 of 427
Kieper, Ronald - 12-19-2019 Objection Report 95

279:15 - 279:17 Kieper, Ronald 12-19-2019

 279 15 Q. Sir, you were also deposed in that other

 279 16 proceeding, right?

 279 17 A. Yes, 2015.

Re: [279:15-279:17]

Def Objection - 3M MIL No. 

6; relevance (401, 402)

Re: [279:15-

279:17]

Def Objection -

3M MIL No. 6; 

relevance (401, 

402)

OVERRULED

280:1 - 280:8 Kieper, Ronald 12-19-2019

 280 1 Q. Sir, is that you I guess four or five

 280 2 years ago at the time of your deposition in that

 280 3 proceeding?

 280 4 A. Yes.

 280 5 Q. I guess four years ago there.

 280 6 Whose -- whose idea was it to roll the

 280 7 flange back and run 017 the way you did, sir? Was 

it

 280 8 Mr. Berger?

Re: [280:1-280:4]

Def Objection - 3M MIL No. 

6; relevance (401, 402)

Re: [280:5-280:12]

Def Objection - 3M MIL No. 

6; asked; misstates (611, 403); 

foundation (602)

Re: [280:1-

280:4]

Def Objection -

3M MIL No. 6; 

relevance (401, 

402)

OVERRULED

Re: [280:5-

280:12]

Def Objection -

3M MIL No. 6; 

asked; 

misstates (611, 

403); 

foundation 

(602)

OVERRULED

280:11 - 281:3 Kieper, Ronald 12-19-2019

 280 11 A. That would be my understanding, yes. I

 280 12 don't recall specifically.

 280 13 BY MR. BUCHANAN:

 280 14 Q. Okay. Let's see what you said then.

 280 15 MR. BUCHANAN: Can you play 50.

 280 16 (Video played, as follows:

 280 17 "Q. Whose idea was it to roll

 280 18 back the flange and do this? Was it

 280 19 Mr. Berger?

 280 20 "A. I don't know, you know --

 280 21 "Q. Who told you to do it?

 280 22 "A. Mr. Berger.

 280 23 "Q. Did you ask why?

 280 24 "A. I don't recall.")

Re: [280:5-280:12]

Def Objection - 3M MIL No. 

6; asked; misstates (611, 403); 

foundation (602)

Re: [280:11-281:6]

Def Objection - cumulative 

(403); asked (611, 403)

Re: [280:5-

280:12]

Def Objection -

3M MIL No. 6; 

asked; 

misstates (611, 

403); 

foundation 

(602)

OVERRULED

Re: [280:11-

281:6]

Def Objection -

cumulative 

(403); asked 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 175 of 427
Kieper, Ronald - 12-19-2019 Objection Report 96

 280 25 BY MR. BUCHANAN:

 281 1 Q. Okay. Sir, you don't take exception to

 281 2 your prior testimony that it was Mr. Berger who told

 281 3 you to do it, do you, sir?

(611, 403)

OVERRULED

281:5 - 281:6 Kieper, Ronald 12-19-2019

 281 5 BY THE WITNESS:

 281 6 A. No.

Re: [280:11-281:6]

Def Objection - cumulative 

(403); asked (611, 403)

OVERRULED

Re: [280:11-

281:6]

Def Objection -

cumulative 

(403); asked 

(611, 403)

OVERRULED

281:8 - 281:11 Kieper, Ronald 12-19-2019

 281 8 Q. Okay. So this issue, sir, about NRRs

 281 9 being reported higher than they should be or higher

 281 10 than they are tested at, that's an issue that's

 281 11 familiar to Aearo, right?

Re: [281:8-282:6]

602, leading, 401, 403, 

Baker MIL 1

OVERRULED

281:14 - 281:18 Kieper, Ronald 12-19-2019

 281 14 A. Not that I'm aware of.

 281 15 BY MR. BUCHANAN:

 281 16 Q. Well, you recall -- you recall Aearo

 281 17 getting into some trouble concerning the way it was

 281 18 promoting its NRRs for its products, don't you, sir?

Re: [281:8-282:6]

602, leading, 401, 403, 

Baker MIL 1

OVERRULED

281:21 - 282:3 Kieper, Ronald 12-19-2019

 281 21 A. No, I don't -- I'm not sure what you are

 281 22 talking about.

 281 23 BY MR. BUCHANAN:

 281 24 Q. Don't you remember really probably in your

 281 25 early years in the lab, early '90s, sir, Aearo getting

 282 1 hit with the largest fine ever for violating the Noise

 282 2 Control Act or for allegations of violating the Noise

 282 3 Control Act concerning its foam product?

Re: [281:8-282:6]

602, leading, 401, 403, 

Baker MIL 1

OVERRULED

282:6 - 282:6 Kieper, Ronald 12-19-2019

 282 6 A. No.

Re: [281:8-282:6]

602, leading, 401, 403, 

Baker MIL 1

OVERRULED

282:10 - 282:11 Kieper, Ronald 12-19-2019

 282 10 Q. Overstating NRRs is a big deal, isn't it,

 282 11 sir?

Re: [282:10-282:15]

Def Objection -

argumentative; vague; 

Re: [282:10-

282:15]

Def Objection -

Re: [282:10-282:22]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 176 of 427
Kieper, Ronald - 12-19-2019 Objection Report 97

misstates (611, 403); 

foundation (602)

argumentative; 

vague; 

misstates (611, 

403); 

foundation 

(602)

OVERRULED

282:14 - 282:15 Kieper, Ronald 12-19-2019

 282 14 A. Not putting the actual NRR on a package

 282 15 would be, yeah, that would be a problem.

Re: [282:10-282:15]

Def Objection -

argumentative; vague; 

misstates (611, 403); 

foundation (602)

Re: [282:10-

282:15]

Def Objection -

argumentative; 

vague; 

misstates (611, 

403); 

foundation 

(602)

OVERRULED

Re: [282:10-282:22]

Baker MIL 1

OVERRULED

282:17 - 282:18 Kieper, Ronald 12-19-2019

 282 17 Q. Yeah, and -- and not putting down an NRR

 282 18 that you can support would be a problem, right?

Re: [282:17-282:22]

Def Objection - 701; vague; 

misstates; argumentative (611, 

403); foundation (602)

Re: [282:17-

282:22]

Def Objection -

701; vague; 

misstates; 

argumentative 

(611, 403); 

foundation 

(602)

OVERRULED

Re: [282:10-282:22]

Baker MIL 1

OVERRULED

282:21 - 282:22 Kieper, Ronald 12-19-2019

 282 21 A. I can see how that would be a problem,

 282 22 yes.

Re: [282:17-282:22]

Def Objection - 701; vague; 

misstates; argumentative (611, 

403); foundation (602)

Re: [282:17-

282:22]

Def Objection -

701; vague; 

misstates; 

argumentative 

(611, 403); 

foundation 

(602)

OVERRULED

Re: [282:10-282:22]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 177 of 427
Kieper, Ronald - 12-19-2019 Objection Report 98

283:3 - 283:5 Kieper, Ronald 12-19-2019

 283 3 Q. All right. I'm passing you over what we

 283 4 are marking as Exhibit 23 to your deposition, sir.

 283 5 This is a press release --

Re: [283:3-283:18]

Def Objection - 3M MIL No. 

8; foundation (602)

Re: [283:3-

283:18]

Def Objection -

3M MIL No. 8; 

foundation 

(602)

SUSTAINED

Re: [283:3-284:17]

Baker MIL 1

SUSTAINED

283:10 - 283:14 Kieper, Ronald 12-19-2019

 283 10 Q. It is a press release, sir, from 1993 from

 283 11 the Department of Justice directed to I guess it was

 283 12 then Cabot Safety Corp.

 283 13 Was that the parent of Aearo many years

 283 14 ago, sir?

Re: [283:3-283:18]

Def Objection - 3M MIL No. 

8; foundation (602)

Re: [283:3-

283:18]

Def Objection -

3M MIL No. 8; 

foundation 

(602)

SUSTAINED

Re: [283:3-284:17]

Baker MIL 1

SUSTAINED

283:17 - 283:25 Kieper, Ronald 12-19-2019

 283 17 A. I believe that was just another name of

 283 18 E-A-R, Cabot Safety, Aearo, 3M.

 283 19 BY MR. BUCHANAN:

 283 20 Q. Okay. So here we are in 1993, sir, and we

 283 21 see this press release where your company -- under 

a

 283 22 different name then, but your company is going to 

pay

 283 23 a $900,000 civil penalty relating to alleged

 283 24 violations of the Noise Control Act.

 283 25 Do you see that, sir?

Re: [283:3-283:18]

Def Objection - 3M MIL No. 

8; foundation (602)

Re: [283:20-284:3]

Def Objection - foundation 

(602); 3M MIL No. 8

Re: [283:3-

283:18]

Def Objection -

3M MIL No. 8; 

foundation 

(602)

SUSTAINED

Re: [283:20-

284:3]

Def Objection -

foundation 

(602); 3M MIL 

No. 8

SUSTAINED

Re: [283:3-284:17]

Baker MIL 1

SUSTAINED. 

A witness can 

discuss the fine 

but not press 

release unless a 

witness disputes 

any aspect of 

the investigation 

or fine.

284:2 - 284:17 Kieper, Ronald 12-19-2019

 284 2 BY THE WITNESS:

 284 3 A. I see that.

 284 4 BY MR. BUCHANAN:

 284 5 Q. Okay. At the bottom of the first page,

 284 6 the regulations, the EPA regulations is what they are

 284 7 referring to in the prior sentence, but:

 284 8 "The regulations also require hearing

 284 9 protection device manufacturers to test their 

products

 284 10 in accordance with EPA testing protocols and to 

Re: [283:20-284:3]

Def Objection - foundation 

(602); 3M MIL No. 8

Re: [284:4-284:17]

Def Objection - 3M MIL No. 

8

Re: [283:20-

284:3]

Def Objection -

foundation 

(602); 3M MIL 

No. 8

SUSTAINED

Re: [284:4-

284:17]

Def Objection -

Re: [283:3-284:17]

Baker MIL 1

SUSTAINED. 

A witness can 

discuss the fine 

but not press 

release unless a 

witness disputes 

any aspect of 

the investigation 

or fine.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 178 of 427
Kieper, Ronald - 12-19-2019 Objection Report 99

label

 284 11 their products" with what, sir?

 284 12 A. "With an accurate rating."

 284 13 Q. Right.

 284 14 And when we go to the second page, we see

 284 15 the comments about that, that you all were quoting 

an

 284 16 NRR that when the EPA came in and checked it, 

you

 284 17 couldn't support, right?

3M MIL No. 8

SUSTAINED

284:25 - 285:9 Kieper, Ronald 12-19-2019

 284 25 Q. Do you see that, sir?

 285 1 A. Yeah, I see the -- yeah, I'm looking at

 285 2 Page 2.

 285 3 Q. Okay. And do you recall, sir, that EPA

 285 4 came in, supervised retesting of your product, these

 285 5 were foamies, not Combat Arms in 1990s, but 

supervised

 285 6 the retesting of your product, and when they did that

 285 7 your product provided about 50 percent of the noise

 285 8 reduction that was claimed on the label.

 285 9 Do you see that?

Re: [284:25-285:2]

Def Objection - foundation 

(602)

Re: [285:3-285:12]

Def Objection - foundation 

(602); 3M MIL No. 8

Re: [284:25-

285:2]

Def Objection - 

foundation 

(602)

SUSTAINED

Re: [285:3-

285:12]

Def Objection -

foundation 

(602); 3M MIL 

No. 8

SUSTAINED

Re: [285:1-287:7]

Baker MIL 1

SUSTAINED. 

A witness can 

discuss the fine 

but not press 

release unless a 

witness disputes 

any aspect of 

the investigation 

or fine.

285:12 - 285:14 Kieper, Ronald 12-19-2019

 285 12 A. Yes, I see that.

 285 13 BY MR. BUCHANAN:

 285 14 Q. That's not a good thing, right?

Re: [285:3-285:12]

Def Objection - foundation 

(602); 3M MIL No. 8

Re: [285:14-285:18]

Def Objection - vague; 

argumentative; (611, 403); 

foundation (602); 3M MIL 

No. 8

Re: [285:3-

285:12]

Def Objection -

foundation 

(602); 3M MIL 

No. 8

SUSTAINED

Re: [285:14-

285:18]

Def Objection -

vague; 

argumentative; 

(611, 403); 

foundation 

(602); 3M MIL

Re: [285:1-287:7]

Baker MIL 1

SUSTAINED. 

A witness can 

discuss the fine 

but not press 

release unless a 

witness disputes 

any aspect of 

the investigation 

or fine.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 179 of 427
Kieper, Ronald - 12-19-2019 Objection Report 100

No. 8

SUSTAINED

285:17 - 285:24 Kieper, Ronald 12-19-2019

 285 17 A. I don't know. They were two different --

 285 18 obviously two different tests.

 285 19 BY MR. BUCHANAN:

 285 20 Q. Right, right.

 285 21 So there was a test you all were using

 285 22 that provided one measure and there was another 

test,

 285 23 a retest, that shows about 50 percent of what you 

were

 285 24 telling people publicly, right?

Re: [285:14-285:18]

Def Objection - vague; 

argumentative; (611, 403); 

foundation (602); 3M MIL 

No. 8

Re: [285:21-286:3]

Def Objection - foundation 

(602); 3M MIL No. 8

Re: [285:14-

285:18]

Def Objection -

vague; 

argumentative; 

(611, 403); 

foundation 

(602); 3M MIL 

No. 8

SUSTAINED

Re: [285:21-

286:3]

Def Objection -

foundation 

(602); 3M MIL 

No. 8

OVERRULED

Re: [285:1-287:7]

Baker MIL 1

SUSTAINED. 

A witness can 

discuss the fine 

but not press 

release unless a 

witness disputes 

any aspect of 

the investigation 

or fine.

286:1 - 286:13 Kieper, Ronald 12-19-2019

 286 1 BY MR. BUCHANAN:

 286 2 Q. That's what this says?

 286 3 A. That's what this says.

 286 4 Q. Well, you were in the lab when this was

 286 5 all happening, right?

 286 6 A. I was in the lab in 1993, yes.

 286 7 Q. Did you do these tests that came up

 286 8 50 percent under what you were publicly stating?

 286 9 A. I did the labeling, the current labeling

 286 10 tests for the E-A-R foam plug.

 286 11 Q. Are you aware you all got a $900,000 fine

 286 12 for putting forward an NRR that was twice as high 

as

 286 13 the one that could really be supported?

Re: [285:21-286:3]

Def Objection - foundation 

(602); 3M MIL No. 8

Re: [286:4-286:10]

Def Objection - 3M MIL No. 

8

Re: [286:11-286:16]

Def Objection - 3M MIL No. 

8; foundation (602)

Re: [285:21-

286:3]

Def Objection -

foundation 

(602); 3M MIL 

No. 8

OVERRULED

Re: [286:4-

286:10]

Def Objection -

3M MIL No. 8

OVERRULED

Re: [286:11-

286:16]

Def Objection -

3M MIL No. 8; 

foundation 

(602)

OVERRULED

Re: [285:1-287:7]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 180 of 427
Kieper, Ronald - 12-19-2019 Objection Report 101

286:15 - 286:16 Kieper, Ronald 12-19-2019

 286 15 BY THE WITNESS:

 286 16 A. No, I wasn't aware of the fine.

Re: [286:11-286:16]

Def Objection - 3M MIL No. 

8; foundation (602)

Re: [286:11-

286:16]

Def Objection -

3M MIL No. 8; 

foundation

(602)

OVERRULED

Re: [285:1-287:7]

Baker MIL 1

OVERRULED

286:18 - 287:3 Kieper, Ronald 12-19-2019

 286 18 Q. The next paragraph continues:

 286 19 "Acting Assistant Attorney General Myles

 286 20 Flint of the Environment and Natural Resources

 286 21 Division said, 'This is the largest civil penalty

 286 22 under the statute.'"

 286 23 Do you see that?

 286 24 A. Yes.

 286 25 Q. "Correct labeling and adequate testing are

 287 1 absolutely necessary for the safety of the public."

 287 2 Let's pause.

 287 3 Do you agree?

Re: [286:18-286:24]

Def Objection - 3M MIL No. 

8; foundation (602)

Re: [286:25-287:7]

Def Objection - 3M MIL No. 

8; foundation (602); 701

Re: [286:18-

286:24]

Def Objection -

3M MIL No. 8; 

foundation 

(602)

SUSTAINED

Re: [286:25-

287:7]

Def Objection -

3M MIL No. 8; 

foundation 

(602); 701

SUSTAINED

Re: [285:1-287:7]

Baker MIL 1

SUSTAINED. 

A witness can 

discuss the fine 

but not press 

release unless a 

witness disputes 

any aspect of 

the investigation 

or fine.

287:5 - 287:7 Kieper, Ronald 12-19-2019

 287 5 BY THE WITNESS:

 287 6 A. That's -- that's his opinion. I don't --

 287 7 I don't have an opinion on it.

Re: [286:25-287:7]

Def Objection - 3M MIL No. 

8; foundation (602); 701

Re: [286:25-

287:7]

Def Objection -

3M MIL No. 8; 

foundation 

(602); 701

SUSTAINED

Re: [285:1-287:7]

Baker MIL 1

SUSTAINED

287:9 - 287:12 Kieper, Ronald 12-19-2019

 287 9 Q. Well, don't you agree, sir, that testing

 287 10 that accurately reflects the protection a device can

 287 11 provide is absolutely necessary for the safety of the

 287 12 public?

Re: [287:9-288:2]

401, 403, 602, 701, leading

OVERRULED

287:15 - 287:16 Kieper, Ronald 12-19-2019

 287 15 A. I would say that's one -- one important

 287 16 factor, yes.

Re: [287:9-288:2]

401, 403, 602, 701, leading

OVERRULED

287:18 - 287:22 Kieper, Ronald 12-19-2019

 287 18 Q. Right.

 287 19 So if you are going to quote a protection

Re: [287:9-288:2]

401, 403, 602, 701, leading

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 181 of 427
Kieper, Ronald - 12-19-2019 Objection Report 102

 287 20 level on your product, it should be a protection 

level

 287 21 that's really attainable by the people that are using

 287 22 it, right?

287:25 - 288:2 Kieper, Ronald 12-19-2019

 287 25 A. The -- the data that are published on a

 288 1 hearing protector are the data that are the result of

 288 2 doing an E -- an S3.19 Experimenter-Fit test.

Re: [287:9-288:2]

401, 403, 602, 701, leading

OVERRULED

288:4 - 288:7 Kieper, Ronald 12-19-2019

 288 4 Q. You just shouldn't kill tests because they

 288 5 are 50 percent of the level that you want them to 

come

 288 6 in at.

 288 7 You'd agree with me on that, right, sir?

Re: [288:4-288:10]

Def Objection - 3M MIL No. 

18; foundation (602); 

argumentative (611, 403); 3M 

MIL No. 8

Re: [288:4-

288:10]

Def Objection -

3M MIL No. 

18; foundation 

(602); 

argumentative 

(611, 403); 3M 

MIL No. 8

OVERRULED

288:10 - 288:12 Kieper, Ronald 12-19-2019

 288 10 A. I don't have an opinion on that.

 288 11 BY MR. BUCHANAN:

 288 12 Q. Do you think that's right?

Re: [288:4-288:10]

Def Objection - 3M MIL No. 

18; foundation (602); 

argumentative (611, 403); 3M 

MIL No. 8

Re: [288:11-288:22]

Def Objection - 3M MIL No. 

8; foundation (602); 3M MIL 

No. 18; vague; argumentative 

(611, 403)

Re: [288:4-

288:10]

Def Objection -

3M MIL No. 

18; foundation 

(602); 

argumentative 

(611, 403); 3M 

MIL No. 8

OVERRULED

Re: [288:11-

288:22]

Def Objection -

3M MIL No. 8; 

foundation 

(602); 3M MIL 

No. 18; vague; 

argumentative 

(611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 182 of 427
Kieper, Ronald - 12-19-2019 Objection Report 103

288:15 - 288:16 Kieper, Ronald 12-19-2019

 288 15 Q. Shutting down tests so you don't get

 288 16 numbers that are a problem for you?

Re: [288:11-288:22]

Def Objection - 3M MIL No. 

8; foundation (602); 3M MIL 

No. 18; vague; argumentative 

(611, 403)

Re: [288:11-

288:22]

Def Objection -

3M MIL No. 8; 

foundation 

(602); 3M MIL 

No. 18; vague; 

argumentative 

(611, 403)

OVERRULED

288:19 - 288:22 Kieper, Ronald 12-19-2019

 288 19 A. I didn't shut down the test.

 288 20 BY MR. BUCHANAN:

 288 21 Q. Who did?

 288 22 A. Mr. Berger.

Re: [288:11-288:22]

Def Objection - 3M MIL No. 

8; foundation (602); 3M MIL

No. 18; vague; argumentative 

(611, 403)

Re: [288:11-

288:22]

Def Objection -

3M MIL No. 8; 

foundation 

(602); 3M MIL 

No. 18; vague; 

argumentative 

(611, 403)

OVERRULED

289:9 - 289:13 Kieper, Ronald 12-19-2019

 289 9 Q. Do you recall, sir, from your days when

 289 10 you were at Aearo the folks on the marketing side 

of

 289 11 the house putting pressure on Elliott and the lab to

 289 12 deliver the high NRRs they wanted for marketing

 289 13 purposes?

Re: [289:9-290:1]

401, 403, Baker MIL 1, 602

OVERRULED

289:16 - 289:17 Kieper, Ronald 12-19-2019

 289 16 Q. Do you recall those issues, sir?

 289 17 A. No, I don't.

Re: [289:9-290:1]

401, 403, Baker MIL 1, 602

OVERRULED

292:25 - 293:6 Kieper, Ronald 12-19-2019

 292 25 Q. Okay. And so let's go to the back,

 293 1 please. It's .4.

 293 2 There is a memo there from Elliott H.

 293 3 Berger to Jeff Hamer, Doug Moses, Doug Ohlin, 

Marc

 293 4 Santoro and Brian Myers.

 293 5 Do you see that?

 293 6 A. Yes.

Re: [292:25-293:6]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 183 of 427
Kieper, Ronald - 12-19-2019 Objection Report 104

295:2 - 295:11 Kieper, Ronald 12-19-2019

 295 2 Is this Mr. Berger reaching out to these

 295 3 individuals, and I take it they'll understand what

 295 4 their job roles and functions are by the time this

 295 5 testimony is ever played, but he is reaching out to

 295 6 them concerning a test protocol for the Combat 

Arms

 295 7 Version 4, is that right?

 295 8 A. That's what the, yeah, the memo says.

 295 9 Q. And is that how that works, sir, within

 295 10 your company that the marketing folks would

 295 11 collaborate with the lab on how to test the product?

Re: [294:15-298:6]

401, 403, Baker MIL 1, 602

OVERRULED

295:14 - 296:13 Kieper, Ronald 12-19-2019

 295 14 A. I don't know that.

 295 15 BY MR. BUCHANAN:

 295 16 Q. Well, you have this document before you,

 295 17 right?

 295 18 A. Yes, I see this document.

 295 19 Q. And it actually has your name in it,

 295 20 right, it says you were -- you were working with

 295 21 Elliott on selecting the plug that you thought would

 295 22 work best, right, so you were part of this process?

 295 23 Do you see under the "What we did

 295 24 heading," second paragraph of the memo?

 295 25 A. Yes.

 296 1 Q. All right. You were part of this whole

 296 2 process?

 296 3 A. I remember doing two tests, now this has

 296 4 refreshed my memory, that we used -- we did a test

 296 5 selecting the -- the larger size tip and then we did

 296 6 another test selecting a small -- the smaller tip.

 296 7 Q. And so you were part of that process with

 296 8 Mr. Berger. I'm just wondering, were you dealing 

with

 296 9 these marketing folks too as part of putting together

 296 10 the test protocol?

 296 11 A. No, I didn't deal with the marketing

 296 12 people.

 296 13 Q. Mr. Berger was handling that?

Re: [294:15-298:6]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 184 of 427
Kieper, Ronald - 12-19-2019 Objection Report 105

296:16 - 296:25 Kieper, Ronald 12-19-2019

 296 16 A. Yes, from this memo or e-mail he was

 296 17 communicating with them, yes.

 296 18 BY MR. BUCHANAN:

 296 19 Q. Well, let's roll forward on this document,

 296 20 sir. We see this protocol gets forwarded from

 296 21 Mr. Berger to a Doug Ohlin who at that time, sir, 

I'll

 296 22 represent to you was working under the direction of

 296 23 Doug Moses on the marketing side.

 296 24 Now, you see the latest-in-time e-mail at

 296 25 the top from Doug Ohlin to Doug Moses?

Re: [294:15-298:6]

401, 403, Baker MIL 1, 602

OVERRULED

297:4 - 298:6 Kieper, Ronald 12-19-2019

 297 4 A. Okay. Are you talking about Page 1?

 297 5 BY MR. BUCHANAN:

 297 6 Q. I am, yes, earliest in time -- or latest

 297 7 in time. It says: "6/10/2009 12:23 p.m."

 297 8 "Doug, this situation reminds me of

 297 9 something that happened at Aearo years ago of 

which

 297 10 you may or may not be aware. There has always 

been

 297 11 intense pressure on Elliott to match the attenuation

 297 12 values the Penn State Lab is able to produce. I'm 

not

 297 13 sure if that's what instigated this incident or not,

 297 14 but Aearo received a six-figure fine from the EPA 

over

 297 15 some protocol issue related to an attempt to produce

 297 16 higher NRRs."

 297 17 Did I read that correctly, sir?

 297 18 A. I believe you did, yes.

 297 19 Q. Okay. It continues here at the bottom of

 297 20 the second paragraph:

 297 21 "We are putting pressure on Elliott to

 297 22 come up with a higher NRR for this new version of 

the

 297 23 Combat Arms Earplug. We could be setting up 

Aearo" --

Re: [294:15-298:6]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 185 of 427
Kieper, Ronald - 12-19-2019 Objection Report 106

 297 24 "We could be setting Aearo up for another fine. If

 297 25 that happens, those who applied the pressure will be

 298 1 no less responsible."

 298 2 Did I read that correctly, sir?

 298 3 A. Yes.

 298 4 Q. Okay. Do you remember there being that

 298 5 pressure, sir, to deliver the high NRRs that your

 298 6 marketing department wanted?

298:11 - 298:13 Kieper, Ronald 12-19-2019

 298 11 Q. Do you remember killing studies at the

 298 12 eighth or the ninth person because the NRR wasn't 

high

 298 13 enough?

Re: [298:11-298:16]

Def Objection - misstates; 

asked; argumentative (611, 

403); foundation (602); 3M 

MIL No. 18; cumulative (403)

Re: [298:11-

298:16]

Def Objection -

misstates; 

asked; 

argumentative 

(611, 403); 

foundation 

(602); 3M MIL 

No. 18; 

cumulative

(403)

OVERRULED

Re: [298:11-299:2]

Baker MIL 1

OVERRULED

298:16 - 298:21 Kieper, Ronald 12-19-2019

 298 16 A. I didn't -- I didn't make that decision.

 298 17 BY MR. BUCHANAN:

 298 18 Q. I see.

 298 19 Do you remember Elliott Berger killing

 298 20 studies or telling you to stop studies because the 

NRR

 298 21 wasn't high enough?

Re: [298:11-298:16]

Def Objection - misstates; 

asked; argumentative (611, 

403); foundation (602); 3M

MIL No. 18; cumulative (403)

Re: [298:18-299:2]

Def Objection - 3M MIL No. 

18; foundation (602); asked; 

argumentative; misstates; 

asked (611, 403); cumulative 

(403)

Re: [298:11-

298:16]

Def Objection -

misstates; 

asked; 

argumentative 

(611, 403); 

foundation

(602); 3M MIL 

No. 18; 

cumulative 

(403)

OVERRULED

Re: [298:18-

299:2]

Def Objection -

3M MIL No.

18; foundation 

Re: [298:11-299:2]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 186 of 427
Kieper, Ronald - 12-19-2019 Objection Report 107

(602); asked; 

argumentative; 

misstates; 

asked (611, 

403); 

cumulative 

(403)

OVERRULED

298:24 - 299:2 Kieper, Ronald 12-19-2019

 298 24 BY THE WITNESS:

 298 25 A. I don't know that he said that. He

 299 1 stopped -- you know, there were -- he stopped, you

 299 2 know, numerous tests over the years.

Re: [298:18-299:2]

Def Objection - 3M MIL No. 

18; foundation (602); asked; 

argumentative; misstates; 

asked (611, 403); cumulative 

(403)

Re: [298:18-

299:2]

Def Objection -

3M MIL No. 

18; foundation 

(602); asked; 

argumentative; 

misstates; 

asked (611, 

403); 

cumulative

(403)

OVERRULED

Re: [298:11-299:2]

Baker MIL 1

OVERRULED

299:14 - 299:18 Kieper, Ronald 12-19-2019

 299 14 Q. Sir, were you aware that there were those

 299 15 within the company and those working with the 

company

 299 16 on developing new products who were of the view 

that

 299 17 marketing was putting pressure on Elliott to come 

up

 299 18 with higher NRRs for the products?

Re: [299:14-300:24]

401, 403, Baker MIL 1, 602

OVERRULED

299:21 - 300:21 Kieper, Ronald 12-19-2019

 299 21 A. I was not aware of that.

 299 22 BY MR. BUCHANAN:

 299 23 Q. I see in this e-mail, sir, reference to

 299 24 pressure, what, three, four times.

 299 25 Do you see that?

 300 1 "There has always been," second sentence,

 300 2 what, on Mr. Berger?

 300 3 A. "There has always been intense pressure on

Re: [299:14-300:24]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 187 of 427
Kieper, Ronald - 12-19-2019 Objection Report 108

 300 4 Elliott to match the attenuation values the Penn 

State

 300 5 Lab is able to produce."

 300 6 Q. And stop there.

 300 7 Let's go to the middle of the second

 300 8 paragraph.

 300 9 "We," we, Doug Ohlin with his Aearo 3M

 300 10 e-mail address, Doug Moses with his Aearo 3M email

 300 11 address, "are putting pressure on Elliott to come up

 300 12 with a higher NRR," and it continues.

 300 13 Do you see that, sir?

 300 14 A. Yes, I see that.

 300 15 Q. It continues:

 300 16 "We could be setting Aearo up for another"

 300 17 what, sir?

 300 18 A. "We could be setting Aearo up for another

 300 19 fine."

 300 20 Q. We looked at those documents a moment ago

 300 21 where Aearo got tagged for how much money?

300:24 - 300:24 Kieper, Ronald 12-19-2019

 300 24 A. It says $900,000.

Re: [299:14-300:24]

401, 403, Baker MIL 1, 602

OVERRULED

301:1 - 301:2 Kieper, Ronald 12-19-2019

 301 1 Q. For putting out an NRR that on retest was

 301 2 twice as high as the one that could be proven, right?

301:5 - 301:6 Kieper, Ronald 12-19-2019

 301 5 A. Actually, the difference in the NRR was 35

 301 6 to 29.

304:16 - 304:16 Kieper, Ronald 12-19-2019

 304 16 under what you had been marketing, right?

304:19 - 304:20 Kieper, Ronald 12-19-2019

 304 19 A. They were two different tests, so the

 304 20 results can be different.

304:22 - 304:24 Kieper, Ronald 12-19-2019

 304 22 Q. Okay. My question to you was: Pretty big

 304 23 deal that it was 6 dB difference from 35 to 29 on 

the

 304 24 NRR, right?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 188 of 427
Kieper, Ronald - 12-19-2019 Objection Report 109

305:3 - 305:4 Kieper, Ronald 12-19-2019

 305 3 A. To me it doesn't -- that doesn't seem like

 305 4 a -- a huge difference.

307:5 - 307:7 Kieper, Ronald 12-19-2019

 307 5 Q. Sir, is it correct that you paid a

 307 6 $900,000 fine because your NRR was 29 on retest 

rather

 307 7 than the 35 that you were marketing?

Re: [307:5-308:17]

401, 403, Baker MIL 1, 602

OVERRULED

307:10 - 307:21 Kieper, Ronald 12-19-2019

 307 10 Q. Is that correct?

 307 11 A. I don't know. I -- I realize -- I see

 307 12 this document from the Department of Justice that 

says

 307 13 that Cabot Safety Corporation will pay a $900,000

 307 14 civil penalty.

 307 15 Q. Right.

 307 16 And you were involved in the retest,

 307 17 right?

 307 18 A. I -- I retested the plug.

 307 19 Q. And you got a 29, right?

 307 20 A. I got a 29.

 307 21 Q. And the company was marketing a 35, right?

Re: [307:5-308:17]

401, 403, Baker MIL 1, 602

OVERRULED 

but witness 

can’t reference 

the document 

unless witness 

disputes some 

aspect of it.

307:24 - 308:6 Kieper, Ronald 12-19-2019

 307 24 A. That's my understanding.

 307 25 BY MR. BUCHANAN:

 308 1 Q. Okay. You all for this Combat Arms were

 308 2 marketing a 22 on the closed end, isn't that right,

 308 3 sir?

 308 4 A. Yes, a 22.

 308 5 Q. And you had a study that you killed at

 308 6 subject eight with an NRR of what?

Re: [307:5-308:17]

401, 403, Baker MIL 1, 602

OVERRULED

308:9 - 308:13 Kieper, Ronald 12-19-2019

 308 9 A. It was an eight-subject NRR of 11.

 308 10 BY MR. BUCHANAN:

 308 11 Q. Right.

 308 12 So that would be 50 percent of 22,

 308 13 wouldn't it?

Re: [307:5-308:17]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 189 of 427
Kieper, Ronald - 12-19-2019 Objection Report 110

308:16 - 308:17 Kieper, Ronald 12-19-2019

 308 16 Q. Half?

 308 17 A. Yes.

Re: [307:5-308:17]

401, 403, Baker MIL 1, 602

OVERRULED

308:18 - 308:19 Kieper, Ronald 12-19-2019

 308 18 Q. Half the protection on your first test as

 308 19 compared to the one that you ran with the flipped 

back

308:23 - 308:24 Kieper, Ronald 12-19-2019

 308 23 A. The NRR was half. The amount of

 308 24 protection was not half.

309:3 - 309:11 Kieper, Ronald 12-19-2019

 309 3 Let's go back, please, to Exhibit 24.

 309 4 "We are putting pressure on Elliott to

 309 5 come up with a higher NRR for this new version of 

the

 309 6 Combat Arms."

 309 7 Do you see that, sir?

 309 8 A. I see that.

 309 9 Q. Okay. Now, in fact, to facilitate this,

 309 10 sir, you knew Mr. Berger was using every trick in 

the

 309 11 book, isn't that right?

Re: [309:3-310:4]

401, 403, Baker MIL 1, 602

OVERRULED

309:14 - 309:16 Kieper, Ronald 12-19-2019

 309 14 A. No.

 309 15 BY MR. BUCHANAN:

 309 16 Q. You didn't have that understanding, sir?

Re: [309:3-310:4]

401, 403, Baker MIL 1, 602

OVERRULED

309:19 - 309:19 Kieper, Ronald 12-19-2019

 309 19 A. No.

Re: [309:3-310:4]

401, 403, Baker MIL 1, 602

OVERRULED

309:22 - 310:1 Kieper, Ronald 12-19-2019

 309 22 Q. That you all were stopping studies at

 309 23 patient eight, patient nine and rerunning them later,

 309 24 making little tweaks here or there to the next time 

to

 309 25 try and get a higher one as an excuse, you didn't 

know

 310 1 that was happening?

Re: [309:3-310:4]

401, 403, Baker MIL 1, 602

OVERRULED

310:4 - 310:4 Kieper, Ronald 12-19-2019

 310 4 A. That's not what was happening.

Re: [309:3-310:4]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 190 of 427
Kieper, Ronald - 12-19-2019 Objection Report 111

310:8 - 310:22 Kieper, Ronald 12-19-2019

 310 8 (WHEREUPON, a certain document was

 310 9 marked Ron Kieper Deposition Exhibit

 310 10 No. 25, for identification, as of

 310 11 12/19/2019.)

 310 12 BY MR. BUCHANAN:

 310 13 Q. It is Exhibit 25.

 310 14 Sir, Exhibit 25 is another exchange

 310 15 between these two marketing folks, Mr. Moses and

 310 16 Dr. Ohlin, now working for Aearo, 2009. The 

subject

 310 17 is "Re: The new NRR for the CAE."

 310 18 Do you see that, sir?

 310 19 A. Yes.

 310 20 Q. Okay. I'd like to take you back, if we

 310 21 could, sir, to your earliest in time e-mails. It's

 310 22 a -- I think it is .5.

Re: [310:8-310:22]

Def Objection - relevance 

(401, 402); foundation (602)

Re: [310:8-

310:22]

Def Objection -

relevance (401, 

402); 

foundation 

(602)

OVERRULED

Re: [310:8-310:22]

Baker MIL 1

OVERRULED

311:6 - 311:20 Kieper, Ronald 12-19-2019

 311 6 MR. BUCHANAN: We are on top of -- or at the

 311 7 middle of the page on .5. Can you blow that -- do 

you

 311 8 have it out?

 311 9 BY MR. BUCHANAN:

 311 10 Q. It is from Doug Ohlin to Doug Moses. It

 311 11 begins:

 311 12 "I'd like this to be kept between you and

 311 13 me. There is already enough tension between the

 311 14 research and marketing groups and your shop 

without me

 311 15 adding to it."

 311 16 Do you see that, sir? And then it

 311 17 continues.

 311 18 A. I'm sorry. What was your question?

 311 19 Q. I was just asking whether you saw it?

 311 20 A. Yeah, I read through it.

Re: [311:6-311:9]

Def Objection - relevance 

(401, 402); foundation (602)

Re: [311:6-

311:9]

Def Objection -

relevance (401, 

402); 

foundation 

(602)

OVERRULED

Re: [311:10-312:7]

401, 403, Baker MIL 1, 602

OVERRULED

312:2 - 312:7 Kieper, Ronald 12-19-2019

 312 2 Q. Okay. And what Doug Ohlin writes is:

 312 3 "There is already enough tension between

 312 4 the research and marketing groups in your shop 

Re: [311:10-312:7]

401, 403, Baker MIL 1, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 191 of 427
Kieper, Ronald - 12-19-2019 Objection Report 112

without

 312 5 me adding to it."

 312 6 Do you see that?

 312 7 A. Yes, I do.

314:14 - 314:18 Kieper, Ronald 12-19-2019

 314 14 Q. One way to get a high NRR is just to keep

 314 15 running tests and stopping tests when you don't like

 314 16 those results and letting the tests that you think is

 314 17 going to get a good result go to conclusion.

 314 18 That's a trick, right?

Re: [313:24-314:21]

Def Objection - 3M MIL No. 

18; argumentative; misstates 

(611, 403)

Re: [314:14-314:21]

Def Objection - 3M MIL No. 

18; argumentative; misstates; 

asked (611, 403)

SUSTAINED

Re: [313:24-

314:21]

Def Objection -

3M MIL No. 

18; 

argumentative; 

misstates (611, 

403)

OVERRULED

Re: [314:14-

314:21]

Def Objection -

3M MIL No. 

18; 

argumentative; 

misstates; 

asked (611, 

403)

SUSTAINED 

(repeat)

Re: [312:8-315:4]

Baker MIL 1

OVERRULED

314:21 - 314:21 Kieper, Ronald 12-19-2019

 314 21 A. That would be a trick.

Re: [313:24-314:21]

Def Objection - 3M MIL No. 

18; argumentative; misstates 

(611, 403)

Re: [314:14-314:21]

Def Objection - 3M MIL No. 

18; argumentative; misstates; 

asked (611, 403)

SUSTAINED

Re: [313:24-

314:21]

Def Objection -

3M MIL No. 

18; 

argumentative; 

misstates (611, 

403)

OVERRULED

Re: [314:14-

314:21]

Def Objection -

3M MIL No. 

Re: [312:8-315:4]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 192 of 427
Kieper, Ronald - 12-19-2019 Objection Report 113

18; 

argumentative; 

misstates; 

asked (611, 

403)

SUSTAINED 

(repeat)

314:24 - 314:25 Kieper, Ronald 12-19-2019

 314 24 And so we have some examples of that,

 314 25 right?

Re: [314:24-315:4]

Def Objection - 3M MIL No. 

18; argumentative; misstates; 

asked; vague (611, 403); 

foundation (602)

Re: [314:24-315:4]

Def Objection -

argumentative; vague; 

misstates (611, 403); 3M MIL 

No. 18

Re: [314:24-316:8]

Def Objection - 3M MIL No. 

18

Re: [314:24-

315:4]

Def Objection -

3M MIL No. 

18; 

argumentative; 

misstates; 

asked; vague 

(611, 403); 

foundation 

(602)

SUSTAINED

Re: [314:24-

315:4]

Def Objection -

argumentative; 

vague; 

misstates (611, 

403); 3M MIL 

No. 18

SUSTAINED 

(repeat)

Re: [314:24-

316:8]

Def Objection -

3M MIL No. 

18

SUSTAINED 

(repeat)

Re: [312:8-315:4]

Baker MIL 1

SUSTAINED

315:3 - 315:15 Kieper, Ronald 12-19-2019

 315 3 A. No, I don't see that we have -- we have an

 315 4 example of that.

Re: [314:24-315:4]

Def Objection - 3M MIL No. 

18; argumentative; misstates; 

Re: [314:24-

315:4]

Def Objection -

Re: [312:8-315:4]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 193 of 427
Kieper, Ronald - 12-19-2019 Objection Report 114

 315 5 BY MR. BUCHANAN:

 315 6 Q. Okay. And we have one study you ran on

 315 7 the Combat Arms Version 2, you're monitoring the 

data

 315 8 as it's coming across and you are doing real-time

 315 9 computations of what the NRR looks like, and you 

are

 315 10 sharing that information with Mr. Berger because 

he

 315 11 wants you to, right?

 315 12 A. Yes, I communicated with Elliott

 315 13 regularly.

 315 14 Q. And Mr. Berger comes back to you and he

 315 15 terminates the study?

asked; vague (611, 403); 

foundation (602)

Re: [314:24-315:4]

Def Objection -

argumentative; vague; 

misstates (611, 403); 3M MIL 

No. 18

Re: [314:24-316:8]

Def Objection - 3M MIL No. 

18

Re: [315:6-315:13]

Def Objection - cumulative 

(403)

Re: [315:14-315:19]

Def Objection - foundation 

(602); asked; misstates; 

argumentative (611, 403); 3M 

MIL No. 18

3M MIL No. 

18; 

argumentative; 

misstates; 

asked; vague 

(611, 403); 

foundation 

(602)

SUSTAINED

Re: [314:24-

315:4]

Def Objection -

argumentative; 

vague; 

misstates (611, 

403); 3M MIL 

No. 18

SUSTAINED 

(repeat)

Re: [314:24-

316:8]

Def Objection -

3M MIL No. 

18

SUSTAINED 

(repeat)

Re: [315:6-

315:13]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [315:14-

315:19]

Def Objection -

foundation 

(602); asked; 

misstates; 

argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 194 of 427
Kieper, Ronald - 12-19-2019 Objection Report 115

(611, 403); 3M 

MIL No. 18

OVERRULED

315:18 - 315:22 Kieper, Ronald 12-19-2019

 315 18 Q. Right?

 315 19 A. Yes, he stopped the -- stopped the test.

 315 20 Q. And then you rerun it and you flip the

 315 21 flanges back and you got a 22 rather than the 11 

you

 315 22 were going to get, right?

Re: [314:24-316:8]

Def Objection - 3M MIL No. 

18

Re: [315:14-315:19]

Def Objection - foundation 

(602); asked; misstates; 

argumentative (611, 403); 3M 

MIL No. 18

Re: [315:20-316:1]

Def Objection -

argumentative; asked; 

misstates (611, 403); 

foundation (602); 3M MIL 

No. 18

Re: [314:24-

316:8]

Def Objection -

3M MIL No. 

18

SUSTAINED

Re: [315:14-

315:19]

Def Objection -

foundation 

(602); asked; 

misstates; 

argumentative 

(611, 403); 3M 

MIL No. 18

OVERRULED

Re: [315:20-

316:1]

Def Objection -

argumentative; 

asked; 

misstates (611,

403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

315:25 - 316:5 Kieper, Ronald 12-19-2019

 315 25 A. I don't know what the final NRR would have

 316 1 been.

 316 2 BY MR. BUCHANAN:

 316 3 Q. We know it was a number you didn't want to

 316 4 see -- or at least Mr. Berger didn't want to see,

 316 5 right?

Re: [314:24-316:8]

Def Objection - 3M MIL No. 

18

Re: [315:20-316:1]

Def Objection -

argumentative; asked; 

misstates (611, 403); 

foundation (602); 3M MIL 

No. 18

Re: [314:24-

316:8]

Def Objection -

3M MIL No. 

18

SUSTAINED 

Re: [315:20-

316:1]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 195 of 427
Kieper, Ronald - 12-19-2019 Objection Report 116

Re: [316:3-316:8]

Def Objection -

argumentative; misstates; 

asked (611, 403); foundation 

(602)

argumentative; 

asked; 

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 18

OVERRULED

Re: [316:3-

316:8]

Def Objection -

argumentative; 

misstates; 

asked (611,

403); 

foundation 

(602)

SUSTAINED

316:8 - 316:8 Kieper, Ronald 12-19-2019

 316 8 A. I don't know why he stopped the test.

Re: [314:24-316:8]

Def Objection - 3M MIL No.

18

Re: [316:3-316:8]

Def Objection -

argumentative; misstates; 

asked (611, 403); foundation 

(602)

Re: [314:24-

316:8]

Def Objection -

3M MIL No. 

18

SUSTAINED 

Re: [316:3-

316:8]

Def Objection -

argumentative; 

misstates; 

asked (611, 

403); 

foundation 

(602)

SUSTAINED

318:24 - 319:1 Kieper, Ronald 12-19-2019

 318 24 Q. Okay. We could agree, sir, that based on

 318 25 what you just told us, you flipped back the flanges

 319 1 when you retested the green end, correct?

Re: [318:24-319:6]

Def Objection - asked (611, 

403)

Re: [318:24-

319:6]

Def Objection -

asked (611, 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 196 of 427
Kieper, Ronald - 12-19-2019 Objection Report 117

403)

OVERRULED

319:4 - 319:8 Kieper, Ronald 12-19-2019

 319 4 Q. In study 017 to be specific?

 319 5 A. I believe that's -- those were the

 319 6 instructions that I followed.

 319 7 Q. And you did not retest the yellow end at

 319 8 the same time with the flipped back flanges, right?

Re: [318:24-319:6]

Def Objection - asked (611, 

403)

Re: [319:7-319:11]

Def Objection - foundation 

(602); asked (611, 403)

Re: [318:24-

319:6]

Def Objection -

asked (611, 

403)

OVERRULED

Re: [319:7-

319:11]

Def Objection -

foundation 

(602); asked 

(611, 403)

OVERRULED

319:11 - 319:24 Kieper, Ronald 12-19-2019

 319 11 A. That's right.

 319 12 BY MR. BUCHANAN:

 319 13 Q. One fitting technique for one end of the

 319 14 plug, a different fitting technique for the other end

 319 15 of the plug, that's your testimony, right, sir, that's

 319 16 what you did?

 319 17 A. That's my -- that's what I recall.

 319 18 Q. Mr. Berger never told you to retest the

 319 19 yellow end with the flanges flipped back so you 

could

 319 20 get that deep insertion?

 319 21 A. Not that I recall, no.

 319 22 Q. Okay. So in this bag of tricks you all

 319 23 had in the lab, what are some of the other things 

you

 319 24 did to ensure you got high NRRs?

Re: [319:7-319:11]

Def Objection - foundation 

(602); asked (611, 403)

Re: [319:13-319:21]

Def Objection - cumulative 

(403)

Re: [319:22-320:3]

Def Objection -

argumentative; asked; vague; 

misstates (611, 403)

Re: [319:7-

319:11]

Def Objection -

foundation 

(602); asked 

(611, 403)

OVERRULED

Re: [319:13-

319:21]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [319:22-

320:3]

Def Objection -

argumentative; 

asked; vague; 

misstates (611, 

403)

SUSTAINED

320:2 - 320:8 Kieper, Ronald 12-19-2019

 320 2 A. I trained the subjects well and I followed

 320 3 the test standard when I did the tests.

Re: [319:22-320:3]

Def Objection -

Re: [319:22-

320:3]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 197 of 427
Kieper, Ronald - 12-19-2019 Objection Report 118

 320 4 BY MR. BUCHANAN:

 320 5 Q. How about cherry-picking your test

 320 6 subjects to make sure you got the highest 

attenuating

 320 7 subjects for each type of product, that would be a

 320 8 trick, right?

argumentative; asked; vague; 

misstates (611, 403)

Re: [320:5-320:11]

Def Objection -

argumentative; misstates; 

vague; asked (611, 403); 3M 

MIL No. 23

argumentative; 

asked; vague; 

misstates (611, 

403)

SUSTAINED

Re: [320:5-

320:11]

Def Objection -

argumentative; 

misstates; 

vague; asked 

(611, 403); 3M 

MIL No. 23

SUSTAINED

320:11 - 320:18 Kieper, Ronald 12-19-2019

 320 11 A. I don't -- I don't recall ever doing that.

 320 12 BY MR. BUCHANAN:

 320 13 Q. Didn't you all form test panels, sir,

 320 14 where certain people were categorized as plug 

testers

 320 15 and other people were categorized as earmuff 

testers

 320 16 and other people were categorized as testers for 

other

 320 17 devices, didn't you sort your panels into those

 320 18 divisions, sir?

Re: [320:5-320:11]

Def Objection -

argumentative; misstates; 

vague; asked (611, 403); 3M 

MIL No. 23

Re: [320:13-320:24]

Def Objection - asked; 

misstates; argumentative (611, 

403); 3M MIL No. 23; 

relevance (401, 402)

Re: [320:5-

320:11]

Def Objection -

argumentative; 

misstates; 

vague; asked 

(611, 403); 3M 

MIL No. 23

SUSTAINED

Re: [320:13-

320:24]

Def Objection -

asked; 

misstates;

argumentative 

(611, 403); 3M 

MIL No. 23; 

relevance (401, 

402)

OVERRULED

320:21 - 320:24 Kieper, Ronald 12-19-2019

 320 21 A. At a later date than the Combat Arms test

 320 22 that we were talking about, we did form test panels 

in

Re: [320:13-320:24]

Def Objection - asked; 

misstates; argumentative (611, 

403); 3M MIL No. 23; 

relevance (401, 402)

Re: [320:13-

320:24]

Def Objection -

asked; 

misstates; 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 198 of 427
Kieper, Ronald - 12-19-2019 Objection Report 119

 320 23 the lab and a given subject could be on one or all of

 320 24 the panels.

argumentative 

(611, 403); 3M 

MIL No. 23; 

relevance (401, 

402)

OVERRULED

321:1 - 321:5 Kieper, Ronald 12-19-2019

 321 1 Q. Right.

 321 2 And what you did was you identified people

 321 3 who were high attenuators, meaning you could get 

good

 321 4 fits and good protection and good readings, and,

 321 5 therefore, boost NRRs, right?

Re: [321:2-321:9]

Def Objection -

argumentative; asked; 

misstates (611, 403); 3M MIL 

No. 23; relevance (401, 402)

Re: [321:2-

321:9]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403); 3M MIL 

No. 23; 

relevance (401, 

402)

OVERRULED

Re: [321:1-321:1]

401

OVERRULED

321:8 - 321:11 Kieper, Ronald 12-19-2019

 321 8 A. The data were more consistent generally,

 321 9 yes.

 321 10 BY MR. BUCHANAN:

 321 11 Q. And boost NRRs?

Re: [321:2-321:9]

Def Objection -

argumentative; asked; 

misstates (611, 403); 3M MIL 

No. 23; relevance (401, 402)

Re: [321:11-321:18]

Def Objection - 3M MIL No. 

23; argumentative (611, 403)

Re: [321:2-

321:9]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403); 3M MIL 

No. 23;

relevance (401, 

402)

OVERRULED

Re: [321:11-

321:18]

Def Objection -

3M MIL No. 

23; 

argumentative 

(611, 403)

OVERRULED

321:15 - 321:24 Kieper, Ronald 12-19-2019

 321 15 A. I was saying that the -- when we formed

 321 16 the test panels, the test results tended to be less

Re: [321:11-321:18]

Def Objection - 3M MIL No. 

23; argumentative (611, 403)

Re: [321:11-

321:18]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 199 of 427
Kieper, Ronald - 12-19-2019 Objection Report 120

 321 17 variable and less variability will increase the NRR,

 321 18 yes.

 321 19 BY MR. BUCHANAN:

 321 20 Q. There you go. Right.

 321 21 You formed test panels with people who

 321 22 were good test takers to test your products, Aearo

 321 23 products, to raise NRRs.

 321 24 Isn't that what happened?

Re: [321:20-322:4]

Def Objection - 3M MIL No. 

23; misstates; argumentative; 

asked (611, 403); foundation 

(602); relevance (401, 402)

3M MIL No. 

23; 

argumentative 

(611, 403)

OVERRULED

Re: [321:20-

322:4]

Def Objection -

3M MIL No. 

23; misstates; 

argumentative; 

asked (611, 

403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

322:1 - 322:4 Kieper, Ronald 12-19-2019

 322 1 BY THE WITNESS:

 322 2 A. My recollection is that we formed the

 322 3 panels so that we would get more consistent results 

in

 322 4 the testing that we did.

Re: [321:20-322:4]

Def Objection - 3M MIL No. 

23; misstates; argumentative; 

asked (611, 403); foundation 

(602); relevance (401, 402)

Re: [321:20-

322:4]

Def Objection -

3M MIL No. 

23; misstates; 

argumentative; 

asked (611, 

403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

323:6 - 323:7 Kieper, Ronald 12-19-2019

 323 6 BY MR. BUCHANAN:

 323 7 Q. Less variability raises NRRs, right, sir?

Re: [323:7-323:10]

leading, 401, 403

OVERRULED

323:9 - 323:12 Kieper, Ronald 12-19-2019

 323 9 BY THE WITNESS:

 323 10 A. Less variable tends to raise the NRRs.

 323 11 BY MR. BUCHANAN:

 323 12 Q. That's good for marketing, isn't it?

Re: [323:12-323:15]

Def Objection - foundation 

(602); cumulative (403)

Re: [323:12-

323:15]

Def Objection -

foundation 

(602); 

Re: [323:7-323:10]

leading, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 200 of 427
Kieper, Ronald - 12-19-2019 Objection Report 121

cumulative 

(403)

SUSTAINED

323:14 - 323:18 Kieper, Ronald 12-19-2019

 323 14 BY THE WITNESS:

 323 15 A. I'm not in marketing. I don't know.

 323 16 BY MR. BUCHANAN:

 323 17 Q. Well, you know higher NRRs say more

 323 18 protection, right?

Re: [323:12-323:15]

Def Objection - foundation 

(602); cumulative (403)

Re: [323:17-323:25]

Def Objection -

argumentative; asked; 

misstates (611, 403); 

foundation (602); 702

Re: [323:12-

323:15]

Def Objection -

foundation 

(602); 

cumulative 

(403)

SUSTAINED

Re: [323:17-

323:25]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403); 

foundation 

(602); 702

OVERRULED

323:20 - 323:22 Kieper, Ronald 12-19-2019

 323 20 BY MR. BUCHANAN:

 323 21 Q. You don't need to be a marketer to know

 323 22 that?

Re: [323:17-323:25]

Def Objection -

argumentative; asked; 

misstates (611, 403); 

foundation (602); 702

Re: [323:17-

323:25]

Def Objection -

argumentative; 

asked;

misstates (611, 

403); 

foundation 

(602); 702

OVERRULED

323:24 - 323:25 Kieper, Ronald 12-19-2019

 323 24 BY THE WITNESS:

 323 25 A. Higher NRRs imply more protection, yes.

Re: [323:17-323:25]

Def Objection -

argumentative; asked; 

misstates (611, 403); 

foundation (602); 702

Re: [323:17-

323:25]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403); 

foundation 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 201 of 427
Kieper, Ronald - 12-19-2019 Objection Report 122

(602); 702

OVERRULED

324:3 - 324:12 Kieper, Ronald 12-19-2019

 324 3 And so just in terms of consumers, sir,

 324 4 who might be thinking that when you are quoting an 

NRR

 324 5 in your product that actually represents some sample

 324 6 of the population that could be representative, you

 324 7 all have cherry-picked the population, looked at 

prior

 324 8 testing results and sifted potential test

 324 9 candidates -- subjects into buckets based on how

 324 10 consistent and how high they attenuate for the

 324 11 products you are testing.

 324 12 Isn't that what happened?

Re: [324:3-324:16]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

vague; compound (611, 403); 

relevance (401, 402)

Re: [324:3-

324:16]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

vague; 

compound 

(611, 403); 

relevance (401, 

402)

SUSTAINED

324:15 - 324:20 Kieper, Ronald 12-19-2019

 324 15 A. We put people on the panel that tested

 324 16 well with these four individual types of products.

 324 17 BY MR. BUCHANAN:

 324 18 Q. Right.

 324 19 So basically, you decide to test people

 324 20 with your products who are the A students, right?

Re: [324:3-324:16]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

vague; compound (611, 403); 

relevance (401, 402)

Re: [324:19-324:24]

Def Objection -

argumentative; misstates; 

asked (611, 403); 3M MIL No. 

23; relevance (401, 402)

Re: [324:3-

324:16]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

vague; 

compound 

(611, 403); 

relevance (401, 

402)

SUSTAINED

Re: [324:19-

324:24]

Def Objection -

argumentative; 

misstates; 

asked (611, 

403); 3M MIL 

No. 23; 

relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 202 of 427
Kieper, Ronald - 12-19-2019 Objection Report 123

402)

OVERRULED

324:23 - 325:8 Kieper, Ronald 12-19-2019

 324 23 A. You could characterize it that way if you

 324 24 want to.

 324 25 BY MR. BUCHANAN:

 325 1 Q. Right.

 325 2 You went through your panels, you

 325 3 identified who is the A student on earplugs, okay.

 325 4 That person goes in that bucket. They go in the

 325 5 earplug bucket. Who is an A students on earmuffs,

 325 6 okay, put people in that bucket.

 325 7 And then when it came time to test your

 325 8 products, you tested them with your A students, 

right?

Re: [324:19-324:24]

Def Objection -

argumentative; misstates; 

asked (611, 403); 3M MIL No. 

23; relevance (401, 402)

Re: [325:2-325:11]

Def Objection - 3M MIL No. 

22; foundation (602); 

argumentative; misstates(611, 

403)

Re: [324:19-

324:24]

Def Objection -

argumentative; 

misstates; 

asked (611, 

403); 3M MIL 

No. 23; 

relevance (401, 

402)

OVERRULED

Re: [325:2-

325:11]

Def Objection -

3M MIL No. 

22; foundation 

(602); 

argumentative; 

misstates(611,

403)

OVERRULED

Re: [325:1-325:1]

401

OVERRULED

325:11 - 325:11 Kieper, Ronald 12-19-2019

 325 11 A. To get the best results we could, yes.

Re: [325:2-325:11]

Def Objection - 3M MIL No. 

22; foundation (602); 

argumentative; misstates(611, 

403)

Re: [325:2-

325:11]

Def Objection -

3M MIL No. 

22; foundation 

(602); 

argumentative; 

misstates(611, 

403)

OVERRULED

325:20 - 326:2 Kieper, Ronald 12-19-2019

 325 20 Q. You'd agree, sir, that in any classroom,

 325 21 certainly most classrooms, sir, certainly the one that

 325 22 I grew up in, there were A students and there were

B

 325 23 students and there were C students, there may have

Re: [325:20-327:22]

leading, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 203 of 427
Kieper, Ronald - 12-19-2019 Objection Report 124

 325 24 even been some people who didn't score as well as 

a C,

 325 25 but you sifted out all of the Bs and the Cs and the 

Ds

 326 1 and you only tested your all stars.

 326 2 That's a trick, would you agree?

326:5 - 326:13 Kieper, Ronald 12-19-2019

 326 5 A. No. It was within the guidelines of our

 326 6 policy manual and the parameters of the lab.

 326 7 BY MR. BUCHANAN:

 326 8 Q. Okay. So if the consuming public was

 326 9 expecting your product to actually be quoting a

 326 10 protection level that could be achievable to the

 326 11 98 percent of the population that we talked about

 326 12 before, we'd agree you only tested the A students,

 326 13 right?

Re: [325:20-327:22]

leading, 401, 403

OVERRULED

326:16 - 326:20 Kieper, Ronald 12-19-2019

 326 16 A. We tested the people that were consistent

 326 17 on the individual products.

 326 18 BY MR. BUCHANAN:

 326 19 Q. That would be a good thing to tell people,

 326 20 wouldn't it?

Re: [325:20-327:22]

leading, 401, 403

OVERRULED

326:23 - 326:24 Kieper, Ronald 12-19-2019

 326 23 A. I don't know. Why would -- why would we

 326 24 do that?

Re: [325:20-327:22]

leading, 401, 403

OVERRULED

330:12 - 330:21 Kieper, Ronald 12-19-2019

 330 12 Q. I'm passing you, sir, what's marked as

 330 13 Exhibit 26 to your deposition. It is a document

 330 14 titled "The Development of the Combat Arms 

Earplug

 330 15 Version 1 Through Version 4."

 330 16 Do you see that, sir?

 330 17 A. Yes.

 330 18 Q. July 23, 2010, by this point in time you

 330 19 are up to Version 2.4.

 330 20 Do you see that?

 330 21 A. Yes.

Re: [330:12-330:21]

401, 403

OVERRULED

331:4 - 331:18 Kieper, Ronald 12-19-2019

 331 4 Q. I just want to make sure you see where we

Re: [331:4-331:18]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 204 of 427
Kieper, Ronald - 12-19-2019 Objection Report 125

 331 5 are. If you don't, tell me and I'll get you there.

 331 6 It is actually, okay, top right corner, sir, .16.

 331 7 That might be easier. There you go.

 331 8 A. There it is.

 331 9 Q. Okay. "Real-ear Tests - Yellow (open) and

 331 10 (Figure 18)."

 331 11 Do you see that?

 331 12 A. Yes.

 331 13 Q. Okay. This is a document you put

 331 14 together, right?

 331 15 A. Yes, Elliott and I wrote this.

 331 16 Q. Okay. You worked collaborate --

 331 17 collaboratively to do that, sir?

 331 18 A. Yes.

332:3 - 332:23 Kieper, Ronald 12-19-2019

 332 3 "One reason for the increase in the NRRs

 332 4 from 2000 to 2006 is that the lab had begun using 

four

 332 5 separate panels of listeners for the different styles

 332 6 of HPDs."

 332 7 Do you see that, sir?

 332 8 A. Yes.

 332 9 Q. And then it lists the four different

 332 10 styles: "Foam, premolded, push-in-type plugs and

 332 11 muffs," right?

 332 12 A. Yes.

 332 13 Q. Muffs are earmuffs?

 332 14 A. Earmuffs.

 332 15 Q. Okay. Otherwise it might look like head

 332 16 phones or something, right?

 332 17 A. Yes.

 332 18 Q. Okay. "The listeners were assigned to one

 332 19 or more panels, based on individual test results on

 332 20 the four styles of HPDs."

 332 21 Did I read that correctly, sir?

 332 22 A. Yes.

 332 23 Q. And that happened, right, you did that?

Re: [332:3-332:23]

701, 401, 403

OVERRULED

333:1 - 333:14 Kieper, Ronald 12-19-2019

 333 1 A. Yes.

Re: [333:1-334:16]

701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 205 of 427
Kieper, Ronald - 12-19-2019 Objection Report 126

 333 2 BY MR. BUCHANAN:

 333 3 Q. And then you wrote:

 333 4 "By using subjects whose test results

 333 5 yielded higher and more homogeneous values, the 

means

 333 6 tended to increase and the SDs tended to decrease,

 333 7 yielding" what, sir?

 333 8 A. "Yielding higher NRRs."

 333 9 Q. That's what happened, right?

 333 10 A. That's what it states in this report, yes.

 333 11 Q. Okay. So what you did was you went

 333 12 through the classrooms and you picked your A 

students

 333 13 out for earplugs and you put them in their own 

class,

 333 14 right?

333:17 - 333:23 Kieper, Ronald 12-19-2019

 333 17 A. We put the test subjects into the four

 333 18 different panels.

 333 19 BY MR. BUCHANAN:

 333 20 Q. And then what you did after you put those

 333 21 A students on earplugs in their own class, you went 

to

 333 22 them and you tested them to see how well they did

with

 333 23 the attenuation or protection they got, right?

Re: [333:1-334:16]

701, 401, 403

OVERRULED

334:1 - 334:16 Kieper, Ronald 12-19-2019

 334 1 A. We would use them in the real-ear test,

 334 2 yes.

 334 3 BY MR. BUCHANAN:

 334 4 Q. Right.

 334 5 And then when you used them in the

 334 6 real-ear test, what you saw was they got higher.

 334 7 Higher, do you see that, higher values and more

 334 8 homogeneous values?

 334 9 Do you see that, sir?

 334 10 A. Yes, I see that.

 334 11 Q. And that's what happens, right, higher

 334 12 test scores, right? Do you see that, sir?

Re: [333:1-334:16]

701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 206 of 427
Kieper, Ronald - 12-19-2019 Objection Report 127

 334 13 A. Higher attenuation, yes.

 334 14 Q. Yeah. They got higher test scores and

 334 15 they were more homogeneous, meaning they were 

very

 334 16 much like one another, right?

334:19 - 334:22 Kieper, Ronald 12-19-2019

 334 19 A. The -- the attenuation values were

 334 20 homogeneous.

 334 21 BY MR. BUCHANAN:

 334 22 Q. Sure. Right.

Re: [334:19-334:22]

401, 403

OVERRULED

334:23 - 334:25 Kieper, Ronald 12-19-2019

 334 23 So your A students when you put them

 334 24 altogether in one room, they all got As. That's not

 334 25 surprising, is it?

Re: [334:23-335:3]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403); relevance 

(401, 402)

Re: [334:23-

335:3]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403); relevance 

(401, 402)

OVERRULED

335:3 - 335:6 Kieper, Ronald 12-19-2019

 335 3 A. That was why we formed the panels.

 335 4 BY MR. BUCHANAN:

 335 5 Q. Right.

 335 6 To get the higher numbers, right?

Re: [334:23-335:3]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403); relevance 

(401, 402)

Re: [335:6-335:10]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403)

Re: [334:23-

335:3]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403); relevance 

(401, 402)

OVERRULED

Re: [335:6-

335:10]

Def Objection -

3M MIL No. 

23; foundation 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 207 of 427
Kieper, Ronald - 12-19-2019 Objection Report 128

(602); 

argumentative; 

misstates; 

asked (611, 

403)

OVERRULED

335:9 - 335:13 Kieper, Ronald 12-19-2019

 335 9 A. To get more homogeneous values in our

 335 10 testing in the lab, yes.

 335 11 BY MR. BUCHANAN:

 335 12 Q. Higher NRRs, that's what you wanted,

 335 13 that's what you got, right?

Re: [335:6-335:10]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403)

Re: [335:11-335:19]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403)

Re: [335:6-

335:10]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403)

OVERRULED

Re: [335:11-

335:19]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403)

OVERRULED

335:19 - 335:19 Kieper, Ronald 12-19-2019

 335 19 A. That was the result, yes.

Re: [335:11-335:19]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403)

Re: [335:11-

335:19]

Def Objection -

3M MIL No.

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 208 of 427
Kieper, Ronald - 12-19-2019 Objection Report 129

338:20 - 338:22 Kieper, Ronald 12-19-2019

 338 20 Q. Well, that's what you did, right, you

 338 21 tested the A students and then you sold it to

 338 22 everybody?

339:1 - 339:2 Kieper, Ronald 12-19-2019

 339 1 A. We used our test subjects and got the

 339 2 results and then we sold the products.

339:21 - 339:25 Kieper, Ronald 12-19-2019

 339 21 Q. Okay. Did your manual say, We are not

 339 22 going to test B students and C students and D 

students

 339 23 because we don't want to provide a representative

 339 24 picture of how our product performs to the using

 339 25 public?

Re: [339:3-340:3]

401, 403, 701, 602

OVERRULED

340:3 - 340:3 Kieper, Ronald 12-19-2019

 340 3 A. That was not stated in our manual.

Re: [339:3-340:3]

401, 403, 701, 602

OVERRULED

340:5 - 340:9 Kieper, Ronald 12-19-2019

 340 5 Q. I'm just wondering, did you ever share

 340 6 that outside of your company with the purchasers 

that

 340 7 these numbers are what they are because -- not just

 340 8 because you are using Experimenter-Fit, you are 

using

 340 9 Experimenter-Fit on your A students only?

Re: [340:5-340:21]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403); relevance 

(401, 402)

Re: [340:5-

340:21]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403); relevance 

(401, 402)

OVERRULED

340:12 - 340:17 Kieper, Ronald 12-19-2019

 340 12 A. I didn't -- was there a question?

 340 13 BY MR. BUCHANAN:

 340 14 Q. There was, sir.

 340 15 Did you ever share that with purchasers,

 340 16 the purchasing community that that's the way you 

were

 340 17 coming up with those NRRs you were quoting?

Re: [340:5-340:21]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403); relevance 

(401, 402)

Re: [340:5-

340:21]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403); relevance 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 209 of 427
Kieper, Ronald - 12-19-2019 Objection Report 130

(401, 402)

OVERRULED

340:20 - 340:21 Kieper, Ronald 12-19-2019

 340 20 A. I don't know. I didn't -- I wasn't in

 340 21 marketing.

Re: [340:5-340:21]

Def Objection - 3M MIL No. 

23; foundation (602); 

argumentative; misstates; 

asked (611, 403); relevance 

(401, 402)

Re: [340:5-

340:21]

Def Objection -

3M MIL No. 

23; foundation 

(602); 

argumentative; 

misstates; 

asked (611, 

403); relevance 

(401, 402)

OVERRULED

341:7 - 342:3 Kieper, Ronald 12-19-2019

 341 7 (WHEREUPON, a certain document was

 341 8 marked Ron Kieper Deposition Exhibit

 341 9 No. 27, for identification, as of

 341 10 12/19/2019.)

 341 11 BY MR. BUCHANAN:

 341 12 Q. Sir, passing you what is Exhibit 27 to

 341 13 your deposition, it's a -- it's a document from

 341 14 November 30th, 2000, an e-mail from Mr. Berger 

to

 341 15 Brian Myers.

 341 16 Do you see that?

 341 17 A. Yes.

 341 18 Q. Okay. It says: "Performance reviews for

 341 19 Kieper and Kladden."

 341 20 Do you see that?

 341 21 A. Yes.

 341 22 Q. And Mr. Berger, I take it, as part of his

 341 23 job and function would be providing performance

 341 24 reviews and assessments of you and other people in 

the

 341 25 lab, is that right?

 342 1 A. Yes.

 342 2 Q. And you got those from time to time?

 342 3 A. Yes.

Re: [341:7-342:2]

401, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 210 of 427
Kieper, Ronald - 12-19-2019 Objection Report 131

342:4 - 342:7 Kieper, Ronald 12-19-2019

 342 4 Q. You've seen this document before?

 342 5 A. I haven't seen the one for Cyd Kladden.

 342 6 Q. Okay.

 342 7 A. I would have seen mine.

Re: [342:4-342:7]

Plt Objection - beyond the 

scope of clarification counter

Re: [342:4-

342:7]

Plt Objection -

beyond the 

scope of 

clarification 

counter

SUSTAINED

342:8 - 342:19 Kieper, Ronald 12-19-2019

 342 8 Q. Okay. Well, let's look at yours. If we

 342 9 go to .6, we see "Performance Assessment 

Addendum for

 342 10 Ron Kieper (11/30/2000)," right?

 342 11 A. Yes.

 342 12 Q. And this would be that year, just to

 342 13 orient our dates, this would be a few months after 

you

 342 14 had run that 015, 016 and 017 study, right?

 342 15 A. Yes, almost a year after.

 342 16 Q. Well, actually 11/30/2000 -- when did you

 342 17 write the flange report, sir?

 342 18 A. I'd have to look at it, but I -- my

 342 19 recollection is it was in May.

Re: [342:8-342:19]

401, 403, 602

OVERRULED

343:6 - 343:21 Kieper, Ronald 12-19-2019

 343 6 Q. Okay. This is a performance assessment

 343 7 that's done about you by your boss Mr. Berger and 

sent

 343 8 off to that marketing person who was heading the

lab

 343 9 at that point in time, Mr. -- Mr. Myers, right?

 343 10 A. I don't know what his job was, but

 343 11 evidently Elliott still reported to him.

 343 12 Q. Right.

 343 13 Well, we saw in that prior year, in, what,

 343 14 late 1999, that Mr. Myers was the one who was the

 343 15 project manager for the Combat Arms, right?

 343 16 A. He was the project manager for the Combat

 343 17 Arms.

 343 18 Q. Right.

Re: [343:6-343:24]

401, 403, 602

Re: [343:19-343:24]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 211 of 427
Kieper, Ronald - 12-19-2019 Objection Report 132

 343 19 He was booking, what was that, 4.8 million

 343 20 in profit over the next three years for that as a

 343 21 projection?

343:24 - 343:24 Kieper, Ronald 12-19-2019

 343 24 Q. Do you remember seeing that, sir?

Re: [343:6-343:24]

401, 403, 602

Re: [343:19-343:24]

Baker MIL 1

OVERRULED

344:2 - 344:3 Kieper, Ronald 12-19-2019

 344 2 A. I remember seeing those numbers on -- in

 344 3 one of the documents, yes.

Re: [344:2-344:3]

401, 403, 602, Baker MIL 1

OVERRULED

344:5 - 345:5 Kieper, Ronald 12-19-2019

 344 5 Q. Okay. Well, let's look at on this page

 344 6 .6. Scroll down. There is a section on "major

 344 7 accomplishments," right?

 344 8 A. Yes.

 344 9 Q. Okay. And then below it, I think it is

 344 10 Section II B, "Tasks where Ron has exceeded, met, 

or

 344 11 fallen below expectations."

 344 12 Do you see that?

 344 13 A. Yes.

 344 14 Q. It says: "Ron's primary responsibility is

 344 15 REAT testing," right?

 344 16 A. Yes.

 344 17 Q. And those tests 015, 016 and 017 we talked

 344 18 about earlier today, those are REAT tests, right?

 344 19 A. Yes.

 344 20 Q. Okay. It states here in the middle of the

 344 21 paragraph, it says:

 344 22 "His skills in fitting subjects continue

 344 23 to improve and are undoubtedly in large part

 344 24 responsible for the high NRRs we continue to 

achieve

 344 25 on many of our earplugs."

 345 1 Right, sir?

 345 2 A. Yes.

 345 3 Q. Okay. Do you remember being praised by

 345 4 Mr. Berger for your skill in helping the company get

 345 5 high NRRs?

Re: [344:20-345:2]

Def Objection - relevance 

(401, 402)

Re: [345:3-345:9]

Def Objection - relevance 

(401, 402); argumentative 

(611, 403)

Re: [344:20-

345:2]

Def Objection -

relevance (401, 

402)

OVERRULED

Re: [345:3-

345:9]

Def Objection -

relevance (401, 

402); 

argumentative 

(611, 403)

OVERRULED

Re: [344:5-344:19]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 212 of 427
Kieper, Ronald - 12-19-2019 Objection Report 133

345:8 - 345:9 Kieper, Ronald 12-19-2019

 345 8 A. Well, I see his praise in this document,

 345 9 yes.

Re: [345:3-345:9]

Def Objection - relevance 

(401, 402); argumentative 

(611, 403)

Re: [345:3-

345:9]

Def Objection -

relevance (401, 

402); 

argumentative 

(611, 403)

OVERRULED

346:5 - 346:7 Kieper, Ronald 12-19-2019

 346 5 Q. Okay. And you had an understanding, sir,

 346 6 that those NRRs were really important to the folks

 346 7 that were sending you products to test, right?

Re: [346:5-346:7]

602, 401, 403

OVERRULED

346:13 - 346:13 Kieper, Ronald 12-19-2019

 346 13 THE WITNESS: Okay, no.

346:15 - 346:17 Kieper, Ronald 12-19-2019

 346 15 A. It was always my intention to get the best

 346 16 results that I could with a given hearing protector,

 346 17 yes.

Re: [346:15-346:24]

602, 401, 403

OVERRULED

346:20 - 346:21 Kieper, Ronald 12-19-2019

 346 20 I mean, you were apologizing to people

 346 21 when you didn't get high NRRs, right?

Re: [346:15-346:24]

602, 401, 403

OVERRULED

346:24 - 346:24 Kieper, Ronald 12-19-2019

 346 24 A. No.

Re: [346:15-346:24]

602, 401, 403

OVERRULED

347:6 - 348:14 Kieper, Ronald 12-19-2019

 347 6 Q. Who is Ron Throndsen?

 347 7 A. Oh, my gosh, he -- he was an employee of

 347 8 one of the companies at some time. I don't 

remember

 347 9 the timeframe.

 347 10 Q. Okay. Do you remember doing some tests

 347 11 for Mr. Throndsen on some hearing protection 

devices?

 347 12 I see you looking at a page further in,

 347 13 sir. Just maybe you can guide us as to what you are

 347 14 looking at.

 347 15 A. I'm looking at Page .2.

 347 16 Q. I see.

 347 17 A. Okay. I see the document.

Re: [347:7-348:14]

401, 403, Baker MIL 1, MIL 

18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 213 of 427
Kieper, Ronald - 12-19-2019 Objection Report 134

 347 18 Q. Okay. You are going back and forth with a

 347 19 Mr. Throndsen concerning a particular hearing

 347 20 protection device.

 347 21 This is about 2010, right?

 347 22 A. These are July of 2010.

 347 23 Q. And if we look at the second page, you are

 347 24 reporting out to Mr. Throndsen, I guess you are 

both

 347 25 Rons, so this could get a little confusing, but at the

 348 1 top of the page from you to Mr. Throndsen:

 348 2 "Ron, I have tested nine, the NRR is 20.

 348 3 I will test the 10th person next week (probably

 348 4 Wednesday/Thursday) because of NVLAP onsite 

audit on

 348 5 Monday and Tuesday."

 348 6 Do you see that, sir?

 348 7 A. Yes.

 348 8 Q. Okay. So you are reporting out to him

 348 9 that you got an NRR of 20, person nine, right?

 348 10 A. Yes, after nine subjects had been tested.

 348 11 Q. Okay. And you are kind of monitoring this

 348 12 in real-time and reporting it out to your colleagues

 348 13 who are asking for the test so they know what's 

come

 348 14 in, huh?

348:17 - 349:17 Kieper, Ronald 12-19-2019

 348 17 A. I was -- yeah, I was in communication with

 348 18 Ron in this case.

 348 19 BY MR. BUCHANAN:

 348 20 Q. And then you send him the final results, I

 348 21 guess a little bit later, a couple of weeks later,

 348 22 right? You have to go to the first page. It is the

 348 23 last-in-time e-mail.

 348 24 A. Um-hum.

 348 25 Q. It says: "Ron," that's from you to him,

 349 1 "the test results (means and standard deviations, 

NRR

 349 2 and CSA) are attached below. Please forward them 

to

Re: [348:17-350:1]

401, 403, Baker MIL 1, MIL 

18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 214 of 427
Kieper, Ronald - 12-19-2019 Objection Report 135

 349 3 whoever needs them."

 349 4 Do you see that?

 349 5 A. Yes.

 349 6 Q. And then what do you say?

 349 7 A. I beg your pardon.

 349 8 Q. What do you say after that?

 349 9 A. "Sorry the NRR wasn't higher."

 349 10 Q. "Sorry the NRR wasn't higher," is that

 349 11 right?

 349 12 A. Yes.

 349 13 Q. Okay. And you are giving him a 20, right?

 349 14 Isn't that what you reported? You can look at the

 349 15 schedule on the back if you need to.

 349 16 A. Yes, the NRR is 20.

 349 17 Q. And you are apologizing to him?

349:20 - 350:1 Kieper, Ronald 12-19-2019

 349 20 Q. Right?

 349 21 A. I said: "Sorry the NRR wasn't higher,"

 349 22 yes.

 349 23 Q. Okay. I think in fairness, maybe not

 349 24 apologizing, you are expressing, what would it be,

 349 25 sir, you understood he was going to be disappoint --

 350 1 disappointed with a 20, didn't you?

Re: [348:17-350:1]

401, 403, Baker MIL 1, MIL 

18

OVERRULED

350:4 - 350:16 Kieper, Ronald 12-19-2019

 350 4 A. I don't know what his -- whether he'd be

 350 5 disappointed or not.

 350 6 BY MR. BUCHANAN:

 350 7 Q. Well, he told you in the earliest-in-time

 350 8 e-mail but the last time you tested it on band A you

 350 9 got a 26, right?

 350 10 A. We had a 26 dB NRR for the A band, yes.

 350 11 Q. Right.

 350 12 And then you run this other test and you

 350 13 report a 20 and you say: "Sorry the NRR is not

 350 14 higher."

 350 15 That's what you wrote, right?

 350 16 A. That's what I wrote.

Re: [350:4-350:16]

401, 403, Baker MIL 1, MIL 

18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 215 of 427
Kieper, Ronald - 12-19-2019 Objection Report 136

350:17 - 350:19 Kieper, Ronald 12-19-2019

 350 17 Q. Okay. You understood your marketing

 350 18 colleagues and your other colleagues were looking 

for

 350 19 high NRRs, didn't you, sir?

Re: [350:17-350:22]

Def Objection - foundation 

(602)

Re: [350:17-

350:22]

Def Objection -

foundation 

(602)

OVERRULED

Re: [350:17-351:5]

Baker MIL 1

OVERRULED

350:22 - 350:22 Kieper, Ronald 12-19-2019

 350 22 A. Yes, they -- they want high NRRs.

Re: [350:17-350:22]

Def Objection - foundation 

(602)

Re: [350:17-

350:22]

Def Objection -

foundation 

(602)

OVERRULED

Re: [350:17-351:5]

Baker MIL 1

OVERRULED

351:9 - 351:21 Kieper, Ronald 12-19-2019

 351 9 (WHEREUPON, a certain document was

 351 10 marked Ron Kieper Deposition Exhibit

 351 11 No. 29, for identification, as of

 351 12 12/19/2019.)

 351 13 BY MR. BUCHANAN:

 351 14 Q. I'm passing you, sir, Exhibit 29. And we

 351 15 talked about this situation in 2000 where the study

 351 16 015 was cut short at eight people rather than finish

 351 17 it when you had an NRR of 11.

 351 18 Do you recall our discussion on that, sir?

 351 19 A. I recall the discussion around test 015.

 351 20 Q. And that was happening all of the time,

 351 21 wasn't it?

Re: [351:20-352:6]

Def Objection - 3M MIL No. 

18; foundation (602); 

misstates (611, 403)

Re: [351:20-

352:6]

Def Objection -

3M MIL No. 

18; foundation 

(602); misstates 

(611, 403)

OVERRULED

Re: [351:11-351:21]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

351:24 - 352:1 Kieper, Ronald 12-19-2019

 351 24 Q. Where you'd get interim data and you'd be

 351 25 concerned about it and have to get permission about

 352 1 whether to continue the study, right?

Re: [351:20-352:6]

Def Objection - 3M MIL No. 

18; foundation (602); 

misstates (611, 403)

Re: [351:20-

352:6]

Def Objection -

3M MIL No. 

18; foundation 

(602); misstates 

(611, 403)

OVERRULED

Re: [351:24-352:6]

Baker MIL 1

OVERRULED

352:4 - 352:6 Kieper, Ronald 12-19-2019

 352 4 A. The lab procedure was for me to check in

 352 5 with Elliott regarding all testing that I was doing,

 352 6 yes.

Re: [351:20-352:6]

Def Objection - 3M MIL No. 

18; foundation (602); 

misstates (611, 403)

Re: [351:20-

352:6]

Def Objection -

3M MIL No. 

18; foundation 

Re: [351:24-352:6]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 216 of 427
Kieper, Ronald - 12-19-2019 Objection Report 137

(602); misstates 

(611, 403)

OVERRULED

352:8 - 352:11 Kieper, Ronald 12-19-2019

 352 8 Q. Where would I find that in your lab

 352 9 procedures that you might share with an auditor, that

 352 10 the lab procedure was to stop the test at 8 or 10 if

 352 11 you didn't like the NRR?

Re: [352:8-352:24]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

352:14 - 352:18 Kieper, Ronald 12-19-2019

 352 14 Q. Where would I find that, sir?

 352 15 A. I don't know. I don't know that that's in

 352 16 there.

 352 17 Q. Have you ever seen that written down as

 352 18 the firm policy?

Re: [352:8-352:24]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

352:21 - 352:21 Kieper, Ronald 12-19-2019

 352 21 Q. As the lab policy?

Re: [352:8-352:24]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

352:24 - 352:24 Kieper, Ronald 12-19-2019

 352 24 A. No.

Re: [352:8-352:24]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

353:1 - 353:3 Kieper, Ronald 12-19-2019

 353 1 Q. Have you ever seen it written down that

 353 2 you are going to stop studies and just keep running

 353 3 them and fishing for the right NRR until you get it?

Re: [353:1-353:6]

Def Objection -

argumentative; misstates (611, 

403); 3M MIL No. 18

Re: [353:1-

353:6]

Def Objection -

argumentative; 

misstates (611, 

403); 3M MIL 

No. 18

OVERRULED

Re: [353:1-353:6]

Baker MIL 1

OVERRULED

353:6 - 353:6 Kieper, Ronald 12-19-2019

 353 6 A. No.

Re: [353:1-353:6]

Def Objection -

argumentative; misstates (611, 

403); 3M MIL No. 18

Re: [353:1-

353:6]

Def Objection -

argumentative; 

misstates (611, 

403); 3M MIL 

No. 18

OVERRULED

Re: [353:1-353:6]

Baker MIL 1

OVERRULED

353:13 - 353:13 Kieper, Ronald 12-19-2019

 353 13 you might not want to write down?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 217 of 427
Kieper, Ronald - 12-19-2019 Objection Report 138

353:16 - 353:16 Kieper, Ronald 12-19-2019

 353 16 A. I don't know.

353:18 - 353:20 Kieper, Ronald 12-19-2019

 353 18 Q. Mr. Berger never asked you to document

 353 19 that policy in the procedures manual, did he?

 353 20 A. Not that I recall.

Re: [353:18-353:20]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

353:21 - 353:22 Kieper, Ronald 12-19-2019

 353 21 Q. That would be an off-book procedure you

 353 22 all had, right?

Re: [353:21-354:1]

Def Objection - 3M MIL No. 

18; argumentative; misstates; 

asked; vague (611, 403)

Re: [353:21-

354:1]

Def Objection -

3M MIL No. 

18; 

argumentative; 

misstates; 

asked; vague 

(611, 403)

OVERRULED

Re: [353:21-354:1]

Baker MIL 1

OVERRULED

353:25 - 354:1 Kieper, Ronald 12-19-2019

 353 25 A. That was the procedure that I followed

 354 1 with Elliott.

Re: [353:21-354:1]

Def Objection - 3M MIL No. 

18; argumentative; misstates; 

asked; vague (611, 403)

Re: [353:21-

354:1]

Def Objection -

3M MIL No. 

18; 

argumentative; 

misstates; 

asked; vague

(611, 403)

OVERRULED

Re: [353:21-354:1]

Baker MIL 1

OVERRULED

354:4 - 354:10 Kieper, Ronald 12-19-2019

 354 4 I mean, there were the procedures that you

 354 5 elected to put in writing that you might share with

 354 6 the NVLAP auditors, for example, you had those, 

right?

 354 7 A. Yes.

 354 8 Q. And then you had other procedures that you

 354 9 didn't put in writing that weren't shared with the

 354 10 NVLAP auditors, right?

Re: [354:4-354:18]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

354:13 - 354:18 Kieper, Ronald 12-19-2019

 354 13 A. I don't know if they were shared with the

 354 14 auditors.

 354 15 BY MR. BUCHANAN:

Re: [354:4-354:18]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 218 of 427
Kieper, Ronald - 12-19-2019 Objection Report 139

 354 16 Q. Well, you've never seen them in writing,

 354 17 have you?

 354 18 A. No.

358:18 - 358:21 Kieper, Ronald 12-19-2019

 358 18 Q. Can you remember one instance among the

 358 19 many thousands of studies you've conducted, sir, in 

a

 358 20 later test where you had a higher NRR and Mr. 

Berger

 358 21 said, Stop the study?

Re: [357:24-358:24]

401, 403, Baker MIL 1, 

leading

OVERRULED

358:24 - 358:24 Kieper, Ronald 12-19-2019

 358 24 A. I don't know.

Re: [357:24-358:24]

401, 403, Baker MIL 1, 

leading

OVERRULED

359:1 - 359:2 Kieper, Ronald 12-19-2019

 359 1 Q. You have no memory of that happening, do

 359 2 you, sir?

Re: [359:1-359:11]

401, 403

OVERRULED

359:5 - 359:8 Kieper, Ronald 12-19-2019

 359 5 A. I don't have any memory of that.

 359 6 BY MR. BUCHANAN:

 359 7 Q. You do have memory of him stopping studies

 359 8 when the NRR was lower, right?

Re: [359:1-359:11]

401, 403

OVERRULED

359:11 - 359:11 Kieper, Ronald 12-19-2019

 359 11 A. He stopped the 015 test, yes.

Re: [359:1-359:11]

401, 403

OVERRULED

359:13 - 359:16 Kieper, Ronald 12-19-2019

 359 13 Q. I mean, you know, sir, that these NRRs

 359 14 that you all were quoting on your products, I mean,

 359 15 these were things within Aearo you are all trying to

 359 16 protect, right?

359:19 - 359:19 Kieper, Ronald 12-19-2019

 359 19 A. That was not my intention.

359:21 - 359:23 Kieper, Ronald 12-19-2019

 359 21 Q. Well, I understand you were following the

 359 22 procedures you were given to follow, correct, sir?

 359 23 A. I was following the test procedures, yes.

Re: [359:21-359:23]

Baker MIL 1

OVERRULED

365:17 - 365:18 Kieper, Ronald 12-19-2019

 365 17 Q. Were you aware there was a concern about

 365 18 protecting the NRRs for the Combat Arms?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 219 of 427
Kieper, Ronald - 12-19-2019 Objection Report 140

365:22 - 365:23 Kieper, Ronald 12-19-2019

 365 22 Q. You can answer.

 365 23 A. No.

373:9 - 373:13 Kieper, Ronald 12-19-2019

 373 9 BY MR. BUCHANAN:

 373 10 Q. All right. We go all of the way through

 373 11 here, we've been looking at 2007, 2009, 2012. I 

mean,

 373 12 this was the whole time was the policy, wasn't it,

 373 13 sir?

Re: [370:21-373:22]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

373:16 - 373:22 Kieper, Ronald 12-19-2019

 373 16 A. The policy to report to Elliott when I was

 373 17 finishing a test, yes.

 373 18 BY MR. BUCHANAN:

 373 19 Q. Before you go final with the test,

 373 20 Mr. Kieper, tell me the results and I will tell you

 373 21 whether we finish it, that was the policy, right?

 373 22 A. Yes.

Re: [370:21-373:22]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

374:6 - 374:22 Kieper, Ronald 12-19-2019

 374 6 Q. I'm passing you, sir, what we are marking

 374 7 as Exhibit 33.

 374 8 Again, sir, right up until the end, I

 374 9 think you told us you retired, and what was that, the

 374 10 summer of 2016?

 374 11 A. Yes.

 374 12 Q. I think I said this was Exhibit 23. I

 374 13 meant 33. Thank you.

 374 14 An e-mail from yourself to Mr. Berger,

 374 15 Mr. Hamer, Charles Myers. We've seen Mr. 

Berger's

 374 16 name plenty, we've see Mr. Hamer's name plenty.

 374 17 Who was Mr. Myers?

 374 18 A. He was a partner technician in the lab.

 374 19 Q. Okay. And you are reporting on this test

 374 20 result for the HearPlug with PelTip6 (Classic).

 374 21 Do you see that?

 374 22 A. Yes.

Re: [374:6-374:22]

Baker MIL 1, MIL 18, 401, 

403

OVERRULED

375:25 - 376:16 Kieper, Ronald 12-19-2019

 375 25 Q. We spent some time, sir, talking today

Re: [375:25-376:16]

403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 220 of 427
Kieper, Ronald - 12-19-2019 Objection Report 141

 376 1 about this HPDA database. Do you recall our

 376 2 discussions earlier this morning?

 376 3 A. Yes.

 376 4 Q. Okay. In the litigation, the lawyers for

 376 5 3M, they went through and they collected up

 376 6 information and they shared it with us. Among the

 376 7 information shared with us were various versions of

 376 8 the HPDA database.

 376 9 You understand that's a Microsoft Access

 376 10 database, sir, and it's last incarnation you were

 376 11 familiar with?

 376 12 A. Yes.

 376 13 MR. BUCHANAN: Okay. Counsel, I'm going to 

mark

 376 14 on a thumb drive for your benefit the HPDA 

database.

 376 15 We'll just need to keep that for the Court Reporter

 376 16 and we'll give you another one somehow.

Re: [376:4-376:8]

401, 403

376:19 - 377:17 Kieper, Ronald 12-19-2019

 376 19 (WHEREUPON, a certain document was

 376 20 marked Ron Kieper Deposition Exhibit

 376 21 No. 34, for identification, as of

 376 22 12/19/2019.)

 376 23 BY MR. BUCHANAN:

 376 24 Q. So, sir, that HPDA database, that lists

 376 25 the studies that have been conducted over the years 

by

 377 1 you and other technicians in the Aearo lab, correct?

 377 2 A. My recollection is it has both our tests

 377 3 and test results from labs both in the United States

 377 4 and around the world.

 377 5 Q. Gotcha.

 377 6 So if it -- if it was testing that you

 377 7 conducted on Aearo products or other company 

products,

 377 8 that would be in the database, right?

 377 9 A. They would probably be in the database,

 377 10 yes.

 377 11 Q. And if there was testing that was

Re: [376:19-377:17]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 221 of 427
Kieper, Ronald - 12-19-2019 Objection Report 142

 377 12 conducted by others on your products, on Aearo

 377 13 products, you would also put that in your database,

 377 14 right?

 377 15 A. Yes.

 377 16 Q. That was your standard practice, right?

 377 17 A. Yes.

378:2 - 378:6 Kieper, Ronald 12-19-2019

 378 2 Q. I'm passing you, sir, Exhibit 35. For the

 378 3 record, it's a binder and Exhibit 35 contains some

 378 4 printouts. I'll represent to you, sir, they are

 378 5 screen captures of various records in the HPDA

 378 6 database.

Re: [378:2-379:3]

701, 401, 403, Baker MIL 1, 

MIL 18

OVERRULED

396:25 - 397:1 Kieper, Ronald 12-19-2019

 396 25 Q. Killing study after study after study

 397 1 after study, sir, for low results, right?

Re: [396:20-399:23]

701, 401, 403, Baker MIL 1, 

MIL 18

OVERRULED

397:4 - 397:8 Kieper, Ronald 12-19-2019

 397 4 A. Yes, we stopped these tests because of low

 397 5 results.

 397 6 BY MR. BUCHANAN:

 397 7 Q. Right at the end, right before they were

 397 8 finished, right?

Re: [396:20-399:23]

701, 401, 403, Baker MIL 1,

MIL 18

OVERRULED

397:11 - 398:13 Kieper, Ronald 12-19-2019

 397 11 Q. Right?

 397 12 A. Yes, we didn't complete ten subjects on

 397 13 any of those.

 397 14 Q. Let's go forward to Tab 17. Study 224033,

 397 15 May 2005: "Testing stopped after five subjects due 

to

 397 16 low results," right?

 397 17 A. Yes, that's what it says, right.

 397 18 Q. If we go forward to Tab 18, 258195, still

 397 19 in 2005, again, Stopping studies at five subjects due

 397 20 to low results, right?

 397 21 A. Yes.

 397 22 Q. Going forward to Tab 19, study 258196,

 397 23 October 2005: "Stopped after eight subjects due to

 397 24 low results," right?

 397 25 A. Yes.

 398 1 Q. Tab 20, study 258199, December of 2005:

Re: [396:20-399:23]

701, 401, 403, Baker MIL 1, 

MIL 18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 222 of 427
Kieper, Ronald - 12-19-2019 Objection Report 143

 398 2 "Testing stopped after nine people due to low

 398 3 results," right?

 398 4 A. Yes.

 398 5 Q. 2006, I guess that's Tab 21, 258A08:

 398 6 "Test stopped after nine subjects due to low results,"

 398 7 right?

 398 8 A. Yes.

 398 9 Q. 221023, now in 2006: "Testing stopped

 398 10 after 19 subjects due to low results."

 398 11 Do you see that?

 398 12 A. Yes.

 398 13 Q. After 19 subjects?

399:11 - 399:18 Kieper, Ronald 12-19-2019

 399 11 Q. You say "we," sir. And this is Mr. Berger

 399 12 who is stopping these tests, isn't it?

 399 13 A. Yes. I was working for Elliott.

 399 14 Q. Over and over and over again, I'm sure we

 399 15 can spend more time than that, sir, on that binder,

 399 16 would you it surprise you to see over and over and

 399 17 over again studies with low results and low NRRs 

being

 399 18 stopped by your boss before you'd have a final 

number?

Re: [396:20-399:23]

701, 401, 403, Baker MIL 1, 

MIL 18

OVERRULED

399:21 - 399:23 Kieper, Ronald 12-19-2019

 399 21 A. No.

 399 22 BY MR. BUCHANAN:

 399 23 Q. Protect the NRR, right?

Re: [396:20-399:23]

701, 401, 403, Baker MIL 1, 

MIL 18

Re: [399:23-399:23]

701, 401, 403, Baker MIL 1, 

MIL 18, Leading

OVERRULED

400:1 - 400:4 Kieper, Ronald 12-19-2019

 400 1 A. No.

 400 2 BY MR. BUCHANAN:

 400 3 Q. That's what marketing said, right, protect

 400 4 the NRRs?

Re: [400:1-400:1]

602, leading

Re: [400:1-400:7]

602

OVERRULED

400:7 - 400:7 Kieper, Ronald 12-19-2019

 400 7 A. That's what one of those memos said, yes.

Re: [400:1-400:7]

602

OVERRULED

403:5 - 403:9 Kieper, Ronald 12-19-2019

 403 5 Q. Sir, we spent some time talking about this

 403 6 stopping of studies or putting studies on hold or

Re: [403:5-403:10]

401, 403, Baker MIL 1, MIL 

18

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 223 of 427
Kieper, Ronald - 12-19-2019 Objection Report 144

 403 7 terminating studies.

 403 8 Do you recall our discussion on that?

 403 9 A. Yes.

403:18 - 403:23 Kieper, Ronald 12-19-2019

 403 18 Are you aware of any policy and procedures

 403 19 manual that has ever described the policy you

 403 20 described to us of stopping studies with eight or 

nine

 403 21 subjects complete, reporting the NRRs to Mr. 

Berger

 403 22 where he would selectively decide whether to 

continue

 403 23 or to terminate the study?

Re: [403:18-404:2]

602, 401, 403, Baker MIL 1, 

MIL 18

OVERRULED

404:1 - 404:2 Kieper, Ronald 12-19-2019

 404 1 A. I don't know of any, anything written

 404 2 down.

Re: [403:18-404:2]

602, 401, 403, Baker MIL 1, 

MIL 18

OVERRULED

406:17 - 406:20 Kieper, Ronald 12-19-2019

 406 17 Q. Okay. And so you said you'd run

 406 18 statistical tests after you completed the study and

 406 19 then using those tests you could even reject certain

 406 20 of the measures you had, right?

Re: [406:17-408:10]

701, 401, 403

OVERRULED

406:23 - 407:22 Kieper, Ronald 12-19-2019

 406 23 Q. Certain of the measurements, right?

 406 24 A. The -- if a subject failed one of the

 406 25 statistical tests at more than one frequency, the

 407 1 person could be retested.

 407 2 Q. Okay. And you told us how you ran these

 407 3 tests at a few occasions today. I just want to make

 407 4 sure we are confirmed.

 407 5 We saw that picture of the gentleman

 407 6 sitting in the chair in the acoustic chamber, acoustic

 407 7 test chamber.

 407 8 Do you recall that?

 407 9 A. Yes.

 407 10 Q. And when you are doing an EPA 1974 test,

 407 11 that's an Experimenter-Fit test, correct?

 407 12 A. Yes.

 407 13 Q. So you would go into the chamber, if you

 407 14 are testing earplugs, you would fit them in the

Re: [406:17-408:10]

701, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 224 of 427
Kieper, Ronald - 12-19-2019 Objection Report 145

 407 15 subject's ears, right?

 407 16 A. Yes.

 407 17 Q. You would play the fitting noise for the

 407 18 subject, right?

 407 19 A. Yes.

 407 20 Q. And with that information you would

 407 21 determine in coordination with the subject whether 

the

 407 22 earplug was properly fit, right?

407:25 - 408:10 Kieper, Ronald 12-19-2019

 407 25 A. Yes.

 408 1 BY MR. BUCHANAN:

 408 2 Q. And whether you had an adequate fit?

 408 3 A. Yes.

 408 4 Q. Okay. And then you would leave the room.

 408 5 And after you had left the room, you would then 

start

 408 6 to administer the test, right?

 408 7 A. Yes.

 408 8 Q. And that would be playing the tones at the

 408 9 different frequencies, right?

 408 10 A. Yes.

Re: [406:17-408:10]

701, 401, 403

OVERRULED

409:25 - 410:9 Kieper, Ronald 12-19-2019

 409 25 Q. Okay. And so taking us back to the

 410 1 process you described earlier, you fit the earplugs,

 410 2 you run the tests, you capture the data, it all gets

 410 3 put into a spreadsheet and then it all gets brought

 410 4 into the database, is that right?

 410 5 A. Yes.

 410 6 Q. At what stage are you running these

 410 7 statistical tests that you described to look for

 410 8 outliers?

 410 9 A. After ten subjects are tested.

Re: [409:25-410:9]

701, 401, 403

OVERRULED

410:18 - 410:19 Kieper, Ronald 12-19-2019

 410 18 And who crafted the statistical test to

 410 19 determine if data was an outlier?

Re: [410:18-411:14]

401, 403, 602, 701

OVERRULED

410:22 - 411:2 Kieper, Ronald 12-19-2019

 410 22 A. I believe Elliott used a -- a Dixon

 410 23 Outlier Test.

Re: [410:18-411:14]

401, 403, 602, 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 225 of 427
Kieper, Ronald - 12-19-2019 Objection Report 146

 410 24 BY MR. BUCHANAN:

 410 25 Q. Okay. So to your understanding, sir, was

 411 1 it Mr. Berger who identified this outlier test and

 411 2 crafted that as part of Aearo's policy?

411:5 - 411:14 Kieper, Ronald 12-19-2019

 411 5 A. I don't know that, but I would presume

 411 6 that.

 411 7 BY MR. BUCHANAN:

 411 8 Q. Is that your understanding?

 411 9 A. Yes.

 411 10 Q. Okay. And after using the Dixon Outlier

 411 11 Test, if you identified outlier data by virtue of that

 411 12 test, you could retest somebody by your policies,

 411 13 right?

 411 14 A. Yes.

Re: [410:18-411:14]

401, 403, 602, 701

OVERRULED

415:13 - 415:17 Kieper, Ronald 12-19-2019

 415 13 Q. That happened in your years of testing at

 415 14 Aearo where you'd reject some data for a person, 

you'd

 415 15 retest them and you'd reject the second test, and 

then

 415 16 you'd even bring in a replacement test subject, 

right?

 415 17 A. Yes, we replaced people.

Re: [415:13-415:17]

401, 403, 602, 701

OVERRULED

421:19 - 421:20 Kieper, Ronald 12-19-2019

 421 19 Q. I mean, there is nothing in the ANSI '74

 421 20 guidance that says use an outlier test to dump data?

Re: [420:1-421:25]

401, 403, 701, leading

OVERRULED

421:23 - 422:4 Kieper, Ronald 12-19-2019

 421 23 Q. Right?

 421 24 A. I don't know that it says you can or

 421 25 can't.

 422 1 Q. Well, you keep living in this territory,

 422 2 sir, about whether if it doesn't say you can't, you

 422 3 can. Is that what you are telling me, or at least is

 422 4 that how you all at Aearo interpreted the 

regulations?

Re: [420:1-421:25]

401, 403, 701, leading

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

422:7 - 422:15 Kieper, Ronald 12-19-2019

 422 7 A. The way I read the standard, it does not

 422 8 prohibit using statistical tests.

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 226 of 427
Kieper, Ronald - 12-19-2019 Objection Report 147

 422 9 BY MR. BUCHANAN:

 422 10 Q. I'm just trying to figure out what you all

 422 11 were trying to do here, sir.

 422 12 Are you all looking for loopholes in

 422 13 standards so that you could use all of the tricks in

 422 14 your bag to get the highest NRRs? Is that what was

 422 15 happening here?

422:18 - 422:23 Kieper, Ronald 12-19-2019

 422 18 A. No.

 422 19 BY MR. BUCHANAN:

 422 20 Q. Because, in fact, sir, once a tester has

 422 21 been adequately fit, you are not permitted to dump

 422 22 their data.

 422 23 Did you know that, sir?

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

423:1 - 423:10 Kieper, Ronald 12-19-2019

 423 1 A. I don't know that.

 423 2 BY MR. BUCHANAN:

 423 3 Q. Once somebody has been adequately fit --

 423 4 and that was your job to check, right? Do I have 

that

 423 5 right?

 423 6 A. I was the experimenter.

 423 7 Q. And you would go in, and you told us all

 423 8 day, sir, you'd go in there and you'd check and you'd

 423 9 look and you'd play fitting noise and you'd check 

with

 423 10 the subject and they'd tell you they were fit, right?

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

423:13 - 423:13 Kieper, Ronald 12-19-2019

 423 13 Q. That's how it worked?

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

423:16 - 423:20 Kieper, Ronald 12-19-2019

 423 16 A. Yes.

 423 17 BY MR. BUCHANAN:

 423 18 Q. And you wouldn't test that person until

 423 19 you were satisfied that they were adequately fit,

 423 20 right?

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

423:23 - 423:23 Kieper, Ronald 12-19-2019

 423 23 A. Yes.

Re: [422:1-423:23]

401, 403, 701, leading, 

argumentative, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 227 of 427
Kieper, Ronald - 12-19-2019 Objection Report 148

424:9 - 425:16 Kieper, Ronald 12-19-2019

 424 9 Q. I'm passing you, sir, Exhibit 36. This is

 424 10 a copy, sir, of the ANSI 1974 standard.

 424 11 Do you see that?

 424 12 A. Yes.

 424 13 Q. It's the Acoustical Society of America

 424 14 Standard, Method for the Measurement of Real-Ear

 424 15 Protection of Hearing Protectors and Physical

 424 16 Attenuation of Earmuffs.

 424 17 Do you see that, sir?

 424 18 A. Yes.

 424 19 Q. Is this a copy of the 1974 ANSI standard

 424 20 that we've been discussing today?

 424 21 A. Yes.

 424 22 Q. Okay. There is a section on listeners.

 424 23 This calls them listeners, but they are the test

 424 24 subjects in your test, right?

 424 25 A. Yes.

 425 1 Q. Okay. Section 3.2, do you see that, sir?

 425 2 A. Yes.

 425 3 Q. 3.2, Listeners, and there is 3.2.1 and

 425 4 3.2.2.

 425 5 Do you see that?

 425 6 A. Yes.

 425 7 Q. Okay. And then there is 3.2.3. On mine,

 425 8 it's at the at the top of .6 in the right-hand column.

 425 9 Do you see that?

 425 10 A. Yes.

 425 11 Q. It says: "Listeners who satisfy the other

 425 12 requirements of this standard and who do obtain an

 425 13 adequate fit with the test item may not be dismissed

 425 14 for reporting small amounts of protection."

 425 15 Did I read that correctly, sir?

 425 16 A. Yes.

Re: [424:9-427:12]

401, 403, 701

OVERRULED

430:15 - 430:16 Kieper, Ronald 12-19-2019

 430 15 Q. A pretty good trick in your bag of tricks,

 430 16 wouldn't you agree?

Re: [430:15-430:19]

403, argumentative, leading

SUSTAINED

430:19 - 431:1 Kieper, Ronald 12-19-2019

 430 19 A. I don't see it as a trick.

Re: [430:15-430:19]

403, argumentative, leading

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 228 of 427
Kieper, Ronald - 12-19-2019 Objection Report 149

 430 20 BY MR. BUCHANAN:

 430 21 Q. I didn't see anything, sir, in the ANSI

 430 22 standards saying you should go through your data 

set

 430 23 and make it more homogeneous before you 

compute the

 430 24 NRR and report it.

 430 25 Did you see anything like that in the ANSI

 431 1 standard ever, sir?

Re: [430:20-431:4]

701, 401, 403

431:4 - 431:8 Kieper, Ronald 12-19-2019

 431 4 A. I don't recall seeing that, no.

 431 5 BY MR. BUCHANAN:

 431 6 Q. All of the tricks in the book, that's what

 431 7 you all were doing at Aearo, or at least what

 431 8 Mr. Berger was doing, right?

Re: [430:20-431:4]

701, 401, 403

Re: [431:6-431:11]

401, 403, leading

OVERRULED

431:11 - 431:14 Kieper, Ronald 12-19-2019

 431 11 A. No.

 431 12 BY MR. BUCHANAN:

 431 13 Q. When did the consumer enter the picture,

 431 14 sir, and their right to have an NRR they could trust?

Re: [431:6-431:11]

401, 403, leading

Re: [431:13-431:20]

401, 403

OVERRULED

431:20 - 431:20 Kieper, Ronald 12-19-2019

 431 20 A. I don't know.

Re: [431:13-431:20]

401, 403

OVERRULED

432:1 - 432:5 Kieper, Ronald 12-19-2019

 432 1 Q. He is the one who put it in your policies

 432 2 and procedures, right?

 432 3 A. Yes.

 432 4 Q. Okay. Because we won't find that in the

 432 5 ANSI standard, right?

Re: [431:23-432:8]

401, 403

OVERRULED

432:8 - 432:8 Kieper, Ronald 12-19-2019

 432 8 A. That's not in the ANSI standard.

Re: [431:23-432:8]

401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 229 of 427
Moses, Doug [30(b)(6)] 10-17-2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 230 of 427
Moses, Doug 10-17-2019 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

10:4 - 10:11 Moses, Doug 10-17-2019

 10 4 Q. Good morning, Mr. Moses. My

 10 5 name is Dave Buchanan. I represent

 10 6 plaintiffs in a litigation brought against

 10 7 your employer, 3M, relating to a certain

 10 8 product that you've been involved with for

 10 9 many years, the Combat Arms.

 10 10 You're aware of that?

 10 11 A. I am.

10:18 - 10:22 Moses, Doug 10-17-2019

 10 18 Q. Do you understand, sir, that

 10 19 you've been designated on behalf of your

 10 20 employer to provide testimony binding on the

 10 21 company?

 10 22 A. I do.

10:23 - 11:1 Moses, Doug 10-17-2019

 10 23 Q. And you've been identified for

 10 24 particular topics in connection with that

 10 25 notice; that's your understanding?

 11 1 A. That's my understanding.

18:9 - 18:16 Moses, Doug 10-17-2019

 18 9 Q. So, sir, with regard to these

 18 10 topics, marketing, distribution and sales, I

 18 11 understand who you are, at least, within the

 18 12 framework of the company and a little bit

 18 13 within the story as it relates to the Combat

 18 14 Arms.

 18 15 You're a marketing person?

 18 16 A. Yeah.

38:10 - 39:2 Moses, Doug 10-17-2019

 38 10 Q. You have some familiarity with

 38 11 the product; is that right, sir?

 38 12 A. I do.

 38 13 Q. Okay. There is -- Combat Arms

 38 14 is a brand. There were civilian counterparts

 38 15 to the Combat Arms, fair?

 38 16 A. Fair.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 231 of 427
Moses, Doug 10-17-2019 3

 38 17 Q. Okay. They went by the name of

 38 18 Arc plugs? That's one version, right?

 38 19 A. Yes.

 38 20 Q. There was the AO Safety

 38 21 indoor/outdoor range earplug?

 38 22 A. I believe so.

 38 23 Q. Okay. Those are brands you

 38 24 know and are familiar with?

 38 25 A. I know AO Safety --

 39 1 Q. Uh-huh.

 39 2 A. -- and I know Combat Arms.

39:3 - 39:12 Moses, Doug 10-17-2019

 39 3 Q. Okay. When did you start with

 39 4 the company?

 39 5 A. March 1, 2005.

 39 6 Q. And when you started with the

 39 7 company, the company was making the Combat

 39 8 Arms, the AO Safety indoor/outdoor range

 39 9 earplug and the Arc plugs, correct?

 39 10 A. I believe so, from what I've

 39 11 found here. I wasn't on this product line,

 39 12 so...

39:13 - 40:16 Moses, Doug 10-17-2019

 39 13 Q. Okay. And the market segments

 39 14 for these plugs was anyone with a gun, right?

 39 15 A. Could be as -- yes.

 39 16 Q. Construction workers?

 39 17 A. Yes, could be.

 39 18 Q. Electrical workers?

 39 19 A. Yes.

 39 20 Q. I mean, there were consumer and

 39 21 commercial applications, fair?

 39 22 A. There were.

 39 23 Q. Industrial applications?

 39 24 A. Yes.

 39 25 Q. There were sporting

 40 1 applications?

 40 2 A. Yes.

 40 3 Q. When I say "sporting," I mean

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 232 of 427
Moses, Doug 10-17-2019 4

 40 4 sportsmen, people who shoot or go on ranges?

 40 5 A. Hunting and shooting.

 40 6 Q. Hunting and shooting, right?

 40 7 A. Yes.

 40 8 Q. And there were military market

 40 9 segments, fair?

 40 10 A. Yes.

 40 11 Q. And the company over time

 40 12 pursued all those segments, correct?

 40 13 A. It appears that they, yeah, hit

 40 14 most of the ones you just mentioned, yes, to

 40 15 some degree of success or...

 40 16 Q. Right.

41:9 - 41:25 Moses, Doug 10-17-2019

 41 9 Q. Passing you, sir, what we've

 41 10 marked as Exhibit 12 to your deposition.

 41 11 What is that, sir?

 41 12 A. That appears to be the

 41 13 version 2 of the Combat Arms Earplug.

 41 14 Q. Okay. Double-ended?

 41 15 A. It has two eartips, yes.

 41 16 Q. Okay. And when we see those

 41 17 tips, we see the darker end, or the olive

 41 18 end, that would be for continuous protection,

 41 19 from the company's marketing claims, correct?

 41 20 A. Correct.

 41 21 Q. And the yellow end would be,

 41 22 quote, the open end, and that was for impulse

 41 23 or weapons firing or on the range, right?

 41 24 A. Yes, that would be impulse

 41 25 protection.

42:1 - 42:4 Moses, Doug 10-17-2019

 42 1 Q. Okay. Let's go to --

 42 2 A. But importantly, you can also

 42 3 hear through this when the gunfire isn't

 42 4 happening.

Re: [42:2-42:4]

Plt Objection - non responsive

Re: [42:1-

42:4]

Plt Objection -

non responsive

SUSTAINED

Re: [42:2-42:4]

MIL 18; 802

SUSTAINED. 

No new Bakerspecific 

objections; 

MIL 18 not 

preserved (see 

ECF No. 98).

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 233 of 427
Moses, Doug 10-17-2019 5

51:5 - 51:11 Moses, Doug 10-17-2019

 51 5 The earplugs, let's just focus

 51 6 on the earplugs themselves. If you talk

 51 7 about the Arc plugs, if you talk about the

 51 8 AO Safety indoor/outdoor range plugs, or we

 51 9 talk about the Combat Arms version 2, are the

 51 10 plugs themselves feature identical?

 51 11 A. I think that's fair.

56:3 - 56:18 Moses, Doug 10-17-2019

 56 3 The company had a product that

 56 4 it sold through its military channel, right?

 56 5 A. It did.

 56 6 Q. Combat Arms version. Focus on

 56 7 the version 2 design for the moment.

 56 8 That was principally marketed

 56 9 through the military channel; is that your

 56 10 testimony?

 56 11 A. It was, but there was some

 56 12 evidence early on that said that it was -- it

 56 13 didn't really -- we utilized some of the same

 56 14 salespeople as our industrial or some of our

 56 15 same staff members, so I'm not sure how it

 56 16 was marketed in the very, very beginning. I

 56 17 know that it evolved to be very focused on

 56 18 military.

109:10 - 109:13 Moses, Doug 10-17-2019

 109 10 When did you start at the

 109 11 company?

 109 12 A. I started at the company

 109 13 March 1, 2005.

110:20 - 111:7 Moses, Doug 10-17-2019

 110 20 From this same time frame,

 110 21 August of 2005, it's true, isn't it, sir,

 110 22 that the company was seeking to leverage the

 110 23 Combat Arms to extend its presence and sales

 110 24 in the military, true?

 110 25 A. I think we were trying to sell

 111 1 more of it.

 111 2 Q. Well, not only sell more Combat

Re: [111:2-111:16]

Def Objection - Argumentative, 

Vague (403, 611); Foundation 

(602)

Re: [111:2-

111:16]

Def Objection -

Argumentative, 

Vague (403, 

611); 

Foundation 

(602)

OVERRULED

Re: [110:20-111:1]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 234 of 427
Moses, Doug 10-17-2019 6

 111 3 Arms, but you were going to leverage the

 111 4 brand to try and extend your foot --

 111 5 A. The brand Combat Arms?

 111 6 Q. -- to extend your footprint

 111 7 into the military, true?

111:10 - 111:24 Moses, Doug 10-17-2019

 111 10 THE WITNESS: I don't -- if

 111 11 you're talking about the brand Combat

 111 12 Arms Earplugs, I don't know about

 111 13 that -- the strategy behind extending

 111 14 the brand -- the brand itself, Combat

 111 15 Arms, and to utilize it into the

 111 16 military.

 111 17 QUESTIONS BY MR. BUCHANAN:

 111 18 Q. Not by brand name, sir, but

 111 19 extend, if you will, the toehold you had with

 111 20 Combat Arms into a broader sales strategy for

 111 21 the military.

 111 22 You recall that right, sir?

 111 23 A. I recall that we were -- yes,

 111 24 in general.

Re: [111:2-111:16]

Def Objection - Argumentative, 

Vague (403, 611); Foundation 

(602)

Re: [111:2-

111:16]

Def Objection -

Argumentative, 

Vague (403, 

611); 

Foundation 

(602)

OVERRULED

112:2 - 112:7 Moses, Doug 10-17-2019

 112 2 Q. Okay. Passing you Exhibit 19.

 112 3 And we've got these cover pages

 112 4 on here because they were produced to us in

 112 5 litigation in the native format, which means

 112 6 is Excel or Word document or PowerPoint. So

 112 7 you can ignore the first page, sir.

112:8 - 113:11 Moses, Doug 10-17-2019

 112 8 For the record, what I've

 112 9 passed you is exhibit -- as Exhibit 19, our

 112 10 internal numbering for that is P469, for

 112 11 those following along later.

 112 12 Let's go on to 469.3 at the

 112 13 bottom. We see a description of the 2005

 112 14 Business Analysis - Passive Hearing. There's

 112 15 that heading at the top.

 112 16 Do you see that?

 112 17 A. I do.

Re: [113:6-113:11]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 235 of 427
Moses, Doug 10-17-2019 7

 112 18 Q. Okay. Then it kind of breaks

 112 19 down the various components of the passive

 112 20 hearing market.

 112 21 Do you see that?

 112 22 A. Yes, I see a number of headings

 112 23 below that.

 112 24 Q. Yeah, disposable foam, push-in

 112 25 foam, reusable earplugs, all that stuff,

 113 1 right?

 113 2 A. I do.

 113 3 Q. Okay. Then you see Military

 113 4 Channel at the bottom?

 113 5 A. I do.

 113 6 Q. It says, "Military is primary

 113 7 driver of market growth. Substantial

 113 8 opportunity exists to further penetrate this

 113 9 channel with new products."

 113 10 Did I read that correctly?

 113 11 A. Yes, you read that correctly.

113:12 - 113:13 Moses, Doug 10-17-2019

 113 12 Q. Okay. Taking you forward to

 113 13 469.5, it's two pages down --

113:21 - 114:23 Moses, Doug 10-17-2019

 113 21 Q. Okay. Then towards the bottom

 113 22 there it says "Combat Arms."

 113 23 Do you see that?

 113 24 A. I do.

 113 25 Q. I think your finger is already

 114 1 on it. Good.

 114 2 Have you seen this document

 114 3 before?

 114 4 A. I've reviewed this document.

 114 5 Q. Okay. All right. Good. No

 114 6 surprises for you today, it seems.

 114 7 "Combat Arms sales exploded in

 114 8 2005, more than quadrupling 2004."

 114 9 Is that right?

 114 10 A. That's what it says right here.

 114 11 Q. That's what happened, right?

Re: [114:5-114:10]

Def Objection - Relevance (401, 

402)

Re: [114:5-

114:10]

Def Objection -

Relevance 

(401, 402)

SUSTAINED 

as to Good. No 

surprise for 

you today. 

OVERRULED 

in all other 

respects

Re: [114:11-114:23]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 236 of 427
Moses, Doug 10-17-2019 8

 114 12 A. The sales data from that --

 114 13 from the previous exhibit suggests that as

 114 14 well.

 114 15 Q. All right. It says, "Fiscal

 114 16 year 2005 sales should be at or above

 114 17 4.5 million."

 114 18 Right?

 114 19 A. Yes.

 114 20 Q. Okay. And looking forward,

 114 21 2005 business analysis summary, next page,

 114 22 sir.

 114 23 Major Innovations?

115:3 - 115:7 Moses, Doug 10-17-2019

 115 3 Q. 2005 Business Analysis Summary.

 115 4 Do you see that?

 115 5 A. I do.

 115 6 Q. Major Innovations. And you've

 115 7 got your finger right where I'm going.

Re: [115:6-115:7]

Def Objection - Relevance (401, 

402)

Re: [115:6-

115:7]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [115:2-115:5]

Relevance, 403, Baker MIL 1, 

MIL 7

Re: [115:6-115:7]

improperly designating Q 

without A

OVERRULED

115:14 - 117:7 Moses, Doug 10-17-2019

 115 14 Q. Okay. "Extend presence in the

 115 15 military, leveraging the Combat Arms Earplug

 115 16 platform."

 115 17 Do you see that, sir?

 115 18 A. I do.

 115 19 Q. Does that sound like what we

 115 20 were talking about a few minutes ago, about

 115 21 leveraging the Combat Arms platform?

 115 22 A. Yes. In this context, yes.

 115 23 Q. Right.

 115 24 And in fact, that's what

 115 25 you-all did, right?

 116 1 That was the strategy in 2005,

 116 2 and that's what the company in fact did,

 116 3 right?

 116 4 A. This was our strategy, and we

 116 5 did then create the Arc plug and extend it.

 116 6 Q. Oh, no. I'm talking about in

 116 7 the military, sir.

 116 8 A. Oh, I'm sorry. Okay.

Re: [116:21-116:24]

Def Objection - Relevance (401, 

402)

Re: [116:21-

116:24]

Def Objection -

Relevance 

(401, 402)

SUSTAINED

Re: [115:14-115:25]

Relevance, 403, Baker MIL 1, 

MIL 7

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 237 of 427
Moses, Doug 10-17-2019 9

 116 9 Q. Right?

 116 10 A. Yes. We --

 116 11 Q. This is talking about extending

 116 12 your presence in the military, "leveraging

 116 13 the Combat Arms Earplug platform."

 116 14 Did I read that correctly?

 116 15 A. You did.

 116 16 Q. And it says "extend the

 116 17 presence" where, sir?

 116 18 Extend your presence in what?

 116 19 A. I'm sorry, in the military,

 116 20 yes.

 116 21 Q. Thank you.

 116 22 A. Yes.

 116 23 Q. Okay.

 116 24 A. I understand.

 116 25 Q. And that's what you said in

 117 1 2005, and that's what you started to do,

 117 2 right?

 117 3 A. Yes.

 117 4 Q. And if we go forward to 2006,

 117 5 you actually organized a strategic business

 117 6 unit.

 117 7 Do I have that right?

117:13 - 117:23 Moses, Doug 10-17-2019

 117 13 THE WITNESS: I don't recall

 117 14 the term "strategic business unit,"

 117 15 but there was a group that was used

 117 16 and dedicated to focus towards

 117 17 military sales opportunities.

 117 18 QUESTIONS BY MR. BUCHANAN:

 117 19 Q. Right.

 117 20 And formed. Formed, right?

 117 21 A. Yes.

 117 22 Q. Within Aearo?

 117 23 A. Yes.

119:18 - 119:18 Moses, Doug 10-17-2019

 119 18 Q. Sir, when did 3M buy Aearo?

Re: [119:18-120:11]

Def Objection - Scope; 3M MIL 

No. 7

Re: [119:18-

120:11]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 238 of 427
Moses, Doug 10-17-2019 10

Scope; 3M 

MIL No. 7

OVERRULED

119:21 - 119:25 Moses, Doug 10-17-2019

 119 21 THE WITNESS: I believe the

 119 22 close date was April 1, 2008.

 119 23 QUESTIONS BY MR. BUCHANAN:

 119 24 Q. And the deal was, I think,

 119 25 announced in 2007; is that right?

Re: [119:18-120:11]

Def Objection - Scope; 3M MIL 

No. 7

Re: [119:18-

120:11]

Def Objection -

Scope; 3M 

MIL No. 7

OVERRULED

120:4 - 120:4 Moses, Doug 10-17-2019

 120 4 Q. Did you know that?

Re: [119:18-120:11]

Def Objection - Scope; 3M MIL 

No. 7

Re: [119:18-

120:11]

Def Objection -

Scope; 3M 

MIL No. 7

OVERRULED

120:7 - 120:11 Moses, Doug 10-17-2019

 120 7 THE WITNESS: I recall it was

 120 8 in that fall time frame.

 120 9 QUESTIONS BY MR. BUCHANAN:

 120 10 Q. Fall of 2007?

 120 11 A. Yes.

Re: [119:18-120:11]

Def Objection - Scope; 3M MIL 

No. 7

Re: [119:18-

120:11]

Def Objection -

Scope; 3M 

MIL No. 7

OVERRULED

121:8 - 121:10 Moses, Doug 10-17-2019

 121 8 In 2006, the company forms a

 121 9 North American military strategic business

 121 10 unit, correct?

Re: [121:7-121:18]

Def Objection - Asked (611, 

403)

Re: [121:7-

121:18]

Def Objection -

Asked (611, 

403)

OVERRULED

121:14 - 122:1 Moses, Doug 10-17-2019

 121 14 THE WITNESS: I recall that

 121 15 sometime in the October/November time

 121 16 frame, that that was a time when we

 121 17 pulled people from other areas onto a

 121 18 team.

 121 19 QUESTIONS BY MR. BUCHANAN:

 121 20 Q. Right.

 121 21 Because, I mean, as we looked

 121 22 in, what, August of 2005, I mean, this was

 121 23 going to be, frankly, a way to grow the

 121 24 business, right? Leveraging Combat Arms?

Re: [121:7-121:18]

Def Objection - Asked (611, 

403)

Re: [121:7-

121:18]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [121:20-121:25]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 239 of 427
Moses, Doug 10-17-2019 11

 121 25 A. It was one of the ways, yes.

 122 1 Q. Yeah.

122:22 - 122:24 Moses, Doug 10-17-2019

 122 22 Q. So if you could look at

 122 23 Exhibit 20.

 122 24 A. Okay.

124:7 - 124:8 Moses, Doug 10-17-2019

 124 7 Q. Okay. I'm going to go to the

 124 8 next page then.

Re: [124:7-126:6]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

124:9 - 126:6 Moses, Doug 10-17-2019

 124 9 All right. "North American

 124 10 Military Strategic Business Unit Formed;

 124 11 North American Peltor Communications

 124 12 Restructured."

 124 13 Do you see that, sir?

 124 14 A. I do.

 124 15 Q. Okay. And so it talks about

 124 16 the creation of a new strategic business

 124 17 unit.

 124 18 Do you see that on the first

 124 19 line?

 124 20 A. I do.

 124 21 Q. Created in the North American

 124 22 industrial business, right?

 124 23 A. Yes.

 124 24 Q. "To provide focused resources

 124 25 and effort against the rapidly growing

 125 1 military," and then it also says "and law

 125 2 enforcement channels."

 125 3 Right?

 125 4 A. It does.

 125 5 Q. Okay. So this military

 125 6 strategic business unit, that was designed to

 125 7 service both the military and the law

 125 8 enforcement channels.

 125 9 Do I have that right?

 125 10 A. It appears so, yeah.

 125 11 Q. Okay. It says, "The new

 125 12 military SBU" --

Re: [124:7-126:6]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 240 of 427
Moses, Doug 10-17-2019 12

 125 13 That's just an acronym for

 125 14 strategic business unit; is that right?

 125 15 A. Yes.

 125 16 Q. Okay.

 125 17 -- "will manage all Aearo

 125 18 products sold into the military and law

 125 19 enforcement segments, including the Peltor

 125 20 ComTac headsets, E-A-R Combat Arms Earplugs

 125 21 and Peltor eyewear."

 125 22 Did I read that correctly?

 125 23 A. Yes.

 125 24 Q. Okay. So under the military

 125 25 SBU, with a target towards the military and

 126 1 law enforcement, was going to be a focus on

 126 2 these various product lines, right?

 126 3 A. It includes those, yes.

 126 4 Q. Okay. Encompassed within would

 126 5 be E-A-R Combat Arms Earplugs, right?

 126 6 A. Yes.

138:21 - 139:5 Moses, Doug 10-17-2019

 138 21 Q. Okay. It was true, right?

 138 22 A. As I recall, there was some

 138 23 crossover between what Tom and I did in de

 138 24 facto. In other words, we had these titles

 138 25 but we also cross over. He did some

 139 1 marketing for some areas and -- with regards

 139 2 to the communication headset line. So he did

 139 3 some marketing for the communication headset

 139 4 line. I did things mostly without a battery,

 139 5 as we referred to it back then.

144:11 - 144:19 Moses, Doug 10-17-2019

 144 11 Q. Okay. And you were working in

 144 12 this military strategic business unit even

 144 13 after the 3M acquisition?

 144 14 A. Yes, for a period of time.

 144 15 Q. Right.

 144 16 So Mr. Cimino continued to be

 144 17 in charge of the strategic business unit to

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 241 of 427
Moses, Doug 10-17-2019 13

 144 18 extend and leverage the CAE platform?

 144 19 A. I believe so.

144:22 - 144:25 Moses, Doug 10-17-2019

 144 22 QUESTIONS BY MR. BUCHANAN:

 144 23 Q. Okay. Let's look at

 144 24 Exhibit 22, sir.

 144 25 A. Thank you.

145:7 - 146:2 Moses, Doug 10-17-2019

 145 7 Q. Exhibit 22, for the record, is

 145 8 a document entitled "Aearo Strategic Planning

 145 9 Session - Military." Mike Cimino is listed

 145 10 there.

 145 11 It's got that 3M logo, right?

 145 12 So we're now under the 3M umbrella?

 145 13 A. It appears so, yes.

 145 14 Q. For the record, the MDL Bates

 145 15 number is 3M_MDL00048948.

 145 16 And it looks like it's a

 145 17 business matter you-all considered, the

 145 18 military, to be quite an opportunity; would

 145 19 that be fair?

 145 20 A. Certainly the military SBU did.

 145 21 Q. Yeah. And obviously good for

 145 22 the military SBU, good for 3M, right?

 145 23 A. Sure, our success would be good

 145 24 for 3M.

 145 25 Q. And that's what you were trying

 146 1 to do, right? You were trying to do well for

 146 2 3M, right?

Re: [145:25-146:6]

Def Objection - Compound (611, 

403)

Re: [145:25-

146:6]

Def Objection -

Compound 

(611, 403)

OVERRULED

146:5 - 146:6 Moses, Doug 10-17-2019

 146 5 THE WITNESS: I was trying to

 146 6 do the best I could, yes.

Re: [145:25-146:6]

Def Objection - Compound (611, 

403)

Re: [145:25-

146:6]

Def Objection -

Compound 

(611, 403)

OVERRULED

146:23 - 147:15 Moses, Doug 10-17-2019

 146 23 Q. Okay. I mean, military SBU had

 146 24 a plan or a budget, right?

 146 25 A. I believe it had a budget. It

Re: [147:13-147:20]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [147:13-

147:20]

Def Objection -

Compound; 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 242 of 427
Moses, Doug 10-17-2019 14

 147 1 could have been some of that rolled up from

 147 2 other groups, but -- so I'm not sure.

 147 3 Q. And just as a business person,

 147 4 sir, and I guess as a marketing person,

 147 5 you're not really in the science and

 147 6 technical side; you were on the business

 147 7 side, right?

 147 8 A. Yeah, I was the marketer.

 147 9 Q. Okay. And so what you're

 147 10 trying to do is you're trying to sell more

 147 11 and grow the business, right?

 147 12 A. Yes.

 147 13 Q. And that's -- 10,000 foot,

 147 14 that's the marketing strategy, right? Sell

 147 15 more, make more, right?

Vague (611, 

403); 

Foundation 

(602)

OVERRULED

147:18 - 147:24 Moses, Doug 10-17-2019

 147 18 THE WITNESS: And keep our --

 147 19 and make good products for our

 147 20 customers.

 147 21 QUESTIONS BY MR. BUCHANAN:

 147 22 Q. Well, certainly. We'd hope

 147 23 that would always be true, right?

 147 24 A. Yes.

Re: [147:13-147:20]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [147:13-

147:20]

Def Objection -

Compound; 

Vague (611, 

403); 

Foundation 

(602)

OVERRULED

150:12 - 151:15 Moses, Doug 10-17-2019

 150 12 So this is a strategic planning

 150 13 session, right?

 150 14 A. Yes.

 150 15 Q. Okay. PowerPoint, kind of

 150 16 wrapping up the collection of thoughts from

 150 17 it, right?

 150 18 A. I don't know if this was

 150 19 produced before or after.

 150 20 Q. I see.

 150 21 Okay. So we see the agenda at

 150 22 the top, page 2, military strategic planning

 150 23 agenda, vision, mission, big dream, right?

 150 24 A. Yes.

 150 25 Q. Okay. And we looked,

Re: [150:12-151:15]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [150:12-

151:15]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [151:13-151:15]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 243 of 427
Moses, Doug 10-17-2019 15

 151 1 obviously, about the organization of the

 151 2 strategic business unit in 2006. Now you're

 151 3 going to seek to extend and leverage the

 151 4 Combat Arms.

 151 5 Do you recall that?

 151 6 A. I recall that from that sheet

 151 7 you showed me.

 151 8 Q. Into the military, right?

 151 9 A. Yes.

 151 10 Q. Leverage Combat Arms as a

 151 11 platform to expand military sales, fair?

 151 12 A. That's fair.

 151 13 Q. Okay. And the dream was

 151 14 $150 million of consolidated 3M military

 151 15 business, correct?

151:19 - 152:10 Moses, Doug 10-17-2019

 151 19 Q. Well, do you remember that,

 151 20 sir?

 151 21 A. I don't recall that, no.

 151 22 Q. Okay. Let's go to .7.

 151 23 A. Thank you.

 151 24 Q. We see the mission, the vision

 151 25 and the dream, right?

 152 1 A. I do.

 152 2 Q. Okay. It says, "Stretch

 152 3 revenue goal, 2012, 2014, how we will have

 152 4 broadened our offering and reach."

 152 5 Do you see that?

 152 6 A. I do.

 152 7 Q. "$150 million consolidated 3M

 152 8 military business."

 152 9 Do you see that?

 152 10 A. I do.

Re: [151:19-152:10]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [151:19-

152:10]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [151:19-152:10]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

155:6 - 155:11 Moses, Doug 10-17-2019

 155 6 Q. Okay. All right. So moving

 155 7 forward here to .12, we see again a similar

 155 8 one of these slides, Mission, Vision and

 155 9 Dream.

Re: [155:6-155:11]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [155:6-

155:11]

Def Objection -

Relevance 

(401, 402); 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 244 of 427
Moses, Doug 10-17-2019 16

 155 10 Do you see that? The dream?

 155 11 A. Right here.

Prejudice (403)

OVERRULED

155:19 - 156:3 Moses, Doug 10-17-2019

 155 19 Q. "$150 million consolidated 3M

 155 20 military business, increasing market

 155 21 penetration through broader program, captures

 155 22 expanding breadth of product and A&A."

 155 23 Did I read that correctly?

 155 24 A. Yes.

 155 25 Q. And what you highlight,

 156 1 obviously, on -- further in here is at .14,

 156 2 you see the DOD is spending more money,

 156 3 right?

Re: [155:19-155:24]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [155:25-156:14]

Def Objection - Misstates; 

Vague (611, 403); Relevance 

(401, 402); Prejudice (403)

Re: [155:19-

155:24]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [155:25-

156:14]

Def Objection -

Misstates; 

Vague (611, 

403); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

156:10 - 157:1 Moses, Doug 10-17-2019

 156 10 Q. Do you need me to repeat the

 156 11 question?

 156 12 A. I believe you asked whether it

 156 13 shows that the military is spending more

 156 14 money.

 156 15 Q. Yeah.

 156 16 A. This is a -- it says, "USA

 156 17 spending government site," so, yes, DOD

 156 18 spending. Yes.

 156 19 Q. Right.

 156 20 "Significant spending by DOD as

 156 21 war efforts continue."

 156 22 Do you see that?

 156 23 A. Yes.

 156 24 Q. And you-all saw that as market

 156 25 opportunity?

 157 1 A. I think so.

Re: [155:25-156:14]

Def Objection - Misstates; 

Vague (611, 403); Relevance 

(401, 402); Prejudice (403)

Re: [156:15-156:18]

Def Objection - Relevance (401; 

402); Prejudice (403)

Re: [156:19-157:7]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [155:25-

156:14]

Def Objection -

Misstates; 

Vague (611, 

403); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [156:15-

156:18]

Def Objection -

Relevance 

(401; 402); 

Prejudice (403)

OVERRULED

Re: [156:19-

157:7]

Def Objection -

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 245 of 427
Moses, Doug 10-17-2019 17

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

157:2 - 157:15 Moses, Doug 10-17-2019

 157 2 Q. And also highlight that it was

 157 3 continuing to cost more money to outfit

 157 4 soldiers. Next page, .15?

 157 5 A. Yeah. This compares World

 157 6 War II, Vietnam, current operations and then

 157 7 a future system.

 157 8 Q. Yeah, right. I mean, I guess

 157 9 looking forward you're looking at -- I mean,

 157 10 I guess at the time of this in 2007, at least

 157 11 that's the cite at the bottom, current

 157 12 operations and equipment costs, you know,

 157 13 $17,000 per soldier, and you're looking at

 157 14 future system costs of 28,000 to $60,000,

 157 15 right?

Re: [156:19-157:7]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [157:8-157:19]

Def Objection - Vague (611, 

403); Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [156:19-

157:7]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [157:8-

157:19]

Def Objection -

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

157:18 - 157:25 Moses, Doug 10-17-2019

 157 18 THE WITNESS: That's what's on

 157 19 this slide, yes.

 157 20 QUESTIONS BY MR. BUCHANAN:

 157 21 Q. And you-all, within the

 157 22 strategic business meeting, saw this as

 157 23 opportunity, right?

 157 24 A. I think there's -- we saw an

 157 25 opportunity to continue to grow our business.

Re: [157:8-157:19]

Def Objection - Vague (611, 

403); Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [157:20-158:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [157:8-

157:19]

Def Objection -

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [157:20-

158:2]

Def Objection -

Relevance 

(401, 402); 

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 246 of 427
Moses, Doug 10-17-2019 18

Prejudice (403)

OVERRULED

158:1 - 158:4 Moses, Doug 10-17-2019

 158 1 I can't speak to the accuracy of some of

 158 2 these numbers, though.

 158 3 Q. Okay. And that dream grew,

 158 4 right?

Re: [157:20-158:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [158:3-158:14]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [157:20-

158:2]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [158:3-

158:14]

Def Objection -

Vague; 

Compound 

(611, 403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

158:8 - 158:9 Moses, Doug 10-17-2019

 158 8 Q. From $150 million to even

 158 9 bigger numbers, right?

Re: [158:3-158:14]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [158:3-

158:14]

Def Objection -

Vague; 

Compound 

(611, 403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

158:12 - 158:14 Moses, Doug 10-17-2019

 158 12 THE WITNESS: I don't know, but

 158 13 it's possible that we had other

 158 14 documents that showed growth numbers.

Re: [158:3-158:14]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [158:3-

158:14]

Def Objection -

Vague; 

Compound 

(611, 403); 

Re: [155:19-158:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 247 of 427
Moses, Doug 10-17-2019 19

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

158:20 - 158:20 Moses, Doug 10-17-2019

 158 20 Q. Passing you Exhibit 23, sir.

161:14 - 161:21 Moses, Doug 10-17-2019

 161 14 All right, sir. So kind of

 161 15 moving forward in time here, we looked at

 161 16 those early business plans from 2005, 2006,

 161 17 the creation of the strategic business unit,

 161 18 expand and leverage the CAE.

 161 19 We see at this point kind of

 161 20 the company's focus and expansion into the

 161 21 military broadening, fair?

Re: [161:14-162:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [161:14-

162:2]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

161:25 - 162:16 Moses, Doug 10-17-2019

 161 25 THE WITNESS: The division was

 162 1 continuing to put together plans and

 162 2 grow. I don't know about the company.

 162 3 QUESTIONS BY MR. BUCHANAN:

 162 4 Q. Okay. The division being the

 162 5 OH&ESD division, right?

 162 6 A. Yes.

 162 7 Q. Okay. And that's what this

 162 8 PowerPoint's from, from Mr. Cimino, is the

 162 9 business manager for it, right?

 162 10 A. It appears so, yes.

 162 11 Q. Okay. Let's kind of scroll

 162 12 forward. If we go to .2, we see the "OH&ESD

 162 13 roadmap to growth, expand targeted markets,

 162 14 leveraging our entire portfolio."

 162 15 Did I read that correctly?

 162 16 A. You did.

Re: [161:14-162:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [162:3-162:16]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [161:14-

162:2]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [162:3-

162:16]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

162:23 - 163:18 Moses, Doug 10-17-2019

 162 23 Q. Actually, let's go back one

 162 24 slide.

 162 25 It says, "US Business

Re: [162:23-163:11]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [162:23-

163:11]

Def Objection -

Relevance 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 248 of 427
Moses, Doug 10-17-2019 20

 163 1 Overview - Presentation Outline." It's

 163 2 talking about your US military market center

 163 3 team, current state assessment, market

 163 4 opportunity, competitive overview and

 163 5 imperatives.

 163 6 Do you see that?

 163 7 A. Strategic imperatives, 2010,

 163 8 yes.

 163 9 Q. And then charting the course,

 163 10 vision, and then it says what?

 163 11 A. Vision and big dream.

 163 12 Q. Big dream. Okay.

 163 13 Let's go to the next page.

 163 14 Kind of looking at the landscape here as your

 163 15 unit was sizing it up. Or I should say as

 163 16 the OH&ESD unit was sizing it up.

 163 17 Mega trends and market dynamics

 163 18 lead to what, sir?

Re: [163:12-163:24]

Def Objection - Relevance (401, 

402); Prejudice (403)

(401, 402); 

Prejudice (403)

OVERRULED

Re: [163:12-

163:24]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

163:23 - 163:24 Moses, Doug 10-17-2019

 163 23 THE WITNESS: Growth

 163 24 opportunities.

Re: [163:12-163:24]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [163:12-

163:24]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

164:2 - 164:19 Moses, Doug 10-17-2019

 164 2 Q. Okay. And growth

 164 3 opportunities, planet Earth at war, right?

 164 4 A. Yes.

 164 5 Q. Rising cost of the soldier

 164 6 equipment and after-service injury benefits,

 164 7 right?

 164 8 Do you see that?

 164 9 A. Over here, yes.

 164 10 Q. Leading to driving sales of

 164 11 existing portfolios, right?

 164 12 A. Yes, I'm reading that.

 164 13 Q. And what's the first one

 164 14 listed, sir?

Re: [164:2-164:12]

Def Objection - Misstates (611, 

403); Relevance (401, 402); 

Prejudice (403)

Re: [164:13-164:19]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [164:2-

164:12]

Def Objection -

Misstates (611, 

403); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [164:13-

164:19]

Def Objection -

Relevance 

(401, 402); 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 249 of 427
Moses, Doug 10-17-2019 21

 164 15 A. Passive hearing.

 164 16 Q. Passive hearing.

 164 17 Is that something that the

 164 18 Combat Arms would be in the portfolio of?

 164 19 A. Yes.

Prejudice (403)

OVERRULED

164:20 - 165:2 Moses, Doug 10-17-2019

 164 20 Q. Passive hearing meaning that it

 164 21 doesn't have batteries?

 164 22 A. Yes, generically.

 164 23 Q. Okay. I think you told us

 164 24 earlier the lines were drawn, essentially,

 164 25 active hearing was something with batteries

 165 1 and passive was without?

 165 2 A. Yes.

165:3 - 165:7 Moses, Doug 10-17-2019

 165 3 Q. Okay. All right. So when you

 165 4 think passive hearing, that certainly

 165 5 encompasses the Combat Arms, right?

 165 6 A. It would have fallen in this

 165 7 bucket.

166:23 - 167:4 Moses, Doug 10-17-2019

 166 23 Q. Okay. And then one of the ways

 166 24 you're going to pursue new programs is, what,

 166 25 to seed products and technologies into

 167 1 requirements?

 167 2 Do I have that right?

 167 3 A. That's -- yes, that's what it

 167 4 says.

167:24 - 168:2 Moses, Doug 10-17-2019

 167 24 And so among the imperatives

 167 25 for success is to seed products and

 168 1 technologies into requirements, government

 168 2 requirements, right?

Re: [167:24-168:5]

Def Objection - Asked (611, 

403)

Re: [167:24-

168:5]

Def Objection -

Asked (611, 

403)

OVERRULED

168:5 - 168:12 Moses, Doug 10-17-2019

 168 5 THE WITNESS: Yes.

 168 6 QUESTIONS BY MR. BUCHANAN:

 168 7 Q. Okay. Let's go to .24. And

 168 8 this is the -- charting the course, I guess,

Re: [167:24-168:5]

Def Objection - Asked (611, 

403)

Re: [167:24-

168:5]

Def Objection -

Asked (611, 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 250 of 427
Moses, Doug 10-17-2019 22

 168 9 is the slide we saw earlier, more of an

 168 10 agenda.

 168 11 But now we're at the vision of

 168 12 the big dream.

Re: [168:7-168:12]

Def Objection - Relevance (401, 

402); Prejudice (403)

403)

OVERRULED

Re: [168:7-

168:12]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

168:19 - 168:22 Moses, Doug 10-17-2019

 168 19 Q. It says, "Charting the course.

 168 20 We've got the vision and the big dream."

 168 21 Do you see that?

 168 22 A. I do.

Re: [168:19-168:22]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [168:19-

168:22]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

169:12 - 169:13 Moses, Doug 10-17-2019

 169 12 Go to the next page, please,

 169 13 sir. It lists our vision.

Re: [169:11-169:13]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [169:11-

169:13]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

169:19 - 170:1 Moses, Doug 10-17-2019

 169 19 Q. It says, "Our Vision," right?

 169 20 A. It does.

 169 21 Q. It reads, "Chosen provider of

 169 22 personal protective gear to combat forces and

 169 23 support personnel," right?

 169 24 A. It says that.

 169 25 Q. Okay. And that's your

 170 1 $500 million dream, right?

Re: [169:19-169:24]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [169:25-170:6]

Def Objection - Misstates; 

Argumentative; Vague (611, 

403); Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [169:19-

169:24]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [169:25-

170:6]

Def Objection -

Misstates; 

Argumentative; 

Vague (611,

403); 

Foundation 

(602); 

Re: [169:19-170:12]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 251 of 427
Moses, Doug 10-17-2019 23

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

170:4 - 170:12 Moses, Doug 10-17-2019

 170 4 THE WITNESS: I haven't looked

 170 5 at this. Is that what the number is

 170 6 in here?

 170 7 QUESTIONS BY MR. BUCHANAN:

 170 8 Q. What's the next page say, sir?

 170 9 A. Right at the top, yes, I see

 170 10 it.

 170 11 Q. And what do you see?

 170 12 A. I see $500 million dream.

Re: [169:25-170:6]

Def Objection - Misstates; 

Argumentative; Vague (611, 

403); Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [170:8-170:12]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [169:25-

170:6]

Def Objection -

Misstates; 

Argumentative; 

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [170:8-

170:12]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [169:19-170:12]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

170:18 - 171:12 Moses, Doug 10-17-2019

 170 18 Q. So in 2005, as part of your

 170 19 business plan, sir, by leveraging the Combat

 170 20 Arms platform toehold into the military to

 170 21 try and extend it, right? Remember we looked

 170 22 at that?

 170 23 A. As one of the product lines,

 170 24 yes.

 170 25 Q. As we looked at.

 171 1 And then you form a strategic

 171 2 business unit in 2006, do I have right,

 171 3 targeting military?

 171 4 A. Yes.

 171 5 Q. Okay. Again, we saw in the

 171 6 later business plan from that year about

Re: [170:18-171:9]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [171:10-171:16]

Def Objection - Asked; 

Misstates; Vague (611, 403); 

Relevance (401, 402); Prejudice 

(403)

Re: [170:18-

171:9]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [171:10-

171:16]

Def Objection -

Asked; 

Misstates; 

Vague (611, 

403); 

Relevance 

Re: [170:18-171:16]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 252 of 427
Moses, Doug 10-17-2019 24

 171 7 further extending the Combat Arms to extend

 171 8 the military platform, right?

 171 9 A. Yes.

 171 10 Q. We saw your dream, I guess, a

 171 11 few years earlier was a $150 million dream

 171 12 for military business, right?

(401, 402); 

Prejudice (403)

OVERRULED

171:15 - 171:16 Moses, Doug 10-17-2019

 171 15 THE WITNESS: Yes, we reviewed

 171 16 that.

Re: [171:10-171:16]

Def Objection - Asked; 

Misstates; Vague (611, 403); 

Relevance (401, 402); Prejudice 

(403)

Re: [171:10-

171:16]

Def Objection -

Asked; 

Misstates; 

Vague (611, 

403); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [170:18-171:16]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

172:17 - 172:19 Moses, Doug 10-17-2019

 172 17 Q. Okay. So your dream evolved

 172 18 from a $150 million dream to a $500 million

 172 19 dream, right?

Re: [172:17-172:23]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [172:17-

172:23]

Def Objection -

Misstates; 

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [172:17-173:3]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

172:22 - 173:3 Moses, Doug 10-17-2019

 172 22 THE WITNESS: Yes, based on

 172 23 these documents, that's what it says.

 172 24 QUESTIONS BY MR. BUCHANAN:

 172 25 Q. Yes. From the same strategic

 173 1 business unit targeting military sales,

 173 2 right?

 173 3 A. Yes. The -- yes.

Re: [172:17-172:23]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [172:25-173:3]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [172:17-

172:23]

Def Objection -

Misstates; 

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402); 

Re: [172:17-173:3]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 253 of 427
Moses, Doug 10-17-2019 25

Prejudice (403)

OVERRULED

Re: [172:25-

173:3]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

181:19 - 182:2 Moses, Doug 10-17-2019

 181 19 Q. I wanted to pick up with some

 181 20 of the marketing statements and techniques.

 181 21 I think you talked about collateral in one of

 181 22 the documents we looked at shortly before the

 181 23 break.

 181 24 One of the items I think you

 181 25 included within collateral was like sell

 182 1 sheets; is that fair?

 182 2 A. Yes.

182:19 - 182:19 Moses, Doug 10-17-2019

 182 19 Q. Passing over, sir, Exhibit 24,

185:24 - 186:1 Moses, Doug 10-17-2019

 185 24 So, all right, sir. This would

 185 25 be an example of marketing collateral, fair?

 186 1 A. Yes.

190:14 - 190:14 Moses, Doug 10-17-2019

 190 14 Q. What's an NRR?

190:17 - 191:9 Moses, Doug 10-17-2019

 190 17 THE WITNESS: It's the noise

 190 18 reduction rating.

 190 19 QUESTIONS BY MR. BUCHANAN:

 190 20 Q. Okay. You're familiar with

 190 21 what that is?

 190 22 A. Generally.

 190 23 Q. What is it?

 190 24 A. It is a numerical value of --

 190 25 or the attempt to provide a numerical value

 191 1 of what that plug could offer as a noise

 191 2 reduction rating, or an NRR.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 254 of 427
Moses, Doug 10-17-2019 26

 191 3 Q. Okay. And you provide

 191 4 marketing claims about your noise reduction

 191 5 ratings, right?

 191 6 A. In some cases, yes.

 191 7 Q. In this case, right?

 191 8 A. The fact that it's on here is a

 191 9 claim.

194:16 - 195:6 Moses, Doug 10-17-2019

 194 16 And there's different types of

 194 17 claims that are made in marketing pieces,

 194 18 right?

 194 19 MR. MORRISS: Object to form.

 194 20 THE WITNESS: There are claims

 194 21 that are made, certainly.

 194 22 QUESTIONS BY MR. BUCHANAN:

 194 23 Q. Some are performance-related

 194 24 claims, right?

 194 25 A. Could be.

 195 1 Q. Some are safety-related claims,

 195 2 right?

 195 3 A. In the case of the NRR, that

 195 4 would be a safety claim.

 195 5 Q. Some are disclaimers?

 195 6 A. Could be, yes.

Re: [194:16-194:21]

Vague

OVERRULED

195:7 - 195:12 Moses, Doug 10-17-2019

 195 7 Q. What's the system that tracks

 195 8 marketing substantiation or claim

 195 9 substantiation at 3M?

 195 10 A. There's a document retention --

 195 11 or a document sign-off system called SS and

 195 12 the PS, or ampersand PS.

Re: [195:7-195:10]

Beyond scope of counter; 402

SUSTAINED

195:22 - 196:22 Moses, Doug 10-17-2019

 195 22 Q. And through that system, can

 195 23 you see the piece -- the sign-offs and

 195 24 approvals as well as the underlying support

 195 25 or reference materials that are cited in the

 196 1 piece?

 196 2 A. I have not seen reference

 196 3 materials cited in the piece. I have seen a

Re: [195:22-196:22]

Beyond scope of counter; 402, 

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 255 of 427
Moses, Doug 10-17-2019 27

 196 4 document or various iterations of a document

 196 5 if there were comments made, and it would

 196 6 list who within the organization reviewed it

 196 7 and approved it or approved it with comments.

 196 8 Q. Okay. So essentially a system

 196 9 to track the development and evolution of a

 196 10 marketing piece with the changes that are

 196 11 made over time and the sign-offs and

 196 12 approvals on it?

 196 13 A. It's used for a number of

 196 14 things other than just marketing pieces. It

 196 15 could be letters and other things.

 196 16 Q. Something that's leaving the

 196 17 company with a, you know, a brand for the

 196 18 company name on it is going to go through a

 196 19 review and approval process?

 196 20 MR. MORRISS: Object to form.

 196 21 THE WITNESS: Generally. I'm

 196 22 sorry. Generally.

197:7 - 198:1 Moses, Doug 10-17-2019

 197 7 Q. All right. So let's take a

 197 8 look at this one.

 197 9 We see on the first page here,

 197 10 you see -- and that's why I think it's a

 197 11 little easier in the color version. We see

 197 12 the Combat Arms in the soldier's ear.

 197 13 MR. BUCHANAN: Can you scroll

 197 14 up, please?

 197 15 QUESTIONS BY MR. BUCHANAN:

 197 16 Q. And if the green end is

 197 17 sticking out, the yellow end's in the

 197 18 soldier's ear; is that right?

 197 19 A. Presumably, yes.

 197 20 Q. Okay. And if the yellow end's

 197 21 in the ear, as you-all were intending these

 197 22 to be used, that was kind of in a weapons

 197 23 firing mode; is that right?

 197 24 A. It was referred to in different

Re: [197:7-197:15]

Def Objection - Relevance (401, 

402)

Re: [197:7-

197:15]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 256 of 427
Moses, Doug 10-17-2019 28

 197 25 ways, sometimes weapons fired mode, but more

 198 1 generally open mode.

198:12 - 198:20 Moses, Doug 10-17-2019

 198 12 "When needed, the plug's filter

 198 13 reacts to provide instant protection from

 198 14 high-level noises like weapons fire and

 198 15 explosions."

 198 16 Do you see that?

 198 17 A. I do.

 198 18 Q. Okay. So this filter responds

 198 19 to weapons fire or explosions and blocks the

 198 20 impulse. That's kind of the message, right?

Re: [198:18-198:23]

Def Objection - Compound (611, 

403)

Re: [198:18-

198:23]

Def Objection -

Compound 

(611, 403)

OVERRULED

198:22 - 198:23 Moses, Doug 10-17-2019

 198 22 THE WITNESS: That's the

 198 23 message on the sheet.

Re: [198:18-198:23]

Def Objection - Compound (611, 

403)

Re: [198:18-

198:23]

Def Objection -

Compound 

(611, 403)

OVERRULED

227:7 - 228:25 Moses, Doug 10-17-2019

 227 7 Q. Okay. Well, what it says is

 227 8 that the "filter reacts to afford instant

 227 9 protection from impact noises such as weapons

 227 10 fire or improvised explosive devices," right?

 227 11 A. Yes.

 227 12 Q. Would you fault recipients of

 227 13 this for interpreting that sentence as

 227 14 meaning that this would in fact provide

 227 15 instant protection from weapons fire or

 227 16 improvised explosive devices?

 227 17 A. I don't know if I would fault

 227 18 them, but I --

 227 19 Q. That's what you're saying?

 227 20 A. They can read this and see that

 227 21 that's assigned to that product.

 227 22 Q. Right.

 227 23 That's a marketing claim

 227 24 associated with this product, by your own

 227 25 words?

 228 1 A. Yes.

Re: [228:8-228:15]

Vague, Argumentative

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 257 of 427
Moses, Doug 10-17-2019 29

 228 2 Q. Thank you.

 228 3 Now, if you were going to say

 228 4 that, that should be true, right?

 228 5 A. Yes.

 228 6 Q. Okay.

 228 7 A. Should have been reviewed.

 228 8 Q. And there should be data

 228 9 demonstrating it, right?

 228 10 MR. MORRISS: Object to the

 228 11 form.

 228 12 THE WITNESS: Some claims --

 228 13 some claims would have data. Some

 228 14 claims would have other information

 228 15 behind them.

 228 16 QUESTIONS BY MR. BUCHANAN:

 228 17 Q. Okay. You'd certainly want

 228 18 them to be substantiated, correct?

 228 19 A. Or the ability to demonstrate

 228 20 that these are -- these claims have been

 228 21 reviewed and approved.

 228 22 Q. Well, it's not about whether

 228 23 they've been reviewed or approved; they

 228 24 should be true?

 228 25 A. Yes, they should be true.

230:22 - 231:18 Moses, Doug 10-17-2019

 230 22 Q. Okay. I see at the bottom you

 230 23 also have some testing data; is that fair?

 230 24 A. Yes. Some output.

 230 25 Q. All right. Dual-ended CAE,

 231 1 yellow end, again, you're quoting that zero

 231 2 NRR; is that right?

 231 3 A. On the yellow end, yes.

 231 4 Q. And a 22 NRR on the green end;

 231 5 is that right?

 231 6 A. Yes.

 231 7 Q. And you said it was done --

 231 8 testing done in compliance with this set of

 231 9 standards ANSI S3.19-1974; is that right?

 231 10 A. Where are you seeing that?

Re: [231:14-231:20]

602, 403, assumes, 

argumentative

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 258 of 427
Moses, Doug 10-17-2019 30

 231 11 Q. I'm seeing it above the box.

 231 12 A. Oh, I'm sorry, yes, on the

 231 13 heading.

 231 14 Q. All right. And certainly if

 231 15 you're going to represent these are the

 231 16 results of the tests, they should certainly

 231 17 be conducted in compliance and consistent

 231 18 with those standards, correct?

231:20 - 231:20 Moses, Doug 10-17-2019

 231 20 THE WITNESS: Yes.

Re: [231:14-231:20]

602, 403, assumes, 

argumentative

OVERRULED

235:8 - 235:21 Moses, Doug 10-17-2019

 235 8 So if you're firing a weapon,

 235 9 if you're firing a weapon in training or in

 235 10 combat, use the open mode.

 235 11 That was the guidance?

 235 12 A. Set it to the open impulse

 235 13 noise mode.

 235 14 Q. Right.

 235 15 So use open mode when you're

 235 16 firing a weapon in training or in combat, and

 235 17 use the closed mode in other settings, fair?

 235 18 MR. MORRISS: Object to form.

 235 19 THE WITNESS: Yes. And it goes

 235 20 on to talk about some examples of

 235 21 that.

Re: [235:14-235:21]

compound

OVERRULED

271:21 - 272:10 Moses, Doug 10-17-2019

 271 21 Is it a true statement, sir,

 271 22 that the company endorsed the use of the

 271 23 Combat Arms version 2 in open mode with

 271 24 weapons fire?

 271 25 MR. MORRISS: Object to the

 272 1 form.

 272 2 THE WITNESS: Yes.

 272 3 QUESTIONS BY MR. BUCHANAN:

 272 4 Q. Okay. In its marketing

 272 5 materials?

 272 6 A. Yes, in its marketing

 272 7 materials.

Re: [271:21-272:2]

602, 403, misstates

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 259 of 427
Moses, Doug 10-17-2019 31

 272 8 Q. In both training situations and

 272 9 in combat?

 272 10 A. That's what we reviewed, yes.

274:8 - 274:9 Moses, Doug 10-17-2019

 274 8 Q. Passing you, sir, Exhibits 30

 274 9 and 31. Just trying to move things along a

274:20 - 274:24 Moses, Doug 10-17-2019

 274 20 Q. So am I correct, sir, that at a

 274 21 point in time the company placed ads for its

 274 22 hearing protection in the Army/Navy football

 274 23 program?

 274 24 A. Yes.

Re: [274:20-274:24]

Def Objection - Relevance (401, 

402)

Re: [274:20-

274:24]

Def Objection -

Relevance 

(401, 402)

OVERRULED

275:10 - 277:12 Moses, Doug 10-17-2019

 275 10 Q. Okay. Let's look at this one.

 275 11 This would have been, I guess, actually what

 275 12 year? We're in 2012 now?

 275 13 Is that right, sir?

 275 14 A. I'm sorry, I just want to make

 275 15 sure.

 275 16 Yes, 2012, uh-huh.

 275 17 Q. Yeah. And I just discerned

 275 18 that from the e-mail on the cover. This is

 275 19 August 28, 2012. Looks like it's a proof of

 275 20 the ad for the Army/Navy football game to be

 275 21 at West Point that year.

 275 22 Is that right?

 275 23 A. Yes.

 275 24 Q. Okay. And then on the back

 275 25 page is the ad itself.

 276 1 It shows the Combat Arms; is

 276 2 that right?

 276 3 A. It shows some hearing

 276 4 protection products, one of which is the

 276 5 Combat Arms Earplug.

 276 6 Q. Right.

 276 7 We see the E-A-R Combat Arms

 276 8 Earplugs.

 276 9 This is 2012, right?

 276 10 A. Yes.

Re: [275:10-277:12]

Def Objection - Relevance (401, 

402)

Re: [275:10-

277:12]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 260 of 427
Moses, Doug 10-17-2019 32

 276 11 Q. And you're still promoting,

 276 12 obviously, the version 2s?

 276 13 A. Promoting it. Evidently, yes,

 276 14 it's in this advertisement.

 276 15 Q. That's what's happening here,

 276 16 right?

 276 17 A. Yes.

 276 18 Q. Okay. "Hear the action now,

 276 19 hear life later."

 276 20 Is that the message?

 276 21 A. Yes.

 276 22 Q. "Losing your hearing is not a

 276 23 requirement for serving your country."

 276 24 Is that what it says?

 276 25 A. It does.

 277 1 Q. Okay. "With proper fitting,

 277 2 training and the right hearing protector, you

 277 3 can maintain your survivability, lethality

 277 4 and mission effectiveness and enjoy the quiet

 277 5 sounds of life."

 277 6 Did I read that correctly?

 277 7 A. Yes.

 277 8 Q. Okay. And that was a true

 277 9 statement from the company's perspective,

 277 10 right?

 277 11 A. Yes. This would have been

 277 12 vetted. This would have been reviewed.

277:25 - 278:7 Moses, Doug 10-17-2019

 277 25 "Losing your hearing is not a

 278 1 requirement for serving your country," right?

 278 2 A. Yes.

 278 3 Q. That's what you wrote?

 278 4 A. That's what it says.

 278 5 Q. From the company's perspective,

 278 6 that's a true statement, right?

 278 7 A. Yes.

Re: [277:25-278:7]

Def Objection - Relevance (401, 

402)

Re: [277:25-

278:7]

Def Objection -

Relevance 

(401, 402)

OVERRULED

278:8 - 278:19 Moses, Doug 10-17-2019

 278 8 Q. The company's belief and

 278 9 expressed view is that one can serve their

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 261 of 427
Moses, Doug 10-17-2019 33

 278 10 country, and if they're provided -- if they

 278 11 use their hearing protection, leave with all

 278 12 their hearing, right?

 278 13 MR. MORRISS: Object to the

 278 14 form. Misstates the document.

 278 15 Go ahead.

 278 16 THE WITNESS: Well, with proper

 278 17 fitting, training and the right

 278 18 hearing protector, yes, you can

 278 19 maintain your survive -- yes.

278:22 - 279:2 Moses, Doug 10-17-2019

 278 22 And so it's not an

 278 23 inevitability when a person serves in the

 278 24 military, in the Army, Marines, Navy or the

 278 25 Air Force, by virtue of their exposure to

 279 1 weapons or aircraft or vehicles they're going

 279 2 to lose their hearing, right?

Re: [278:22-279:4]

Foundation, 403

OVERRULED

279:4 - 279:4 Moses, Doug 10-17-2019

 279 4 THE WITNESS: It shouldn't be.

Re: [278:22-279:4]

Foundation, 403

OVERRULED

279:6 - 279:17 Moses, Doug 10-17-2019

 279 6 Q. With proper hearing or hearing

 279 7 that delivers on its representations, one can

 279 8 leave the military with their hearing intact,

 279 9 true?

 279 10 MR. MORRISS: Object to the

 279 11 form. Misstates the document.

 279 12 THE WITNESS: So very

 279 13 specifically it says, "With proper

 279 14 fitting, training and the right

 279 15 hearing protector."

 279 16 QUESTIONS BY MR. BUCHANAN:

 279 17 Q. That's right.

Re: [279:6-279:17]

cumulative; beyond scope of 

counter

OVERRULED

279:18 - 280:11 Moses, Doug 10-17-2019

 279 18 And we can agree that the right

 279 19 hearing protector would be one that actually

 279 20 delivers the performance that it represents

 279 21 it has, right?

 279 22 A. If -- yes, if properly fit and

 279 23 trained.

Re: [280:7-280:15]

Def Objection - Compound (611, 

403); Foundation (602)

Re: [280:7-

280:15]

Def Objection -

Compound 

(611, 403); 

Foundation 

Re: [279:18-279:23]

403

Re: [279:24-280:6]

403, argumentative, asked

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 262 of 427
Moses, Doug 10-17-2019 34

 279 24 Q. Sure. Sure.

 279 25 And so that in selecting

 280 1 hearing protection devices, you wouldn't

 280 2 fault people selecting those devices for

 280 3 relying on claims about the protection they

 280 4 can provide, would you?

 280 5 A. Not if they're properly fit and

 280 6 trained.

 280 7 Q. In fact, you'd expect

 280 8 decision-makers to rely on a company's

 280 9 representations in their marketing materials

 280 10 about the performance and safety capabilities

 280 11 of hearing protectors, right?

(602)

OVERRULED

280:13 - 280:15 Moses, Doug 10-17-2019

 280 13 THE WITNESS: They should be

 280 14 able to count on these -- on the claim

 280 15 that we make.

Re: [280:7-280:15]

Def Objection - Compound (611, 

403); Foundation (602)

Re: [280:7-

280:15]

Def Objection -

Compound 

(611, 403); 

Foundation 

(602)

OVERRULED

280:25 - 281:4 Moses, Doug 10-17-2019

 280 25 And so in making that decision

 281 1 about the right hearing protector, you

 281 2 wouldn't fault decision-makers for

 281 3 considering your claims about the performance

 281 4 of your products, would you?

281:7 - 281:11 Moses, Doug 10-17-2019

 281 7 THE WITNESS: I wouldn't -- I

 281 8 wouldn't fault them as long as

 281 9 there's, again, a proper fitting

 281 10 protocol and a training protocol with

 281 11 that.

281:16 - 281:25 Moses, Doug 10-17-2019

 281 16 Q. With regard to making the

 281 17 decision about the right hearing protector,

 281 18 certainly it was your expectation as somebody

 281 19 communicating the characteristics of hearing

 281 20 products that people receiving that messaging

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 263 of 427
Moses, Doug 10-17-2019 35

 281 21 would be considering the company's claims

 281 22 about safety and performance, right?

 281 23 A. I would think it's likely that

 281 24 they would read those claims and, yes, rely

 281 25 on them.

282:1 - 282:2 Moses, Doug 10-17-2019

 282 1 Q. All the more reason for them to

 282 2 be truthful, right?

Re: [282:1-282:5]

Def Objection - Argumentative 

(611, 403)

Re: [282:1-

282:5]

Def Objection -

Argumentative 

(611, 403)

OVERRULED

282:4 - 282:5 Moses, Doug 10-17-2019

 282 4 THE WITNESS: They should be

 282 5 truthful.

Re: [282:1-282:5]

Def Objection - Argumentative 

(611, 403)

Re: [282:1-

282:5]

Def Objection -

Argumentative 

(611, 403)

OVERRULED

283:24 - 284:2 Moses, Doug 10-17-2019

 283 24 Q. And in the military there are

 283 25 decision-makers who may provide the various

 284 1 options for the servicemen and women, fair?

 284 2 A. Generally.

Re: [283:24-284:2]

602, foundation; beyond scope 

of counter

SUSTAINED

285:18 - 286:3 Moses, Doug 10-17-2019

 285 18 Q. Okay. And it was certainly

 285 19 3M's understanding that decision-makers in

 285 20 the military would be relying on the truth of

 285 21 the company's statements about the

 285 22 performance and safety of its products,

 285 23 right?

 285 24 MR. MORRISS: Object to form.

 285 25 THE WITNESS: Among other

 286 1 internal testing that they might do or

 286 2 other information that they might seek

 286 3 to find.

286:9 - 287:3 Moses, Doug 10-17-2019

 286 9 Q. You understood that you had to

 286 10 speak truthfully about the safety and

 286 11 performance of 3M's hearing protective

 286 12 products at all times when you were

Re: [286:9-287:3]

403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 264 of 427
Moses, Doug 10-17-2019 36

 286 13 presenting information about your products to

 286 14 the military, fair?

 286 15 A. I believe we -- we have been

 286 16 and should have been truthful in these in

 286 17 that they were reviewed by numerous people to

 286 18 make sure that we were -- that we were.

 286 19 Q. Yeah, and I understand, sir,

 286 20 that you've been designated on the

 286 21 information the company had about its hearing

 286 22 protectors. I'm just talking about what the

 286 23 company was saying about it.

 286 24 You would agree that if the

 286 25 company was making performance and safety

 287 1 claims about its products, it should be true,

 287 2 agreed?

 287 3 A. Agreed. Yes.

287:4 - 287:8 Moses, Doug 10-17-2019

 287 4 Q. I mean, this piece of marketing

 287 5 literature suggests that there could be very

 287 6 serious outcomes to our servicemen and women

 287 7 if they were afforded, frankly, inadequate

 287 8 hearing protection, correct?

287:13 - 287:18 Moses, Doug 10-17-2019

 287 13 Q. Does that misstate the

 287 14 document, sir?

 287 15 A. Well, this talks about the

 287 16 benefits of wearing hearing -- properly

 287 17 fitted, proper trained, properly selected

 287 18 hearing protection.

287:20 - 287:23 Moses, Doug 10-17-2019

 287 20 And is it unreasonable, sir, to

 287 21 say that if one does not get good hearing

 287 22 protection, that the consequences could be

 287 23 quite devastating?

Re: [287:20-288:3]

Def Objection - Argumentative; 

Misstates (611, 403); Foundation 

(602)

Re: [287:20-

288:3]

Def Objection -

Argumentative; 

Misstates (611, 

403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 265 of 427
Moses, Doug 10-17-2019 37

288:1 - 288:3 Moses, Doug 10-17-2019

 288 1 THE WITNESS: This document

 288 2 specifically is about there could be

 288 3 some hearing loss.

Re: [287:20-288:3]

Def Objection - Argumentative; 

Misstates (611, 403); Foundation 

(602)

Re: [287:20-

288:3]

Def Objection -

Argumentative; 

Misstates (611, 

403); 

Foundation 

(602)

OVERRULED

298:23 - 299:11 Moses, Doug 10-17-2019

 298 23 Q. In all of your review of the

 298 24 marketing collateral that you've seen over

 298 25 your years at the company, sir, have you ever

 299 1 seen any marketing collateral for the Combat

 299 2 Arms version 2 that have the flanges rolled

 299 3 back in someone's ear?

 299 4 A. In the imagery of it?

 299 5 Q. Yeah.

 299 6 A. I don't recall seeing it with

 299 7 the flanges rolled back in the ear.

 299 8 Q. Is there any marketing

 299 9 collateral for the Combat Arms, sir, that has

 299 10 the flange rolled back in someone's ear?

 299 11 A. Not that I was able to find.

299:12 - 299:18 Moses, Doug 10-17-2019

 299 12 Q. You went looking for it, right?

 299 13 MR. MORRISS: Object to form.

 299 14 THE WITNESS: Not specifically

 299 15 for the roll back. I looked at pieces

 299 16 of collateral, and I don't recall

 299 17 seeing one with the flanges rolled

 299 18 back.

Re: [299:12-299:18]

402, 403, cumulative, discovery 

process; beyond scope of counter

SUSTAINED

300:6 - 300:20 Moses, Doug 10-17-2019

 300 6 So we talked a little bit today

 300 7 about kind of the setting in and around the

 300 8 company in 2005 extending and leveraging the

 300 9 Combat Arms, the formation of the strategic

 300 10 business unit targeted towards the military.

 300 11 And we've looked now at some of the marketing

Re: [300:6-300:20]

Def Objection - Relevance (401, 

402)

Re: [300:6-

300:20]

Def Objection -

Relevance 

(401, 402)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 266 of 427
Moses, Doug 10-17-2019 38

 300 12 statements and claims in the literature over

 300 13 the years.

 300 14 What I'd like to do now is

 300 15 explore with you a few of the marketing

 300 16 techniques that were being used as you, you

 300 17 know, started to extend the strategic

 300 18 business unit.

 300 19 Okay?

 300 20 A. Okay.

318:9 - 318:23 Moses, Doug 10-17-2019

 318 9 Q. Passing you, sir, what we

 318 10 marked as Exhibit 34.

 318 11 Sir, this is an e-mail exchange

 318 12 between yourself and Mr. Cimino and

 318 13 Mr. Santoro, well, right around that time

 318 14 frame in March of 2011, right?

 318 15 A. The date on the top e-mail is

 318 16 March. Yes, it appears all the e-mails in

 318 17 the chain are from the March time frame.

 318 18 Q. Yeah. We have, frankly, your

 318 19 boss praising you for your success in seeding

 318 20 it into the new recruit program; isn't that

 318 21 right?

 318 22 A. I want to read back up through

 318 23 here real quick.

319:4 - 321:3 Moses, Doug 10-17-2019

 319 4 Q. I do want to orient you so

 319 5 you're not looking for -- you're free to read

 319 6 the whole document, but I'm on 431.1, the

 319 7 front page, middle e-mail. It's an e-mail

 319 8 from Mr. Cimino to Mr. Santoro, cc to you.

 319 9 For the record, it reads, "85�

 319 10 cost, $7.63 selling price. Doug seeded it

 319 11 into new recruit issue program in US DOD.

 319 12 What more does he need to know? LOL."

 319 13 Did I read that correctly?

 319 14 A. You did.

 319 15 Q. Okay. And Mr. Cimino was your

 319 16 boss?

Re: [319:9-319:14]

Def Objection - 3M MIL. No. 7; 

Prejudice (403); Relevance (401, 

402)

Re: [319:19-320:1]

Def Objection - 3M MIL. No. 7; 

Prejudice (403); Relevance (401, 

402)

Re: [320:15-320:20]

Def Objection - 3M MIL. No. 7; 

Prejudice (403); Relevance (401, 

402)

Re: [319:9-

319:14]

Def Objection -

3M MIL. No. 

7; Prejudice 

(403); 

Relevance 

(401, 402)

OVERRULED

Re: [319:19-

320:1]

Def Objection -

3M MIL. No. 

7; Prejudice 

Re: [320:4-320:14]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 267 of 427
Moses, Doug 10-17-2019 39

 319 17 A. Yes, probably at this time he

 319 18 was, uh-huh.

 319 19 Q. Okay. And you talk about

 319 20 85 percent {sic} cost, 7.63 selling price.

 319 21 So it costs the company 85� to

 319 22 make these; is that right?

 319 23 A. I don't know where Mike got

 319 24 these numbers. It's close, from my

 319 25 recollection, but I don't know where he got

 320 1 these numbers.

 320 2 Q. Very profitable product?

 320 3 A. It's a profitable product.

 320 4 Q. I mean, it paid the bills,

 320 5 right?

 320 6 A. It was a very profitable

 320 7 product, yeah.

 320 8 Q. I mean, it paid the bills;

 320 9 that's what you wrote.

 320 10 Didn't you write that, sir?

 320 11 A. Oh, are you looking at the top

 320 12 here?

 320 13 Q. I am.

 320 14 A. Yes, I did write it there.

 320 15 Q. Okay. So your boss writes "85�

 320 16 cost, $7.63 selling price. Doug seeded it

 320 17 into new recruit issue program in US DOD.

 320 18 What more does he need to know? LOL."

 320 19 And you replied to that, right?

 320 20 A. I did.

 320 21 Q. "In US hearing protection" --

 320 22 And this is your writing,

 320 23 right?

 320 24 A. It appears to be, yes.

 320 25 Q. -- "CAE is 5 percent of 3M's US

 321 1 revenue and 19 percent of the OI."

 321 2 Please tell the jury what OI

 321 3 is.

Re: [320:25-321:6]

Def Objection - 3M MIL No. 7; 

Compound; Vague (611, 403)

(403); 

Relevance 

(401, 402)

OVERRULED

Re: [320:15-

320:20]

Def Objection -

3M MIL. No. 

7; Prejudice 

(403); 

Relevance 

(401, 402)

OVERRULED

Re: [320:25-

321:6]

Def Objection -

3M MIL No. 7; 

Compound; 

Vague (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 268 of 427
Moses, Doug 10-17-2019 40

321:5 - 321:10 Moses, Doug 10-17-2019

 321 5 THE WITNESS: That's operating

 321 6 income.

 321 7 QUESTIONS BY MR. BUCHANAN:

 321 8 Q. Okay. "CAE pays the bills."

 321 9 Is that what you wrote?

 321 10 A. I wrote that.

Re: [320:25-321:6]

Def Objection - 3M MIL No. 7; 

Compound; Vague (611, 403)

Re: [320:25-

321:6]

Def Objection -

3M MIL No. 7; 

Compound; 

Vague (611, 

403)

OVERRULED

Re: [321:8-321:10]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

322:7 - 322:17 Moses, Doug 10-17-2019

 322 7 Q. Okay. And so when you wrote

 322 8 "19 percent of the operating income," what

 322 9 you're basically saying here is that even

 322 10 though we only -- even though it's only

 322 11 5 percent of revenue, that 5 percent of --

 322 12 that 5 percent of revenue may not look that

 322 13 big, but because it's so profitable, because

 322 14 our profit margin is so great, that scales to

 322 15 19 percent of the entity's operating income.

 322 16 That's what you're

 322 17 communicating, right?

Re: [322:7-322:19]

Def Objection - 3M MIL No. 7; 

Compound; Mistates (611, 403); 

Prejudice (403)

Re: [322:7-

322:19]

Def Objection -

3M MIL No. 7; 

Compound; 

Mistates (611,

403); Prejudice 

(403)

OVERRULED

322:19 - 322:19 Moses, Doug 10-17-2019

 322 19 THE WITNESS: Generally.

Re: [322:7-322:19]

Def Objection - 3M MIL No. 7; 

Compound; Mistates (611, 403); 

Prejudice (403)

Re: [322:7-

322:19]

Def Objection -

3M MIL No. 7; 

Compound; 

Mistates (611, 

403); Prejudice 

(403)

OVERRULED

323:2 - 323:9 Moses, Doug 10-17-2019

 323 2 Q. And so I guess getting it

 323 3 seeded into that new recruit issue program at

 323 4 the US DOD was a pretty good thing for

 323 5 business, fair?

 323 6 A. It would help us sell more.

 323 7 Q. And that would be a pretty good

 323 8 for business?

 323 9 A. Generally, yes.

Re: [323:2-323:9]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 269 of 427
Moses, Doug 10-17-2019 41

345:3 - 346:6 Moses, Doug 10-17-2019

 345 3 Q. Actually, where I was going

 345 4 was, did you have consulting agreements with

 345 5 Doug Ohlin?

 345 6 A. Not prior to this, no.

 345 7 Q. Okay. And I guess that's

 345 8 helpful.

 345 9 So prior to the time he left

 345 10 the military, the company didn't have a

 345 11 consulting relationship with Doug Ohlin?

 345 12 A. No, prior -- he worked for

 345 13 the -- the military as a contractor or as a

 345 14 consultant there.

 345 15 Q. He was a consultant for them

 345 16 for a period of time?

 345 17 A. Yes.

 345 18 Q. Long period of time?

 345 19 A. I don't know what it was called

 345 20 then, I forget, but I think it was like the

 345 21 Army hearing program sometime thereafter.

 345 22 Q. Right.

 345 23 And it was your understanding

 345 24 he was a consultant to them?

 345 25 A. I thought he was a senior

 346 1 person in that office.

 346 2 Q. Okay.

 346 3 A. Yeah, I misspoke just a moment

 346 4 ago. I -- but I think when he was in the

 346 5 military, I think he had a senior role in --

 346 6 with the audiology group.

Re: [345:3-345:3]

Beyond scope of counter; 602

SUSTAINED

346:18 - 346:23 Moses, Doug 10-17-2019

 346 18 Q. Okay.

 346 19 A. And this indicates that we

 346 20 might have been talking about him retiring

 346 21 internally, but I don't believe -- I don't

 346 22 have a recollection of ever reaching out to

 346 23 him until after his retirement.

Re: [346:18-346:23]

403; superseded by other 

discovery; beyond scope of 

counter

SUSTAINED

376:14 - 376:19 Moses, Doug 10-17-2019

 376 14 Q. Okay. So Dr. Ohlin worked with

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 270 of 427
Moses, Doug 10-17-2019 42

 376 15 you for a number of years after his time in

 376 16 the military?

 376 17 A. After his time -- yeah, he was

 376 18 a civilian. He wasn't in the military, but

 376 19 he worked for a military organization.

376:25 - 377:5 Moses, Doug 10-17-2019

 376 25 He would attend booths?

 377 1 A. Sometimes.

 377 2 Q. Kind of like he described,

 377 3 there'd be some marketing collateral,

 377 4 Dr. Ohlin would be there; you would be there?

 377 5 A. Sometimes. Sometimes, yeah.

377:11 - 377:12 Moses, Doug 10-17-2019

 377 11 Q. Exhibit 41. This is also P947,

 377 12 Bates 3M_MDL000277922.

377:13 - 377:18 Moses, Doug 10-17-2019

 377 13 This is you, sir, looks like

 377 14 scheduling a conference line with some

 377 15 colleagues, fair?

 377 16 A. Yeah, this looks like what

 377 17 would appear if we had a meeting and a

 377 18 dial-in phone number.

378:11 - 378:22 Moses, Doug 10-17-2019

 378 11 Q. Okay. And you're reporting on

 378 12 this conference AUSA; is that right?

 378 13 A. I'm not reporting on it.

 378 14 I'm -- I think this appears to be before the

 378 15 fact, before the AUSA event happened.

 378 16 Q. Thank you. Thank you.

 378 17 So this was before. And I

 378 18 guess you're talking about what has happened

 378 19 in prior years at that event, correct?

 378 20 A. One moment, please.

 378 21 I'm giving some recollections

 378 22 of prior years, yes.

378:23 - 380:15 Moses, Doug 10-17-2019

 378 23 Q. Okay. And it says, "Over the

 378 24 past four years, I would say that as much as

 378 25 75 percent of the boot traffic was for

Re: [379:8-379:11]

Def Objection - Prejudice (403); 

Relevance (401, 402)

Re: [379:8-

379:11]

Def Objection -

Prejudice 

Re: [379:12-380:11]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 271 of 427
Moses, Doug 10-17-2019 43

 379 1 soldier protection, PPE, namely Combat Arms

 379 2 Earplugs and ComTac," right?

 379 3 A. Yes.

 379 4 Q. And is that leveraging the

 379 5 Combat Arms brand into a broader military

 379 6 presence, sir?

 379 7 A. At AUSA, yes.

 379 8 Q. It says you had Doug Ohlin

 379 9 fitting Combat Arms to hundreds of soldiers,

 379 10 military personnel and key civilians, right?

 379 11 A. Yes, uh-huh.

 379 12 Q. And he's, I guess, drawn in

 379 13 many more soldiers and civilians and other

 379 14 displays and technologies and products

 379 15 combined, right?

 379 16 A. That's what I've written here.

 379 17 Q. And his presence there was

 379 18 actually helpful to the marketing of the

 379 19 product, fair?

 379 20 A. It appears that I thought so,

 379 21 and I have a recollection that I thought so

 379 22 at the time.

 379 23 Q. It was certainly in your view

 379 24 from a marketing perspective that the

 379 25 marketing dollars spent working with

 380 1 Dr. Ohlin were good for the CAE and passive

 380 2 hearing brands, correct?

 380 3 A. I think they were good for the

 380 4 brands, yeah.

 380 5 Q. Yeah.

 380 6 And certainly helped drive

 380 7 revenue growth, right?

 380 8 A. I suppose in a general sense.

 380 9 I couldn't necessarily tie dollars back

 380 10 exactly to his efforts in all situations,

 380 11 but --

 380 12 Q. But from a return on investment

 380 13 approach, you know, kind of speaking like a

Re: [380:12-380:21]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602); Relevance (401, 402)

(403); 

Relevance 

(401, 402)

OVERRULED

Re: [380:12-

380:21]

Def Objection -

Argumentative; 

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 272 of 427
Moses, Doug 10-17-2019 44

 380 14 business person, you got a lot of bang for

 380 15 your buck?

380:17 - 380:21 Moses, Doug 10-17-2019

 380 17 QUESTIONS BY MR. BUCHANAN:

 380 18 Q. Fair?

 380 19 A. I thought the money that we

 380 20 spent on his time was well worth it at the

 380 21 time.

Re: [380:12-380:21]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602); Relevance (401, 402)

Re: [380:12-

380:21]

Def Objection -

Argumentative; 

Vague (611, 

403); 

Foundation 

(602); 

Relevance 

(401, 402)

OVERRULED

382:11 - 383:9 Moses, Doug 10-17-2019

 382 11 Q. Okay. And so it says, "Two

 382 12 major developments." I guess these are the

 382 13 two major developments?

 382 14 A. Yes.

 382 15 Q. Okay.

 382 16 A. It seems logical.

 382 17 Q. "In this 5 to 7 million high

 382 18 margin product line."

 382 19 Did I read that correctly?

 382 20 A. Yeah. Yes, you did.

 382 21 Q. Okay. "Almost 90 percent

 382 22 margin."

 382 23 So is that profit margin you're

 382 24 referring to?

 382 25 A. I believe I was speaking about

 383 1 gross margin here.

 383 2 Q. Gross margin.

 383 3 So that's just what you sell it

 383 4 for versus what it costs to make?

 383 5 A. Yes. Generally.

 383 6 Q. 90 percent margin?

 383 7 A. Yes. That's almost 90 percent.

 383 8 Q. That's a big deal. That's a

 383 9 good product, right?

Re: [382:17-383:7]

Def Objection - 3M MIL No. 7; 

Relevance (401, 402); Prejudice 

(403)

Re: [383:8-383:13]

Def Objection - Argumentative 

(611, 403); Relevance (401, 402)

Re: [382:17-

383:7]

Def Objection -

3M MIL No. 7; 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [383:8-

383:13]

Def Objection -

Argumentative 

(611, 403); 

Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 273 of 427
Moses, Doug 10-17-2019 45

383:12 - 383:25 Moses, Doug 10-17-2019

 383 12 THE WITNESS: I think it's a

 383 13 profitable product.

 383 14 QUESTIONS BY MR. BUCHANAN:

 383 15 Q. I mean, it paid all your

 383 16 salaries?

 383 17 A. I've made some editorial

 383 18 comments here that says that, yes.

 383 19 Q. That's what you wrote?

 383 20 A. I did.

 383 21 Q. This was an important product

 383 22 to 3M, true?

 383 23 A. It was an important product to

 383 24 me and to the military team.

 383 25 Q. It paid all your salaries?

Re: [383:8-383:13]

Def Objection - Argumentative 

(611, 403); Relevance (401, 402)

Re: [383:25-384:3]

Def Objection - Asked (611, 

403)

Re: [383:8-

383:13]

Def Objection -

Argumentative 

(611, 403); 

Relevance 

(401, 402)

OVERRULED

Re: [383:25-

384:3]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [383:15-383:24]

Relevance, 403, Baker MIL 1, 

MIL 7

OVERRULED

384:2 - 384:10 Moses, Doug 10-17-2019

 384 2 THE WITNESS: That's what I've

 384 3 written here.

 384 4 QUESTIONS BY MR. BUCHANAN:

 384 5 Q. Okay. And you've contracted

 384 6 Doug Ohlin to participate to help call

 384 7 attention to these new CAE developments; is

 384 8 that right?

 384 9 A. That's what I've written here

 384 10 as well.

Re: [383:25-384:3]

Def Objection - Asked (611, 

403)

Re: [383:25-

384:3]

Def Objection -

Asked (611, 

403)

OVERRULED

456:21 - 456:25 Moses, Doug 10-17-2019

 456 21 At this point, sir, I

 456 22 appreciate your testimony today and

 456 23 thank you. I have no further

 456 24 questions.

 456 25 THE WITNESS: Thank you.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 274 of 427
Salon, Martin 01-29-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 275 of 427
Salon, Martin 01-29-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

6:21 - 6:24 Salon, Martin 01-29-2020

 6 21 Q. Good morning.

 6 22 A. Good morning.

 6 23 Q. What is your name, sir?

 6 24 A. Martin Salon.

8:13 - 8:23 Salon, Martin 01-29-2020

 8 13 Q. Okay. Do you work for -- who do you work

 8 14 for now?

 8 15 A. DeltaPlus Corporation.

 8 16 Q. Okay. And when was the last time you

 8 17 worked in the -- for either Aearo or 3M?

 8 18 A. June of 2009.

 8 19 Q. Okay. And why did you leave?

 8 20 A. I was offered a severance package.

 8 21 Q. Okay. Were they downsizing?

 8 22 A. They had a -- just acquired Aearo, so they

 8 23 were downsizing --

Re: [8:13-8:15]

Def Objection - Relevance 

(401, 402)

Re: [8:19-8:20]

Def Objection - Relevance 

(401, 402)

Re: [8:21-9:1]

Def Objection - Relevance 

(401, 402)

Re: [8:13-

8:15]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [8:19-

8:20]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [8:21-9:1]

Def Objection -

Relevance 

(401, 402)

OVERRULED

9:6 - 9:7 Salon, Martin 01-29-2020

 9 6 Q. Okay. I've got a copy of your CV here,

 9 7 and let me give you this.

10:1 - 10:3 Salon, Martin 01-29-2020

 10 1 Is this a true and accurate copy of your

 10 2 resume or CV or whatever you want to call it?

 10 3 A. It's the most recent, yes.

11:22 - 12:1 Salon, Martin 01-29-2020

 11 22 Q. It looks like you worked from Aearo

 11 23 Technologies from 1993 to 2009.

 11 24 Is that right?

 12 1 A. That's correct.

12:5 - 12:7 Salon, Martin 01-29-2020

 12 5 What years would you have been involved

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 276 of 427
Salon, Martin 01-29-2020 3

 12 6 with the Combat Arms Earplug Version 2?

 12 7 A. That would have been 2004 to 2006.

12:12 - 12:16 Salon, Martin 01-29-2020

 12 12 Q. I've got you from 2004 to 2005, vice

 12 13 president, consumer, military and construction 

sales,

 12 14 and then vice president, consumer and military 

sales

 12 15 from 2005 to 2006, is that right?

 12 16 A. That's correct.

13:3 - 13:7 Salon, Martin 01-29-2020

 13 3 Q. Okay. How long -- what years were you

 13 4 involved with the Combat Arms Earplug Version 

2? Was

 13 5 it just this 2004 to 2006, or did you have any

 13 6 involvement in it -- with it any other times?

 13 7 A. That was when I was involved with it.

Re: [13:3-13:7]

Beyond scope of counter

SUSTAINED. 

Already testified 

to.

13:16 - 14:6 Salon, Martin 01-29-2020

 13 16 Q. Okay. What are your thoughts of the

 13 17 Combat Arms Earplug Version 2?

 13 18 MS. ESFANDIARIFARD: Object to form.

 13 19 BY MR. MONSOUR:

 13 20 Q. Do you think it was a good product?

 13 21 A. I thought it was a great product.

 13 22 Q. As you sit here today, do you think it was

 13 23 a good product?

 13 24 A. I do.

 14 1 Q. Were there any problems with it?

 14 2 A. Not to my knowledge.

 14 3 Q. Okay. Do you know Elliott Berger?

 14 4 A. Yes.

 14 5 Q. And how do you know Mr. Berger?

 14 6 A. He worked at the lab while I was at Aearo.

Re: [13:16-14:2]

MIL 18; beyond scope of 

counter

SUSTAINED

14:13 - 14:17 Salon, Martin 01-29-2020

 14 13 Q. Okay. With regard to the Combat Arms

 14 14 Earplug Version 2, use your own words and just 

tell

 14 15 me, what was your role with that product?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 277 of 427
Salon, Martin 01-29-2020 4

 14 16 A. I had a couple of people working for me

 14 17 selling into the military market.

15:10 - 15:15 Salon, Martin 01-29-2020

 15 10 Q. Okay. If we look at your CV, Exhibit 1,

 15 11 you listed at the top "core leadership strengths," 

and

 15 12 one of them you list as "military and big box

 15 13 contracts."

 15 14 Do you see that?

 15 15 A. I do.

15:16 - 15:18 Salon, Martin 01-29-2020

 15 16 Q. Did you negotiate any military contracts

 15 17 for the Combat Arms Earplug Version 2?

 15 18 A. I did not.

16:11 - 16:18 Salon, Martin 01-29-2020

 16 11 Q. Do you have any idea of who it might have

 16 12 been?

 16 13 A. I do have ideas who might have been,

 16 14 but...

 16 15 Q. Okay. You can tell me.

 16 16 A. Brian Myers.

 16 17 Q. Okay. Anyone else?

 16 18 A. Maybe Gary Warren.

17:17 - 19:1 Salon, Martin 01-29-2020

 17 17 Q. 2004 to 2006, there is the one from 2004

 17 18 to '5 and then there is the one from 2005 to '6, and

 17 19 if you look there, there is one, two, three, four,

 17 20 five, six, seven bullet points for -- in total.

 17 21 Do you see that?

 17 22 A. Yes, I do.

 17 23 Q. Which of those bullet points had to do

 17 24 with the Combat Arms Version 2?

 18 1 A. The second bullet point under 2005 and

 18 2 2006.

 18 3 Q. Okay. So the one that had to do with the

 18 4 Combat Arms Version 2 is this one right here that

 18 5 says: "Managed team that secured the sale of a 

new

 18 6 safety product to the Army which is now provided 

Re: [18:5-18:9]

Def Objection - 3M MIL No. 7

Re: [18:13-18:18]

Def Objection - Foundation 

(602)

Re: [18:21-19:1]

Def Objection - Foundation 

(602)

Re: [18:5-

18:9]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [18:13-

18:18]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [18:21-

19:1]

Def Objection -

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 278 of 427
Salon, Martin 01-29-2020 5

to

 18 7 all deploying soldiers and produced first year 

revenue

 18 8 in excess of $4 million with margins exceeding

 18 9 75 percent."

 18 10 That's the one that deals with the Combat

 18 11 Arms Version 2, correct?

 18 12 A. That's correct.

 18 13 Q. Okay. Which members of your team secured

 18 14 the sale of that product, the Combat Arms Version 

2?

 18 15 A. It would have been one of two people.

 18 16 Q. Okay.

 18 17 A. It would have been Tim McNamara or Frank

 18 18 Gavin.

 18 19 Q. Okay. And you were their supervisor?

 18 20 A. Correct.

 18 21 Q. And would either Tim McNamara or Frank

 18 22 Gavin, would they, I guess, go meet with people 

in the

 18 23 Army to secure a -- some sort of an agreement to 

sell

 18 24 the product?

 19 1 A. Yes.

(602)

OVERRULED

19:10 - 19:13 Salon, Martin 01-29-2020

 19 10 Q. Okay. Do you know how many Combat 

Arms

 19 11 Earplugs Version 2 were sold while you were with 

the

 19 12 company?

 19 13 A. I do not.

Re: [19:10-19:13]

Plt Objection - Beyond scope 

of counter

Re: [19:10-

19:13]

Plt Objection -

outside scope 

of 

"clarification"

OVERRULED

20:6 - 20:24 Salon, Martin 01-29-2020

 20 6 Q. Okay. Were there ever any issues with the

 20 7 Combat Arms Earplug Version 2 where it became 

apparent

 20 8 that the soldiers using the product were having a 

hard

 20 9 time figuring out how to put it in properly?

 20 10 A. Not that I'm aware of.

Re: [20:6-20:15]

Beyond scope of counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 279 of 427
Salon, Martin 01-29-2020 6

 20 11 Q. Did you ever have discussions with any of

 20 12 your co-employees at Aearo or 3M talking about 

how,

 20 13 Hey, it seems like the troops might not really

 20 14 understand how -- how they should use these 

products?

 20 15 A. Not that I recall, no.

 20 16 Q. Okay. You were involved with attempting

 20 17 to directly market this product to the soldiers, 

true?

 20 18 A. I was involved with selling to the --

 20 19 managing the people who sold the product, not

 20 20 marketed.

 20 21 Q. Okay. To selling it?

 20 22 A. Selling it.

 20 23 Q. What's the difference between selling and

 20 24 marketing?

21:1 - 21:9 Salon, Martin 01-29-2020

 21 1 A. Selling is you take the product and you

 21 2 stick it in someone's face and you say, you know, 

This

 21 3 is what we'd like to talk about, the features and

 21 4 benefits.

 21 5 Q. Okay.

 21 6 A. Which came from the marketing department

 21 7 who produced the collateral material, the sales

 21 8 sheets, the pricing. I mean, they basically, Here is

 21 9 the product, go out and sell it.

21:10 - 21:23 Salon, Martin 01-29-2020

 21 10 Q. So if I were to ask you, you'd -- you

 21 11 would say you were in sales, not marketing?

 21 12 A. That's correct.

 21 13 Q. Okay. You were involved in selling these

 21 14 directly to soldiers, correct?

 21 15 A. Not me personally, no.

 21 16 Q. You were, I guess, overseeing that effort,

 21 17 correct?

 21 18 A. Yes, I was.

 21 19 Q. Okay. And who were the people that were

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 280 of 427
Salon, Martin 01-29-2020 7

 21 20 working on that for you?

 21 21 A. To sell it?

 21 22 Q. Uh-huh.

 21 23 A. Tim McNamara and Frank Gavin.

21:24 - 22:8 Salon, Martin 01-29-2020

 21 24 Q. Okay. And how would you have them, since

 22 1 you were their boss, how would you have them go 

sell

 22 2 the product?

 22 3 A. There are certain key locations where

 22 4 the -- the government makes decisions.

 22 5 Q. Okay.

 22 6 A. Defense Logistics in Philadelphia,

 22 7 Aberdeen Proving Grounds, so that would be 

where they

 22 8 would try to focus their attention at the beginning.

Re: [21:24-22:8]

Beyond scope of counter

Re: [22:3-22:8]

602, 702, 802, foundation, MIL 

16

OVERRULED

22:15 - 22:19 Salon, Martin 01-29-2020

 22 15 Q. Okay. Who would they typically meet with?

 22 16 A. It would depend on who they were calling

 22 17 on. If they were calling on a base, it would be

 22 18 supply officers. If they were calling on Aberdeen, 

it

 22 19 would be the people who do the testing.

Re: [22:15-22:19]

Beyond scope of counter

OVERRULED

22:20 - 23:1 Salon, Martin 01-29-2020

 22 20 Q. Okay. Did Mr. McNamara and Mr. Gavin, 

did

 22 21 they have expense accounts?

 22 22 A. Yes.

 22 23 Q. Were they able to use those expense

 22 24 accounts to, I guess, wine and dine the potential

 23 1 purchasers of these products?

Re: [22:20-23:1]

Def Objection - Relevance 

(401, 402), Foundation (602); 

Cumulative (403); Vague (611, 

403)

Re: [22:20-

23:1]

Def Objection -

Relevance 

(401, 402), 

Foundation 

(602); 

Cumulative 

(403); Vague 

(611, 403)

SUSTAINED

23:4 - 23:5 Salon, Martin 01-29-2020

 23 4 A. They had expense accounts. They may have

 23 5 taken people out to dinner. I don't recall.

Re: [23:4-23:5]

Def Objection - Relevance 

(401, 402), Foundation (602), 

Vague (611, 403)

Re: [23:4-

23:5]

Def Objection -

Relevance 

(401, 402), 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 281 of 427
Salon, Martin 01-29-2020 8

Foundation 

(602), Vague 

(611, 403)

OVERRULED

23:6 - 23:13 Salon, Martin 01-29-2020

 23 6 BY MR. MONSOUR:

 23 7 Q. Okay. All right. Are there any

 23 8 limitations as to what Mr. McNamara and Mr. 

Gavin were

 23 9 allowed to do with their expense accounts?

 23 10 A. They'd be assigned a budget at the

 23 11 beginning of the year. They were to manage it to 

make

 23 12 sure they could travel throughout the year. We 

didn't

 23 13 have any set limits, but they knew we had 

guidelines.

24:10 - 25:4 Salon, Martin 01-29-2020

 24 10 Q. Okay. Who were the people that they were

 24 11 targeting to sell this product to?

 24 12 A. Can you be more specific?

 24 13 Q. I would like to be, but I'm not really for

 24 14 sure. I was hoping you could fill that in.

 24 15 I'm just trying to get an idea of who were

 24 16 the people that your sales guys, Mr. McNamara 

and

 24 17 Mr. Gavin, who would they be contacting? 

Would it be

 24 18 generals, would it be audiologists for the military,

 24 19 would it be the supply sergeant? Who -- who 

would it

 24 20 be that they would be calling?

 24 21 A. It would be more likely the supply

 24 22 sergeant. It would not be generals.

 24 23 Q. Okay.

 24 24 A. They may get involved later.

 25 1 Q. Okay.

 25 2 A. But, you know, they could focus on troops,

 25 3 you know, let's get out some samples to the troops 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 282 of 427
Salon, Martin 01-29-2020 9

and

 25 4 let them try them.

25:18 - 25:23 Salon, Martin 01-29-2020

 25 18 Q. One of the things that you came up with to

 25 19 sell this directly or to market this directly to the

 25 20 soldiers was a plan called Operation Cobra, 

correct?

 25 21 A. I don't recall that.

 25 22 Q. Okay. Well, I happen to have an e-mail

 25 23 that you sent. Let me mark this as Exhibit 2.

Re: [25:18-25:21]

Def Objection - Foundation 

(602); Non-Responsive (611)

Re: [25:18-

25:21]

Def Objection -

Foundation 

(602); NonResponsive 

(611)

OVERRULED

26:7 - 26:20 Salon, Martin 01-29-2020

 26 7 Q. This is an e-mail. If you'll look at the

 26 8 front page, it's from you, Marty Salon, and it is to

 26 9 Mike Cimino, Doug Moses, Marc Santoro, cc'ing 

Jim

 26 10 Greg, Gwen MacDonald, and Brian Myers.

 26 11 Do you see that?

 26 12 A. I do.

 26 13 Q. And the date of it is July 29 of 2005.

 26 14 Do you see that?

 26 15 A. I do.

 26 16 Q. And what is the subject of this e-mail?

 26 17 A. Operation Cobra.

 26 18 Q. Okay. And there is an attachment, and

 26 19 what is the attachment titled?

 26 20 A. Operation Cobra Marketing Support.

Re: [26:7-26:17]

Def Objection - Foundation 

(602)

Re: [26:7-

26:17]

Def Objection -

Foundation 

(602)

OVERRULED

27:11 - 29:4 Salon, Martin 01-29-2020

 27 11 Q. Okay. So let's look at Operation Cobra

 27 12 that you were sending around.

 27 13 Do you remember why you were sending

 27 14 around the Operation Cobra plan?

 27 15 A. I don't remember sending this.

 27 16 Q. Okay. Well, let's go through it. Maybe

 27 17 it will kind of clear it up a little bit for you.

 27 18 It looks like one of the things that was

 27 19 being contemplated in Operation Cobra was a 

direct

 27 20 mail piece.

 27 21 Do you see that --

Re: [27:11-29:14]

Def Objection - Foundation 

(602)

Re: [27:11-

29:14]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [27:1-31:17]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 283 of 427
Salon, Martin 01-29-2020 10

 27 22 A. I --

 27 23 Q. -- under No. 1?

 27 24 A. I do.

 28 1 Q. And it looks like there is 7,000 --

 28 2 "Direct mail to 7,000 purchasing and procurement

 28 3 people. We estimate we will have an additional 

1,000

 28 4 mailers leave behind tubes for the sales force to

 28 5 distribute. Contact customer service for additional

 28 6 samples."

 28 7 Do you see that?

 28 8 A. I do.

 28 9 Q. Now, why was Aearo/3M, why were they 

doing

 28 10 a direct mail to people with regard to the earplug?

 28 11 A. I don't recall.

 28 12 Q. Okay. Then it looks like there were some

 28 13 trade publications.

 28 14 Do you see that, No. 2?

 28 15 A. I do.

 28 16 Q. And it says: "Trade Publications -

 28 17 National Defense, Armed Forces Journal and 

ARMY

 28 18 Magazine. Full page ads will run in July, August 

and

 28 19 September (ad attached)."

 28 20 Do you see that?

 28 21 A. I see that.

 28 22 Q. Okay. Do you remember why you guys were

 28 23 running this -- these advertisements in trade

 28 24 publications?

 29 1 A. I do not.

 29 2 Q. What would generally be the purpose of

 29 3 running an advertisement in a trade publication be?

 29 4 A. To generate leads and interest.

29:5 - 30:2 Salon, Martin 01-29-2020

 29 5 Q. Okay. It looks like here there is another

 29 6 section called End User.

 29 7 It says: "We are running (the same ads as

Re: [27:11-29:14]

Def Objection - Foundation 

(602)

Re: [27:11-

29:14]

Def Objection -

Foundation 

Re: [27:1-31:17]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 284 of 427
Salon, Martin 01-29-2020 11

 29 8 trade pubs) each Wednesday and Sunday in Stars 

and

 29 9 Stripes newspaper (through the end of September).

 29 10 This publication does not run in the US, only

 29 11 overseas, and we have chosen to only run in the 

Middle

 29 12 East where we believe usage and need is highest."

 29 13 Do you see that?

 29 14 A. Yes, I do.

 29 15 Q. Now, what would be the purpose of running

 29 16 an ad in a newspaper that was regularly reviewed 

by

 29 17 the soldiers in the Middle East?

 29 18 A. To generate interest in a product.

 29 19 Q. Okay. When you're running an

 29 20 advertisement for a product like the Combat Arms

 29 21 Version 2, what type of information do you want 

to

 29 22 convey to the end users?

 29 23 A. The features and benefits of the product.

 29 24 Q. Okay. Do you want to include in there

 30 1 instructions on how to use the product?

 30 2 A. Not necessarily.

Re: [29:15-30:2]

Def Objection - Foundation 

(602)

(602)

OVERRULED

Re: [29:15-

30:2]

Def Objection -

Foundation 

(602)

OVERRULED

30:6 - 30:14 Salon, Martin 01-29-2020

 30 6 Q. Okay. So you want to do features and

 30 7 benefits of the product.

 30 8 Is it important when you are marketing a

 30 9 product or when you are marketing directly to the 

end

 30 10 users -- and who were the end users of this 

product?

 30 11 A. Soldiers.

 30 12 Q. Soldiers, right.

 30 13 Is it important to shoot straight with the

 30 14 soldiers, tell them the truth?

Re: [30:13-30:14]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [30:13-

30:14]

Def Objection -

Vague (611, 

403); 

Foundation 

(602)

OVERRULED

Re: [27:1-31:17]

Baker MIL 1

OVERRULED

30:17 - 30:18 Salon, Martin 01-29-2020

 30 17 A. I think all advertising should shoot

 30 18 straight.

Re: [30:17-30:18]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [30:16-

30:18]

Def Objection -

Vague (611, 

Re: [27:1-31:17]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 285 of 427
Salon, Martin 01-29-2020 12

403); 

Foundation 

(602)

OVERRULED

30:20 - 31:13 Salon, Martin 01-29-2020

 30 20 Q. Okay. If there are positives of a

 30 21 product, should those positives be told to the end

 30 22 users?

 30 23 A. Features, yes.

 30 24 Q. Okay. What if there is some negative

 31 1 aspects of the product, should those negative 

aspects

 31 2 of the product also be shared with the end users, in

 31 3 this case the soldiers?

 31 4 A. In this situation I would say no.

 31 5 Q. Okay. Why would you not want to share

 31 6 some of the negative aspects?

 31 7 A. Because a negative to you may not be a

 31 8 negative to me, so you create -- creating doubt by

 31 9 throwing negatives in there that -- that may not

 31 10 apply.

 31 11 Q. Well, what if it is a negative that

 31 12 involves the efficacy of the product, should that be

 31 13 shared with the soldiers?

Re: [31:11-31:13]

Def Objection - Vague (611, 

403)

Re: [31:11-

31:13]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [27:1-31:17]

Baker MIL 1

OVERRULED

31:16 - 31:17 Salon, Martin 01-29-2020

 31 16 A. I didn't know there was a problem with the

 31 17 efficacy of the product, so I would have said no.

Re: [31:16-31:17]

Def Objection - Vague (611, 

403)

Re: [31:16-

31:17]

Def Objection -

Vague (611, 

403)

OVERRULED

Re: [27:1-31:17]

Baker MIL 1

OVERRULED

34:10 - 34:14 Salon, Martin 01-29-2020

 34 10 Q. Okay. Mr. Salon, I gave you a copy of

 34 11 what we call "the flange report," Exhibit No. 3.

 34 12 Did you have a chance to look at the

 34 13 flange report?

 34 14 A. Yes, I did.

Re: [34:12-34:14]

Def Objection - Relevance 

(401, 402); Vague (611, 403); 

Foundation (602)

Re: [34:12-

34:14]

Def Objection -

Relevance 

(401, 402); 

Vague (611, 

403); 

Foundation 

Re: [34:10-34:14]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 286 of 427
Salon, Martin 01-29-2020 13

(602)

OVERRULED

34:15 - 34:17 Salon, Martin 01-29-2020

 34 15 Q. Okay. Had you ever seen it before I

 34 16 had --

 34 17 A. I had not.

35:14 - 35:24 Salon, Martin 01-29-2020

 35 14 Okay. So, you've never seen the flange

 35 15 report before I showed it to you, true?

 35 16 A. True.

 35 17 Q. Does it concern you that in the

 35 18 introduction to the flange report, it says:

 35 19 "The purpose of this report is to document

 35 20 that the current length of the UltraFit Earplug end 

of

 35 21 the Combat Arms Plug is too short for proper

 35 22 insertion."

 35 23 Does that concern you?

 35 24 A. No, because I've never heard of it.

Re: [35:14-36:6]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague (611, 

403); 701

Re: [35:14-

36:6]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague 

(611, 403); 701

OVERRULED

Re: [35:14-36:2]

Baker MIL 1

OVERRULED

36:1 - 36:2 Salon, Martin 01-29-2020

 36 1 Q. Okay. If a plug is too short for proper

 36 2 insertion, that can be a problem, true?

Re: [35:14-36:6]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague (611, 

403); 701

Re: [35:14-

36:6]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague 

(611, 403); 701

OVERRULED

Re: [35:14-36:2]

Baker MIL 1

OVERRULED

36:5 - 36:5 Salon, Martin 01-29-2020

 36 5 A. I would think not in every case.

Re: [35:14-36:6]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague (611, 

403); 701

Re: [35:14-

36:6]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague 

Re: [36:5-36:5]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 287 of 427
Salon, Martin 01-29-2020 14

(611, 403); 701

OVERRULED

36:13 - 36:17 Salon, Martin 01-29-2020

 36 13 Q. Does it concern you that Mr. Kieper and

 36 14 Mr. Berger were writing memos that mention that 

the

 36 15 Combat Arms Plug is too short for proper 

insertion,

 36 16 yet you, as the sales guy, were never let in on this

 36 17 secret?

Re: [36:13-36:20]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague 

(611,403); 701

Re: [36:13-

36:20]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague 

(611,403); 701

OVERRULED

Re: [36:20-

36:20]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [36:13-36:17]

Baker MIL 1

OVERRULED

36:20 - 36:20 Salon, Martin 01-29-2020

 36 20 A. No.

Re: [36:13-36:20]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague 

(611,403); 701

Re: [36:20-36:20]

Def Objection - Foundation 

(602)

Re: [36:13-

36:20]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague 

(611,403); 701

OVERRULED

Re: [36:20-

36:20]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [36:20-36:20]

Baker MIL 1

OVERRULED

37:21 - 37:22 Salon, Martin 01-29-2020

 37 21 My question was: If you had been shared

 37 22 this information, would you have told the troops?

Re: [37:21-37:24]

Plt Objection - 403 (waste of 

Re: [37:21-

37:24]

Plt Objection -

Re: [37:21-37:24]

cumulative

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 288 of 427
Salon, Martin 01-29-2020 15

time), non-responsive, outside 

scope of "clarification"

403 (waste of 

time), nonresponsive, 

outside scope 

of 

"clarification"

OVERRULED

37:23 - 37:24 Salon, Martin 01-29-2020

 37 23 A. And I didn't deal directly with the

 37 24 troops.

Re: [37:21-37:24]

Plt Objection - 403 (waste of 

time), non-responsive, outside 

scope of "clarification"

Re: [37:21-

37:24]

Plt Objection -

403 (waste of 

time), nonresponsive, 

outside scope 

of 

"clarification"

OVERRULED

Re: [37:21-37:24]

cumulative

OVERRULED

38:13 - 38:16 Salon, Martin 01-29-2020

 38 13 A. The information I got from E-A-RCAL,

 38 14 Elliott Berger, I had tremendous amount of respect 

for

 38 15 Elliott, if he felt this was necessary information, I

 38 16 believe he would have shared it with me.

Re: [38:13-38:16]

Plt Objection - incomplete 

designation (question not 

included), non-responsive 

(answer is not responsive to 

question that was left off 

counter designations), 

speculation, outside scope of 

"clarification"

Re: [38:13-

38:16]

Plt Objection -

incomplete 

designation 

(question not 

included), nonresponsive 

(answer is not 

responsive to 

question that 

was left off 

counter 

designations), 

speculation, 

outside scope 

of 

"clarification"

SUSTAINED

Re: [38:13-38:16]

MIL 12

SUSTAINED

38:17 - 39:4 Salon, Martin 01-29-2020

 38 17 Q. Okay. Do you agree with me that this

 38 18 report, this flange report, is concerning?

Re: [38:17-39:4]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Re: [38:17-

39:4]

Def Objection -

Re: [38:17-39:4]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 289 of 427
Salon, Martin 01-29-2020 16

 38 19 MS. ESFANDIARIFARD: Object to form.

 38 20 BY THE WITNESS:

 38 21 A. Again, I think if it was concerning

 38 22 enough, Elliott would have passed it along.

 38 23 BY MR. MONSOUR:

 38 24 Q. Okay. Can you think of any reason why

 39 1 Mr. Berger would have not shared this information 

with

 39 2 you?

 39 3 A. I can't comment on what he was thinking

 39 4 or...

Foundation (602); Vague (611, 

403); 701

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague 

(611, 403); 701

OVERRULED

39:5 - 39:17 Salon, Martin 01-29-2020

 39 5 Q. Are you bothered by the fact that you sold

 39 6 a plug to our soldiers and a couple of the main 

guys

 39 7 that test the plug came to the conclusion that the

 39 8 Combat Arms Plug was too short for proper 

insertion?

 39 9 Does that concern you?

 39 10 MS. ESFANDIARIFARD: Object to form.

 39 11 BY THE WITNESS:

 39 12 A. From my standpoint of wearing the product,

 39 13 it was effective when I used it.

 39 14 BY MR. MONSOUR:

 39 15 Q. So you did use it?

 39 16 A. I used it. Every product I've ever sold I

 39 17 tried to use.

Re: [39:5-39:17]

Nonresponsive, 402, MIL 18

Re: [39:5-39:17]

Beyond scope of counter

SUSTAINED

40:6 - 40:24 Salon, Martin 01-29-2020

 40 6 The flange report that I've shown you

 40 7 says, and I'll quote: "The Combat Arms Plug is 

too

 40 8 short for proper insertion," correct?

 40 9 A. Yes, that's what it states.

 40 10 Q. And this report was written in July

 40 11 of 2000, correct?

 40 12 A. Correct.

 40 13 Q. And we've looked at your CV and from 2004

 40 14 to 2006 you were involved in directly selling this

 40 15 product to our soldiers, true?

Re: [40:6-40:12]

(403), MIL 15, Baker MIL 1

Re: [40:17-40:24]

(403), MIL 15, Baker MIL 2

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 290 of 427
Salon, Martin 01-29-2020 17

 40 16 A. True.

 40 17 Q. And when you were selling this product to

 40 18 our soldiers, you did not know that there was an

 40 19 internal Aearo Company memo that said: The 

Combat

 40 20 Arms Plug is too short for proper insertion, 

correct?

 40 21 A. Correct.

 40 22 Q. And you sold a significant number of these

 40 23 plugs to our soldiers, true?

 40 24 A. True.

41:1 - 41:2 Salon, Martin 01-29-2020

 41 1 Q. If you had known this information, would

 41 2 you have changed up anything you did?

Re: [41:1-41:16]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [41:1-

41:16]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [41:1-41:16]

Baker MIL 1

OVERRULED

41:4 - 41:5 Salon, Martin 01-29-2020

 41 4 BY THE WITNESS:

 41 5 A. I would say no.

Re: [41:1-41:16]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [41:1-

41:16]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [41:1-41:16]

Baker MIL 1

OVERRULED

41:6 - 41:8 Salon, Martin 01-29-2020

 41 6 BY MR. MONSOUR:

Re: [41:1-41:16]

Def Objection - Relevance 

Re: [41:1-

41:16]

Re: [41:1-41:16]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 291 of 427
Salon, Martin 01-29-2020 18

 41 7 Q. Just -- you'd just keep selling it even

 41 8 though you knew there was an issue with the 

product?

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

41:10 - 41:22 Salon, Martin 01-29-2020

 41 10 BY THE WITNESS:

 41 11 A. Again, some issues come up with a couple

 41 12 of people, there is no earplug that fits everybody, 

so

 41 13 I didn't have -- I -- literally all of the time I said

 41 14 I had any involvement with the Combat Arms, I 

never

 41 15 had anyone complain about the product, so I 

assumed it

 41 16 was a good product.

 41 17 BY MR. MONSOUR:

 41 18 Q. But now --

 41 19 A. I still do.

 41 20 Q. But -- that was your assumption, and I've

 41 21 shown you something that indicates that your

 41 22 assumption might be incorrect, true?

Re: [41:1-41:16]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [41:18-42:11]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [41:1-

41:16]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [41:18-

42:11]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [41:1-41:16]

Baker MIL 1

Re: [41:18-42:11]

Baker MIL 2

OVERRULED

42:1 - 42:8 Salon, Martin 01-29-2020

 42 1 A. It might.

Re: [41:18-42:11]

Def Objection - Relevance 

Re: [41:18-

42:11]

Re: [41:18-42:11]

Baker MIL 2

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 292 of 427
Salon, Martin 01-29-2020 19

 42 2 BY MR. MONSOUR:

 42 3 Q. Okay. So knowing that your assumption

 42 4 might be incorrect and knowing that Mr. Kieper 

and

 42 5 Mr. Berger signed off on a report that said the 

Combat

 42 6 Arms Plug is too short for proper insertion, if you

 42 7 had to go back in time, would you change anything 

you

 42 8 did?

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

42:10 - 42:11 Salon, Martin 01-29-2020

 42 10 BY THE WITNESS:

 42 11 A. I don't believe so.

Re: [41:18-42:11]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [41:18-

42:11]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [41:18-42:11]

Baker MIL 2

OVERRULED

42:13 - 42:19 Salon, Martin 01-29-2020

 42 13 Q. Okay. Would you have still implemented

 42 14 Operation Cobra to try and sell this product 

directly

 42 15 to our brave soldiers?

 42 16 A. Again, I don't recall this document.

 42 17 Q. Okay.

 42 18 A. So it's hard for me to comment what I --

 42 19 what I would have or would not have changed.

Re: [42:13-42:19]

Plt Objection - 403 (cumulative 

of 27:11-15, waste of time), 

non-responsive, outside scope 

of "clarification"

Re: [42:13-

42:19]

Plt Objection -

403 

(cumulative of 

27:11-15, waste 

of time), nonresponsive, 

outside scope 

of 

"clarification"

OVERRULED

43:1 - 43:2 Salon, Martin 01-29-2020

 43 1 Q. Are you embarrassed by the fact that you

 43 2 wrote Operation Cobra?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 293 of 427
Salon, Martin 01-29-2020 20

43:5 - 43:22 Salon, Martin 01-29-2020

 43 5 A. No. And I -- I guess I'd like to make a

 43 6 comment.

 43 7 BY MR. MONSOUR:

 43 8 Q. Sure.

 43 9 A. In 2003 I had a cardiac arrest.

 43 10 Q. Okay.

 43 11 A. I was in an induced coma for over a week.

 43 12 Q. Okay.

 43 13 A. They had to defibrillate me.

 43 14 Q. Okay.

 43 15 A. I truly lost some memory from that.

 43 16 Q. Okay.

 43 17 A. So it was about this same time period.

 43 18 My -- my memory is not great from that time 

period.

 43 19 Q. Okay.

 43 20 A. And I'm -- I'm giving you the best I have

 43 21 that I can remember, and that -- that bothers me 

that

 43 22 that happened, but it did.

49:8 - 49:16 Salon, Martin 01-29-2020

 49 8 Q. It says it was difficult for the

 49 9 experimenter -- do you know Ron -- do you know 

what

 49 10 Ron Kieper did every day?

 49 11 A. I do not.

 49 12 Q. Ron Kieper stuck earplugs in people's ears

 49 13 every day, and testing people, that's his job.

 49 14 If a guy like Ron Kieper can't stick one

 49 15 of these things properly into somebody's ears, 

that's

 49 16 a problem, wouldn't you agree?

Re: [49:8-49:16]

(602),(403),Baker MIL 1, 

Argumentative, Mistates, 

Calles for Speculation

OVERRULED

49:19 - 50:3 Salon, Martin 01-29-2020

 49 19 A. It definitely -- it could definitely be a

 49 20 problem.

 49 21 BY MR. MONSOUR:

 49 22 Q. Okay. So if a guy that sticks earplugs

 49 23 into people's ears for a living can't stick these into

Re: [49:19-50:3]

(602),(403),Baker MIL 1, 

Argumentative, Mistates, 

Calles for Speculation

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 294 of 427
Salon, Martin 01-29-2020 21

 49 24 people's ear canals, that's a problem, right?

 50 1 A. It's not a good situation.

 50 2 Q. Should the fact that it's not a good

 50 3 situation, should that be shared with the troops?

50:6 - 50:6 Salon, Martin 01-29-2020

 50 6 A. I don't believe so.

Re: [50:6-50:6]

(602),(403),Baker MIL 1, 

Argumentative, Mistates, 

Calles for Speculation

OVERRULED

53:7 - 53:8 Salon, Martin 01-29-2020

 53 7 Q. Is it okay for Aearo/3M to conceal this

 53 8 information from the government or to the 

government?

Re: [53:7-53:15]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [53:7-

53:15]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [52:24-55:4]

Baker MIL 1

Re: [53:7-55:4]

Baker MIL 1

OVERRULED

53:11 - 53:19 Salon, Martin 01-29-2020

 53 11 A. I suppose it is, if the product is working

 53 12 in -- in most cases.

 53 13 BY MR. MONSOUR:

 53 14 Q. So you --

 53 15 A. Nothing is perfect.

 53 16 Q. So you think it is okay to conceal the

 53 17 information that says the Combat Arms Plug is too

 53 18 short for proper insertion, you think that's okay to

 53 19 conceal that from the government?

Re: [53:7-53:15]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [53:16-54:10]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [53:7-

53:15]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [53:16-

54:10]

Def Objection -

Relevance 

(401, 402); 

Re: [52:24-55:4]

Baker MIL 1

Re: [53:7-55:4]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 295 of 427
Salon, Martin 01-29-2020 22

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

53:22 - 53:22 Salon, Martin 01-29-2020

 53 22 A. Yes.

Re: [53:16-54:10]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [53:16-

54:10]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [52:24-55:4]

Baker MIL 1

Re: [53:7-55:4]

Baker MIL 1

OVERRULED

53:24 - 54:2 Salon, Martin 01-29-2020

 53 24 Q. Okay. You understand that by concealing

 54 1 this information from the government, that has a

 54 2 negative effect on our soldiers, true?

Re: [53:16-54:10]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Misstates; Argumentative (611, 

403); 701

Re: [53:16-

54:10]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [52:24-55:4]

Baker MIL 1

Re: [53:7-55:4]

Baker MIL 1

OVERRULED

54:5 - 55:1 Salon, Martin 01-29-2020

 54 5 A. Possibly.

 54 6 BY MR. MONSOUR:

 54 7 Q. Okay. Is that okay, to sell a product and

 54 8 conceal information where it will have a negative

Re: [53:16-54:10]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602); Vague; 

Re: [53:16-

54:10]

Def Objection -

Relevance 

(401, 402); 

Re: [52:24-55:4]

Baker MIL 1

Re: [53:7-55:4]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 296 of 427
Salon, Martin 01-29-2020 23

 54 9 effect on our soldiers?

 54 10 A. Yes.

 54 11 Q. Okay. Do you agree with me that our

 54 12 soldiers, they are pretty heroic people, don't you

 54 13 agree with that?

 54 14 A. Absolutely.

 54 15 Q. They have an incredibly dangerous job and

 54 16 I think they would all tell you that they are

 54 17 underpaid.

 54 18 Do you agree with that?

 54 19 A. I'm not sure about the underpaid part, but

 54 20 I believe -- I'm guessing that would be a fair

 54 21 statement.

 54 22 Q. Okay. So for people that are as heroic as

 54 23 our soldiers are and put their lives on the line to

 54 24 benefit the United States, should -- should they be

 55 1 given the full truth about the products that they 

use?

Misstates; Argumentative (611, 

403); 701

Re: [54:11-55:4]

Def Objection - 3M MIL No. 

9; Relevance (401, 402); 

Prejudice (403); Foundation 

(602); Vague; Misstates; 

Argumentative (611, 403); 701

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

OVERRULED

Re: [54:11-

55:4]

Def Objection - 

3M MIL No. 9; 

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

SUSTAINED

55:3 - 55:4 Salon, Martin 01-29-2020

 55 3 BY THE WITNESS:

 55 4 A. Not necessarily.

Re: [54:11-55:4]

Def Objection - 3M MIL No. 

9; Relevance (401, 402); 

Prejudice (403); Foundation 

(602); Vague; Misstates; 

Argumentative (611, 403); 701

Re: [54:11-

55:4]

Def Objection - 

3M MIL No. 9; 

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602); Vague; 

Misstates; 

Argumentative 

(611, 403); 701

SUSTAINED

Re: [52:24-55:4]

Baker MIL 1

Re: [53:7-55:4]

Baker MIL 1

OVERRULED

56:19 - 57:4 Salon, Martin 01-29-2020

 56 19 Q. Okay. And Operation Cobra, if you look at

 56 20 it, was basically designed to help sell the Combat

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 297 of 427
Salon, Martin 01-29-2020 24

 56 21 Arms Version 2, right?

 56 22 A. Correct.

 56 23 Q. And it involved directly marketing this

 56 24 product to our soldiers, right?

 57 1 A. Correct.

 57 2 Q. Not just to their superiors, but to the

 57 3 soldiers themselves?

 57 4 A. Correct.

59:12 - 59:19 Salon, Martin 01-29-2020

 59 12 Q. Who was the head of sales for the CAE v2?

 59 13 A. Well, ultimately it was Gary Warren.

 59 14 Q. Okay. Did -- was he your boss?

 59 15 A. Yes.

 59 16 Q. Okay. But you were -- what was your title

 59 17 from 2004 to 2006? You were a vice president of 

the

 59 18 company, correct?

 59 19 A. Yes.

64:12 - 64:15 Salon, Martin 01-29-2020

 64 12 One of the things that Aearo/3M was doing

 64 13 is marketing directly to the troops, like in the Stars

 64 14 and Stripes newspaper, they were running ads, 

correct?

 64 15 A. Correct.

65:8 - 66:4 Salon, Martin 01-29-2020

 65 8 Q. How -- how should -- how should

 65 9 information on how to properly use the product be

 65 10 distributed to the end users?

 65 11 MS. ESFANDIARIFARD: Object to foundation.

 65 12 BY THE WITNESS:

 65 13 A. Military management should be tasked with

 65 14 teaching people how to use the product correctly.

 65 15 BY MR. MONSOUR:

 65 16 Q. What about non-military users of the

 65 17 product?

 65 18 MS. ESFANDIARIFARD: Object to foundation.

 65 19 BY THE WITNESS:

 65 20 A. Again, it is the employer's job to train

 65 21 employees how to use the product.

Re: [65:8-66:4]

402, 403, confusing, ultimate 

issue, 602 foundation; Beyond 

scope of counter

Re: [65:20-65:21]

402, 403, confusing, ultimate 

issue, 602 foundation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 298 of 427
Salon, Martin 01-29-2020 25

 65 22 BY MR. MONSOUR:

 65 23 Q. Well, I mean, some of these products were

 65 24 sold in retail stores in the United States, true?

 66 1 A. Um-hum. Not under the name Combat Arms

 66 2 though.

 66 3 Q. But it was the same plug though, right?

 66 4 A. Um-hum.

71:4 - 72:2 Salon, Martin 01-29-2020

 71 4 Q. Okay. Did you have any role in -- in the

 71 5 ads in soldier publications?

 71 6 A. No, I did not.

 71 7 Q. Okay. And you understand the reason I'm

 71 8 asking is because you were involved in Operation 

Cobra

 71 9 which was doing some of the same things?

 71 10 A. Correct.

 71 11 Q. Right?

 71 12 A. Right.

 71 13 Q. So you did not have a role in this part of

 71 14 providing, I guess, educational tips on how to use 

the

 71 15 product?

 71 16 A. That's correct.

 71 17 Q. Okay. Did you have any role in working

 71 18 with the instructions that should be packaged with

 71 19 each pair of the product?

 71 20 A. I had no role in that.

 71 21 Q. Did you have any role with any PR with

 71 22 regard to this aspect?

 71 23 A. I had no role.

 71 24 Q. Did you have any role with the -- possibly

 72 1 some online training content?

 72 2 A. I had no -- no role in that.

Re: [71:4-72:2]

Beyond scope of counter

OVERRULED

76:16 - 76:22 Salon, Martin 01-29-2020

 76 16 Q. Okay. Do you -- in the flange report that

 76 17 I showed you, it's mentioned that he folded back 

the

 76 18 flanges and stuck them in.

 76 19 Do you do that when you put yours in?

Re: [76:16-76:22]

Def Objection - Foundation 

(602); Prejudice (403); 

Relevance (401, 402); Vague 

(611, 403)

Re: [76:16-

77:16]

Def Objection -

Foundation 

(602); 

Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 299 of 427
Salon, Martin 01-29-2020 26

 76 20 A. I've never heard of that.

 76 21 Q. You've never heard of that, okay.

 76 22 A. I've never heard of that.

(403); 

Relevance 

(401, 402); 

Vague (611, 

403)

OVERRULED

77:7 - 77:12 Salon, Martin 01-29-2020

 77 7 Q. Okay. On the sales pieces, did you ever

 77 8 include anything in there about rolling back the

 77 9 flanges?

 77 10 A. Not to my knowledge.

 77 11 Q. If it was important, would you have done

 77 12 that?

Re: [77:7-77:16]

Def Objection - Foundation 

(602); Prejudice (403); 

Relevance (401, 402); Vague 

(611, 403)

Re: [76:16-

77:16]

Def Objection -

Foundation 

(602); 

Prejudice 

(403); 

Relevance 

(401, 402); 

Vague (611, 

403)

OVERRULED

Re: [77:7-77:16]

Baker MIL 1

OVERRULED

77:15 - 77:16 Salon, Martin 01-29-2020

 77 15 A. If it was an everyone-should-do-it kind of

 77 16 thing, I would think that would be important.

Re: [77:7-77:16]

Def Objection - Foundation 

(602); Prejudice (403); 

Relevance (401, 402); Vague 

(611, 403)

Re: [76:16-

77:16]

Def Objection -

Foundation 

(602); 

Prejudice 

(403); 

Relevance 

(401, 402); 

Vague (611, 

403)

OVERRULED

Re: [77:7-77:16]

Baker MIL 1

OVERRULED

77:24 - 78:1 Salon, Martin 01-29-2020

 77 24 MR. MONSOUR: Let me hand you what I'll 

mark as

 78 1 Exhibit 5.

78:11 - 79:14 Salon, Martin 01-29-2020

 78 11 Q. And this is an e-mail from July of 2005.

 78 12 It's talking about -- if -- if you look at the e-mail,

 78 13 it is basically talking about Operation Cobra, if 

you

Re: [78:11-79:14]

Def Objection - Relevance 

(401, 402); Foundation (602)

Re: [78:11-

79:14]

Def Objection -

Relevance 

(401, 402); 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 300 of 427
Salon, Martin 01-29-2020 27

 78 14 look at it.

 78 15 A. Okay.

 78 16 Q. Do you see that?

 78 17 A. I do.

 78 18 Q. It is talking about direct mail, trade

 78 19 publications, all of that kind of stuff?

 78 20 A. Right.

 78 21 Q. And it mentions the trade publications

 78 22 where the ad is going to be, and if you look, if you

 78 23 flip over two pages, it says that the ad is attached,

 78 24 and if you flip over two pages, there is a copy of 

the

 79 1 ad there.

 79 2 Do you see it?

 79 3 A. Yep.

 79 4 Q. Do you remember that ad?

 79 5 A. I do not.

 79 6 Q. Okay. This is, though, based upon the

 79 7 e-mail, this is the ad that was going to be run in

 79 8 Stars and Stripes and those other trade publications

 79 9 that were aimed at the soldiers, correct?

 79 10 A. Yes, I believe so.

 79 11 Q. Okay. It notes at the top, it says,

 79 12 Combat Arms Earplug and it says, "Hear Clearly,"

 79 13 correct?

 79 14 A. Correct.

Foundation 

(602)

OVERRULED

80:6 - 80:17 Salon, Martin 01-29-2020

 80 6 Q. And there is a picture of a soldier

 80 7 wearing a helmet and he has the earplugs in and 

the

 80 8 yellow side is in, correct?

 80 9 A. Correct.

 80 10 Q. And -- and when I say the yellow side is

 80 11 in, that means the green side is kind of facing out?

 80 12 A. Okay.

 80 13 Q. Correct?

 80 14 A. Correct.

 80 15 Q. The flanges on the green side are not

Re: [80:6-80:17]

Def Objection - Relevance 

(401, 402); Prejudice (403)

Re: [80:6-

80:17]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 301 of 427
Salon, Martin 01-29-2020 28

 80 16 folded back, correct?

 80 17 A. Correct.

80:18 - 81:16 Salon, Martin 01-29-2020

 80 18 Q. What was the purpose of the yellow end of

 80 19 the earplugs?

 80 20 MS. ESFANDIARIFARD: Object to foundation.

 80 21 BY THE WITNESS:

 80 22 A. When the yellow -- the yellow end is

 80 23 inserted?

 80 24 BY MR. MONSOUR:

 81 1 Q. Yes.

 81 2 A. It allowed to -- you to hear localized

 81 3 sounds.

 81 4 Q. Okay. And then what's the purpose of the

 81 5 green end?

 81 6 A. To provide noise reduction rating.

 81 7 Q. Okay. The advertisement also goes down

 81 8 and it shows, there is a website,

 81 9 www.combatarmsearplugs.com at the bottom.

 81 10 Do you see that?

 81 11 A. I do.

 81 12 Q. Did you have any role in creating the

 81 13 website?

 81 14 A. No, I did not.

 81 15 Q. Okay. Did you ever look at the website?

 81 16 A. Not that I recall.

94:8 - 95:1 Salon, Martin 01-29-2020

 94 8 Q. If -- if you were the decision maker,

 94 9 would you say, Hey, let's -- let's work on this,

 94 10 let's -- let's give better instructions?

 94 11 A. I wasn't the decision maker.

 94 12 Q. If you were, though?

 94 13 MS. ESFANDIARIFARD: Object to form.

 94 14 BY THE WITNESS:

 94 15 A. But I wasn't.

 94 16 BY MR. MONSOUR:

 94 17 Q. Okay. Who would have been the decision

 94 18 maker?

 94 19 A. On proper instructions?

Re: [94:8-95:1]

Beyond scope of counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 302 of 427
Salon, Martin 01-29-2020 29

 94 20 Q. Uh-huh. Yes.

 94 21 MS. ESFANDIARIFARD: Object to foundation.

 94 22 MR. MONSOUR: I just did it.

 94 23 BY THE WITNESS:

 94 24 A. I would think that would be -- and, again,

 95 1 I don't know who would have been responsible.

95:3 - 95:3 Salon, Martin 01-29-2020

 95 3 Q. Who was in charge of this product?

Re: [95:2-95:9]

FRE 602

Re: [95:3-95:3]

This is just a question w/o 

answer. The question was 

objected to and counsel asked a 

new question.

SUSTAINED

95:6 - 95:6 Salon, Martin 01-29-2020

 95 6 Q. Who was the -- the main person?

Re: [95:2-95:9]

FRE 602

OVERRULED

95:9 - 95:9 Salon, Martin 01-29-2020

 95 9 A. Brian Myers was the product manager.

Re: [95:2-95:9]

FRE 602

OVERRULED

98:21 - 98:24 Salon, Martin 01-29-2020

 98 21 Q. So if you keep hearing that the end users

 98 22 aren't -- aren't able to put them in properly, then

 98 23 that means they are not getting much benefit from 

the

 98 24 plugs, right?

Re: [98:21-99:6]

Beyond scope of counter

SUSTAINED

99:4 - 99:6 Salon, Martin 01-29-2020

 99 4 A. Well, you said you keep hearing that it's

 99 5 not working well. As I said earlier, I never heard

 99 6 that.

Re: [98:21-99:6]

Beyond scope of counter

Re: [99:4-99:18]

Misstates; incomplete 

designation; 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 303 of 427
Tuten, Vickie 12-23-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 304 of 427
Tuten, Vickie 12-23-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

10:14 - 10:18 Tuten, Vickie 12-23-2020

 10 14 Q. Good morning.

 10 15 A. Good morning.

 10 16 Q. Would you please state your

 10 17 full name for the record?

 10 18 A. Vickie Tuten.

12:16 - 12:18 Tuten, Vickie 12-23-2020

 12 16 Q. Now, you have been retained to

 12 17 be a paid consultant by 3M; is that right?

 12 18 A. That's correct.

19:7 - 19:11 Tuten, Vickie 12-23-2020

 19 7 Q. We've marked as Exhibit 1 a

 19 8 copy of your expert report. You have a copy

 19 9 of that with you today?

 19 10 A. I do. That's the only thing I

 19 11 do have with me is a copy of my report.

32:13 - 32:15 Tuten, Vickie 12-23-2020

 32 13 Were you asked to look at 3M's

 32 14 conduct related to the Combat Arms version 2

 32 15 earplug?

32:18 - 33:6 Tuten, Vickie 12-23-2020

 32 18 A. No, I was not asked to do that.

 32 19 BY MR. CARTMELL:

 32 20 Q. Then I take it you haven't done

 32 21 that; is that fair?

 32 22 A. Again, I'm -- I'm sorry, I did

 32 23 not understand you.

 32 24 Q. I take it you have not done

 32 25 that; is that right?

 33 1 A. I've not offered any opinions

 33 2 on the design or 3M's -- on 3M in that

 33 3 regard, no.

 33 4 Q. Have you done any research to

 33 5 look into 3M's conduct related to the Combat

 33 6 Arms version 2 earplug?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 305 of 427
Tuten, Vickie 12-23-2020 3

33:9 - 33:13 Tuten, Vickie 12-23-2020

 33 9 A. Actually, I have not.

 33 10 BY MR. CARTMELL:

 33 11 Q. Have you done any research or

 33 12 looked into whether 3M withheld safety

 33 13 information from the military?

33:16 - 33:19 Tuten, Vickie 12-23-2020

 33 16 A. No.

 33 17 BY MR. CARTMELL:

 33 18 Q. Were you asked to do that?

 33 19 A. No.

54:3 - 54:24 Tuten, Vickie 12-23-2020

 54 3 Q. Now, Dr. Tuten, would you agree

 54 4 with me that when you're giving expert

 54 5 opinions in a lawsuit like this, that you

 54 6 want to try to be as accurate as possible?

 54 7 A. I'm not sure I exactly

 54 8 understand what you mean by accurate as

 54 9 possible.

 54 10 Q. Well, you understand what

 54 11 accurate means?

 54 12 A. I do. My report is based

 54 13 largely on my experiences, my personal

 54 14 experiences, and that's what my opinion was

 54 15 on, my experiences.

 54 16 Q. And I'm just saying in general,

 54 17 when you set out to give opinions as a paid

 54 18 consultant on behalf of 3M, did you set out

 54 19 with the goal of trying to be as accurate as

 54 20 possible?

 54 21 A. Yes.

 54 22 Q. Okay. And that's important,

 54 23 isn't it, for an expert witness?

 54 24 A. Yes.

189:11 - 190:5 Tuten, Vickie 12-23-2020

 189 11 Q. Okay. So back in, let's say,

 189 12 November of 2005, tell us where you were and

 189 13 what you were doing during that period of

 189 14 your career?

Re: [189:11-190:5]

Plt Objection - Improper 

counter

Re: [189:11-

190:5]

Plt Objection -

Improper 

Counter 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 306 of 427
Tuten, Vickie 12-23-2020 4

 189 15 A. Did you say November 2005?

 189 16 Q. Yes.

 189 17 A. Okay. I would have just

 189 18 arrived at Fort Bragg in July of that year.

 189 19 Q. Okay. And you talked a lot

 189 20 about in your report the training that the

 189 21 Army would provide related to hearing

 189 22 protective devices, instructions that would

 189 23 be provided by the Army and fitting and

 189 24 things like that.

 189 25 But it's true, isn't it, also

 190 1 that, for example, with respect to the CAEv2

 190 2 product there would also be times when 3M

 190 3 would actually pitch in and provide training

 190 4 materials or information related to the

 190 5 instructions for use for that product?

Designation per 

PTO 64

SUSTAINED

190:8 - 190:16 Tuten, Vickie 12-23-2020

 190 8 A. I wasn't at that time aware

 190 9 that 3M was involved in producing all of the

 190 10 materials. I'm sure that they had input into

 190 11 what was being passed down, and often, if I

 190 12 was at a conference, I might grab one of

 190 13 their brochures.

 190 14 But for the most part we

 190 15 assumed much of it was socialized through our

 190 16 Public Health Command.

Re: [190:8-190:16]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [190:8-

190:16]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [190:8-190:16]

hearsay; 602, foundation

SUSTAINED

192:2 - 192:10 Tuten, Vickie 12-23-2020

 192 2 Q. Okay. And so when, you know,

 192 3 the manufacturer of the earplug sells that

 192 4 earplug to the military, would you agree with

 192 5 me that in your experience over time, the

 192 6 military would listen to the manufacturer or

 192 7 would take materials from the manufacturer

 192 8 and at least consider them related to things

 192 9 like fitting and instructions and things like

 192 10 that?

Re: [192:2-192:10]

Plt Objection - Improper 

Counter Designation per PTO 

64; nonresponsive 

Re: [192:2-

192:10]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 

nonresponsive 

SUSTAINED

192:13 - 193:6 Tuten, Vickie 12-23-2020

 192 13 A. Well, I can speak to my

 192 14 experience with a number of earplugs through

Re: [192:13-193:6]

Plt Objection - Improper 

Re: [192:13-

193:6]

Plt Objection -

Re: [192:13-193:6]

403; MIL 16

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 307 of 427
Tuten, Vickie 12-23-2020 5

 192 15 my career. I don't recall instruction being

 192 16 given to -- you know, with the others outside

 192 17 of what we received from the Public Health

 192 18 Command, nothing from the manufacturer.

 192 19 But what was unique about this

 192 20 was it was new technology, just brand-new

 192 21 technology to the military, the fact that we

 192 22 had a dual-function earplug. So from that

 192 23 respect, instruction on, you know, what

 192 24 was -- when was it appropriate to use the

 192 25 open and closed mode. So from that respect

 193 1 it was probably the first time I saw

 193 2 instruction to that level.

 193 3 I never really, with our

 193 4 triple-flange or any foamies or any of that,

 193 5 ever had instructions coming from the

 193 6 manufacturer.

Counter Designation per PTO 

64; nonresponsive 

Improper 

Counter 

Designation per 

PTO 64; 

nonresponsive 

SUSTAINED

193:8 - 193:17 Tuten, Vickie 12-23-2020

 193 8 Q. Okay. So that's a really good

 193 9 point, and let me see if I understand you.

 193 10 But it sounds like with the

 193 11 ordinary flanged earplugs in the past, the

 193 12 quad-flange, the triple-flange and the

 193 13 single-sided events, you don't recall hearing

 193 14 much from the manufacturers or receiving much

 193 15 information or data or instructions from the

 193 16 manufacturers related to those ordinary

 193 17 flanged products, correct?

Re: [193:8-193:17]

Plt Objection - Improper 

counter

Re: [193:8-

193:17]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 402 

SUSTAINED

193:20 - 194:14 Tuten, Vickie 12-23-2020

 193 20 A. Correct, but I would clarify,

 193 21 from my perspective as an end user. I don't

 193 22 know what decision makers were provided.

 193 23 BY MR. CARTMELL:

 193 24 Q. Okay.

 193 25 A. But as an end user, no.

 194 1 Q. Okay. And I'm just asking you

 194 2 about what you know. I don't want you to

 194 3 speculate about others.

 194 4 And so in your position and

Re: [193:20-194:14]

Plt Objection - Improper 

Counter Designation per PTO 

64; 402; calls for speculation 

Re: [193:20-

194:14]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 402; 

calls for 

speculation 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 308 of 427
Tuten, Vickie 12-23-2020 6

 194 5 based on your experience, once this new

 194 6 earplug that was unique, different, novel in

 194 7 the sense that it was the first time the

 194 8 military had had this dual-ended technology,

 194 9 is it fair to say that based on your

 194 10 experience, the military was looking more to

 194 11 the manufacturer, 3M, or its predecessor,

 194 12 Aearo, for information, at least at first,

 194 13 about this new technology? Was that your

 194 14 experience?

194:17 - 195:2 Tuten, Vickie 12-23-2020

 194 17 A. Again, going back to what I

 194 18 said previously. In terms of, you know, open

 194 19 and closed mode, yeah, that kind of thing.

 194 20 But how to properly insert, I don't know that

 194 21 we were looking for that. I had, you know,

 194 22 been fitting preformed, curved -- or quad --

 194 23 curved-flange earplugs prior to introduction

 194 24 to the Combat Arms earplug, so I wasn't -- I

 194 25 really wouldn't have sought out that

 195 1 information, and I don't remember receiving

 195 2 it.

Re: [194:17-195:2]

Plt Objection - Improper 

Counter Designation per PTO 

64; 402; calls for speculation 

Re: [194:17-

195:2]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 402; 

calls for 

speculation 

SUSTAINED

Re: [194:17-195:2]

403 cumulative

SUSTAINED

214:10 - 214:18 Tuten, Vickie 12-23-2020

 214 10 Q. And you mentioned that in your

 214 11 report, but there were medics who were

 214 12 embedded with these troops even at

 214 13 Fort Bragg, correct?

 214 14 A. Correct.

 214 15 Q. And you say here, a medic who

 214 16 might demonstrate and explain insertion or

 214 17 the how-to. Those were medics that were

 214 18 actually trained to do that, correct?

Re: [214:10-214:18]

Improper counter; foundation

SUSTAINED

214:21 - 215:21 Tuten, Vickie 12-23-2020

 214 21 A. Well, I need to qualify that.

 214 22 Not necessarily every medic was trained to do

 214 23 that, no.

 214 24 BY MR. CARTMELL:

 214 25 Q. Well, I understand that, but,

 215 1 you know, did you have information and data

Re: [214:21-215:21]

Improper counter; MIL 1; 

MIL 2; MIL 16; 602, 

foundation;

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 309 of 427
Tuten, Vickie 12-23-2020 7

 215 2 about which ones were and which ones were not

 215 3 trained to properly insert an earplug like

 215 4 the Combat Arms version 2?

 215 5 A. Again, because I was looking at

 215 6 this, it might have been a medic that was

 215 7 working with me who was actually part of my

 215 8 staff. It might have been one that I trained

 215 9 where they went through three or four days of

 215 10 training with me and were certified as an

 215 11 occupational hearing conservationist.

 215 12 But as for medics who had that

 215 13 kind of information outside of that, there

 215 14 would have been very few that had that

 215 15 training.

 215 16 BY MR. CARTMELL:

 215 17 Q. Your testimony is that there

 215 18 were very few medics who had the necessary

 215 19 training to teach soldiers how to insert an

 215 20 earplug? Is that your testimony?

 215 21 A. That's my testimony.

299:20 - 300:22 Tuten, Vickie 12-23-2020

 299 20 Q. Okay.

 299 21 A. We didn't do much mass fitting

 299 22 of Combat Arms version 2 earplugs because I

 299 23 never had them available to me for mass

 299 24 fittings or large groups, so it would have

 299 25 been normally one-on-one with me, and when I

 300 1 trained my technicians in an occupational

 300 2 hearing conservationist course, they would

 300 3 learn how to do it so that they could also

 300 4 provide those instructions and guidance if

 300 5 they ever had the opportunity to fit them.

 300 6 More of our emphasis at that

 300 7 time was with other types of earplugs because

 300 8 that was what we typically would fit at the

 300 9 time of a hearing test.

 300 10 Q. Would you more typically fit

 300 11 earplugs that had different sizes?

 300 12 A. We more typically fit -- no,

Re: [299:9-300:22]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [299:9-

300:22]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

OVERRULED

Re: [299:20-300:22]

nonresponsive; hearsay; MIL 

1; MIL 16 ("our," "we")

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 310 of 427
Tuten, Vickie 12-23-2020 8

 300 13 not necessarily. The quad-flange became a

 300 14 very popular earplug starting at my time at

 300 15 Fort Hood, and I would say it replaced in

 300 16 popularity the earplug -- the triple-flange

 300 17 earplugs, but it again was a one size fits

 300 18 most, so we had to fit the outliers with

 300 19 either a small or large triple-flange or

 300 20 another manufacturer, like -- like I used to

 300 21 order a lot of fusion-style earplugs. So --

 300 22 so not necessarily.

301:4 - 301:8 Tuten, Vickie 12-23-2020

 301 4 Let me ask you first: Is your

 301 5 testimony that there needed to be a fitting

 301 6 of the Combat Arms version 2 earplugs at all

 301 7 times before it was first used by the

 301 8 soldiers?

301:11 - 302:13 Tuten, Vickie 12-23-2020

 301 11 A. My testimony would be that

 301 12 there should be a fitting of any preformed

 301 13 earplug.

 301 14 BY MR. CARTMELL:

 301 15 Q. Okay.

 301 16 A. At any time.

 301 17 Q. So let me follow that up.

 301 18 Okay.

 301 19 So you said, first of all,

 301 20 there should be a look in the ear, an

 301 21 acoustic examination. Is that what you said?

 301 22 A. An otoscopic.

 301 23 Q. An otoscopic. Is that --

 301 24 A. Using an otoscope.

 301 25 Q. So your testimony is that

 302 1 before any soldier ever uses the Combat Arms

 302 2 version 2 earplug, there needed to be

 302 3 somebody with an otoscope looking in the

 302 4 soldier's ear?

 302 5 A. That would be a best practice.

 302 6 Q. Okay. I'm not asking --

 302 7 A. That would be my rules if they

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 311 of 427
Tuten, Vickie 12-23-2020 9

 302 8 worked with me.

 302 9 Q. Well, I'm asking about what was

 302 10 required -- I understand you may have done --

 302 11 A. There's no requirement to do an

 302 12 otoscopic examination by OSHA in their reg or

 302 13 in the DoD that I'm aware of. I have to

303:23 - 306:25 Tuten, Vickie 12-23-2020

 303 23 Q. Okay. So after -- let's go

 303 24 back.

 303 25 The required fitting starts

 304 1 with what? What is the first thing that the

 304 2 fitter does?

 304 3 A. The first thing the fitter does

 304 4 is hand an earplug to the individual after

 304 5 examining the ear. Even if you don't do an

 304 6 otoscopic exam, you should, you know, look at

 304 7 the ear and see --

 304 8 Q. Okay. Let me stop you there.

 304 9 A look in the ear to make sure there's not

 304 10 some deformation or something that would

 304 11 prevent improper insertion; is that fair?

 304 12 A. Well, again, if you're not

 304 13 doing an otoscopic exam, which is a little

 304 14 more invasive, you know, just taking a glance

 304 15 at the ear to see about sizing, if sizing was

 304 16 an issue.

 304 17 Q. Okay. All right. If sizing

 304 18 was an issue. Is sizing not an issue

 304 19 sometimes?

 304 20 A. Well, again, it is most of the

 304 21 time, but you've got -- you've got to get a

 304 22 general idea, does it look like it's sort of

 304 23 a medium with -- or is it a larger, or is it

 304 24 small? And you have sized earplugs and you

 304 25 go with that.

 305 1 Q. Okay.

 305 2 A. Medium, generally, is what I

 305 3 do.

 305 4 Q. Okay. But with the Combat Arms

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 312 of 427
Tuten, Vickie 12-23-2020 10

 305 5 earplugs, if you're going to fit that one,

 305 6 sizing is not an issue because there's only

 305 7 one.

 305 8 A. Correct. You're going to

 305 9 just -- you're going to attempt to insert and

 305 10 see if you obtain an adequate seal.

 305 11 Q. Okay. So let's start with the

 305 12 Combat Arms version 2, you sort of -- it's

 305 13 not your fault but you keep kind of veering

 305 14 off into other earplugs. I'm not asking

 305 15 about other earplugs.

 305 16 A. Okay.

 305 17 Q. The Combat Arms version 2

 305 18 earplugs, the required fitting starts with

 305 19 you as the fitter handing the earplug to the

 305 20 actual soldier; is that correct?

 305 21 A. Correct.

 305 22 Q. Does the soldier actually put

 305 23 the earplug in the ear?

 305 24 A. They do, with my instruction.

 305 25 I again instruct them to reach around and

 306 1 pull back the ear and insert it and repeat it

 306 2 for the other side. Yeah.

 306 3 Q. Okay. And you, the fitter,

 306 4 instruct like you just said, which is reach

 306 5 over the ear, pull back on the -- did you

 306 6 call it the pinna?

 306 7 A. Pinna.

 306 8 Q. Pinna.

 306 9 And then you, the fitter, watch

 306 10 them put it in their ear, correct?

 306 11 A. Correct.

 306 12 Q. And then you, the fitter, do

 306 13 what?

 306 14 A. I would -- personally, I always

 306 15 did a tug test myself. I would go up and

 306 16 actually do a gentle tug on the ear.

 306 17 Q. Is that a required mandate for

 306 18 the fitting of Combat Arms?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 313 of 427
Tuten, Vickie 12-23-2020 11

 306 19 A. No, it's not a required

 306 20 mandate.

 306 21 Q. Okay. So we're talking about

 306 22 requirements. So what would the fitter do

 306 23 that's required after the soldier puts the

 306 24 earplug in their ear, each ear?

 306 25 A. I don't know that I was ever

307:1 - 307:18 Tuten, Vickie 12-23-2020

 307 1 told what was required to do a Combat Arms

 307 2 earplug. I had experience with preformed

 307 3 earplugs, and preformed earplugs, I -- there

 307 4 was no difference in the way that I

 307 5 instructed with the Combat Arms earplug. It

 307 6 was the same. You inserted --

 307 7 Q. Okay. So is the fitting --

 307 8 does the fitter then look to see if the

 307 9 earplug is inserted appropriately?

 307 10 A. I've never been -- I've never

 307 11 been a fitter that used observation, visual

 307 12 look, as my guide. It's not -- it's not a

 307 13 good method to use.

 307 14 Q. Okay.

 307 15 A. Just -- not -- especially not

 307 16 with a curved-flanged earplug.

 307 17 Q. Like the Combat Arms version 2?

 307 18 A. Exactly.

Re: [307:1-307:18]

Improper counter; incomplete 

designation

OVERRULED

307:21 - 308:3 Tuten, Vickie 12-23-2020

 307 21 What you're saying is that even

 307 22 if a medically trained fitter looks at the

 307 23 insertion of the earplug and tries to

 307 24 determine whether or not it's a good fit or

 307 25 seal, it's not a good method because you

 308 1 cannot guarantee that you'll be able to see

 308 2 whether or not there is a good seal or

 308 3 whether there's a leak; is that fair?

308:6 - 308:21 Tuten, Vickie 12-23-2020

 308 6 A. That's exactly correct.

 308 7 BY MR. CARTMELL:

 308 8 Q. Okay. And so then you

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 314 of 427
Tuten, Vickie 12-23-2020 12

 308 9 instruct -- the fitter then instructs the

 308 10 soldier on -- I think you said, first of all,

 308 11 what's called a tug test; is that correct?

 308 12 A. That's correct.

 308 13 Q. And the fitter sees, makes sure

 308 14 that the soldier does the tug test; is that

 308 15 correct?

 308 16 A. That's correct.

 308 17 Q. And then the second thing the

 308 18 fitter does is some sort of acoustic test,

 308 19 teaches the soldier an acoustic test,

 308 20 correct?

 308 21 A. Correct.

308:22 - 310:6 Tuten, Vickie 12-23-2020

 308 22 Q. And you mentioned the clicker,

 308 23 but I got to tell you, in all the documents

 308 24 I've seen, I didn't see those clickers come

 308 25 along until much later in time, 2007, '8, '9.

 309 1 Is that consistent with your memory?

 309 2 A. That could be correct, but I

 309 3 will tell you, an acoustic check, a typical

 309 4 acoustic check was -- whether it was a Combat

 309 5 Arms or any other -- any earplug, even

 309 6 including formable earplugs, an acoustic

 309 7 check was really to have the person say

 309 8 something out loud, 1, 2, 3, count out loud

 309 9 and know that their voice was centered in the

 309 10 middle in their head and a little lower in

 309 11 pitch. We call it the occlusion effect. We

 309 12 wanted them to experience that.

 309 13 And if it's correct in and

 309 14 sealed in both ears, you should expect to

 309 15 hear it somewhere in the middle of your head.

 309 16 If you've got a poor seal, you would expect

 309 17 your voice to kind of migrate toward the ear

 309 18 with the better seal.

 309 19 So it was -- it was one of

 309 20 those techniques that we used to teach a

 309 21 person how to know when they had a good

Re: [308:22-310:6]

Plt Objection - Improper 

Counter Designation per PTO 

64; 402

Re: [308:22-

310:6]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 402

SUSTAINED

Re: [308:22-310:6]

403 cumulative; MIL 1; MIL 

16

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 315 of 427
Tuten, Vickie 12-23-2020 13

 309 22 insertion --

 309 23 Q. Okay.

 309 24 A. -- and a good seal on both

 309 25 sides.

 310 1 Q. Okay. And so after instructing

 310 2 on the tug test and the acoustics and

 310 3 watching the soldier do those tests, is the

 310 4 fitting of the Combat Arms version 2, the

 310 5 fitting that is required, is it done at that

 310 6 point?

310:9 - 310:18 Tuten, Vickie 12-23-2020

 310 9 A. Well, the only other

 310 10 instruction I know that I would provide, and

 310 11 this was true of, again, the Combat Arms

 310 12 earplug or any preformed earplug, was the

 310 13 fact that they tend sometimes to become

 310 14 displaced as people talk and chew, and so you

 310 15 need to be aware if the seal gets broken that

 310 16 you are just reaching up and re -- just doing

 310 17 another push in to make sure you've got that

 310 18 seal and do a quick tug testing.

Re: [310:9-310:18]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [310:9-

310:18]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [310:9-310:22]

MIL 1, MIL 16

SUSTAINED

310:20 - 310:22 Tuten, Vickie 12-23-2020

 310 20 Q. Okay.

 310 21 A. So that kind of instruction

 310 22 went along pretty much with most preformed.

Re: [310:9-310:22]

MIL 1, MIL 16

SUSTAINED

313:18 - 314:14 Tuten, Vickie 12-23-2020

 313 18 Q. Is the tug test required or is

 313 19 it just a best practice?

 313 20 A. Again, it's something that

 313 21 audiologists developed over the years. I

 313 22 don't recall that -- that it's -- that it's

 313 23 actually in the regulation to do that as a

 313 24 self-check, no.

 313 25 Q. Okay. All right. And is the

 314 1 acoustic check just a best practice or is it

 314 2 required?

 314 3 A. Again, I think it's just,

 314 4 again, a best practice, doing self-checks,

 314 5 teaching --

Re: [314:6-314:10]

Def Objection - 401

Re: [314:6-

314:10]

Def Objection -

401

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 316 of 427
Tuten, Vickie 12-23-2020 14

 314 6 Q. Okay. Now, what you just

 314 7 described as the fitting, okay, we have

 314 8 sorted out what was just a best practice and

 314 9 what would be required by the regs, and you

 314 10 included instructions in that.

 314 11 Are there any additional

 314 12 instructions you think need to be given for

 314 13 the Combat Arms version 2 earplugs other than

 314 14 reach over your head and pull back the pinna?

314:17 - 315:1 Tuten, Vickie 12-23-2020

 314 17 A. I never gave any additional

 314 18 instructions unless you're going to refer to

 314 19 maintaining and keeping them clean. I gave

 314 20 those instructions as well before they left.

 314 21 BY MR. CARTMELL:

 314 22 Q. But that's just a best

 314 23 practice; that's not required, correct?

 314 24 A. Again, call it best practice.

 314 25 It wasn't required, but it was routinely

 315 1 done.

317:20 - 317:23 Tuten, Vickie 12-23-2020

 317 20 Q. How many Combat Arms version 2

 317 21 earplugs did you fit and instruct on during

 317 22 your career? Only version 2.

 317 23 A. Oh.

Re: [317:20-318:17]

Improper counter; 403 waste 

of time

SUSTAINED

318:1 - 318:4 Tuten, Vickie 12-23-2020

 318 1 A. As soon as the other versions

 318 2 came out I probably wasn't fitting them at

 318 3 all, so I would say take that 40 times 12 and

 318 4 reduce it to years probably up to 2006-ish.

Re: [317:20-318:17]

Improper counter; 403 waste 

of time

SUSTAINED

318:6 - 318:17 Tuten, Vickie 12-23-2020

 318 6 Q. So 2003 to 2006, for three

 318 7 years you could take 480 times three, and

 318 8 that's probably the number of Combat Arms

 318 9 earplugs; is that correct?

 318 10 A. I would yes, that -- again,

 318 11 that's a guesstimate.

 318 12 Q. Okay. That's, according to my

 318 13 math, 1440 Combat Arms version 2 plugs where

Re: [317:20-318:17]

Improper counter; 403 waste 

of time

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 317 of 427
Tuten, Vickie 12-23-2020 15

 318 14 you did the actual fitting of it and you did

 318 15 the actual instructing of it to the soldier,

 318 16 fair?

 318 17 A. Fair.

329:17 - 330:11 Tuten, Vickie 12-23-2020

 329 17 Q. Okay. Now, before the break

 329 18 you described for us what would be a proper

 329 19 fitting and proper instructions given to

 329 20 soldiers per the regulations as it relates to

 329 21 the Combat Arms version 2 earplug, correct?

 329 22 A. I don't know if it was per

 329 23 regulation, but I was giving you based on my

 329 24 experience in actually doing the fitting.

 329 25 I'm not sure that the regulation goes to the

 330 1 extent of telling us to pull back the ear and

 330 2 that. I don't know that the regulations

 330 3 actually provide that information.

 330 4 Q. Okay. So -- but you were, I

 330 5 guess, then talking about, you know, what you

 330 6 believe, I guess, according to your

 330 7 experience, would be a proper instruction

 330 8 that needed to be given to soldiers related

 330 9 to the Combat Arms version 2 prior to them

 330 10 wearing them, correct?

 330 11 A. Correct.

Re: [329:17-330:11]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [329:17-

330:11]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [329:17-330:11]

MIL 1, MIL 2, MIL 16; 403

SUSTAINED

330:25 - 331:15 Tuten, Vickie 12-23-2020

 330 25 Q. Okay. And what about

 331 1 required -- there is regulations about a

 331 2 proper fitting, correct?

 331 3 A. There is regulations about the

 331 4 fitting being done by qualified personnel.

 331 5 Q. Right. And we talked about

 331 6 that and what the regulation requires,

 331 7 correct?

 331 8 A. Correct. Medically --

 331 9 medically trained personnel.

 331 10 Q. Right. So the bottom line is,

 331 11 I guess, is that if a soldier got the fitting

 331 12 that you described and got instructions on

Re: [330:25-331:15]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [330:25-

331:15]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [330:25-331:15]

MIL 1, MIL 2, MIL 16; 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 318 of 427
Tuten, Vickie 12-23-2020 16

 331 13 how to use the Combat Arms version 2 earplugs

 331 14 before first using them, then the military

 331 15 did its job. Fair enough?

331:18 - 332:14 Tuten, Vickie 12-23-2020

 331 18 A. I don't know that I'd agree

 331 19 with that statement.

 331 20 BY MR. CARTMELL:

 331 21 Q. Why not?

 331 22 A. Because learning how to fit and

 331 23 properly insert an earplug is just one step

 331 24 in the process. The individual has to wear

 331 25 the earplug, and the fact that it's being

 332 1 worn has to be enforced by leadership.

 332 2 So it's not as simple as just

 332 3 handing somebody an earplug with

 332 4 instructions. If it were that simple, life

 332 5 would be a lot easier and my job would have

 332 6 been a lot easier, but that was not the case.

 332 7 Q. Well, look, I understand what

 332 8 you're saying with respect to the soldier has

 332 9 to wear the earplug, right, and I think you

 332 10 mentioned that in your report.

 332 11 First and foremost, the

 332 12 responsibility to wear the earplug falls with

 332 13 the soldier, correct?

 332 14 A. Correct.

Re: [331:18-332:14]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [331:18-

332:14]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [331:18-332:14]

MIL 1, MIL 2, MIL 16; 403

SUSTAINED

332:25 - 333:12 Tuten, Vickie 12-23-2020

 332 25 Q. Okay. And so -- but I want to

 333 1 talk about just, you know, assuming that a

 333 2 soldier wore the earplugs, you know, in

 333 3 combat or when -- when there was, you know,

 333 4 an environment that required it, if the

 333 5 soldier was provided the fitting before first

 333 6 wearing the Combat Arms version 2 that you

 333 7 described and got the instruction that you

 333 8 described of putting your head over your --

 333 9 or your arm over your head and pulling back

 333 10 the pinna, as long as the soldier had

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 319 of 427
Tuten, Vickie 12-23-2020 17

 333 11 received that before wearing them, would you

 333 12 agree with me that the military did its job?

333:15 - 333:20 Tuten, Vickie 12-23-2020

 333 15 A. Again, I would -- I would agree

 333 16 that we had done the -- we had done the job

 333 17 of providing them the information they needed

 333 18 in order to -- yes, I would say that we had

 333 19 done the job of providing them that

 333 20 information.

333:22 - 333:24 Tuten, Vickie 12-23-2020

 333 22 Q. Okay.

 333 23 A. Again, I go back to

 333 24 enforcement's a big part of this.

334:1 - 334:15 Tuten, Vickie 12-23-2020

 334 1 So the bottom line, I guess,

 334 2 also is this: Do you know how many tens of

 334 3 thousands of soldiers in the military that

 334 4 wore the Combat Arms version 2 got the proper

 334 5 instruction and training and fitting with the

 334 6 Combat Arms version 2?

 334 7 A. I could not even begin to

 334 8 speculate or estimate that.

 334 9 Q. I mean, it could be a million

 334 10 for all you know, correct?

 334 11 A. It could be.

 334 12 Q. It could be a half a million,

 334 13 correct?

 334 14 A. Right. I can't -- I can't even

 334 15 speculate on the numbers.

342:13 - 342:20 Tuten, Vickie 12-23-2020

 342 13 So, I mean, there's a lot of

 342 14 variables that would affect a fitting.

 342 15 Q. Okay. You said at page 17 of

 342 16 your report, quote: My experience when

 342 17 asking a soldier to insert any plug without

 342 18 my instruction was they, quote, often did not

 342 19 insert deeply enough to seal.

 342 20 Do you recall that?

Re: [342:13-343:8]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [342:13-

343:8]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

OVERRULED

Re: [342:13-343:8]

403; 802; MIL 16

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 320 of 427
Tuten, Vickie 12-23-2020 18

342:24 - 342:24 Tuten, Vickie 12-23-2020

 342 24 A. Yes.

Re: [342:13-343:8]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [342:13-

343:8]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

OVERRULED

Re: [342:13-343:8]

403; 802; MIL 16

OVERRULED

343:5 - 343:8 Tuten, Vickie 12-23-2020

 343 5 Q. Okay. When you made that

 343 6 statement, were you talking only about the

 343 7 Combat Arms version 2 or all earplugs?

 343 8 A. All earplugs.

Re: [342:13-343:8]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [342:13-

343:8]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

OVERRULED

Re: [342:13-343:8]

403; 802; MIL 16

OVERRULED

345:5 - 345:10 Tuten, Vickie 12-23-2020

 345 5 Q. And as you've said previously,

 345 6 by just visually looking in their ear, you

 345 7 don't know specifically with the Combat Arms

 345 8 version 2 whether or not there is a good

 345 9 seal, just by the visual inspection, correct?

 345 10 A. That's correct.

345:13 - 345:15 Tuten, Vickie 12-23-2020

 345 13 A. That is correct with the CAEv2

 345 14 and any preformed or foam earplug, actually,

 345 15 formable earplug, yes.

Re: [345:13-345:15]

Plt Objection - Improper 

Counter Designation per PTO 

64; nonresponsive 

Re: [345:13-

345:15]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 

nonresponsive 

OVERRULED

Re: [345:13-345:15]

602, foundation, 

nonresponsive

SUSTAINED. 

No question.

345:17 - 346:16 Tuten, Vickie 12-23-2020

 345 17 Q. Okay. And we've talked a

 345 18 little bit about this, but fit testing,

 345 19 basically like a REAT test, is the only way

 345 20 to really know that, correct?

 345 21 A. Fit testing is where you

 345 22 actually have the earplugs in and you put

Re: [345:17-346:11]

Plt Objection - Improper 

counter

Re: [345:17-

346:16]

Plt Objection -

Improper 

Counter 

Designation per 

Re: [346:12-346:16]

Improper counter; MIL 1, 

MIL 16; 403, 802

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 321 of 427
Tuten, Vickie 12-23-2020 19

 345 23 some specialized headphones on them and test

 345 24 the attenuation.

 345 25 That was not a common practice

 346 1 at all during those years that that was being

 346 2 done, and I don't think it could have been

 346 3 done on a nonlinear earplug anyway, fit

 346 4 testing of that nature.

 346 5 What I'm referring to is fit

 346 6 testing that I've described up to this point

 346 7 is really more teaching of self-checks. Fit

 346 8 testing is actually like respirator fit

 346 9 testing where you're getting a personal

 346 10 attenuation rating of that particular earplug

 346 11 inserted on a particular individual.

 346 12 Q. Right. And that was, of

 346 13 course, not required by --

 346 14 A. It was not required. It still

 346 15 is not. It's recommended as a best practice,

 346 16 but not required.

PTO 64

SUSTAINED

347:1 - 347:8 Tuten, Vickie 12-23-2020

 347 1 Q. And one of the things that you

 347 2 wanted to ensure, I take it, as somebody who

 347 3 was in charge of hearing conservation

 347 4 programs, is that you tried to ensure that

 347 5 you would have safe and effective hearing

 347 6 protection in order to have a successful

 347 7 program; is that fair?

 347 8 A. That's fair.

347:12 - 347:16 Tuten, Vickie 12-23-2020

 347 12 Q. Okay. And one of the sources

 347 13 of trying to get information about whether or

 347 14 not the hearing protection device is safe was

 347 15 from the manufacturers who manufactured the

 347 16 product, fair?

347:20 - 347:21 Tuten, Vickie 12-23-2020

 347 20 A. Fair, at least in the area of

 347 21 attenuation it provided us that, yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 322 of 427
Tuten, Vickie 12-23-2020 20

347:23 - 348:2 Tuten, Vickie 12-23-2020

 347 23 Q. Right. And is it true that for

 347 24 a successful hearing conservation program,

 347 25 it's important to provide an earplug that's

 348 1 able to consistently achieve a fit and a seal

 348 2 across a wide range of ear canal sizes?

Re: [347:23-348:6]

Plt Objection - Improper 

counter

Re: [347:23-

348:2]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [348:5-

348:6]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

348:5 - 348:6 Tuten, Vickie 12-23-2020

 348 5 A. It's fair to say that that's

 348 6 one variable, not the only variable.

Re: [347:23-348:6]

Plt Objection - Improper 

counter

Re: [347:23-

348:2]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [348:5-

348:6]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

349:4 - 349:10 Tuten, Vickie 12-23-2020

 349 4 You want -- you want an earplug

 349 5 that will give you a proper fit that includes

 349 6 the ability of the plug to achieve a

 349 7 consistent seal that's maintained under

 349 8 normal conditions, knowing that there will be

Re: [349:4-349:19]

Improper counter; MIL 16 

("we"); MIL 1

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 323 of 427
Tuten, Vickie 12-23-2020 21

 349 9 some times that it needs to be reseated.

 349 10 Fair?

349:13 - 349:19 Tuten, Vickie 12-23-2020

 349 13 A. Okay. I'd like to -- yes,

 349 14 ideally we'd like that, but there's no way to

 349 15 know that without really doing personal

 349 16 attenuation ratings to know for sure that

 349 17 that's occurred. You -- because you have no

 349 18 objective data. It's at that point somewhat

 349 19 subjective.

Re: [349:4-349:19]

Improper counter; MIL 16 

("we"); MIL 1

SUSTAINED

354:12 - 354:17 Tuten, Vickie 12-23-2020

 354 12 Q. Would you agree with me that in

 354 13 order to do your job as the head of hearing

 354 14 conservation programs, like you have been in

 354 15 the past, you need to know about safety

 354 16 issues with the products you are

 354 17 recommending?

354:20 - 354:20 Tuten, Vickie 12-23-2020

 354 20 A. Yes.

355:1 - 355:6 Tuten, Vickie 12-23-2020

 355 1 Q. Okay. Do you want to know that

 355 2 the manufacturer has tested the device in a

 355 3 laboratory and determined whether it is safe

 355 4 and effective before deciding on whether or

 355 5 not to use that product in your hearing

 355 6 conservation program?

355:9 - 356:1 Tuten, Vickie 12-23-2020

 355 9 A. I guess I've always assumed

 355 10 that was done. I also know the Army does --

 355 11 and all of the services do some testing on

 355 12 hearing protection, so I'm -- you know, other

 355 13 than the NRR, that's all I've known the

 355 14 manufacturer provides.

 355 15 BY MR. CARTMELL:

 355 16 Q. Okay. But you understand that

 355 17 the NRR comes from a test, correct?

 355 18 A. Yes, correct. I don't know how

 355 19 to do it, that test, but yes, I understand

 355 20 that.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 324 of 427
Tuten, Vickie 12-23-2020 22

 355 21 Q. But you would expect, I take

 355 22 it, you know, for you to be able to properly

 355 23 evaluate the NRR as a component of the

 355 24 factors you need to look at, you would expect

 355 25 the manufacturer to do the test before

 356 1 selling it to you, correct?

356:4 - 356:4 Tuten, Vickie 12-23-2020

 356 4 A. Yes.

358:18 - 358:21 Tuten, Vickie 12-23-2020

 358 18 Q. Do you want to know if the

 358 19 earplug has characteristics that might make

 358 20 it more difficult to maintain a seal as

 358 21 compared to other ordinary flanged products?

358:24 - 358:25 Tuten, Vickie 12-23-2020

 358 24 A. Yes, I would say that I would

 358 25 want to know that.

359:2 - 359:4 Tuten, Vickie 12-23-2020

 359 2 Q. Okay. And if the manufacturer

 359 3 knew that, would you expect the manufacturer

 359 4 to tell you that?

Re: [359:2-359:10]

Improper counter; foundation; 

MIL 16

SUSTAINED

359:7 - 359:10 Tuten, Vickie 12-23-2020

 359 7 A. The manufacturer themselves

 359 8 tell me that? No, I would expect that to be

 359 9 socialized through higher levels of the Army,

 359 10 not myself.

Re: [359:2-359:10]

Improper counter; foundation; 

MIL 16

SUSTAINED

361:6 - 361:10 Tuten, Vickie 12-23-2020

 361 6 Q. Well, maybe it wasn't a good

 361 7 one.

 361 8 But you'd agree with me, if an

 361 9 earplug is not effective, that can be

 361 10 dangerous, right?

Re: [361:6-361:10]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [361:6-

361:10]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [361:6-361:17]

nonresponsive; 611; 403

SUSTAINED

361:13 - 361:17 Tuten, Vickie 12-23-2020

 361 13 A. An earplug, to be effective,

 361 14 again depends on a lot more variables than

 361 15 just the NRR. There's just so many variables

Re: [361:6-361:17]

nonresponsive; 611; 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 325 of 427
Tuten, Vickie 12-23-2020 23

 361 16 that go into a properly inserted and worn

 361 17 earplug.

361:19 - 362:6 Tuten, Vickie 12-23-2020

 361 19 Q. Well, let me say it this way:

 361 20 Would you agree with me, as somebody who has

 361 21 been in charge of the hearing conservation

 361 22 program for the military and is involved in

 361 23 actually choosing the technology that its

 361 24 soldiers should wear, would you agree with me

 361 25 that if a manufacturer of an earplug that

 362 1 they're trying to sell to the military knows

 362 2 that the earplug has certain design

 362 3 characteristics that can make the earplug not

 362 4 effective, and that's different than ordinary

 362 5 flanged earplugs, would you agree with me

 362 6 that they should tell the military that?

Re: [361:19-362:6]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [361:19-

362:6]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [361:19-362:6]

MIL 16; 403; 611

SUSTAINED

362:9 - 363:3 Tuten, Vickie 12-23-2020

 362 9 A. I would like to answer that.

 362 10 Again, you said that's involved in the

 362 11 ordering or selection. Again, that -- that

 362 12 ordering and selection of earplugs is done --

 362 13 was done at a level above me.

 362 14 I was an end user, and my --

 362 15 I'm a pragmatic person. I probably -- you

 362 16 know, the NRR was really less important to me

 362 17 as an end user. What was more important to

 362 18 me was the practical application of whether

 362 19 that person could wear an earplug and it

 362 20 properly fit them. So I didn't give a lot of

 362 21 credence to that kind of stuff.

 362 22 All NRRs tend to be kind of in

 362 23 the same ballpark in terms of numbers, so,

 362 24 you know, two here, two there, knowing that,

 362 25 again, the variability in insertion is so

 363 1 variable, again, it's mischaracterizing to

 363 2 say that I actually was involved in the

 363 3 selection process at that point.

Re: [362:9-362:21]

Improper counter; 

nonresponsive

Re: [362:22-362:23]

Improper counter; 602, 

foundation

Re: [362:24-363:3]

Improper counter, 

nonresponsive

SUSTAINED

369:13 - 369:20 Tuten, Vickie 12-23-2020

 369 13 Q. So let me ask you this. As far

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 326 of 427
Tuten, Vickie 12-23-2020 24

 369 14 as the Combat Arms version 2 earplugs, are

 369 15 you familiar with or did you know that it was

 369 16 advertised and labeled as having an NRR of

 369 17 22?

 369 18 A. Well, I saw that on -- and to

 369 19 my recollection, that was kind of the

 369 20 ballpark, yes.

369:21 - 369:25 Tuten, Vickie 12-23-2020

 369 21 Q. Okay. And based on your

 369 22 expertise, how would you assume that the

 369 23 earplug was fitted as far as, you know,

 369 24 whether the arm was put over the ear, to get

 369 25 that 22?

Re: [369:21-369:25]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [369:21-

369:25]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [369:21-369:25]

602, foundation

SUSTAINED

370:3 - 370:8 Tuten, Vickie 12-23-2020

 370 3 A. Again -- again, there's no way

 370 4 of knowing that without doing objective PAR

 370 5 testing that you're -- that you're achieving

 370 6 that -- that attenuation. In fact, again,

 370 7 according to OSHA, it should be derated by at

 370 8 least half.

Re: [370:3-370:8]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [370:3-

370:8]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [370:3-370:8]

nonresponsive

SUSTAINED

375:18 - 375:24 Tuten, Vickie 12-23-2020

 375 18 MR. CARTMELL: Okay. Let's

 375 19 pull up P0389.

 375 20 (Whereupon, Deposition Exhibit

 375 21 Tuten-25, Kieper & Berger Flange

 375 22 Report, 3M_MDL_000019514 -

 375 23 3M_MDL_000019519, was marked for

 375 24 identification.)

Re: [375:18-375:24]

Def Objection - 602

Re: [375:18-

375:24]

Def Objection -

602

OVERRULED

376:2 - 376:9 Tuten, Vickie 12-23-2020

 376 2 Q. Dr. Tuten, this is a report

 376 3 that was provided to us in this litigation

 376 4 from the files inside 3M, and it's titled How

 376 5 Folding the Flanges Back Affects REAT Results

 376 6 of the UltraFit Earplug End of the Combat

 376 7 Arms Plug.

Re: [376:2-376:16]

Def Objection - 602

Re: [376:2-

376:16]

Def Objection -

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 327 of 427
Tuten, Vickie 12-23-2020 25

 376 8 Do you see that?

 376 9 A. Yes.

378:11 - 378:23 Tuten, Vickie 12-23-2020

 378 11 Q. Okay. Well, let's look at this

 378 12 document. And this document is dated --

 378 13 let's go back to the first page. I

 378 14 apologize -- July of 2000, so a little over

 378 15 20 years ago. And this is from the Aearo

 378 16 laboratory, and as you can see, the two

 378 17 authors of this are R.W. Kieper and Elliott

 378 18 Berger.

 378 19 Do you see that?

 378 20 A. Yes.

 378 21 Q. Elliott Berger is someone you

 378 22 are very familiar with, correct?

 378 23 A. Yes.

Re: [378:11-379:9]

Def Objection - 602

Re: [378:11-

379:9]

Def Objection -

602

OVERRULED

379:21 - 380:6 Tuten, Vickie 12-23-2020

 379 21 Q. It says: The purpose of this

 379 22 report is to document that the current length

 379 23 of the UltraFit earplug end of the Combat

 379 24 Arms plug is too short for proper insertion.

 379 25 Do you see that?

 380 1 A. Okay. I see that.

 380 2 Q. Had Elliott Berger, at any of

 380 3 the conferences or committee meetings that

 380 4 you've been with him through the last

 380 5 20 years -- had he ever mentioned anything

 380 6 like that to you?

Re: [379:12-379:25]

Def Objection - 602

Re: [380:1-380:6]

Def Objection - 602

Re: [379:12-

379:25]

Def Objection -

602

OVERRULED

Re: [380:1-

380:6]

Def Objection -

602

OVERRULED

380:9 - 380:25 Tuten, Vickie 12-23-2020

 380 9 A. No, and we --

 380 10 BY MR. CARTMELL:

 380 11 Q. Is it no?

 380 12 A. No, we never talked about

 380 13 things like this, ever.

 380 14 Q. Okay. Now, if you go down

 380 15 to -- let's go down to the paragraph that

 380 16 starts: For test 213015. It states: The

 380 17 plugs were fit according to the standard

 380 18 plug's fitting instructions, with no

Re: [380:9-380:25]

Improper counter

SUSTAINED 

as to 380:14-25. 

Otherwise 

OVERRULED.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 328 of 427
Tuten, Vickie 12-23-2020 26

 380 19 modifications.

 380 20 Do you see that?

 380 21 A. Yes.

 380 22 Q. And I'll represent to you that

 380 23 that was standard fitting instructions for a

 380 24 flanged plug just like you have described

 380 25 here today, okay? 

381:10 - 381:12 Tuten, Vickie 12-23-2020

 381 10 Q. Did anybody tell you or do you

 381 11 know if anybody told anyone else at the

 381 12 military about that?

Re: [381:10-381:12]

Plt Objection - Improper 

Counter Designation per PTO 

64; calls for speculation

Re: [381:10-

381:12]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; calls 

for speculation

SUSTAINED

Re: [381:10-381:12]

Hearsay; MIL 1; MIL 16

SUSTAINED

381:15 - 381:22 Tuten, Vickie 12-23-2020

 381 15 A. At some point -- at some point,

 381 16 yes, this information did roll down. I don't

 381 17 recall exactly who it -- who heard it and

 381 18 when I heard it and that I paid a lot of

 381 19 attention to it, but I remember that it did

 381 20 roll down and people were aware of this at

 381 21 some point. At what point, I don't know,

 381 22 what year or what.

Re: [381:15-381:22]

Plt Objection - Improper 

Counter Designation per PTO 

64; calls for speculation

Re: [381:15-

381:22]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; calls 

for speculation

SUSTAINED

Re: [381:15-381:22]

Hearsay; MIL 1; MIL 16; 

nonresponsive

SUSTAINED

383:5 - 383:15 Tuten, Vickie 12-23-2020

 383 5 Q. Let me make sure we're

 383 6 communicating.

 383 7 Is your testimony that you

 383 8 think somebody from 3M told the company -- or

 383 9 excuse me, told the military that in their

 383 10 testing, they found that because the stem of

 383 11 the green solid end of the plug was so short

 383 12 it was difficult for the experimenter to

 383 13 insert the plug deeply into ear canals,

 383 14 especially those with medium and larger

 383 15 canals?

Re: [383:5-383:15]

Plt Objection - Improper 

Counter Designation per PTO 

64; calls for speculation

Re: [383:5-

383:15]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; calls 

for speculation

SUSTAINED

Re: [383:5-383:15]

MIL 16 ("told the military"); 

foundation

SUSTAINED

383:18 - 384:23 Tuten, Vickie 12-23-2020

 383 18 A. I don't know that that was the

Re: [383:18-384:23]

Plt Objection - Improper 

Re: [383:18-

384:23]

Re: [383:18-384:6]

MIL 16; hearsay

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 329 of 427
Tuten, Vickie 12-23-2020 27

 383 19 characterization that was given. It's just

 383 20 that if you're having any difficulty -- and

 383 21 again, this rolled down from probably

 383 22 somebody in the Public Health Command, and I

 383 23 don't know --

 383 24 BY MR. CARTMELL:

 383 25 Q. Yeah, I don't want you to

 384 1 speculate, so --

 384 2 A. Yeah, I don't recall that it

 384 3 came to -- I don't recall specifically for

 384 4 me. I do know that in a couple conversations

 384 5 Marty Robinette did say that, yes, he -- he

 384 6 had the -- had been given those instructions.

 384 7 Q. What instructions are you

 384 8 talking about? I'm not -- I'm not asking

 384 9 about instructions.

 384 10 A. Again, the instructions that if

 384 11 the canal was too large, to fold back the

 384 12 flange.

 384 13 Q. Okay. This has nothing to do

 384 14 with that. I know that you've talked

 384 15 about -- that you need to talk about that,

 384 16 but I'm not there yet, okay?

 384 17 A. Oh.

 384 18 Q. I'm trying to be very precise

 384 19 in my question, so I need you to answer my

 384 20 question.

 384 21 A. Okay. So no -- okay.

 384 22 Q. Okay.

 384 23 A. Go ahead.

Counter Designation per PTO 

64; calls for speculation

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; calls 

for speculation

SUSTAINED

Re: [384:7-384:23]

Improper counter; 403 waste 

of time

385:13 - 385:15 Tuten, Vickie 12-23-2020

 385 13 Q. Okay.

 385 14 A. I -- I don't know for sure. I

 385 15 just know it rolled downhill.

Re: [385:13-385:15]

Plt Objection - Improper 

Counter Designation per PTO 

64; calls for speculation

Re: [385:13-

385:15]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; calls 

for speculation

OVERRULED

Re: [385:13-385:15]

403 confusing; 602, 802; MIL 

16, MIL 1

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 330 of 427
Tuten, Vickie 12-23-2020 28

386:1 - 386:14 Tuten, Vickie 12-23-2020

 386 1 Q. It states: Additionally, the

 386 2 geometry of the ear canal opening sometimes

 386 3 prevented the deep plug insertion required

 386 4 for maximum attenuation values.

 386 5 Do you think that was ever told

 386 6 to you?

 386 7 A. No.

 386 8 Q. Okay. When the solid plug was

 386 9 fitted during the first test, 015, the basal

 386 10 edge of the third flange of the yellow,

 386 11 level-dependent plug sometimes pressed

 386 12 against the subject's ear canal, opening and

 386 13 folding up.

 386 14 Did you see that?

Re: [386:1-386:14]

Def Objection - 602; 403

Re: [386:1-

386:14]

Def Objection -

602; 403

OVERRULED

386:17 - 387:6 Tuten, Vickie 12-23-2020

 386 17 A. I see that here, but I -- I've

 386 18 never seen that before.

 386 19 BY MR. CARTMELL:

 386 20 Q. Right. And you don't know

 386 21 whether the military was ever told that by

 386 22 3M, correct?

 386 23 A. I don't know.

 386 24 Q. Okay. If, in fact, they were

 386 25 finding that in their studies, in their

 387 1 study, that when the solid plug was fitted,

 387 2 the basal edge of the third flange of the

 387 3 yellow, level-dependent plug sometimes

 387 4 pressed against the subject's ear canal

 387 5 opening and it folded up, would you have

 387 6 wanted to know that from the manufacturer?

Re: [386:17-387:6]

Def Objection - 602;403

Re: [386:17-

387:6]

Def Objection -

602;403

OVERRULED

387:13 - 388:11 Tuten, Vickie 12-23-2020

 387 13 Q. Would you have wanted to know

 387 14 that from the manufacturer?

 387 15 A. Sure.

 387 16 Q. Okay. It says: When the

 387 17 inward pressure of the plug was released, the

 387 18 yellow plug's flanges tended to return to

 387 19 their original shape, and this sometimes

Re: [387:13-388:11]

Def Objection - 602;403

Re: [387:13-

388:11]

Def Objection -

602;403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 331 of 427
Tuten, Vickie 12-23-2020 29

 387 20 loosened the plug, often imperceptibly to the

 387 21 subject.

 387 22 Do you see that?

 387 23 A. Yes, I see that.

 387 24 Q. Did Elliott Berger or anyone

 387 25 from the military -- or excuse me, from 3M

 388 1 ever tell you anything about imperceptible

 388 2 loosening of their plug?

 388 3 A. No.

 388 4 Q. Okay. And you'd never heard

 388 5 that before today?

 388 6 A. Not this specifically, no.

 388 7 Q. Okay. And would you agree that

 388 8 if a manufacturer was finding that and their

 388 9 expert fitter in their study was finding

 388 10 that, that that would be something that would

 388 11 be good to tell the military about the plug?

388:14 - 389:2 Tuten, Vickie 12-23-2020

 388 14 A. Again, it would have been --

 388 15 yeah, I suppose it should have been passed

 388 16 along.

 388 17 BY MR. CARTMELL:

 388 18 Q. Okay. Let's go down further.

 388 19 Now, another test was done --

 388 20 well, let me ask you this: Did you know that

 388 21 the company actually stopped the testing of

 388 22 the Combat Arms earplug --

 388 23 A. No.

 388 24 Q. -- after eight subjects because

 388 25 the data they were getting in the tests were

 389 1 more variable than they had ever had in a

 389 2 preformed molded earplug before?

Re: [388:14-389:2]

Def Objection - 602;403

Re: [388:14-

389:2]

Def Objection -

602;403

OVERRULED

389:5 - 389:13 Tuten, Vickie 12-23-2020

 389 5 A. No, I did not know that.

 389 6 BY MR. CARTMELL:

 389 7 Q. Elliott Berger testified that

 389 8 the data they got from this test was more

 389 9 variable than they had ever gotten from a

 389 10 preformed earplug.

Re: [389:5-389:13]

Def Objection - 602;403

Re: [389:5-

389:13]

Def Objection -

602;403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 332 of 427
Tuten, Vickie 12-23-2020 30

 389 11 Do you believe that that is

 389 12 something that maybe 3M should have told the

 389 13 military?

389:16 - 389:16 Tuten, Vickie 12-23-2020

 389 16 A. Again, perhaps, yes.

Re: [389:16-390:13]

Def Objection - 602;403

Re: [389:16-

390:13]

Def Objection -

602;403

SUSTAINED

390:18 - 391:9 Tuten, Vickie 12-23-2020

 390 18 Q. And then he says: When folded

 390 19 back in that way, the yellow flanges neither

 390 20 touched the subjects' conchae nor compromised

 390 21 the fit of the solid plugs.

 390 22 Do you see that?

 390 23 A. Yes.

 390 24 Q. And if you go down to the

 390 25 results of that second test, when they folded

 391 1 back the flanges, they say the NRR obtained

 391 2 from the test is 22.

 391 3 Do you see that?

 391 4 A. Yes.

 391 5 Q. Now, you had no idea before

 391 6 today that when 3M was testing this product,

 391 7 to get that 22 NRR that you knew that they

 391 8 claimed, that they had folded back the

 391 9 flanges on those subjects' ears, did you?

Re: [390:16-391:9]

Def Objection - 602;403

Re: [390:16-

391:9]

Def Objection -

602;403

OVERRULED

391:12 - 391:12 Tuten, Vickie 12-23-2020

 391 12 A. Not until today, no.

Re: [391:12-391:21]

Def Objection - 602;403

Re: [391:12-

391:21]

Def Objection -

602;403

OVERRULED

394:1 - 394:15 Tuten, Vickie 12-23-2020

 394 1 What were you, again, in 2009?

 394 2 A. I would have just arrived at

 394 3 the Office of the Surgeon General, late --

 394 4 like December, right around Christmastime

 394 5 2008, so I would have been at the Office of

 394 6 the Surgeon General.

 394 7 Q. Okay. Tell me, if you would,

Re: [394:1-394:15]

Def Objection - 602; 403; 

401; 402

Re: [394:1-

394:15]

Def Objection -

602; 403; 401; 

402

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 333 of 427
Tuten, Vickie 12-23-2020 31

 394 8 what you know about the meeting where

 394 9 Marjorie Grantham brought in Leanne

 394 10 Battler-Cleveland to a meeting and

 394 11 Ms. Battler-Cleveland was reprimanded for

 394 12 promoting the Combat Arms or playing

 394 13 favorites, favoritism towards the Combat Arms

 394 14 at the expense of the SureFire product. Tell

 394 15 us about that.

394:18 - 395:7 Tuten, Vickie 12-23-2020

 394 18 A. I don't recall the meeting or

 394 19 if I was in it, and my recollection of that

 394 20 was that at the time, I think it would have

 394 21 been maybe Captain Cleveland -- she might

 394 22 have been a major by then -- had sort of made

 394 23 some comments about she didn't think the

 394 24 attenuation characteristics were as

 394 25 advertised.

 395 1 And again, my recollection of

 395 2 that is sort of vague, because I don't

 395 3 remember that I was involved in the actual

 395 4 meeting. I had peripheral knowledge of that.

 395 5 BY MR. CARTMELL:

 395 6 Q. And you know, though, that she

 395 7 was reprimanded for that conduct, correct?

Re: [394:18-394:25]

Def Objection - 602; 403; 

401; 402

Re: [395:1-395:8]

Def Objection - 602; 403; 

401; 402

Re: [394:18-

394:25]

Def Objection -

602; 403; 401; 

402

OVERRULED

Re: [395:1-

395:8]

Def Objection -

602; 403; 401; 

402

OVERRULED

395:11 - 395:19 Tuten, Vickie 12-23-2020

 395 11 A. I don't remember that it was a

 395 12 reprimand. Probably told that that wasn't --

 395 13 I mean, a reprimand, to me, in the military

 395 14 means something pretty strong like some

 395 15 disciplinary action was taken, and she was --

 395 16 probably had a good talking-to, but I don't

 395 17 know beyond that if anything else happened.

 395 18 BY MR. CARTMELL:

 395 19 Q. Who would know more about that?

Re: [395:11-395:19]

Def Objection - 602; 403; 

401; 402

Re: [395:11-

395:19]

Def Objection -

602; 403; 401; 

402

OVERRULED

395:22 - 396:5 Tuten, Vickie 12-23-2020

 395 22 A. I -- I wouldn't be able to

 395 23 speculate on that. I -- I really don't --

 395 24 you know, other than peripherally knowing

 395 25 that she had said something about SureFire.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 334 of 427
Tuten, Vickie 12-23-2020 32

 396 1 I didn't really think it was

 396 2 that big of a deal at the time, other than

 396 3 the fact that she said don't do that again.

 396 4 So I just really don't recall that there was

 396 5 a formal meeting on it.

397:6 - 397:20 Tuten, Vickie 12-23-2020

 397 6 So you recall discussing

 397 7 something that folks in this case have

 397 8 referred to as the flange report with

 397 9 Mr. Cartmell?

 397 10 A. Yes.

 397 11 Q. Okay. Are you an expert,

 397 12 Dr. Tuten, in the REAT, R-E-A-T, testing that

 397 13 manufacturers conduct on hearing protection

 397 14 devices?

 397 15 A. No, I'm not, not at all.

 397 16 Q. And with respect to the REAT

 397 17 testing that is described in the flange

 397 18 report, fair to say that you don't have any

 397 19 expertise in assessing that from a scientific

 397 20 perspective?

Re: [397:6-397:20]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [397:6-

397:20]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

397:23 - 397:24 Tuten, Vickie 12-23-2020

 397 23 A. Again, no, I have no expertise

 397 24 in that area.

398:1 - 398:19 Tuten, Vickie 12-23-2020

 398 1 Q. With respect to your role in

 398 2 the Army, were you in a role in the Army in

 398 3 which you were having direct discussions with

 398 4 the manufacturers of earplugs and hearing

 398 5 protection devices regarding the design

 398 6 characteristics of those devices?

 398 7 A. No, not with -- with the design

 398 8 characteristics, I would clarify, you know,

 398 9 when they were seeking feedback from all end

 398 10 users, we did things like say, yeah, we'd

 398 11 like more than one size, that kind of thing,

 398 12 but not design characteristics, so to speak,

 398 13 no.

 398 14 Q. With respect to testing that

Re: [398:1-398:19]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [398:1-

398:19]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

Re: [398:1-398:24]

403; leading

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 335 of 427
Tuten, Vickie 12-23-2020 33

 398 15 may have been conducted by the Army,

 398 16 including by the Army Research Laboratory or

 398 17 at the direction of CHPPM, is that a role

 398 18 that you held within the Army over the course

 398 19 of your career in the Army?

398:22 - 398:24 Tuten, Vickie 12-23-2020

 398 22 A. No, I never -- I was never at

 398 23 the Public Health Command or assigned there,

 398 24 no.

Re: [398:1-398:24]

403; leading

SUSTAINED

399:1 - 399:17 Tuten, Vickie 12-23-2020

 399 1 Q. And with respect to the

 399 2 information known to the Army, including in

 399 3 CHPPM specifically, relative to the

 399 4 information known to a manufacturer about a

 399 5 hearing protection device, did you ever hold

 399 6 a position in the Army that would give you

 399 7 any sort of specific knowledge on the

 399 8 relative nature of the objections -- the

 399 9 relative nature of the information that would

 399 10 have been known to the Army as opposed to

 399 11 manufacturers of hearing protection devices?

 399 12 A. No. I wasn't in a position to

 399 13 have that information.

 399 14 Q. Okay. You discussed a little

 399 15 bit with Mr. Cartmell fittings that were

 399 16 conducted relating to earplugs. Do you

 399 17 remember that general line of questions?

Re: [399:1-399:13]

MIL 16 ("information known 

to the army"); improper 

counter; leading

SUSTAINED

399:20 - 400:2 Tuten, Vickie 12-23-2020

 399 20 A. Yes.

 399 21 BY MR. BHIMANI:

 399 22 Q. In addition to what I'll refer

 399 23 to as an initial fitting on the hearing

 399 24 protection device, were there requirements in

 399 25 the Army for annual examinations of service

 400 1 members to look at the fit and condition of

 400 2 their hearing protection devices?

Re: [399:22-400:11]

Improper counter; leading; 

MIL 1; MIL 2; Daubert order

SUSTAINED

400:4 - 400:11 Tuten, Vickie 12-23-2020

 400 4 A. Yes. There absolutely were.

 400 5 Initial fitting was, you know, initial

Re: [399:22-400:11]

Improper counter; leading; 

MIL 1; MIL 2; Daubert order

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 336 of 427
Tuten, Vickie 12-23-2020 34

 400 6 fitting, but earplug sizes changed.

 400 7 Sometimes the hearing protection became

 400 8 unserviceable. So it was routine at the time

 400 9 of the hearing test, at least on programs

 400 10 that I managed, that an earplug fitting would

 400 11 be done at that time by somebody on my staff.

400:24 - 401:6 Tuten, Vickie 12-23-2020

 400 24 We've talked throughout the

 400 25 deposition about the requirement that

 401 1 fittings be conducted by medically trained

 401 2 persons, but beyond that, was there ever a

 401 3 list, kind of like a checklist or anything

 401 4 like that for what a medically trained person

 401 5 would need to do for fitting of preformed

 401 6 earplugs?

Re: [400:24-401:6]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [400:24-

401:6]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

Re: [400:24-401:6]

MIL 1; MIL 2; MIL 16; 

leading

SUSTAINED

401:8 - 401:24 Tuten, Vickie 12-23-2020

 401 8 A. I don't recall a checklist

 401 9 per se, but I'm sure as we trained these

 401 10 people, we probably had, you know, an agenda

 401 11 of things that we would cover or -- and I can

 401 12 speak only for myself. I would have a

 401 13 checklist of -- or a -- you know, an outline

 401 14 of things that I would cover, not necessarily

 401 15 a competency checklist.

 401 16 They had to show -- they had to

 401 17 show me as per my instruction that they know

 401 18 how to properly instruct somebody and teach

 401 19 them how to put the earplug in their ear and

 401 20 do a self-check. So not only was it didactic

 401 21 instruction, this is what you need to do, you

 401 22 need to show me that you can do it. So it

 401 23 was twofold, I mean, any training that I

 401 24 provided.

Re: [401:8-401:24]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [401:8-

401:24]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

Re: [401:8-401:24]

Improper counter, leading; 

MIL 2

SUSTAINED

402:1 - 402:5 Tuten, Vickie 12-23-2020

 402 1 Q. Okay. And let me ask it this

 402 2 way: With respect to what you would do in

 402 3 fittings for earplugs for service members,

Re: [402:1-402:16]

leading

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 337 of 427
Tuten, Vickie 12-23-2020 35

 402 4 could that vary from service member to

 402 5 service member?

402:7 - 402:16 Tuten, Vickie 12-23-2020

 402 7 A. Yes. I mean, human beings are

 402 8 variable. Sometimes they were a little more

 402 9 well versed, had worn earplugs a little more,

 402 10 required less instruction, had done

 402 11 self-checks on other kinds of hearing

 402 12 protection. Sometimes it was difficult to

 402 13 fit, took a little longer for us to make a

 402 14 decision on what earplug would actually --

 402 15 they'd end up with. So it was variable, yes,

 402 16 very individual.

Re: [402:7-402:16]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [402:7-

402:16]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

Re: [402:1-402:16]

leading

SUSTAINED

402:18 - 402:23 Tuten, Vickie 12-23-2020

 402 18 Q. All right. Final thing.

 402 19 So, Dr. Tuten, do you have in

 402 20 front of you your report? And for the

 402 21 record, this was marked by Mr. Cartmell as

 402 22 Exhibit 1, I believe, to the deposition.

 402 23 A. I do.

Re: [402:18-402:23]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [402:18-

402:23]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

403:6 - 403:25 Tuten, Vickie 12-23-2020

 403 6 Q. And I'm just going to direct

 403 7 your attention -- I'll read it for the

 403 8 record. There's a sentence here in the

 403 9 bottom third, I guess, of the first full

 403 10 paragraph that reads: In practice, I

 403 11 understood that rolling back the last flange

 403 12 was sometimes necessary when fitting a

 403 13 curved-flange earplug to achieve a better

 403 14 insertion. I had some prior experience with

 403 15 some curved-flange earplugs, such as the

 403 16 triple-flange.

 403 17 Do you see that?

 403 18 A. Yeah, and actually that -- you

 403 19 know, I'm going to just say I probably should

 403 20 correct -- a triple-flange isn't really a

Re: [403:6-403:25]

Plt Objection - Improper 

Counter Designation per PTO 

64- D's direct of their expert 

Re: [403:6-

403:25]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64- D's 

direct of their 

expert 

SUSTAINED

Re: [403:6-403:25]

leading; 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 338 of 427
Tuten, Vickie 12-23-2020 36

 403 21 curved-flange. A quad-flange -- I probably

 403 22 meant the quad-flange, when fitting the

 403 23 quad-flange because it was curved. The

 403 24 triple -- you know, I don't know how I missed

 403 25 that, but yeah, I'm sorry.

404:2 - 404:24 Tuten, Vickie 12-23-2020

 404 2 So I guess my question is more

 404 3 about the first sentence, anyway.

 404 4 Can you explain what you meant

 404 5 in the sentence that begins "In practice, I

 404 6 understood that rolling back the last

 404 7 flange," what you meant in that sentence and

 404 8 what your opinion is in that regard?

 404 9 A. Again, the -- a curved-flange

 404 10 earplug wasn't like another earplug in that

 404 11 you didn't necessarily insert it to the point

 404 12 where all flanges would disappear into the

 404 13 ear and not be seen and not visible from the

 404 14 outside.

 404 15 So sometimes you would -- you

 404 16 know, the depth of insertion was really very

 404 17 dependent on the ear canal, not like a

 404 18 triple-flanged earplug where -- or a

 404 19 straight -- what I mean, straight-flanged

 404 20 earplug, where the last flange had to be

 404 21 flush with the opening to the canal.

 404 22 Q. Okay. And what about the

 404 23 rolling of the flanges on curved-flanged

 404 24 earplugs?

Re: [404:2-404:24]

Improper counter

SUSTAINED

405:2 - 405:14 Tuten, Vickie 12-23-2020

 405 2 A. Again, the rolling back, again,

 405 3 if you had -- on the CAE, if you had a tragus

 405 4 that was sometimes -- because of the depth of

 405 5 insertion, depending on the depth of

 405 6 insertion, the tragus was interfering,

 405 7 sometimes rolling back the flange on the

 405 8 opposite side would help.

 405 9 I don't know that I ever had to

 405 10 do that. I know that somewhere along the way

Re: [405:2-405:14]

MIL 16 ("information did 

make its way down to us"); 

MIL 1; Improper counter;

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 339 of 427
Tuten, Vickie 12-23-2020 37

 405 11 that information did make its way down to us,

 405 12 but I don't recall that by the time that that

 405 13 information did come down that I was fitting

 405 14 many CAEv2s.

405:22 - 406:6 Tuten, Vickie 12-23-2020

 405 22 Q. Dr. Tuten, I have a few to

 405 23 follow up with you, and I'll start with that

 405 24 topic now. And the topic is folding the

 405 25 flanges back on the CAEv2.

 406 1 And it's true, as you sit here

 406 2 today, you don't have a recollection of ever

 406 3 doing that or seeing a soldier do that with a

 406 4 Combat Arms version 2, correct?

 406 5 A. I never did that personally or

 406 6 saw another soldier do it.

406:7 - 406:21 Tuten, Vickie 12-23-2020

 406 7 Q. Right. And you would walk

 406 8 around the installations and you were in

 406 9 areas where hearing protection was being worn

 406 10 from time to time, and not one single time

 406 11 did you see a Combat Arms version 2 earplug

 406 12 with the flanges folded back, correct?

 406 13 A. Again, on the installations I

 406 14 was on, I rarely saw CAEv2s being worn. They

 406 15 typically, back in garrison, did not wear

 406 16 them.

 406 17 Q. Okay.

 406 18 A. They wore the other types. So

 406 19 unless I deployed, I probably wouldn't have

 406 20 had occasion to actually observe that with

 406 21 any -- to any significant degree.

Re: [406:7-406:21]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [406:7-

406:21]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64

SUSTAINED

Re: [406:7-406:16]

cumulative; nonresponsive

Re: [406:17-406:21]

nonresponsive

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 340 of 427
Warren, Garrad - 01-23-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 341 of 427
Warren, Garrad - 01-23-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

10:19 - 10:20 Warren, Garrad - 01-23-2020

 10 19 Q. Good morning, Mr. Warren.

 10 20 A. Good morning.

10:21 - 11:3 Warren, Garrad - 01-23-2020

 10 21 Q. We met just prior to the

 10 22 deposition, but my name is Bryan Aylstock. I

 10 23 do represent the plaintiffs in this

 10 24 litigation, and that includes soldiers and

 10 25 Marines who wore the Combat Arms version 2

 11 1 earplugs.

 11 2 Do you understand that?

 11 3 A. I do.

Re: [10:21-11:3]

Def Objection - Relevance 

(401,402); Prejudice (403)

Re: [10:21-

11:3]

Def Objection -

Relevance 

(401,402); 

Prejudice (403)

SUSTAINED 

as to the 

phrase, and 

that includes 

soldiers and 

Marines who 

wore the 

Combat Arms 

version 2 

earplugs.Ó 

OVERRULED 

in all other 

respects

Re: [10:21-11:3]

Subject to MIL, 403, 

Relevance

SUSTAINED as 

to the phrase, 

“and that 

includes soldiers 

and Marines who 

wore the Combat 

Arms version 2 

earplugs.”

OVERRULED in 

all other respects.

12:24 - 13:1 Warren, Garrad - 01-23-2020

 12 24 Q. Now, you're no longer with 3M

 12 25 or Aearo; is that correct?

 13 1 A. No, that is correct.

15:15 - 15:19 Warren, Garrad - 01-23-2020

 15 15 Q. Okay. Let me show you

 15 16 Plaintiff's Exhibit 3 that was produced to us

 15 17 pursuant to the subpoena.

 15 18 Is that your most current CV?

 15 19 A. Yes, it is.

16:9 - 16:13 Warren, Garrad - 01-23-2020

 16 9 And then you retired down to

 16 10 Sarasota; is that right?

 16 11 A. Actually, I was living there,

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 342 of 427
Warren, Garrad - 01-23-2020 3

 16 12 but, yes, but I retired while in Sarasota.

 16 13 That's my primary residence.

16:14 - 17:7 Warren, Garrad - 01-23-2020

 16 14 Q. Okay. So I want to take you

 16 15 through some of this so the jury kind of

 16 16 understands your role and your background,

 16 17 but I note you have a bachelor's degree from

 16 18 Purdue University from 1974?

 16 19 A. That's correct.

 16 20 Q. And it looks like right from

 16 21 there you went to DowBrands in Indianapolis;

 16 22 is that correct?

 16 23 A. Yes, sir.

 16 24 Q. And it looks like through your

 16 25 efforts, at least, in part, in some

 17 1 reengineering and aggressive cost reductions,

 17 2 the DowBrands was ultimately sold to

 17 3 SC Johnson?

 17 4 A. That is correct.

 17 5 Q. And I take it it was sold for a

 17 6 profit?

 17 7 A. Yes, it was.

Re: [16:24-17:7]

Relevance, 403

OVERRULED

17:8 - 17:13 Warren, Garrad - 01-23-2020

 17 8 Q. Given that you had helped

 17 9 reengineer the turnaround?

 17 10 A. When you say "profit," I don't

 17 11 know if it was a profit. We -- it was --

 17 12 well, I'm not sure what kind of -- what kind

 17 13 of product Dow Chemical made on that.

Re: [17:8-17:13]

Improper clarification 

counter

OVERRULED

19:23 - 20:5 Warren, Garrad - 01-23-2020

 19 23 with regard to DowBrands, ultimately you --

 19 24 that company was sold to SC Johnson and you

 19 25 moved on to a different company; is that

 20 1 right?

 20 2 A. That is correct.

 20 3 Q. And that was International Home

 20 4 Foods, correct?

 20 5 A. Yes, sir.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 343 of 427
Warren, Garrad - 01-23-2020 4

20:6 - 21:3 Warren, Garrad - 01-23-2020

 20 6 Q. And at that point you were

 20 7 senior vice president of sales and customer

 20 8 development, correct?

 20 9 A. Yes, sir.

 20 10 Q. Did that company also get sold?

 20 11 A. Not while I was there. It may

 20 12 have subsequently have been sold. It was

 20 13 owned by a private equity firm, but I don't

 20 14 know what the status of that is.

 20 15 Q. Okay. So by "private equity,"

 20 16 are you talking about like a hedge fund or

 20 17 something --

 20 18 A. Not a hedge fund, but a private

 20 19 equity firm.

 20 20 Q. Okay. So it was owned by --

 20 21 well, how would you describe a private equity

 20 22 firm?

 20 23 A. A private equity firm would be

 20 24 a group of investors that invest in a

 20 25 company, try to increase sales, profitability

 21 1 and at some point they then will sell a

 21 2 company. Typically three to seven years

 21 3 after they purchased it.

Re: [20:20-21:6]

Relevance, 403

OVERRULED

21:4 - 21:6 Warren, Garrad - 01-23-2020

 21 4 Q. Hopefully turn it around and

 21 5 make a profit?

 21 6 A. Hopefully, yes.

Re: [20:20-21:6]

Relevance, 403

OVERRULED

21:7 - 21:16 Warren, Garrad - 01-23-2020

 21 7 Q. And then in 1999 you went on

 21 8 with Aearo.

 21 9 Can you tell us about how you

 21 10 made that transition, please?

 21 11 A. Yes, I had left International

 21 12 Home Foods, the DowBrands ex-CEO Mike 

McLain

 21 13 became CEO of Aearo and called me and asked

 21 14 me to come work for him again.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 344 of 427
Warren, Garrad - 01-23-2020 5

 21 15 Q. So Mr. McLain became your boss?

 21 16 A. Yes, sir.

21:17 - 22:3 Warren, Garrad - 01-23-2020

 21 17 Q. I saw some documents, it looks

 21 18 like he called some other folks who he knew

 21 19 at DowBrands as well.

 21 20 A. Yes, sir.

 21 21 Q. And it looks like, you know,

 21 22 five or six, at least, went over with you to

 21 23 Aearo when he became CEO; is that fair?

 21 24 A. Probably, yes. I don't recall

 21 25 the exact number without thinking more about

 22 1 it, but that sounds about right.

 22 2 Q. Okay. And we can look at some

 22 3 of those documents later.

22:4 - 22:9 Warren, Garrad - 01-23-2020

 22 4 When you -- it looks like you

 22 5 started as vice president for sales North

 22 6 America --

 22 7 A. Yes.

 22 8 Q. -- is that right?

 22 9 A. Yes.

23:6 - 23:9 Warren, Garrad - 01-23-2020

 23 6 Q. Okay. And then 2003 you became

 23 7 president, North America safety products

 23 8 group?

 23 9 A. Yes.

23:10 - 23:18 Warren, Garrad - 01-23-2020

 23 10 Q. Tell the jury about that, if

 23 11 you would.

 23 12 A. Safety products group consisted

 23 13 of ultimately five different SBUs, strategic

 23 14 business units, North American industrial,

 23 15 our consumer business, the construction

 23 16 business, military and our -- what we called

 23 17 SRx or the safety prescription eyewear

 23 18 business.

23:19 - 24:8 Warren, Garrad - 01-23-2020

 23 19 Q. Okay. And in the description

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 345 of 427
Warren, Garrad - 01-23-2020 6

 23 20 here, it talks about your responsibilities

 23 21 included for those products the safety

 23 22 products, both consumer and military?

 23 23 A. As part of the -- two of the

 23 24 five SBUs, yes, sir.

 23 25 Q. Okay. And that would include

 24 1 for the earplug part of the business --

 24 2 A. Yes.

 24 3 Q. -- correct?

 24 4 A. Yes.

 24 5 Q. And for the Combat Arms

 24 6 version 2 earplugs specifically, correct?

 24 7 A. That was part of that, yes,

 24 8 sir.

24:9 - 24:12 Warren, Garrad - 01-23-2020

 24 9 Q. So when it came to the Combat

 24 10 Arms version 2, you were ultimately

 24 11 responsible as president for what happened

 24 12 with regard to that; is that fair?

24:14 - 24:21 Warren, Garrad - 01-23-2020

 24 14 THE WITNESS: I wouldn't say

 24 15 ultimately responsible. Again, I had

 24 16 direct responsibility for sales and

 24 17 marketing. There were other functions

 24 18 that we worked with, operations,

 24 19 finance, and so forth. That also

 24 20 played a key role in the management of

 24 21 that business.

24:23 - 25:9 Warren, Garrad - 01-23-2020

 24 23 Q. When it came to selling or

 24 24 marketing the Combat Arms version 2, other

 24 25 than Mr. McLain, who was the CEO of the

 25 1 entire company, you were the head guy?

 25 2 A. I was -- yes, I was for the

 25 3 North American businesses.

 25 4 Q. And that would include all

 25 5 sales to the United States military, correct?

 25 6 A. That is correct.

 25 7 Q. And marketing to the military

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 346 of 427
Warren, Garrad - 01-23-2020 7

 25 8 and soldiers and Marines, correct?

 25 9 A. That is correct.

25:19 - 26:5 Warren, Garrad - 01-23-2020

 25 19 Q. The first bullet point under

 25 20 your role as president for Aearo North

 25 21 American safety products group is that you

 25 22 were a key member of the management team

 25 23 which sold business three times in four years

 25 24 creating over 1 billion in total enterprise

 25 25 value for three private equity firms.

 26 1 Is that -- did I read that

 26 2 correctly?

 26 3 A. Yes, sir.

 26 4 Q. And that's correct, right?

 26 5 A. Yes, sir.

26:6 - 26:7 Warren, Garrad - 01-23-2020

 26 6 (Warren Exhibit 4 marked for

 26 7 identification.)

26:9 - 27:12 Warren, Garrad - 01-23-2020

 26 9 Q. I'm going to mark this exhibit,

 26 10 and it's a demonstrative exhibit we've

 26 11 created based upon what we know. I just want

 26 12 to ask you if this is reflective of the three

 26 13 private equity firms over, well, four years

 26 14 that had created over $1 billion in value as

 26 15 reflected on your CV.

 26 16 A. Those are the three private

 26 17 equity firms, yes, sir.

 26 18 Q. And so VCP, what does that

 26 19 stand for?

 26 20 A. Vestar Capital Partners.

 26 21 Q. Okay. So when you came on to

 26 22 Aearo, VCP was a private equity firm?

 26 23 A. Yes, sir.

 26 24 Q. A group of investors that owned

 26 25 it that were interested in making it into a

 27 1 more profitable company and selling it,

 27 2 right?

 27 3 A. That is correct.

Re: [26:9-26:17]

Def Objection - 3M MIL No. 

7

Re: [26:21-27:10]

Def Objection - 3M MIL No. 

7

Re: [27:11-27:12]

Def Objection - 3M MIL No. 

7; Vague (611, 403)

Re: [26:9-

26:17]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [26:21-

27:10]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:11-

27:12]

Def Objection -

3M MIL No. 7; 

Vague (611, 

403)

OVERRULED

Re: [26:9-27:12]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 347 of 427
Warren, Garrad - 01-23-2020 8

 27 4 Q. And they had purchased it for

 27 5 205 million.

 27 6 Does that sound right to you?

 27 7 A. I believe so, yes.

 27 8 Q. And then it looks like while

 27 9 you were there, they sold it for $180 million

 27 10 profit to Bear Stearns.

 27 11 Does that comport with your

 27 12 recollection?

27:15 - 27:21 Warren, Garrad - 01-23-2020

 27 15 THE WITNESS: They sold it for

 27 16 $385 million. I'm not sure what their

 27 17 profit was.

 27 18 QUESTIONS BY MR. AYLSTOCK:

 27 19 Q. Okay. Well, VCP had bought it

 27 20 205 and sold it for 385, so that's pretty

 27 21 good.

Re: [27:15-27:21]

Def Objection - 3M MIL No. 

7; Vague (611, 403)

Re: [27:15-

27:21]

Def Objection -

3M MIL No. 7; 

Vague (611, 

403)

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

27:23 - 27:23 Warren, Garrad - 01-23-2020

 27 23 THE WITNESS: Yes, it is.

Re: [27:23-30:7]

Def Objection - 3M MIL No. 

7

Re: [27:23-

30:7]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

28:1 - 28:11 Warren, Garrad - 01-23-2020

 28 1 And so Bear Stearns, was that

 28 2 private equity, or is that a hedge fund?

 28 3 A. No, that was -- again, these

 28 4 are all private equity firms.

 28 5 Q. Again, a group of investors

 28 6 looking to make the business profitable and

 28 7 then sell it after a period of time --

 28 8 A. Yes, sir.

 28 9 Q. -- for hopefully a nice profit,

 28 10 right?

 28 11 A. Yes, sir.

Re: [27:23-30:7]

Def Objection - 3M MIL No. 

7

Re: [27:23-

30:7]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

28:12 - 29:2 Warren, Garrad - 01-23-2020

 28 12 Q. And it looks like they were

 28 13 successful from 2004 to 2006, because Bear

 28 14 Stearns private equity sold it to Permira?

 28 15 A. Yes, sir.

Re: [27:23-30:7]

Def Objection - 3M MIL No. 

7

Re: [27:23-

30:7]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 348 of 427
Warren, Garrad - 01-23-2020 9

 28 16 Q. And that was for 765 million.

 28 17 Does that comport with your

 28 18 recollection?

 28 19 A. Yes, sir.

 28 20 Q. And so now we're talking about

 28 21 doubling inside of two years.

 28 22 That's pretty good, isn't it?

 28 23 A. Well, not doubling, but it

 28 24 was --

 28 25 Q. Pretty close?

 29 1 A. -- a good -- a nice increase,

 29 2 yes.

29:3 - 29:10 Warren, Garrad - 01-23-2020

 29 3 Q. And what -- for the jury, what

 29 4 is Permira? Is that --

 29 5 A. Again, they're a private equity

 29 6 firm that are actually London based, but they

 29 7 had operations in the US as well.

 29 8 Q. So am I pronouncing it right,

 29 9 Permira?

 29 10 A. Permira, yes, sir.

Re: [27:23-30:7]

Def Objection - 3M MIL No. 

7

Re: [27:23-

30:7]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

29:11 - 30:2 Warren, Garrad - 01-23-2020

 29 11 Q. So Permira bought it from Bear

 29 12 Sterns in 2006-ish when you were there?

 29 13 A. Uh-huh.

 29 14 Q. And they're a group of

 29 15 investors in London?

 29 16 A. That's where they're

 29 17 headquartered, yes, sir.

 29 18 Q. Okay. And so again, as private

 29 19 equity, their goal is to make it more

 29 20 profitable and then sell it again for another

 29 21 profit after a few years, right?

 29 22 A. Yes, sir.

 29 23 Q. It looks like they were able to

 29 24 achieve their goal as well because it wasn't

 29 25 a couple years later they sold it for

 30 1 1.2 billion to 3M; is that right?

 30 2 A. That is correct.

Re: [27:23-30:7]

Def Objection - 3M MIL No. 

7

Re: [27:23-

30:7]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 349 of 427
Warren, Garrad - 01-23-2020 10

30:3 - 30:7 Warren, Garrad - 01-23-2020

 30 3 Q. And you were part of the team

 30 4 that helped engineer those sales to the

 30 5 different private equity firms, Bear Stearns,

 30 6 Permira and 3M, correct?

 30 7 A. Correct. Yes, sir.

Re: [27:23-30:7]

Def Objection - 3M MIL No. 

7

Re: [27:23-

30:7]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [27:15-30:7]

Baker MIL 1, 403

OVERRULED

30:16 - 30:21 Warren, Garrad - 01-23-2020

 30 16 Q. It talks about that you

 30 17 successfully led business through multiple

 30 18 line reviews with such key retails, Home

 30 19 Depot, Lowe's, Ace Hardware and Walmart.

 30 20 Do you see that?

 30 21 A. I do.

30:22 - 30:25 Warren, Garrad - 01-23-2020

 30 22 Q. And you're aware, are you not,

 30 23 that the Combat Arms version 2 also had a

 30 24 consumer component to it?

 30 25 A. Yes.

31:1 - 31:14 Warren, Garrad - 01-23-2020

 31 1 Q. And it was actually sold in

 31 2 consumer retailers as a sportsman plug?

 31 3 A. Yes, I believe it was.

 31 4 Q. And to welders as an Arc plug.

 31 5 Do you recall that?

 31 6 A. Yes.

 31 7 Q. And so was part of your

 31 8 responsibility to get the Combat Arms

 31 9 version 2 plug in a consumer form into the

 31 10 consumer market?

 31 11 A. Yeah, part of our

 31 12 responsibility was to get as many of our

 31 13 products into retail as we possibly could,

 31 14 and that included the Combat Arms.

31:15 - 32:2 Warren, Garrad - 01-23-2020

 31 15 Q. Okay. Because that would help

 31 16 realize more profit, which hopefully would

 31 17 make the company more profitable and able to

 31 18 be sold, correct?

 31 19 A. As would all of the products

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 350 of 427
Warren, Garrad - 01-23-2020 11

 31 20 that we sold.

 31 21 Q. Okay. Above -- well, let's

 31 22 see. After 2008, it looks like you left

 31 23 Aearo Technologies; is that right?

 31 24 A. Yes, sir.

 31 25 Q. And that was after it was sold

 32 1 to 3M, correct?

 32 2 A. Yes, sir.

32:11 - 32:16 Warren, Garrad - 01-23-2020

 32 11 Q. Okay. But you were part of the

 32 12 team that made the pitch to 3M to buy

 32 13 Aearo --

 32 14 A. Yes.

 32 15 Q. -- for 1.2 billion, right?

 32 16 A. Yes. Yes.

Re: [32:11-32:16]

Def Objection - 3M MIL No. 

7; Relevance (401, 402); 

Prejudice (403)

Re: [32:11-

32:16]

Def Objection -

3M MIL No. 7; 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [32:15-32:16]

Baker MIL 1, 403

OVERRULED

34:10 - 34:22 Warren, Garrad - 01-23-2020

 34 10 Q. I'm handing you Exhibit

 34 11 Number 5 to the deposition. This was also

 34 12 produced to us pursuant to our subpoena to

 34 13 you.

 34 14 A. Yes.

 34 15 Q. Is this one of the documents

 34 16 you were able to find on your computer?

 34 17 A. Yeah.

 34 18 Q. Regarding your time at Aearo?

 34 19 A. Yes, sir, it was.

 34 20 Q. Okay. The title of it is the

 34 21 Aearo Technologies Board of Directors

 34 22 Meeting, December 6, 2007.

36:2 - 36:19 Warren, Garrad - 01-23-2020

 36 2 Q. Okay. And it looks like you're

 36 3 presenting to the board of directors.

 36 4 You would have given this part

 36 5 of the presentation, right?

 36 6 A. Yes, sir.

 36 7 Q. And if we look what's happening

 36 8 at this -- what does SBU stand for?

 36 9 A. Strategic business unit.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 351 of 427
Warren, Garrad - 01-23-2020 12

 36 10 Q. Strategic business unit.

 36 11 Okay. So it looks like what's

 36 12 happening in this strategic business unit,

 36 13 that is the very beginning of the

 36 14 presentation, is passive hearing, that would

 36 15 include the Combat Arms Earplugs, right?

 36 16 A. Yes, sir.

 36 17 Q. And it would include version 2,

 36 18 because it was being sold at this time?

 36 19 A. Yes, sir.

37:3 - 37:13 Warren, Garrad - 01-23-2020

 37 3 Q. So that's 76.1 million, right?

 37 4 A. Yes, sir.

 37 5 Q. And it actually grew by

 37 6 8 percent; is that correct?

 37 7 A. That is correct.

 37 8 Q. And it looks like one of the

 37 9 growth drivers, in fact, was the Combat Arms,

 37 10 if you look down, passive hearing growth

 37 11 drivers.

 37 12 Do you see that?

 37 13 A. I do.

Re: [37:3-37:13]

Baker MIL 1, 403

OVERRULED

37:25 - 38:10 Warren, Garrad - 01-23-2020

 37 25 One of the -- in giving this

 38 1 presentation, one of the things you wanted to

 38 2 point out to the board of directors was that

 38 3 the Combat Arms Earplug was one of the growth

 38 4 drivers when it came to the sales in the

 38 5 strategic business unit, correct?

 38 6 A. As indicated on this -- on this

 38 7 slide, it was one of a number of products or

 38 8 product lines that grew.

 38 9 Q. Okay.

 38 10 A. So, yes.

Re: [37:25-38:8]

Def Objection - 3M MIL No. 

7

Re: [37:25-

38:8]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [37:25-38:8]

Baker MIL 1, 403

OVERRULED

38:16 - 38:19 Warren, Garrad - 01-23-2020

 38 16 Q. Okay. But Combat Arms was your

 38 17 primary military plug; is that fair?

 38 18 A. Primary military plug, yes,

 38 19 sir.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 352 of 427
Warren, Garrad - 01-23-2020 13

38:20 - 38:25 Warren, Garrad - 01-23-2020

 38 20 Q. Okay. And if you go to the

 38 21 next page, page 3, the next thing you pointed

 38 22 out to the board of directors was that the

 38 23 North American military business grew by

 38 24 55 percent?

 38 25 A. That is correct.

Re: [38:20-39:5]

Def Objection - 3M MIL No. 

7

Re: [38:20-

39:5]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [38:20-40:1]

Baker MIL 1, 403

OVERRULED

39:1 - 39:6 Warren, Garrad - 01-23-2020

 39 1 Q. And that's year over year, so

 39 2 2006 to 2007 --

 39 3 A. Yes, sir.

 39 4 Q. -- it grew by 55 percent?

 39 5 A. Yes, sir.

 39 6 Q. That's pretty good, isn't it?

Re: [38:20-39:5]

Def Objection - 3M MIL No. 

7

Re: [39:6-39:6]

Def Objection - 3M MIL No. 

7; Leading; Vague (611, 403)

Re: [38:20-

39:5]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [39:6-

39:6]

Def Objection -

3M MIL No. 7; 

Leading; 

Vague (611, 

403)

OVERRULED

Re: [38:20-40:1]

Baker MIL 1, 403

OVERRULED

39:8 - 39:15 Warren, Garrad - 01-23-2020

 39 8 THE WITNESS: It -- we were

 39 9 happy with that growth, yes.

 39 10 QUESTIONS BY MR. AYLSTOCK:

 39 11 Q. Okay. And you compare down

 39 12 below the fiscal year '06 and fiscal year '07

 39 13 and the numbers here are in billions,

 39 14 correct?

 39 15 A. Millions, yes, sir.

Re: [39:8-39:9]

Def Objection - 3M MIL No. 

7; Leading; Vague (611, 403)

Re: [39:11-40:1]

Def Objection - 3M MIL No. 

7

Re: [39:8-

39:9]

Def Objection -

3M MIL No. 7; 

Leading; 

Vague (611, 

403)

OVERRULED

Re: [39:11-

40:1]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [38:20-40:1]

Baker MIL 1, 403

OVERRULED

39:16 - 39:21 Warren, Garrad - 01-23-2020

 39 16 Q. Okay. So you have a 55 percent

 39 17 uptick to military distributors, and then you

 39 18 also have a 73 percent for industrial

 39 19 distributors.

Re: [39:11-40:1]

Def Objection - 3M MIL No. 

7

Re: [39:11-

40:1]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [38:20-40:1]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 353 of 427
Warren, Garrad - 01-23-2020 14

 39 20 Do you see that?

 39 21 A. Yes, sir.

39:22 - 40:1 Warren, Garrad - 01-23-2020

 39 22 Q. And total military, again,

 39 23 you've increased sales by -- or increased,

 39 24 yeah, the dollar value of sales by

 39 25 55 percent, correct?

 40 1 A. Yes, sir.

Re: [39:11-40:1]

Def Objection - 3M MIL No. 

7

Re: [39:11-

40:1]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [38:20-40:1]

Baker MIL 1, 403

OVERRULED

40:9 - 41:3 Warren, Garrad - 01-23-2020

 40 9 Q. The fact that the passive

 40 10 hearing protection business was the number 1

 40 11 in sales --

 40 12 A. Yes.

 40 13 Q. -- volume in the strategic

 40 14 business unit and had shown incredible growth

 40 15 when it came to the military of over -- of

 40 16 55 percent, that was a good thing for the

 40 17 business, right?

 40 18 A. Well, from these numbers, you

 40 19 can't tell how much passive hearing

 40 20 contributed to the military business. We

 40 21 don't have those numbers in front of us, and

 40 22 I don't recall what that was.

 40 23 Q. Well, we do know that the

 40 24 business grew by 55 percent for the military?

 40 25 A. The military business, but that

 41 1 included all products that were sold in the

 41 2 military, in addition to -- including, but in

 41 3 addition, to Combat Arms.

41:4 - 41:8 Warren, Garrad - 01-23-2020

 41 4 Q. Okay. And that was clearly as

 41 5 a businessman a focus of your role is to

 41 6 increase sales to the military, correct?

 41 7 A. It was one of our objectives,

 41 8 yes.

42:25 - 43:9 Warren, Garrad - 01-23-2020

 42 25 Q. And so it has a picture here,

 43 1 it looks like that's the Combat Arms

 43 2 version 3 to me?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 354 of 427
Warren, Garrad - 01-23-2020 15

 43 3 A. We didn't refer to it as

 43 4 version 3, but that is the single-sided

 43 5 Combat Arms, yes.

 43 6 Q. I've seen it referred to in

 43 7 some documents as the new and improved Combat

 43 8 Arms, is that --

 43 9 A. I think I've seen that as well.

44:5 - 44:14 Warren, Garrad - 01-23-2020

 44 5 Q. Okay. So it's fair to say, is

 44 6 it not, Mr. Warren, that the Combat Arms

 44 7 Earplugs were an important part of Aearo and

 44 8 its profitability, correct?

 44 9 A. Yes.

 44 10 Q. And in particular, the sales to

 44 11 the military were an important part of

 44 12 increasing the profitability of Aearo so it

 44 13 ultimately could be sold, correct?

 44 14 A. Yes.

Re: [44:5-44:14]

Baker MIL 1, 403

OVERRULED

45:14 - 45:15 Warren, Garrad - 01-23-2020

 45 14 Q. Okay. Let me hand you

 45 15 Plaintiff's Exhibit 6.

46:2 - 46:9 Warren, Garrad - 01-23-2020

 46 2 Q. Okay. So the very first one

 46 3 there, you're there on the left, Gary Warren,

 46 4 president, North American safety products

 46 5 group. It looks like you're -- there's only

 46 6 one person above you, that's Michael McLain,

 46 7 the president there, the CEO?

 46 8 A. That is correct, I reported to

 46 9 Mike McLain.

46:10 - 46:16 Warren, Garrad - 01-23-2020

 46 10 Q. Okay. And again, he was one of

 46 11 the -- he recruited you because he was at

 46 12 DowBrands --

 46 13 A. Yes, sir.

 46 14 Q. -- with you, correct?

 46 15 And then if you go to GW-09216,

 46 16 about 15 more pages in.

Re: [46:10-46:16]

Improper clarification 

counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 355 of 427
Warren, Garrad - 01-23-2020 16

46:21 - 47:2 Warren, Garrad - 01-23-2020

 46 21 Q. This is consumer sales and

 46 22 marketing.

 46 23 Do you see that at the top?

 46 24 A. I do.

 46 25 Q. And you're at the top of this

 47 1 chain, right?

 47 2 A. Yes, sir.

47:3 - 47:6 Warren, Garrad - 01-23-2020

 47 3 Q. And so when it came to the

 47 4 consumer end of the products that you

 47 5 oversaw, that included the Combat Arms

 47 6 version 2, you were at the top, right?

47:8 - 47:11 Warren, Garrad - 01-23-2020

 47 8 THE WITNESS: The vice

 47 9 president and general manager

 47 10 responsible for that business

 47 11 reporting in to me, yes.

47:23 - 48:6 Warren, Garrad - 01-23-2020

 47 23 Q. And ultimately you would be

 47 24 responsible for what happened when it came to

 47 25 the sales and marketing of those products,

 48 1 correct?

 48 2 A. Yeah, I would agree with that.

 48 3 Q. And that would include the

 48 4 consumer version of the Combat Arms

 48 5 version 2, correct?

 48 6 A. Yes.

48:7 - 48:8 Warren, Garrad - 01-23-2020

 48 7 Q. If we go to .27, so another 11

 48 8 pages.

48:9 - 49:2 Warren, Garrad - 01-23-2020

 48 9 A. 27? Okay.

 48 10 Q. Again, this is North American

 48 11 safety products, so this is sales, correct,

 48 12 according to the title at the top?

 48 13 A. Yes, sir.

 48 14 Q. And this -- the Combat Arms

 48 15 version 2 would fall under this category,

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 356 of 427
Warren, Garrad - 01-23-2020 17

 48 16 correct?

 48 17 A. Yes, sir.

 48 18 Q. The sales to the military?

 48 19 A. Yes, sir.

 48 20 Q. And again, you're at the top of

 48 21 the heap when it comes to this, right?

 48 22 A. Ultimately, yes, this business

 48 23 reported into me.

 48 24 Q. And the only person above you

 48 25 was president and CEO of the entire shebang,

 49 1 right?

 49 2 A. Yes, sir.

49:3 - 49:13 Warren, Garrad - 01-23-2020

 49 3 Q. And so it looks like you had

 49 4 Mike Cimino report to you directly, right?

 49 5 A. Yes.

 49 6 Q. So you would interact with him

 49 7 on a regular basis?

 49 8 A. I did.

 49 9 Q. And then Doug Moses, Frank

 49 10 Gavin, Tom McNamara were under him.

 49 11 And you knew those individuals

 49 12 as well, didn't you?

 49 13 A. Tim McNamara, but, yes, I did.

50:2 - 50:16 Warren, Garrad - 01-23-2020

 50 2 Q. And it looks like we have

 50 3 Mr. Moses again and -- as the senior brand

 50 4 manager and then also directly reporting to

 50 5 you is Brian Myers?

 50 6 A. That is correct.

 50 7 Q. Do you see that?

 50 8 And he was the vice president

 50 9 of the hearing conservation products,

 50 10 correct?

 50 11 A. Yes. Yes, sir.

 50 12 Q. And so he would be the

 50 13 person -- one of the people that would report

 50 14 directly to you about the Combat Arms

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 357 of 427
Warren, Garrad - 01-23-2020 18

 50 15 version 2, correct?

 50 16 A. Yes, sir.

51:2 - 51:7 Warren, Garrad - 01-23-2020

 51 2 Q. When you would ask for

 51 3 technical information about the Combat Arms

 51 4 version 2, who would you go to? Mr. Myers?

 51 5 A. We had a -- we had an R&D or a

 51 6 technical group that typically we got that

 51 7 kind of information from.

51:10 - 51:16 Warren, Garrad - 01-23-2020

 51 10 Q. And that would include

 51 11 Mr. Berger? Did you ever interact with

 51 12 Mr. Berger?

 51 13 A. On occasion, yes, sir.

 51 14 Q. Okay. And Mr. Myers, you would

 51 15 interact with him regularly as well, correct?

 51 16 A. Yes.

53:4 - 53:9 Warren, Garrad - 01-23-2020

 53 4 Q. And we saw from your

 53 5 presentation to the board of directors

 53 6 earlier, part of your responsibility was

 53 7 coming up with a new -- a new and improved

 53 8 version of the Combat Arms to sell to the

 53 9 military, correct?

53:11 - 53:24 Warren, Garrad - 01-23-2020

 53 11 THE WITNESS: I'm not sure what

 53 12 you mean by "coming up with."

 53 13 QUESTIONS BY MR. AYLSTOCK:

 53 14 Q. Well, one of your goals that

 53 15 you stated to the board of directors in your

 53 16 presentation to them was to take some input

 53 17 from the military and invest behind the

 53 18 military and let's see if we can develop and

 53 19 market an improved version of the Combat

 53 20 Arms, right?

 53 21 A. I wouldn't say it was

 53 22 necessarily improved. It was certainly a

 53 23 line extension to the current Combat Arms

 53 24 version 2.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 358 of 427
Warren, Garrad - 01-23-2020 19

54:7 - 54:11 Warren, Garrad - 01-23-2020

 54 7 Q. Okay. And in this, in fact,

 54 8 your company and you being the head of this

 54 9 safety division, was trying to come up with

 54 10 an improvement to the Combat Arms version 2,

 54 11 correct?

54:13 - 54:18 Warren, Garrad - 01-23-2020

 54 13 THE WITNESS: Again, we were

 54 14 trying to come up with -- with an

 54 15 alternative to the current Combat Arms

 54 16 that had different features and in

 54 17 some cases benefits to it versus the

 54 18 current Combat Arms version 2.

54:19 - 54:21 Warren, Garrad - 01-23-2020

 54 19 QUESTIONS BY MR. AYLSTOCK:

 54 20 Q. To me that sounds like you're

 54 21 trying to improve it?

54:23 - 54:25 Warren, Garrad - 01-23-2020

 54 23 THE WITNESS: That's your point

 54 24 of view. I'm not sure I would agree

 54 25 with that.

58:15 - 58:18 Warren, Garrad - 01-23-2020

 58 15 If there's too much attenuation

 58 16 on the yellow side, that would be a problem

 58 17 in selling the Combat Arms version 2,

 58 18 correct?

58:21 - 58:24 Warren, Garrad - 01-23-2020

 58 21 THE WITNESS: It obviously was

 58 22 not a problem. We continued to sell

 58 23 this product, so I'm not sure why you

 58 24 would say it was a problem.

60:16 - 60:25 Warren, Garrad - 01-23-2020

 60 16 Q. Okay. It also says one size

 60 17 doesn't fit all.

 60 18 You came to understand that

 60 19 that was one of the issues with the Combat

 60 20 Arms version 2, correct, that it only had --

 60 21 it only was a one size fits all?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 359 of 427
Warren, Garrad - 01-23-2020 20

 60 22 A. I don't think that there was an

 60 23 understanding that there was an issue with

 60 24 that. We sold millions of those plugs, and

 60 25 it was one size.

61:1 - 61:16 Warren, Garrad - 01-23-2020

 61 1 Q. And it was marketed as one size

 61 2 fits all?

 61 3 A. I don't recall that, but...

 61 4 Q. So earlier when you were

 61 5 talking about the NRR and you'd have to rely

 61 6 on the technical people, who would that be

 61 7 within your organization at Aearo?

 61 8 A. That would include people like

 61 9 Dick Knauer, Elliott Berger, Bob Klun, who

 61 10 they reported to.

 61 11 Q. Okay. And if you go to the

 61 12 next page, there's a goal here, and the goal

 61 13 stated is to replace the current CAE, which

 61 14 at this point was the version 2, correct?

 61 15 A. That's what it says.

 61 16 Q. With an improved version,

61:11 - 62:7 Warren, Garrad - 01-23-2020

 61 11 Q. Okay. And if you go to the

 61 12 next page, there's a goal here, and the goal

 61 13 stated is to replace the current CAE, which

 61 14 at this point was the version 2, correct?

 61 15 A. That's what it says.

 61 16 Q. With an improved version,

 61 17 right?

 61 18 A. That's what it says.

 61 19 Q. But as president of this

 61 20 business unit, you didn't view any of the

 61 21 later versions of the CAE as having any

 61 22 improvements over the CAE version 2; is that

 61 23 your testimony?

 61 24 A. I think that there were -- to

 61 25 some users, I'm sure there were some

 62 1 improvements in that particular version, yes.

 62 2 Q. Okay.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 360 of 427
Warren, Garrad - 01-23-2020 21

 62 3 A. To be -- to be clear, if I may,

 62 4 what I particularly take issue with is the

 62 5 statement that our goal was to replace the

 62 6 current Combat Arms. That is unequivocally

 62 7 not true.

62:8 - 62:11 Warren, Garrad - 01-23-2020

 62 8 Q. And the reason that it wasn't

 62 9 true was because the Combat Arms version 2

 62 10 was selling a lot; it was a lot of sales,

 62 11 correct?

62:13 - 62:21 Warren, Garrad - 01-23-2020

 62 13 THE WITNESS: As a matter of

 62 14 practice, when we came out with line

 62 15 extensions like this particular

 62 16 version 3, we -- I don't recall that

 62 17 we ever discontinued an existing

 62 18 product because we had existing sales

 62 19 on it, it might be cannibalized by the

 62 20 new product, but we continued to --

 62 21 let that product continue to sell.

62:22 - 63:6 Warren, Garrad - 01-23-2020

 62 22 QUESTIONS BY MR. AYLSTOCK:

 62 23 Q. Because it was still making

 62 24 money for the company, right?

 62 25 A. Because it was still specced in

 63 1 by the end user. They wanted that product,

 63 2 it was specced in, we allowed them to

 63 3 continue to buy that product, and we gave

 63 4 them a choice between the existing product

 63 5 and in this particular case the line

 63 6 extension, version 3.

64:2 - 64:10 Warren, Garrad - 01-23-2020

 64 2 Q. And when we're talking about

 64 3 products that are designed to protect people,

 64 4 it's important for a company selling those

 64 5 products to tell the people what the benefits

 64 6 of that product are and the risks of that

 64 7 product, fair?

 64 8 A. As it relates specifically to

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 361 of 427
Warren, Garrad - 01-23-2020 22

 64 9 this issue, I'm not aware that there were any

 64 10 risks.

64:11 - 64:14 Warren, Garrad - 01-23-2020

 64 11 Q. Okay. So in your view as the

 64 12 president, it wasn't your job to convey any

 64 13 risks because you didn't believe there to be

 64 14 any at all --

64:16 - 66:1 Warren, Garrad - 01-23-2020

 64 16 QUESTIONS BY MR. AYLSTOCK:

 64 17 Q. -- with the Combat Arms

 64 18 version 2?

 64 19 A. I don't believe there were.

 64 20 To be clear -- if I may, to be

 64 21 clear, there is always the risk that a user

 64 22 is using the product improperly. So that's a

 64 23 general risk, but beyond that, I'm not aware

 64 24 that there were any risks with this product.

 64 25 Q. As the company selling the

 65 1 product, you would agree with me that it's

 65 2 incumbent on the company to instruct the user

 65 3 as to how to properly use whatever safety

 65 4 device it is, correct?

 65 5 A. To instruct who?

 65 6 Q. The user.

 65 7 You're selling the product and

 65 8 you just talked about there may be a risk if

 65 9 you use it wrong. You understood it was

 65 10 ultimately your responsibility, Aearo's

 65 11 responsibility, to make sure that it was used

 65 12 properly, at least the instructions were

 65 13 there?

 65 14 A. It was not -- it was not our

 65 15 responsibility, nor was it frankly possible

 65 16 for us to communicate directly with every end

 65 17 user that potentially used this product. We

 65 18 did communicate with what we called the

 65 19 gatekeeper, that could be the purchasing

 65 20 agent, that could be the audiologist, that

 65 21 could be the safety director. But to expect

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 362 of 427
Warren, Garrad - 01-23-2020 23

 65 22 us to go out and communicate with every

 65 23 possible end user in every -- you know,

 65 24 everywhere across the world, it frankly was

 65 25 just impossible for us to do, and it was not

 66 1 our responsibility.

66:9 - 66:16 Warren, Garrad - 01-23-2020

 66 9 (Warren Exhibit 8 marked for

 66 10 identification.)

 66 11 QUESTIONS BY MR. AYLSTOCK:

 66 12 Q. Okay. Plaintiff's Exhibit 8

 66 13 for the record.

 66 14 You've seen this document

 66 15 before, haven't you?

 66 16 A. I believe so, yes.

Re: [66:2-67:8]

Def Objection - 3M MIL No. 

7; Relevance (401, 402); 

Prejudice (403)

Re: [66:2-

67:8]

Def Objection -

3M MIL No. 7; 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

66:17 - 67:8 Warren, Garrad - 01-23-2020

 66 17 Q. In fact, you were involved in

 66 18 the creation of this document, correct?

 66 19 A. I was. Portions of it, yes.

 66 20 Q. And the purpose of this

 66 21 document was to meet with 3M and try to

 66 22 convince 3M to purchase Aearo, correct?

 66 23 A. The purpose of the document was

 66 24 to -- we made this presentation to a number

 66 25 of potential acquirers, of which 3M was one.

 67 1 Q. Did Aearo get other bids to

 67 2 purchase it or just 3M's?

 67 3 A. I believe we did, but I don't

 67 4 recall.

 67 5 Q. 3M's was the most, I take it,

 67 6 because you took that one?

 67 7 A. 3M's is the one that we

 67 8 accepted, yes, sir.

Re: [66:2-67:8]

Def Objection - 3M MIL No. 

7; Relevance (401, 402); 

Prejudice (403)

Re: [66:2-

67:8]

Def Objection -

3M MIL No. 7; 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

67:9 - 67:12 Warren, Garrad - 01-23-2020

 67 9 Q. Okay. And since you weren't

 67 10 hanging around, it didn't really matter to

 67 11 you who bought it, other than whoever paid

 67 12 the most, right?

67:14 - 67:19 Warren, Garrad - 01-23-2020

 67 14 THE WITNESS: That is not

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 363 of 427
Warren, Garrad - 01-23-2020 24

 67 15 necessarily true. We had sold the

 67 16 company three previous times, and I

 67 17 stuck around all three of those times.

 67 18 So it really depended upon who the

 67 19 acquirer was.

67:21 - 67:24 Warren, Garrad - 01-23-2020

 67 21 Q. Okay. Well, in any event, you

 67 22 knew that if it was acquired that you stood

 67 23 to gain financially, fair?

 67 24 A. Yes.

Re: [67:21-67:24]

Def Objection - 3M MIL No. 

7; Relevance (401, 402); 

Prejudice (403)

Re: [67:21-

67:24]

Def Objection -

3M MIL No. 7; 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

68:4 - 68:12 Warren, Garrad - 01-23-2020

 68 4 Q. And the very first slide after

 68 5 that is the management team, and you're there

 68 6 on the left, Gary Warren, senior vice

 68 7 president, North America, right?

 68 8 A. Yes.

 68 9 Q. And the operating board on the

 68 10 next page has your name on it as the

 68 11 president, North America safety, correct?

 68 12 A. That is correct.

69:2 - 69:6 Warren, Garrad - 01-23-2020

 69 2 Q. And when it came to North

 69 3 American safety products, including the

 69 4 Combat Arms version 2, you were the one

 69 5 running that?

 69 6 A. North -- yes, sir.

70:7 - 70:11 Warren, Garrad - 01-23-2020

 70 7 Q. And if we drill down a little

 70 8 bit on page 11, one of the things any suitor

 70 9 to purchase a company looks for is sales and

 70 10 revenue growth over time, fair?

 70 11 A. That is correct.

Re: [70:7-70:22]

Baker MIL 1, 403

OVERRULED

70:12 - 70:15 Warren, Garrad - 01-23-2020

 70 12 Q. And, in fact, this chart

 70 13 demonstrates that year after year after year

Re: [70:7-70:22]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 364 of 427
Warren, Garrad - 01-23-2020 25

 70 14 Aearo was able to increase sales and increase

 70 15 revenue?

70:18 - 70:18 Warren, Garrad - 01-23-2020

 70 18 Q. Making it a more attractive

Re: [70:7-70:22]

Baker MIL 1, 403

OVERRULED

70:22 - 70:22 Warren, Garrad - 01-23-2020

 70 22 THE WITNESS: Yes.

Re: [70:7-70:22]

Baker MIL 1, 403

OVERRULED

72:2 - 72:10 Warren, Garrad - 01-23-2020

 72 2 Q. And you don't quarrel with

 72 3 anything that was presented to 3M about these

 72 4 numbers, do you?

 72 5 A. I don't recall that I did at

 72 6 the time, no.

 72 7 Q. Okay. And you don't today

 72 8 either, do you?

 72 9 A. I haven't looked at them, but,

 72 10 no, I take it at face value.

72:11 - 72:20 Warren, Garrad - 01-23-2020

 72 11 Q. Okay. And if we're talking

 72 12 about gross sales for the safety product

 72 13 line, hearing protection is actually the

 72 14 number one driver for sales, correct?

 72 15 A. It is certainly the largest,

 72 16 yes.

 72 17 Q. Largest by far, and it's

 72 18 increasing year over year, correct?

 72 19 A. 4.4 percent versus the prior

 72 20 year and -- yes, sir.

Re: [72:11-72:20]

Baker MIL 1, 403

OVERRULED

74:2 - 74:9 Warren, Garrad - 01-23-2020

 74 2 Q. What it says up at the top is

 74 3 that Aearo has leading hearing and eyewear

 74 4 R&D capabilities?

 74 5 A. Yes, sir.

 74 6 Q. And that, you believed, would

 74 7 be important to 3M in deciding whether or not

 74 8 to purchase Aearo, right?

 74 9 A. One of the factors, yes.

74:10 - 74:13 Warren, Garrad - 01-23-2020

 74 10 Q. In fact, one of the factors

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 365 of 427
Warren, Garrad - 01-23-2020 26

 74 11 here is that it had attenuation, NRR testing

 74 12 in a recognized testing lab, correct?

 74 13 A. That is correct.

74:14 - 74:22 Warren, Garrad - 01-23-2020

 74 14 Q. And you also tout here that it

 74 15 had extensive end user training programs.

 74 16 Do you see that?

 74 17 A. I do.

 74 18 Q. In fact, you were involved in

 74 19 the decision to do some training product --

 74 20 programs with regard to Combat Arms

 74 21 version 2, correct?

 74 22 A. Yes.

75:13 - 75:15 Warren, Garrad - 01-23-2020

 75 13 Q. And you understand, do you not,

 75 14 that fit is very important when it comes to

 75 15 passive hearing protection, correct?

Re: [75:11-75:15]

602

OVERRULED

75:18 - 75:20 Warren, Garrad - 01-23-2020

 75 18 THE WITNESS: It is an

 75 19 important -- one of a number of

 75 20 important factors, yes.

Re: [75:18-75:20]

602

OVERRULED

76:3 - 76:10 Warren, Garrad - 01-23-2020

 76 3 QUESTIONS BY MR. AYLSTOCK:

 76 4 Q. Well, if an earplug doesn't fit

 76 5 properly, it's not going to protect the user;

 76 6 it's not going to protect the soldier, is it?

 76 7 A. If it doesn't fit properly, it

 76 8 will not protect as well as if it fitted --

 76 9 you know, had a secure fit. It doesn't mean

 76 10 it won't provide any protection at all.

76:11 - 76:17 Warren, Garrad - 01-23-2020

 76 11 Q. Well, when we're talking about

 76 12 the men and women in uniform, you would agree

 76 13 with me that we want to provide them the best

 76 14 protection possible?

 76 15 A. I think that goes -- you know,

 76 16 I would agree with that as well as all of our

 76 17 customers, yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 366 of 427
Warren, Garrad - 01-23-2020 27

77:11 - 77:20 Warren, Garrad - 01-23-2020

 77 11 Q. And if you go to page 78, you

 77 12 are in this presentation talking about the

 77 13 military and law enforcement growth at Aearo.

 77 14 This would have been, again,

 77 15 under your purview when it comes to passive

 77 16 hearing protection?

 77 17 A. Again, this chart is referring

 77 18 specifically to global sales of which North

 77 19 America or the US sales were included in

 77 20 these numbers.

78:4 - 78:15 Warren, Garrad - 01-23-2020

 78 4 Q. Okay. And you would be in

 78 5 charge of that, right?

 78 6 A. Yes, sir.

 78 7 Q. And, in fact, it says here

 78 8 there's been a significant change in US

 78 9 military communication requirements as well

 78 10 as greater recognition for the need for

 78 11 hearing protection.

 78 12 You know that's true as

 78 13 president of sales for North America,

 78 14 correct?

 78 15 A. Yes.

79:3 - 79:11 Warren, Garrad - 01-23-2020

 79 3 Q. And it says at the top here,

 79 4 "Aearo's investment over the last few years

 79 5 in the military and law enforcement has

 79 6 delivered excellent results."

 79 7 And again, you've got that

 79 8 Aearo sales or global sales are going up for

 79 9 that, correct?

 79 10 A. Yes, they went from 6.3 million

 79 11 in '02 to 24 million in '07.

Re: [79:3-79:11]

Def Objection - 3M MIL No. 

7

Re: [79:3-

79:11]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [79:3-79:11]

Baker MIL 1, 403

OVERRULED

79:12 - 79:16 Warren, Garrad - 01-23-2020

 79 12 Q. And a large part of that,

 79 13 according to this chart, is the emergence of

 79 14 the Combat Arms as a product -- protection

Re: [79:12-79:16]

Def Objection - 3M MIL No. 

7; Compound (611, 403)

Re: [79:12-

79:16]

Def Objection -

3M MIL No. 7; 

Compound 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 367 of 427
Warren, Garrad - 01-23-2020 28

 79 15 product of choice by the Marine Corps and

 79 16 Army, correct?

(611, 403)

OVERRULED

79:18 - 79:20 Warren, Garrad - 01-23-2020

 79 18 THE WITNESS: It was one of

 79 19 the -- one of the key products that we

 79 20 sold to the military.

Re: [79:18-79:20]

Def Objection - 3M MIL No. 

7; Compound (611, 403)

Re: [79:18-

79:20]

Def Objection -

3M MIL No. 7; 

Compound 

(611, 403)

OVERRULED

79:22 - 80:1 Warren, Garrad - 01-23-2020

 79 22 Q. In fact, you know it to have

 79 23 been the product of choice when it came to

 79 24 the Marine Corps and the Army, correct?

 79 25 A. Based on what it says here,

 80 1 yes.

80:2 - 80:14 Warren, Garrad - 01-23-2020

 80 2 Q. Okay. Now, the key military

 80 3 product on page 79, if you just turn one page

 80 4 over, again, I guess we just went over this,

 80 5 but it says here on the bullet point on the

 80 6 right that, in fact, it was the product of

 80 7 choice, Combat Arms is a product of choice

 80 8 for DOD.

 80 9 Do you see that?

 80 10 A. I do.

 80 11 Q. And again, you don't disagree

 80 12 with that, correct?

 80 13 A. I don't have any reason to

 80 14 disagree with that, no.

80:15 - 80:23 Warren, Garrad - 01-23-2020

 80 15 Q. If we go to page 83, one of

 80 16 the -- I guess now we're talking about

 80 17 military and law enforcement growth?

 80 18 A. Yes, sir.

 80 19 Q. And organizational

 80 20 capabilities, it looks like you created the

 80 21 North American military strategic business

 80 22 unit?

 80 23 A. That is correct.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 368 of 427
Warren, Garrad - 01-23-2020 29

81:8 - 81:11 Warren, Garrad - 01-23-2020

 81 8 Q. And one of the things that you

 81 9 tout here is that you increased the number of

 81 10 salespeople?

 81 11 A. Yes.

82:24 - 83:3 Warren, Garrad - 01-23-2020

 82 24 Q. And included in the passive

 82 25 hearing be would have been the consumer

 83 1 version of the Combat Arms that was being

 83 2 sold by your company, correct?

 83 3 A. Yes.

83:25 - 84:6 Warren, Garrad - 01-23-2020

 83 25 Q. It looks like year over year

 84 1 there's significant growth when it -- or this

 84 2 is a nine-month chart, I suppose, where,

 84 3 again, Aearo is showing significant growth in

 84 4 sales and in profit over nine months,

 84 5 correct?

 84 6 A. Yes.

Re: [83:25-84:6]

Baker MIL 1, 403

OVERRULED

84:13 - 84:17 Warren, Garrad - 01-23-2020

 84 13 Q. And the numbers here are in

 84 14 millions, right?

 84 15 A. Yes, sir.

 84 16 Q. 340 million?

 84 17 A. Yes, sir.

Re: [84:13-84:17]

Baker MIL 1, 403

OVERRULED

85:15 - 85:24 Warren, Garrad - 01-23-2020

 85 15 QUESTIONS BY MR. AYLSTOCK:

 85 16 Q. Okay. So one of the things

 85 17 here that it talks about is integrity and

 85 18 ethical behavior.

 85 19 Do you see that?

 85 20 A. I do.

 85 21 Q. You agree that that is

 85 22 paramount when it comes to running a company,

 85 23 correct?

 85 24 A. I think it's very important.

85:25 - 86:6 Warren, Garrad - 01-23-2020

 85 25 Q. And it's even more important

 86 1 when it comes to selling products that are

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 369 of 427
Warren, Garrad - 01-23-2020 30

 86 2 designed to protect people, safety products,

 86 3 that you sold, right?

 86 4 A. I'm not sure what you're

 86 5 comparing more important to. Again, I would

 86 6 agree that it's very important.

86:7 - 86:14 Warren, Garrad - 01-23-2020

 86 7 Q. Well, you would agree that it's

 86 8 the most important thing, isn't it?

 86 9 A. The most important thing?

 86 10 Q. Well, it's certainly more

 86 11 important than sales and profit, you'd agree

 86 12 with that?

 86 13 A. I'm not quite sure I know how

 86 14 to answer that.

87:1 - 87:4 Warren, Garrad - 01-23-2020

 87 1 (Warren Exhibit 9 marked for

 87 2 identification.)

 87 3 QUESTIONS BY MR. AYLSTOCK:

 87 4 Q. Plaintiff's Exhibit 9.

87:5 - 87:8 Warren, Garrad - 01-23-2020

 87 5 So you're familiar with the

 87 6 code of ethics, I take it?

 87 7 A. I am not. I don't recall it

 87 8 anyway, let me put it that way.

87:15 - 88:1 Warren, Garrad - 01-23-2020

 87 15 Q. Okay. It says that, "To the

 87 16 best of my knowledge and ability, I act with

 87 17 honesty and integrity, avoiding actual or

 87 18 apparent conflicts of interest in personal

 87 19 and professional relationships."

 87 20 That's something you agree

 87 21 with, right?

 87 22 A. Yes.

 87 23 Q. And that applies -- should

 87 24 apply, not just to you as a member of the

 87 25 operating board, but everybody in Aearo?

 88 1 A. It should, yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 370 of 427
Warren, Garrad - 01-23-2020 31

88:2 - 88:10 Warren, Garrad - 01-23-2020

 88 2 Q. "I provide constituents with

 88 3 information that is accurate, complete,

 88 4 objective, relevant, timely and

 88 5 understandable."

 88 6 You agree with that, right?

 88 7 A. I do.

 88 8 Q. And that would include when it

 88 9 comes to end users of your safety products,

 88 10 that should happen every time, correct?

Re: [88:8-88:14]

Def Objection - Vague (611, 

403)

Re: [88:8-

88:14]

Def Objection -

Vague (611, 

403)

OVERRULED

88:13 - 88:18 Warren, Garrad - 01-23-2020

 88 13 THE WITNESS: As it relates to

 88 14 who?

 88 15 QUESTIONS BY MR. AYLSTOCK:

 88 16 Q. Well, you're selling products

 88 17 designed to protect people, safety products?

 88 18 A. Yes. Yes.

Re: [88:8-88:14]

Def Objection - Vague (611, 

403)

Re: [88:8-

88:14]

Def Objection -

Vague (611, 

403)

OVERRULED

88:19 - 88:25 Warren, Garrad - 01-23-2020

 88 19 Q. And when you're providing

 88 20 constituents with information about those

 88 21 safety products, you would agree that that

 88 22 information conveyed by your company should

 88 23 be accurate, complete, objective, relevant,

 88 24 timely and understandable?

 88 25 A. Yes, I do.

89:1 - 89:15 Warren, Garrad - 01-23-2020

 89 1 Q. Okay. "I comply with rules and

 89 2 regulations of federal, state, provincial and

 89 3 local governments and other appropriate

 89 4 private and public regulatory agencies."

 89 5 Do you see that?

 89 6 A. I do.

 89 7 Q. That's something that's very

 89 8 important, correct?

 89 9 A. I would agree with that.

 89 10 Q. And you would expect that of

 89 11 not just yourself, but everybody working

 89 12 under you, correct?

 89 13 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 371 of 427
Warren, Garrad - 01-23-2020 32

 89 14 Q. Everybody in Aearo?

 89 15 A. Yes.

89:16 - 90:4 Warren, Garrad - 01-23-2020

 89 16 Q. "I act in good faith,

 89 17 responsibly, with due care, competence and

 89 18 diligence without misrepresenting material

 89 19 facts or allowing my independent judgment to

 89 20 be subordinated."

 89 21 Do you see that?

 89 22 A. I do.

 89 23 Q. That's, again, a very important

 89 24 part of running a company, right?

 89 25 A. I agree.

 90 1 Q. And that should be true with

 90 2 regard to from the lab technician all the way

 90 3 up to the president and CEO of the company?

 90 4 A. I would agree.

90:5 - 90:9 Warren, Garrad - 01-23-2020

 90 5 Q. And, in fact, if someone fails

 90 6 in that, in your company or any company, they

 90 7 should be held accountable, you would agree

 90 8 with that?

 90 9 A. I would agree.

90:10 - 90:21 Warren, Garrad - 01-23-2020

 90 10 Q. Number 6, "I share critical

 90 11 knowledge as relevant to my constituents'

 90 12 needs acquired during the performance of my

 90 13 job and do not restrict such knowledge only

 90 14 for my benefit."

 90 15 Do you see that?

 90 16 A. I do.

 90 17 Q. And again, if you or someone in

 90 18 your company obtains critical knowledge about

 90 19 one of the safety products, you would agree

 90 20 that they should share it with the end users

 90 21 of that product?

90:24 - 91:1 Warren, Garrad - 01-23-2020

 90 24 Q. Who might be putting themselves

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 372 of 427
Warren, Garrad - 01-23-2020 33

 90 25 at risk if they don't use it correctly,

 91 1 correct?

91:4 - 91:10 Warren, Garrad - 01-23-2020

 91 4 THE WITNESS: Again, it depends

 91 5 upon your definition of "end user,"

 91 6 but, yes, we would -- we would have

 91 7 the responsibility to share that

 91 8 information with, again, our key

 91 9 contacts or our key -- the key

 91 10 gatekeepers that we deal with.

97:2 - 97:7 Warren, Garrad - 01-23-2020

 97 2 Q. I wanted to ask you, as

 97 3 president of the business unit that oversaw

 97 4 the Combat Arms version 2, just some general

 97 5 questions as they relate to some of these

 97 6 codes of conduct, if I could, sir.

 97 7 A. Please.

97:8 - 97:11 Warren, Garrad - 01-23-2020

 97 8 Q. Would you agree with me that a

 97 9 manufacturer of a safety device should

 97 10 disclose any known risks of that device to

 97 11 its users?

Re: [97:8-98:2]

602

OVERRULED

97:13 - 97:14 Warren, Garrad - 01-23-2020

 97 13 THE WITNESS: Hypothetically,

 97 14 if there were risks involved, yes.

Re: [97:8-98:2]

602

OVERRULED

97:15 - 97:21 Warren, Garrad - 01-23-2020

 97 15 QUESTIONS BY MR. AYLSTOCK:

 97 16 Q. Because it's important for

 97 17 folks using a device, any device, but

 97 18 particularly a device designed to enhance

 97 19 their safety, to know of risks so they can

 97 20 properly protect themselves, correct?

 97 21 A. Yes.

Re: [97:8-98:2]

602

OVERRULED

97:24 - 98:2 Warren, Garrad - 01-23-2020

 97 24 THE WITNESS: Again, if there

 97 25 were risks that were known, then, yes,

 98 1 I think we have an obligation to do

 98 2 that.

Re: [97:8-98:2]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 373 of 427
Warren, Garrad - 01-23-2020 34

98:4 - 98:9 Warren, Garrad - 01-23-2020

 98 4 Q. And it's important for a safety

 98 5 device manufacturer to provide clear and

 98 6 accurate information to those who may use

 98 7 their products to avoid any needless harms,

 98 8 fair?

 98 9 A. Yes.

98:10 - 98:14 Warren, Garrad - 01-23-2020

 98 10 Q. And a safety device

 98 11 manufacturer should test its products to

 98 12 understand the risks before they actually

 98 13 sell it and make money, fair?

 98 14 A. Yes.

98:15 - 98:18 Warren, Garrad - 01-23-2020

 98 15 Q. Because if you sell a product

 98 16 without knowing what the risks are, then

 98 17 needless harm can happen in the end user,

 98 18 fair?

98:20 - 99:1 Warren, Garrad - 01-23-2020

 98 20 THE WITNESS: Again, I would

 98 21 say that if we -- if we sold a product

 98 22 without, you know, knowing how it

 98 23 performed, then, yes, absolutely.

 98 24 QUESTIONS BY MR. AYLSTOCK:

 98 25 Q. That would be wrong?

 99 1 A. Yes.

99:2 - 99:8 Warren, Garrad - 01-23-2020

 99 2 Q. And a safety device

 99 3 manufacturer should take -- if it becomes

 99 4 aware of a risk, should take steps to inform

 99 5 users of that risk, even if it's after the

 99 6 sale of the product -- after it started

 99 7 selling the product, rather?

 99 8 A. Yes.

99:9 - 99:14 Warren, Garrad - 01-23-2020

 99 9 Q. And if a product can be made

 99 10 safer by the safety device manufacturer

 99 11 without affecting the efficacy or the

 99 12 effectiveness of the product, that's

Re: [99:9-99:21]

Def Objection - Vague (611, 

402); Foundation (602)

Re: [99:9-

99:21]

Def Objection -

Vague (611, 

402); 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 374 of 427
Warren, Garrad - 01-23-2020 35

 99 13 something the manufacturer should do,

 99 14 correct?

Foundation

(602)

OVERRULED

99:16 - 100:3 Warren, Garrad - 01-23-2020

 99 16 THE WITNESS: I think in large

 99 17 part it would -- you know, if it is --

 99 18 if it's being accepted by that end

 99 19 user as it is, there may be reasons

 99 20 why you would not want to incur

 99 21 additional costs to that product.

 99 22 QUESTIONS BY MR. AYLSTOCK:

 99 23 Q. Even if it meant a safer

 99 24 product?

 99 25 A. Well, again, you know, the

 100 1 question is, is it safe to begin with. If

 100 2 the answer is yes, then to what degree do you

 100 3 continue to do that and at what cost.

Re: [99:9-99:21]

Def Objection - Vague (611, 

402); Foundation (602)

Re: [99:9-

99:21]

Def Objection -

Vague (611, 

402); 

Foundation 

(602)

OVERRULED

100:5 - 100:8 Warren, Garrad - 01-23-2020

 100 5 And if, in fact, a manufacturer

 100 6 can design a product that is safer, that

 100 7 achieves the same benefits, it should choose

 100 8 to design a product that is safer, correct?

100:10 - 100:10 Warren, Garrad - 01-23-2020

 100 10 THE WITNESS: Not necessarily.

100:12 - 100:19 Warren, Garrad - 01-23-2020

 100 12 Q. Well, it shouldn't choose a

 100 13 less safe product because it may cost a

 100 14 little more money to make that product?

 100 15 A. I would agree with that.

 100 16 Q. And an unsafe product design is

 100 17 not justified just because another company

 100 18 has a same or similar design, true?

 100 19 A. I agree.

100:20 - 100:24 Warren, Garrad - 01-23-2020

 100 20 Q. And an unsafe product design

 100 21 isn't justified because you have the patent

 100 22 on that design and you may not have the

 100 23 patent on another design, fair?

 100 24 A. I agree.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 375 of 427
Warren, Garrad - 01-23-2020 36

100:25 - 101:3 Warren, Garrad - 01-23-2020

 100 25 Q. And if a safety device

 101 1 manufacturer learns that its product is being

 101 2 misused, it could take steps, reasonable

 101 3 steps, to prevent the misuse, true?

Re: [100:25-101:10]

Def Objection - Vague (611, 

403); 701

Re: [100:25-

101:10]

Def Objection -

Vague (611, 

403); 701

OVERRULED

101:6 - 101:15 Warren, Garrad - 01-23-2020

 101 6 THE WITNESS: Again, it depends

 101 7 on what that particular misuse is.

 101 8 You know, if -- you know, some

 101 9 of those things may be outside our

 101 10 control.

 101 11 QUESTIONS BY MR. AYLSTOCK:

 101 12 Q. But those that are in your

 101 13 control you should take steps to prevent,

 101 14 correct?

 101 15 A. Yes.

Re: [100:25-101:10]

Def Objection - Vague (611, 

403); 701

Re: [100:25-

101:10]

Def Objection -

Vague (611, 

403); 701

OVERRULED

102:8 - 102:14 Warren, Garrad - 01-23-2020

 102 8 If a safety manufacturer is

 102 9 made aware of complications related to its

 102 10 product, or additional risks, and that

 102 11 injuries were occurring due to that, that

 102 12 manufacturer should take steps to make the

 102 13 end user aware of those risks so injury can

 102 14 be prevented, true?

Re: [102:8-102:21]

Def Objection - Vague, 

Argumentative (611, 403); 

701; Foundation (602)

Re: [102:8-

102:21]

Def Objection -

Vague, 

Argumentative 

(611, 403); 

701; 

Foundation 

(602)

OVERRULED

102:17 - 102:21 Warren, Garrad - 01-23-2020

 102 17 THE WITNESS: Certainly if

 102 18 injury resulted from the use of our

 102 19 product, then, yes, I would agree we

 102 20 have an obligation to make them aware

 102 21 of that.

Re: [102:8-102:21]

Def Objection - Vague, 

Argumentative (611, 403); 

701; Foundation (602)

Re: [102:8-

102:21]

Def Objection -

Vague, 

Argumentative 

(611, 403); 

701; 

Foundation 

(602)

OVERRULED

102:22 - 103:2 Warren, Garrad - 01-23-2020

 102 22 QUESTIONS BY MR. AYLSTOCK:

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 376 of 427
Warren, Garrad - 01-23-2020 37

 102 23 Q. Okay. And you would agree,

 102 24 would you not, sir, that a company that

 102 25 manufactures a safety device shouldn't

 103 1 manipulate testing to increase sales, fair?

 103 2 A. I would absolutely agree.

103:3 - 103:7 Warren, Garrad - 01-23-2020

 103 3 Q. And when it comes to the

 103 4 representations the company makes, it's

 103 5 important that those representations be

 103 6 accurate, correct?

 103 7 A. Yes.

103:8 - 103:12 Warren, Garrad - 01-23-2020

 103 8 Q. And if the company doesn't know

 103 9 whether they're accurate or not, they

 103 10 shouldn't be making that representation,

 103 11 fair?

 103 12 A. Yes.

103:13 - 103:15 Warren, Garrad - 01-23-2020

 103 13 Q. And that would be true with

 103 14 regard to the Combat Arms Earplug, too?

 103 15 A. Yes, to all of our products.

107:2 - 107:8 Warren, Garrad - 01-23-2020

 107 2 Q. When you became president of

 107 3 the safety -- North America safety unit,

 107 4 Brian Myers was your subordinate directly?

 107 5 A. In 2003 --

 107 6 Q. Yes, sir.

 107 7 A. -- to the sale -- to the time

 107 8 that we sold the company, yes.

107:19 - 107:24 Warren, Garrad - 01-23-2020

 107 19 Q. And one of the things Brian

 107 20 Myers was responsible for was the Combat Arms

 107 21 version 2, correct?

 107 22 A. Yes.

 107 23 Q. Okay. So --

 107 24 A. The marketing of that product.

109:3 - 109:5 Warren, Garrad - 01-23-2020

 109 3 Q. Yeah, you can.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 377 of 427
Warren, Garrad - 01-23-2020 38

 109 4 (Warren Exhibit 12 marked for

 109 5 identification.)

109:22 - 110:5 Warren, Garrad - 01-23-2020

 109 22 Q. Okay. So let me show you

 109 23 Exhibit 12, see if this helps refresh your

 109 24 recollection.

 109 25 Here we have Mr. Bosanko again

 110 1 e-mailing your later-on subordinate,

 110 2 Mr. Myers, and again, we're in January

 110 3 of 2000.

 110 4 Do you see that at the top?

 110 5 A. I do.

110:6 - 110:18 Warren, Garrad - 01-23-2020

 110 6 Q. It looks like he received an

 110 7 information packet on the Combat Arms, and

 110 8 the first page is a color photo of the

 110 9 earplug.

 110 10 Do you see that at the top?

 110 11 A. I do.

 110 12 Q. And it looks like -- that "the

 110 13 earplugs you sent me are going to be used at

 110 14 basic training unit drill sergeants on the

 110 15 firing range. I'll let you know how the unit

 110 16 likes them."

 110 17 Do you see that?

 110 18 A. I do.

110:19 - 111:3 Warren, Garrad - 01-23-2020

 110 19 Q. So would this indicate to you

 110 20 that the military was using them as early

 110 21 as -- well, in this case 2000?

 110 22 A. Well, again, it says, "I think

 110 23 the soldiers are going to like the new

 110 24 earplug." It does not indicate to me that

 110 25 they purchased it yet.

 111 1 Q. Okay. So do you know when the

 111 2 Combat Arms was first sold to the military?

 111 3 A. I do not.

Re: [110:19-111:3]

Improper clarification 

counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 378 of 427
Warren, Garrad - 01-23-2020 39

111:7 - 111:7 Warren, Garrad - 01-23-2020

 111 7 Q. Okay. Exhibit 13, it's an

Re: [111:7-111:7]

Improper clarification 

counter

SUSTAINED

117:17 - 117:22 Warren, Garrad - 01-23-2020

 117 17 Q. But if the company had been

 117 18 selling the product prior to testing the

 117 19 product, you would agree that would have not

 117 20 been appropriate, correct? The Combat Arms

 117 21 version 2, that is.

 117 22 A. Yes.

Re: [117:8-117:22]

Def Objection - Foundation 

(602)

Re: [117:8-

117:22]

Def Objection -

Foundation 

(602)

OVERRULED

117:23 - 118:10 Warren, Garrad - 01-23-2020

 117 23 Q. Okay. Here what we have is the

 117 24 open end is an NRR of zero. That was what

 117 25 was reflected on the packaging for the Combat

 118 1 Arms during the entire time you were

 118 2 president, correct?

 118 3 A. I believe so, yes.

 118 4 Q. And then in the closed

 118 5 position, it has an NRR of 22.

 118 6 Again, that was the NRR

 118 7 reflected on the packaging and marketing

 118 8 materials for this plug the entire time you

 118 9 were president, correct?

 118 10 A. I believe so, yes.

118:11 - 118:13 Warren, Garrad - 01-23-2020

 118 11 Q. It's important that those

 118 12 numbers be accurate?

 118 13 A. Yes.

121:13 - 122:2 Warren, Garrad - 01-23-2020

 121 13 Q. Okay. Can you go to --

 121 14 Exhibit 16.

 121 15 (Warren Exhibit 16 marked for

 121 16 identification.)

 121 17 QUESTIONS BY MR. AYLSTOCK:

 121 18 Q. This is entitled "The Combat

 121 19 Arms Earplugs Sales Review - April 11 -

 121 20 Discussion Guide."

 121 21 And in fairness, this is a

 121 22 document that was created after you left the

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 379 of 427
Warren, Garrad - 01-23-2020 40

 121 23 company, but I'm going to ask you some

 121 24 questions because it relates to sales while

 121 25 you were with the company.

 122 1 Do you understand?

 122 2 A. I do.

124:1 - 124:4 Warren, Garrad - 01-23-2020

 124 1 Q. And this is a chart of the

 124 2 sales of the Combat Arms Earplugs.

 124 3 Do you understand that?

 124 4 A. I do.

124:5 - 124:10 Warren, Garrad - 01-23-2020

 124 5 Q. And when it comes to the sales

 124 6 of the generation 2, the version 2, you knew

 124 7 from your time at the company that those

 124 8 sales really took off when we began deploying

 124 9 our troops overseas for the various conflicts

 124 10 and wars, correct?

124:12 - 124:14 Warren, Garrad - 01-23-2020

 124 12 THE WITNESS: I do recall that

 124 13 we had a fairly significant increase

 124 14 in sales. I believe it was in 2005.

125:11 - 125:16 Warren, Garrad - 01-23-2020

 125 11 Q. Well, that would -- you don't

 125 12 dispute that that's not a bad guess, is it?

 125 13 Best guess?

 125 14 A. To my knowledge, nobody else

 125 15 made an equivalent product in the early

 125 16 2000s.

Re: [125:11-125:16]

Improper clarification 

counter

SUSTAINED

125:17 - 125:20 Warren, Garrad - 01-23-2020

 125 17 Q. Okay. So with that knowledge,

 125 18 your best guess as well would be that you had

 125 19 95 to 100 percent of the market, correct?

 125 20 A. Yes.

Re: [125:17-125:20]

Def Objection - Foundation 

(602)

Re: [124:16-

125:20]

Def Objection -

Foundation 

(602)

SUSTAINED

Re: [125:17-125:20]

602

SUSTAINED

125:21 - 126:5 Warren, Garrad - 01-23-2020

 125 21 Q. Okay. Now, when it comes to

 125 22 providing instructions for use, you would

 125 23 agree with me that it's important to provide

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 380 of 427
Warren, Garrad - 01-23-2020 41

 125 24 accurate, clear and unambiguous instructions,

 125 25 correct?

 126 1 A. Yes.

 126 2 Q. And when it comes to the Combat

 126 3 Arms version 2, that's important as well,

 126 4 correct?

 126 5 A. Of course.

126:11 - 126:20 Warren, Garrad - 01-23-2020

 126 11 Q. Do you know who Daryl Charton

 126 12 is?

 126 13 A. I do.

 126 14 Q. Who is that?

 126 15 A. He was the vice president of

 126 16 sales for North American industrial,

 126 17 reporting to me.

 126 18 Q. Okay. So he was your direct

 126 19 subordinate?

 126 20 A. He was.

126:21 - 126:25 Warren, Garrad - 01-23-2020

 126 21 (Warren Exhibit 17 marked for

 126 22 identification.)

 126 23 QUESTIONS BY MR. AYLSTOCK:

 126 24 Q. Let me show you Exhibit 17, see

 126 25 if that refreshes your recollection.

127:24 - 128:13 Warren, Garrad - 01-23-2020

 127 24 Q. On October 7, 2005, Daryl

 127 25 Charton e-mails and says, "I was in the

 128 1 Atlanta airport yesterday along with a large

 128 2 number of military personnel. I had a long

 128 3 conversation with Lieutenant Colonel Stephen

 128 4 Tableman from the US Army and two sergeant

 128 5 majors. We discussed the Combat Arms

 128 6 Earplugs. They all wear the plugs but have

 128 7 trouble getting them. They truly believe the

 128 8 Combat Arms are vital for every soldier to be

 128 9 wearing every day on every patrol. They also

 128 10 believe we need to do a better job of

 128 11 communicating how to wear them properly."

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 381 of 427
Warren, Garrad - 01-23-2020 42

 128 12 Do you see that?

 128 13 A. I do.

129:3 - 129:16 Warren, Garrad - 01-23-2020

 129 3 Q. And ultimately this e-mail

 129 4 filters up to you, along with Marc Santoro,

 129 5 Mike Cimino, Frank Gavin, Tim McNamara, 

Doug

 129 6 Moses, Brian Myers, Marty Salon.

 129 7 Right?

 129 8 A. That's correct.

 129 9 Q. And what Marc writes and copies

 129 10 you is that, "Daryl, thanks for the info."

 129 11 Can you read to the jury his

 129 12 next sentence there?

 129 13 A. "We recognize that education of

 129 14 the proper use and benefits of the plug is

 129 15 sorely lacking and are formulating a plan to

 129 16 aggressively address this issue."

129:17 - 129:25 Warren, Garrad - 01-23-2020

 129 17 Q. Okay. So did you respond to

 129 18 this e-mail and say that, "Look, our

 129 19 education is fine, it's not lacking"?

 129 20 A. I don't recall.

 129 21 Q. Okay. Does this -- I mean,

 129 22 you're on this. You would have read this,

 129 23 correct?

 129 24 A. I assume so, yes. I am on it,

 129 25 and I assume I read it.

130:1 - 130:9 Warren, Garrad - 01-23-2020

 130 1 Q. Okay. And then he also says,

 130 2 "We will probably be attacking this from

 130 3 several angles, including posters, more ads

 130 4 in soldier publications, i.e., Army Magazine,

 130 5 instructions packaged with each product pair,

 130 6 PR and possibly some online training

 130 7 content."

 130 8 Do you see that?

 130 9 A. I do.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 382 of 427
Warren, Garrad - 01-23-2020 43

130:21 - 131:6 Warren, Garrad - 01-23-2020

 130 21 Q. Okay. And ultimately, you

 130 22 would agree as president that it was Aearo's

 130 23 responsibility to educate folks on how to

 130 24 properly use your safety device?

 130 25 A. It was our responsibility to

 131 1 educate those gatekeepers, you know, in terms

 131 2 of how to properly use the plug and so forth.

 131 3 It was not possible for us to

 131 4 communicate and instruct all the potential

 131 5 users across the world as to how to properly

 131 6 do that. We did not have that capability.

132:14 - 132:22 Warren, Garrad - 01-23-2020

 132 14 (Warren Exhibit 18 marked for

 132 15 identification.)

 132 16 QUESTIONS BY MR. AYLSTOCK:

 132 17 Q. GW-100, Exhibit 18, and let's

 132 18 give out this document. See if this helps

 132 19 refresh your recollection.

 132 20 So at the top it's got Brian

 132 21 Myers, Marc Santoro and you, right?

 132 22 A. Yes.

133:4 - 133:11 Warren, Garrad - 01-23-2020

 133 4 Q. Okay. So if we look down, Marc

 133 5 Santoro writes on July 12th that "Sales of

 133 6 our Combat Arms Earplugs have been very

 133 7 strong over the past few years, despite a

 133 8 lack of true marketing initiatives and

 133 9 support."

 133 10 Do you see that?

 133 11 A. I do.

133:12 - 133:24 Warren, Garrad - 01-23-2020

 133 12 Q. "It's time we take a more

 133 13 proactive approach to this product, so we're

 133 14 attacking on four fronts."

 133 15 Do you see that?

 133 16 A. I do.

 133 17 Q. So here's the plan, and there's

 133 18 four bullet points here, right?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 383 of 427
Warren, Garrad - 01-23-2020 44

 133 19 A. There are.

 133 20 Q. And tell the ladies and

 133 21 gentlemen of the jury what those four fronts

 133 22 were that were going to be attacked.

 133 23 A. Direct mail, trade pubs,

 133 24 end-user ads and end-user education.

134:7 - 134:11 Warren, Garrad - 01-23-2020

 134 7 Q. "Please let me know if there is

 134 8 anything we can do to support your efforts

 134 9 with Combat Arms."

 134 10 Right?

 134 11 A. Yes.

134:24 - 135:13 Warren, Garrad - 01-23-2020

 134 24 Q. And so you knew as president

 134 25 that you employed an entire force of people

 135 1 to help sell the Combat Arms version 2 to the

 135 2 military, fair?

 135 3 A. Yeah.

 135 4 Q. And in fact, one of the things

 135 5 that you provided that sales force were

 135 6 samples of the Combat Arms version 2 to hand

 135 7 out?

 135 8 A. Sure, yes.

 135 9 Q. Okay. And they would -- they

 135 10 were permitted to hand them to soldiers,

 135 11 sailors, Marines, whoever they came across,

 135 12 correct?

 135 13 A. Yes.

137:1 - 137:10 Warren, Garrad - 01-23-2020

 137 1 You knew that there was direct

 137 2 mail going out to folks with regard to

 137 3 purchasing and procurement military personnel

 137 4 throughout the country, correct?

 137 5 A. I knew that there was a plan to

 137 6 do so.

 137 7 Q. And you knew that there were

 137 8 end-user ads, correct?

 137 9 A. Again, I knew there was a plan

 137 10 to do so.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 384 of 427
Warren, Garrad - 01-23-2020 45

137:11 - 138:5 Warren, Garrad - 01-23-2020

 137 11 Q. I mean, you're not going to

 137 12 tell this jury you didn't do some

 137 13 advertisement in military publications --

 137 14 A. I'm responding to the e-mail,

 137 15 and all I know is that Marc says that our

 137 16 plan is to do this. I don't recall whether

 137 17 or not it was done.

 137 18 Q. You don't recall whether you

 137 19 had ads in military publications for the

 137 20 Combat Arms?

 137 21 A. Sir, I'm responding to this

 137 22 particular e-mail, and all I'm saying is, I

 137 23 don't recall that this plan that Marc

 137 24 outlines in the e-mail was actually

 137 25 completed. That's all I'm saying.

 138 1 Q. One way or the other.

 138 2 A. One way or the other what?

 138 3 Q. You don't know whether it was

 138 4 done or not?

 138 5 A. I don't know.

138:9 - 138:15 Warren, Garrad - 01-23-2020

 138 9 QUESTIONS BY MR. AYLSTOCK:

 138 10 Q. I was trying to be broader than

 138 11 that, so we were talking past each other.

 138 12 A. Right. Yeah.

 138 13 Q. And so my question isn't

 138 14 related to this e-mail.

 138 15 A. Okay.

138:16 - 138:23 Warren, Garrad - 01-23-2020

 138 16 Q. My question is: You know, as

 138 17 president of the business unit for passive

 138 18 hearing protection and safety that included

 138 19 the Combat Arms version 2, that there were

 138 20 ads in military publication that were

 138 21 designed to be viewed and seen and relied

 138 22 upon by US military personnel, fair?

 138 23 A. Yes, I agree with that.

Re: [138:16-138:23]

403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 385 of 427
Warren, Garrad - 01-23-2020 46

138:24 - 139:10 Warren, Garrad - 01-23-2020

 138 24 Q. And the same is true with

 138 25 regard to the direct mail. You know

 139 1 generally that there was direct mail about

 139 2 Combat Arms version 2?

 139 3 A. I don't know that. I do recall

 139 4 that there were advertisements placed in the

 139 5 various publications. I don't recall that we

 139 6 did direct mail prior to this or, frankly,

 139 7 subsequent to this. I just don't recall that

 139 8 we did direct mail.

 139 9 Q. Fair enough.

 139 10 A. Okay.

139:11 - 139:14 Warren, Garrad - 01-23-2020

 139 11 Q. And you also know that there

 139 12 were ads run in trade publications with

 139 13 regard to Combat Arms?

 139 14 A. Yes.

139:15 - 140:12 Warren, Garrad - 01-23-2020

 139 15 Q. And you intended the

 139 16 representations of those to be viewed and

 139 17 relied upon by those folks in deciding

 139 18 whether to use them, correct?

 139 19 A. Well, again, I think to be

 139 20 clear, we typically advertised to -- whether

 139 21 it was in the military or whether it was in

 139 22 our industrial channel or whatever, we

 139 23 typically advertised to those what we called

 139 24 gatekeepers.

 139 25 As he says here, "purchasing

 140 1 procurement," a lot of times that would be --

 140 2 in this particular case, audiologists,

 140 3 nurses, safety directors and so forth.

 140 4 So our primary intent was to

 140 5 inform those people who purchased the product

 140 6 that in fact we had this product available

 140 7 for their employees. Okay?

 140 8 We then relied upon them to

 140 9 inform and educate the employees and to

Re: [139:15-140:12]

Improper clarification 

counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 386 of 427
Warren, Garrad - 01-23-2020 47

 140 10 the -- A, that the product was available and

 140 11 what the proper use was, you know, of that

 140 12 product.

141:5 - 141:9 Warren, Garrad - 01-23-2020

 141 5 You do know generally -- I'm

 141 6 not asking you about this document now --

 141 7 that there was end-user education as well

 141 8 that your company provided for the Combat

 141 9 Arms version 2, correct?

Re: [141:5-141:13]

Improper clarification 

counter

SUSTAINED

141:12 - 141:13 Warren, Garrad - 01-23-2020

 141 12 THE WITNESS: Honestly, I don't

 141 13 recall whether we did a PR campaign on

Re: [141:5-141:13]

Improper clarification 

counter

SUSTAINED

141:24 - 142:21 Warren, Garrad - 01-23-2020

 141 24 Q. It's an e-mail chain from

 141 25 various members of the military, including

 142 1 Doug Ohlin, who actually wasn't in the

 142 2 military but was from CHPPM.

 142 3 Do you see that?

 142 4 A. I do.

 142 5 Q. And if we kind of start from

 142 6 the bottom up, Brian Myers e-mails Doug Ohlin

 142 7 on August 15th at 12:42 about debriefs.

 142 8 Do you see that?

 142 9 A. I do.

 142 10 Q. And tells Mr. Ohlin that "We

 142 11 are developing the new CAEs, and I wondered

 142 12 if I could take advantage of the opportunity

 142 13 to talk directly with a few people returning

 142 14 from combat who have been wearing -- who have

 142 15 some wearing experience with the CAE, or some

 142 16 other hearing protector which they may prefer

 142 17 to the CAE, in order to be certain we aren't

 142 18 missing any opportunities to address

 142 19 objections or issues."

 142 20 Do you see that?

 142 21 A. I do.

143:1 - 143:5 Warren, Garrad - 01-23-2020

 143 1 Q. Mr. Ohlin from CHPPM does, in

 143 2 fact, respond, and if we just move up on that

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 387 of 427
Warren, Garrad - 01-23-2020 48

 143 3 same document: "I hope you appreciate that

 143 4 some of the feedback we get from the troops

 143 5 can be pretty nonsensical."

143:11 - 143:18 Warren, Garrad - 01-23-2020

 143 11 Q. "On the other hand, some

 143 12 feedback has been most helpful, e.g., we need

 143 13 cords to more easily keep track of the plugs,

 143 14 and the double-ended is uncomfortable for

 143 15 smaller ears, the double-ended plug sticks

 143 16 out too far, et cetera."

 143 17 Do you see that?

 143 18 A. I do.

144:5 - 144:18 Warren, Garrad - 01-23-2020

 144 5 Q. Okay. And if we go to the

 144 6 first page, a William Porter ends up

 144 7 responding to Brian Myers, ultimately, and

 144 8 he's currently serving -- he, "Sir, I'm

 144 9 currently serving with the headquarter's

 144 10 first cavalry division, and I did deploy to

 144 11 Iraq for OIF II as a medical officer with the

 144 12 division."

 144 13 A. I see that.

 144 14 Q. "While in Iraq, I was impressed

 144 15 with the overall usage of the CAE by our

 144 16 soldiers."

 144 17 Do you see that?

 144 18 A. I do.

145:15 - 145:22 Warren, Garrad - 01-23-2020

 145 15 Q. And that was one of the things

 145 16 that you changed when it came to the Combat

 145 17 Arms version 3 and 4, is you made it multiple

 145 18 sizes as opposed to one size fits all,

 145 19 correct?

 145 20 A. We didn't change it, just to be

 145 21 specific, but we did offer that then as

 145 22 another option.

146:8 - 146:17 Warren, Garrad - 01-23-2020

 146 8 Q. Including making it multiple

 146 9 sizes instead of the one size fits all?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 388 of 427
Warren, Garrad - 01-23-2020 49

 146 10 A. Multiple sizes, one side only,

 146 11 a lanyard, so forth.

 146 12 Q. Okay. Now, he says, "Not every

 146 13 ear canal is the same size."

 146 14 You became aware -- I mean, as

 146 15 the person in charge of passive hearing

 146 16 protection, you know that to be true?

 146 17 A. Absolutely.

152:7 - 152:16 Warren, Garrad - 01-23-2020

 152 7 (Warren Exhibit 22 marked for

 152 8 identification.)

 152 9 QUESTIONS BY MR. AYLSTOCK:

 152 10 Q. Show you Exhibit 22.

 152 11 A few days later, on Sunday, as

 152 12 a matter of fact, Theresa Schulz e-mails

 152 13 Brian and Mike, who work under you, and cc's

 152 14 you about a statement of work.

 152 15 Do you see that?

 152 16 A. I do.

152:24 - 153:5 Warren, Garrad - 01-23-2020

 152 24 Q. On October 30th, a Sunday, a

 152 25 couple days later, Theresa Schulz e-mails

 153 1 your subordinates, Brian and Marc, and copies

 153 2 you on a statement of work about the Combat

 153 3 Arms Earplug.

 153 4 Do you see that?

 153 5 A. I do.

153:6 - 153:10 Warren, Garrad - 01-23-2020

 153 6 Q. And she actually attached a

 153 7 draft of the statement of work and includes

 153 8 samples of three others.

 153 9 Do you see that?

 153 10 A. I do.

153:11 - 153:16 Warren, Garrad - 01-23-2020

 153 11 Q. "The statement of work is

 153 12 really a request from Doug for work to be

 153 13 done."

 153 14 She's talking about Doug Ohlin

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 389 of 427
Warren, Garrad - 01-23-2020 50

 153 15 there, right?

 153 16 A. I believe so.

154:11 - 154:19 Warren, Garrad - 01-23-2020

 154 11 Q. All right. So she actually

 154 12 attaches, if you go to the next page, first

 154 13 statement of work.

 154 14 Do you see that?

 154 15 A. I do.

 154 16 Q. And it's actually an agreement

 154 17 between your company, Aearo, and CHPPM.

 154 18 Do you see that?

 154 19 A. A proposed agreement, yes.

155:15 - 155:20 Warren, Garrad - 01-23-2020

 155 15 Q. Okay. So what Theresa Schulz

 155 16 sent to you, Gary Warren, as well as Brian

 155 17 Myers and Marc Santoro, was a draft statement

 155 18 of work, correct?

 155 19 A. What she sent -- what she

 155 20 copied me on, yes.

156:2 - 156:11 Warren, Garrad - 01-23-2020

 156 2 (Warren Exhibit 23 marked for

 156 3 identification.)

 156 4 QUESTIONS BY MR. AYLSTOCK:

 156 5 Q. Okay. And if you look at

 156 6 Exhibit 23, we're now about a week later, the

 156 7 following Monday. Now she's got a draft

 156 8 statement of work specific to the Combat Arms

 156 9 Earplug.

 156 10 Do you see that?

 156 11 A. I do.

156:12 - 156:15 Warren, Garrad - 01-23-2020

 156 12 Q. And she's sending it to Doug

 156 13 Ohlin at CHPPM and copying Marc Santoro.

 156 14 Do you see that?

 156 15 A. I do.

156:16 - 156:19 Warren, Garrad - 01-23-2020

 156 16 Q. And this would have been an

 156 17 agreement between Aearo and CHPPM, correct,

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 390 of 427
Warren, Garrad - 01-23-2020 51

 156 18 to do the work?

 156 19 A. I believe so, yes.

156:20 - 157:1 Warren, Garrad - 01-23-2020

 156 20 Q. And as president, you would

 156 21 have been involved. Your subordinates aren't

 156 22 going to make an agreement between a company

 156 23 and a US governmental agency without your

 156 24 knowledge, right?

 156 25 A. They were not authorized to do

 157 1 that on their own, no.

157:2 - 157:5 Warren, Garrad - 01-23-2020

 157 2 Q. So this would have been

 157 3 something that you would have looked at?

 157 4 A. I assume so, yes. I don't have

 157 5 any recollection of it, but I assume so.

157:10 - 157:13 Warren, Garrad - 01-23-2020

 157 10 Q. All right. And the task order

 157 11 title is "Combat Arms Earplug Training."

 157 12 See that?

 157 13 A. Yes.

157:14 - 157:20 Warren, Garrad - 01-23-2020

 157 14 Q. And if you go down to phase 2

 157 15 on the next page -- well, phase 2 is that

 157 16 "Aearo Corporations will create and test

 157 17 strategies to train deploying soldiers on the

 157 18 correct use of the CAE."

 157 19 Do you see that?

 157 20 A. I do.

157:21 - 158:3 Warren, Garrad - 01-23-2020

 157 21 Q. And phase 3 was that "Aearo

 157 22 will developing training materials and tools

 157 23 to train soldiers and commanders in all

 157 24 settings - garrison, pre-deployment and

 157 25 deployed - in the appropriate use of the

 158 1 Combat Arms."

 158 2 Do you see that?

 158 3 A. I do.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 391 of 427
Warren, Garrad - 01-23-2020 52

158:4 - 158:6 Warren, Garrad - 01-23-2020

 158 4 Q. And so with regard to the

 158 5 training of the proper use of Combat Arms,

 158 6 Aearo took on that responsibility, correct?

158:9 - 158:12 Warren, Garrad - 01-23-2020

 158 9 THE WITNESS: We took on the

 158 10 responsibility -- well, in working

 158 11 with the government to do so, with

 158 12 CHPPM.

158:22 - 159:6 Warren, Garrad - 01-23-2020

 158 22 Q. It doesn't say Aearo and the

 158 23 government will create and test strategies to

 158 24 train deploying soldiers. It says, "Aearo

 158 25 Corporation will create and test strategies,"

 159 1 correct?

 159 2 A. It does.

 159 3 Q. And same with developing the

 159 4 training materials and tools. That's Aearo

 159 5 Corporation, correct?

 159 6 A. It does, yes.

159:7 - 159:11 Warren, Garrad - 01-23-2020

 159 7 Q. Okay. Now, with regard to the

 159 8 proper use of the Combat Arms version 2, you

 159 9 would agree with me that the average person

 159 10 isn't going to know how to use it unless

 159 11 instructions are provided, correct?

159:14 - 159:20 Warren, Garrad - 01-23-2020

 159 14 QUESTIONS BY MR. AYLSTOCK:

 159 15 Q. Or use it properly, I should

 159 16 say?

 159 17 A. I think -- I think the plug

 159 18 itself needed some explanation as to, you

 159 19 know, to the dual-sided and the benefits of

 159 20 both sides, yes.

159:21 - 159:24 Warren, Garrad - 01-23-2020

 159 21 Q. And it was Aearo who provided

 159 22 those -- that explanation and instructions on

 159 23 how to use it right, correctly?

 159 24 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 392 of 427
Warren, Garrad - 01-23-2020 53

163:17 - 163:21 Warren, Garrad - 01-23-2020

 163 17 Q. Do you know how to put the

 163 18 product in properly?

 163 19 A. I do.

 163 20 Q. Can you describe to the jury

 163 21 how you put it in properly?

164:9 - 164:15 Warren, Garrad - 01-23-2020

 164 9 Q. Well, can you tell the jury how

 164 10 to do it?

 164 11 A. Yeah. Basically you would --

 164 12 you would pull up on your earlobe, on the top

 164 13 of your ear, and insert the plug.

 164 14 Q. Okay. That's it?

 164 15 A. That's it.

164:16 - 164:18 Warren, Garrad - 01-23-2020

 164 16 Q. Is there any particular way to

 164 17 insert it, other than just stick it in your

 164 18 ear?

Re: [164:16-164:21]

Def Objection - Vague, 

Argumentative (611, 403)

Re: [164:16-

164:22]

Def Objection -

Vague, 

Argumentative 

(611, 403)

OVERRULED

164:20 - 164:21 Warren, Garrad - 01-23-2020

 164 20 THE WITNESS: Not to my

 164 21 knowledge.

Re: [164:16-164:21]

Def Objection - Vague, 

Argumentative (611, 403)

Re: [164:16-

164:22]

Def Objection -

Vague, 

Argumentative 

(611, 403)

OVERRULED

165:19 - 166:2 Warren, Garrad - 01-23-2020

 165 19 Q. I have handed you Exhibit 24,

 165 20 and this is another e-mail chain that you're

 165 21 on from Marc Santoro dated just a couple

 165 22 weeks prior to that, October 13, 2005.

 165 23 Do you see that?

 165 24 A. I do.

 165 25 Q. And this is the Aearo Company

 166 1 product literature, right?

 166 2 A. It seems to be, yes.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 393 of 427
Warren, Garrad - 01-23-2020 54

166:9 - 166:12 Warren, Garrad - 01-23-2020

 166 9 Q. Okay. Would you have

 166 10 conference calls from time to time with users

 166 11 of your product?

 166 12 A. From time to time.

166:18 - 167:1 Warren, Garrad - 01-23-2020

 166 18 Q. And if we look at the very

 166 19 first page after the cover e-mail, this is a

 166 20 different earplug than the Combat Arms, but

 166 21 it does say you want to make sure earplugs

 166 22 fit.

 166 23 Do you see that?

 166 24 A. I do.

 166 25 Q. And that's a true statement,

 167 1 right?

167:2 - 167:5 Warren, Garrad - 01-23-2020

 167 2 As the president of the

 167 3 company, you want to make sure the earplugs

 167 4 you're selling are fit properly, correct?

 167 5 A. Yes.

167:6 - 167:10 Warren, Garrad - 01-23-2020

 167 6 Q. And we also have -- if we go to

 167 7 the second to the last page, now we're at the

 167 8 Combat Arms specifically.

 167 9 Do you see that?

 167 10 A. I'm sorry, let me get to it.

167:25 - 168:2 Warren, Garrad - 01-23-2020

 167 25 Q. So this is a US military

 168 1 soldier wearing the Combat Arms version 2,

 168 2 correct?

Re: [167:25-168:6]

Def Objection - Foundation 

(602)

Re: [167:25-

168:6]

Def Objection -

Foundation 

(602)

OVERRULED

168:5 - 168:6 Warren, Garrad - 01-23-2020

 168 5 THE WITNESS: It looks as -- it

 168 6 looks like it is, yes.

Re: [167:25-168:6]

Def Objection - Foundation 

(602)

Re: [167:25-

168:6]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 394 of 427
Warren, Garrad - 01-23-2020 55

168:8 - 168:12 Warren, Garrad - 01-23-2020

 168 8 Q. Okay. And we've established

 168 9 that it's important when it comes to any of

 168 10 these marketing materials that they be

 168 11 accurate, clear and unambiguous, correct?

 168 12 A. Yes.

168:20 - 168:23 Warren, Garrad - 01-23-2020

 168 20 Q. In any event, it's important

 168 21 that the information here be accurate,

 168 22 correct?

 168 23 A. Yes.

168:24 - 169:2 Warren, Garrad - 01-23-2020

 168 24 Q. And this is information that

 168 25 you intended for whoever viewed this to be

 169 1 able to rely upon as accurate, correct?

 169 2 A. Yes.

169:3 - 169:11 Warren, Garrad - 01-23-2020

 169 3 Q. Okay. And circled is the

 169 4 Combat Arms. It looks like the yellow end is

 169 5 in the soldier's ear, correct?

 169 6 A. Yes.

 169 7 Q. And the dark green end is

 169 8 sticking out. And it looks like if you have

 169 9 the circle there, that he's got it in just as

 169 10 you described to the jury, right?

 169 11 A. Yes.

169:12 - 169:15 Warren, Garrad - 01-23-2020

 169 12 Q. You stick in one end, and you

 169 13 don't need to manipulate or change the

 169 14 configuration of anything with regard to the

 169 15 other end, correct?

169:18 - 169:19 Warren, Garrad - 01-23-2020

 169 18 THE WITNESS: For -- for me,

 169 19 that is true.

169:21 - 169:24 Warren, Garrad - 01-23-2020

 169 21 Q. Okay. Well, and then this,

 169 22 this is exactly how this soldier put it in,

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 395 of 427
Warren, Garrad - 01-23-2020 56

 169 23 right?

 169 24 A. It looks as though, yes.

170:8 - 170:21 Warren, Garrad - 01-23-2020

 170 8 Q. And it says, "When needed, the

 170 9 plug's filter reacts to provide instant

 170 10 protection from high-level noises."

 170 11 Do you see that?

 170 12 A. I do.

 170 13 Q. "Like weapons fire and

 170 14 explosions. It's that easy. It's that

 170 15 quick."

 170 16 Do you see that?

 170 17 A. I do.

 170 18 Q. "You don't have to sacrifice

 170 19 your hearing in order to protect it."

 170 20 Do you see that?

 170 21 A. I do.

170:25 - 171:14 Warren, Garrad - 01-23-2020

 170 25 Q. So what this is communicating

 171 1 is that this will provide protection, instant

 171 2 protection, from weapons fire and explosions,

 171 3 correct?

 171 4 A. Yeah, that's one of the --

 171 5 that's one of the things that it does, yes.

 171 6 Q. It also says, "low-level sounds

 171 7 heard clearly" on the right?

 171 8 A. Yes.

 171 9 Q. "High-impulse noise blocked

 171 10 instantly"?

 171 11 A. Correct.

 171 12 Q. And it says "comfortable and

 171 13 reusable," right?

 171 14 A. Yes.

171:15 - 171:18 Warren, Garrad - 01-23-2020

 171 15 Q. And it says "premolded,

 171 16 triple-flanged design fits most ear canals."

 171 17 Do you see that?

 171 18 A. I do.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 396 of 427
Warren, Garrad - 01-23-2020 57

171:19 - 171:22 Warren, Garrad - 01-23-2020

 171 19 Q. And then it talks on the left,

 171 20 it has a picture of the earplugs and the

 171 21 dual-ended design, right?

 171 22 A. Yes.

173:2 - 173:24 Warren, Garrad - 01-23-2020

 173 2 Q. It says, "The yellow Combat

 173 3 Arms plug features a nonlinear, acoustical

 173 4 design with a calibrated filter within its

 173 5 stem."

 173 6 A. Yes.

 173 7 Q. "The result, most low-level

 173 8 sounds are heard clearly during wear,

 173 9 virtually unaffected."

 173 10 Do you see that?

 173 11 A. I do.

 173 12 Q. And then under this it says,

 173 13 "Instant protection, no switch time delay."

 173 14 And can you read to the jury

 173 15 the next sentence there, please?

 173 16 A. "When loud impulse noises such

 173 17 as weapons fire or explosives occur, the

 173 18 filter reacts instantly and suppresses the

 173 19 noise to a safer level."

 173 20 Q. And then the next sentence,

 173 21 please?

 173 22 A. "The chance of permanent

 173 23 hearing damage or disorientation from

 173 24 explosion is greatly reduced or eliminated."

173:25 - 174:3 Warren, Garrad - 01-23-2020

 173 25 Q. Okay. And if we look over on

 174 1 the green end, can you read to the jury what

 174 2 is being represented to the soldier here in

 174 3 this communication --

Re: [173:25-174:19]

Def Objection - Misstates, 

Argumentative (611, 403); 

Foundation (602)

Re: [173:25-

174:19]

Def Objection -

Misstates, 

Argumentative 

(611, 403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 397 of 427
Warren, Garrad - 01-23-2020 58

174:9 - 174:19 Warren, Garrad - 01-23-2020

 174 9 A. The headline is "Constant

 174 10 protection for constant noise. The green end

 174 11 of the Combat Arms Earplug provides steady

 174 12 protection with an NRR of 22 decibel. This

 174 13 is the ideal wearing position when exposed to

 174 14 constant high-level sound sources, in parens,

 174 15 85 decibel and above, such as aircraft,

 174 16 watercraft, armored vehicles or machinery.

 174 17 In this mode, the plug provides excellent

 174 18 protection against noise, but it will block

 174 19 speech and other ambient sounds as well."

Re: [173:25-174:19]

Def Objection - Misstates, 

Argumentative (611, 403); 

Foundation (602)

Re: [173:25-

174:19]

Def Objection -

Misstates, 

Argumentative 

(611, 403); 

Foundation 

(602)

OVERRULED

174:20 - 174:23 Warren, Garrad - 01-23-2020

 174 20 Q. And your company intended for

 174 21 whoever views this to be able to rely on that

 174 22 representation, correct?

 174 23 A. Yes.

174:24 - 174:25 Warren, Garrad - 01-23-2020

 174 24 Q. Including the 22 dB, correct?

 174 25 A. Yes.

175:11 - 175:17 Warren, Garrad - 01-23-2020

 175 11 Q. Well, if your company had

 175 12 information that it -- that only the green

 175 13 end should be used in the rifle range, that

 175 14 would be something that -- it should be

 175 15 communicated, correct?

 175 16 A. Assuming that we had that

 175 17 information, yes, I assume so.

176:8 - 176:12 Warren, Garrad - 01-23-2020

 176 8 Q. Well, at some point, as head of

 176 9 the company, these would have been materials

 176 10 you would have reviewed, correct?

 176 11 A. I was aware of these materials,

 176 12 yes, sir.

176:13 - 176:21 Warren, Garrad - 01-23-2020

 176 13 (Warren Exhibit 25 marked for

 176 14 identification.)

 176 15 QUESTIONS BY MR. AYLSTOCK:

 176 16 Q. Okay. Let me hand you

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 398 of 427
Warren, Garrad - 01-23-2020 59

 176 17 Exhibit 25.

 176 18 It's a representation of the

 176 19 packaging for the Combat Arms Earplug,

 176 20 correct?

 176 21 A. It seems to be, yes.

176:22 - 176:24 Warren, Garrad - 01-23-2020

 176 22 Q. And this would be the

 176 23 dual-ended, correct?

 176 24 A. I believe so, yes. Yes.

176:25 - 177:11 Warren, Garrad - 01-23-2020

 176 25 Q. What it says here at the top

 177 1 is, on the right-hand side, "The yellow tip

 177 2 end should be inserted only when ambient

 177 3 noise levels are not hazardous and the wearer

 177 4 wants Hear-Through� capability from instant

 177 5 protection from impulse noises."

 177 6 Do you see that?

 177 7 A. I do.

 177 8 Q. And read what's in parentheses

 177 9 for the jury, please.

 177 10 A. "i.e., weapons fire or

 177 11 explosive devices."

177:12 - 177:15 Warren, Garrad - 01-23-2020

 177 12 Q. Okay. So this would

 177 13 communicate to the user that it would be okay

 177 14 to wear the yellow end on the range for

 177 15 weapons fire, correct?

177:18 - 177:21 Warren, Garrad - 01-23-2020

 177 18 THE WITNESS: No.

 177 19 QUESTIONS BY MR. AYLSTOCK:

 177 20 Q. No?

 177 21 A. No. I would say no.

177:22 - 178:4 Warren, Garrad - 01-23-2020

 177 22 Q. Okay. It says, if we drop

 177 23 down, "The green end should be inserted when

 177 24 continuous noise is present and if it is

 177 25 determined that the attenuation reduces the

 178 1 hazardous noise to a safe level as determined

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 399 of 427
Warren, Garrad - 01-23-2020 60

 178 2 by a qualified professional."

 178 3 Do you see that?

 178 4 A. I do.

178:5 - 178:10 Warren, Garrad - 01-23-2020

 178 5 Q. And so if someone wanted to use

 178 6 the earplug to protect them from weapons

 178 7 fire, what end of the plug is being

 178 8 communicated should be used, according to the

 178 9 packaging here?

 178 10 A. I'm sorry, the yellow tip.

178:11 - 178:19 Warren, Garrad - 01-23-2020

 178 11 Q. Okay. And this was an earplug

 178 12 that, according to the packaging on the left,

 178 13 could be used for the range, correct?

 178 14 A. Yes.

 178 15 Q. Hunting?

 178 16 A. Yes.

 178 17 Q. Military and law enforcement,

 178 18 correct?

 178 19 A. Yes. Yes.

Re: [178:15-178:19]

Def Objection - Relevance 

(401, 402); Prejudice (403)

Re: [178:15-

178:19]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

178:20 - 178:23 Warren, Garrad - 01-23-2020

 178 20 Q. And then what we have is the

 178 21 NRR of 22 in the green end and the NRR of

 178 22 zero in the yellow end, correct?

 178 23 A. That's correct.

178:24 - 179:4 Warren, Garrad - 01-23-2020

 178 24 Q. And then there's a picture with

 178 25 a gentleman -- I guess a drawing of a

 179 1 gentleman putting the earplug in his ear on

 179 2 the right-hand side.

 179 3 Do you see that?

 179 4 A. I do.

179:5 - 179:9 Warren, Garrad - 01-23-2020

 179 5 Q. And he put it in -- it's

 179 6 demonstrating he's putting it in just as you

 179 7 showed the jury how it should be put in,

 179 8 correct?

 179 9 A. That is correct.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 400 of 427
Warren, Garrad - 01-23-2020 61

179:10 - 179:13 Warren, Garrad - 01-23-2020

 179 10 Q. And there's nothing in here

 179 11 about folding flanges back or anything like

 179 12 that, is there?

 179 13 A. I don't see anything, no.

Re: [179:10-179:13]

Def Objection - 3M MIL No. 

21

Re: [179:10-

179:13]

Def Objection -

3M MIL No. 

21

OVERRULED

180:20 - 180:21 Warren, Garrad - 01-23-2020

 180 20 A. This says 2000 -- yes,

 180 21 March 10th of 2008.

185:1 - 185:22 Warren, Garrad - 01-23-2020

 185 1 THE WITNESS: Yeah. You know,

 185 2 again, we did provide the proper

 185 3 instructions to those gatekeepers, and

 185 4 it was their responsibility then to

 185 5 communicate that information on the

 185 6 proper use and insertion and so forth

 185 7 of the plugs to the ultimate end user

 185 8 within their -- within their purview.

 185 9 QUESTIONS BY MR. AYLSTOCK:

 185 10 Q. But you also communicated with

 185 11 the end user instructions for using them,

 185 12 correct?

 185 13 A. But that didn't necessarily go

 185 14 to the war fighter.

 185 15 Q. Well, we've established that

 185 16 you put in ads and put up posters with the

 185 17 intent that it go to the war fighter?

 185 18 A. No. We established that we did

 185 19 ads. Okay?

 185 20 Q. With the intent that they go to

 185 21 the war fighter --

 185 22 A. No --

185:25 - 186:23 Warren, Garrad - 01-23-2020

 185 25 THE WITNESS: Yeah.

 186 1 We established that we did ads.

 186 2 I never agreed that we did posters.

 186 3 That was part of a plan that we

 186 4 discussed. I don't know that that

 186 5 plan was implemented.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 401 of 427
Warren, Garrad - 01-23-2020 62

 186 6 And number two, our target

 186 7 audience for those ads was generally

 186 8 the gatekeeper, again, the purchasing

 186 9 procurement manager, the safety

 186 10 director, the audiologist, the nurse

 186 11 and so forth, not the war fighter out

 186 12 in the field. That was not our

 186 13 responsibility.

 186 14 QUESTIONS BY MR. AYLSTOCK:

 186 15 Q. What about the war fighter who

 186 16 got one of these on exhibit -- Exhibit 25,

 186 17 the Combat Arms, good for military use?

 186 18 A. Once we sold this to the

 186 19 military, I don't know how they then sent it

 186 20 on out to the war fighter. I don't know if

 186 21 it came in this package, if they put it into

 186 22 bulk. I don't know, sir. That -- all I know

 186 23 is how we sold it to the military.

193:5 - 193:15 Warren, Garrad - 01-23-2020

 193 5 (Warren Exhibit 28 marked for

 193 6 identification.)

 193 7 QUESTIONS BY MR. AYLSTOCK:

 193 8 Q. Hand you Exhibit 23 to your

 193 9 deposition. Sorry, 28 to the deposition.

 193 10 It's a document entitled, "How Folding the

 193 11 Flanges Back Affects the REAT Results of the

 193 12 UltraFit Earplug End of the Combat Arms

 193 13 Earplug."

 193 14 Do you see that?

 193 15 A. I do.

Re: [193:5-194:1]

Def Objection - Foundation 

(602)

Re: [193:5-

194:24]

Def Objection -

Foundation 

(602)

OVERRULED

193:22 - 194:1 Warren, Garrad - 01-23-2020

 193 22 Q. And this E-A-RCAL laboratory is

 193 23 the laboratory you referred to in your

 193 24 presentation to 3M as one of the reasons 3M

 193 25 should buy Aearo, correct?

 194 1 A. That's correct.

Re: [193:5-194:1]

Def Objection - Foundation 

(602)

Re: [193:5-

194:24]

Def Objection -

Foundation 

(602)

OVERRULED

194:11 - 194:18 Warren, Garrad - 01-23-2020

 194 11 Actually, why don't you read

 194 12 that to the jury, the second sentence.

Re: [194:11-194:24]

Def Objection - Foundation 

(602)

Re: [193:5-

194:24]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 402 of 427
Warren, Garrad - 01-23-2020 63

 194 13 A. "The purpose of this report is

 194 14 to document that the current length of the

 194 15 UltraFit earplug and the Combat Arms plug is

 194 16 too short for proper insertion, and how

 194 17 changing the fitting technique affected the

 194 18 results of real-ear tests of this plug."

Foundation 

(602)

OVERRULED

194:19 - 194:24 Warren, Garrad - 01-23-2020

 194 19 Q. Is this the first time you

 194 20 became aware that the Combat Arms Earplug 

was

 194 21 too short for proper insertion?

 194 22 A. I don't recall that I was ever

 194 23 told that it was too short for proper

 194 24 insertion.

Re: [194:11-194:24]

Def Objection - Foundation 

(602)

Re: [193:5-

194:24]

Def Objection -

Foundation 

(602)

OVERRULED

195:7 - 196:5 Warren, Garrad - 01-23-2020

 195 7 Q. Okay. The solid plug end is

 195 8 green, and that -- and it is this plug which

 195 9 was evaluated in two separate REAT tests,

 195 10 213015 and 213017.

 195 11 We looked at 213017 earlier?

 195 12 A. We did, yes.

 195 13 Q. "This plug is the linear

 195 14 earplug end of the Combat Arms Earplug."

 195 15 Do you see that?

 195 16 A. I do.

 195 17 Q. And then it talks about this

 195 18 prior test, 213015. That one wasn't listed

 195 19 on that history of the Combat Arms document

 195 20 we looked at, correct?

 195 21 A. I don't recall, but I'll --

 195 22 I'll accept that.

 195 23 Q. Okay. It says, "For test

 195 24 213015, the plugs were fit according to the

 195 25 standard plug's fitting instructions with no

 196 1 modifications."

 196 2 That would be just putting it

 196 3 in your ear like you demonstrated to the

 196 4 jury, right?

 196 5 A. Right. Right.

Re: [195:7-196:5]

Def Objection - Foundation 

(602)

Re: [195:7-

196:5]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 403 of 427
Warren, Garrad - 01-23-2020 64

196:9 - 196:16 Warren, Garrad - 01-23-2020

 196 9 Q. "Because the stem of the green,

 196 10 solid end is so short, it was difficult for

 196 11 the experimenter to insert the plug deeply

 196 12 into some subjects' ear canals, especially

 196 13 those subjects with medium and larger ear

 196 14 canals."

 196 15 Do you see that?

 196 16 A. I do.

Re: [196:8-196:16]

Def Objection - Foundation 

(602)

Re: [196:8-

197:19]

Def Objection -

Foundation 

(602)

OVERRULED

196:25 - 197:19 Warren, Garrad - 01-23-2020

 196 25 Q. Okay. "Additionally, the

 197 1 geometry of the ear canal opening sometimes

 197 2 prevented the deep plug insertion required

 197 3 for maximum attenuation values."

 197 4 Do you see that?

 197 5 A. I do.

 197 6 Q. And then it says, "When the

 197 7 solid plug was fitted during the first test,

 197 8 015, the basal edge of the third flange of

 197 9 the yellow, level-dependent plug sometimes

 197 10 pressed against the subject's ear canal and

 197 11 folded up. The inward pressure on the plug

 197 12 was released" -- I'm sorry. "When the inward

 197 13 pressure of the plug was released, the yellow

 197 14 plug's flanges tended to return to their

 197 15 original shape, and this sometimes loosened

 197 16 the plug, often imperceptibly to the

 197 17 subject."

 197 18 Do you see that?

 197 19 A. I do.

Re: [196:23-197:19]

Def Objection - Foundation 

(602)

Re: [196:8-

197:19]

Def Objection -

Foundation 

(602)

OVERRULED

197:20 - 197:23 Warren, Garrad - 01-23-2020

 197 20 Q. Is this the first time you're

 197 21 hearing that that may be an issue with this

 197 22 plug?

 197 23 A. It is.

Re: [197:20-197:23]

Def Objection - Vague, 

Misstates (611, 403); 

Foundation (602)

Re: [197:20-

198:13]

Def Objection -

Vague, 

Misstates (611, 

403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 404 of 427
Warren, Garrad - 01-23-2020 65

198:14 - 198:17 Warren, Garrad - 01-23-2020

 198 14 Q. You would agree if it's

 198 15 loosening and doing so that's imperceptible

 198 16 to the subject, that's a real problem; that

 198 17 can endanger the user, correct?

Re: [198:14-198:17]

Def Objection - Vague (611, 

403); Foundation (602); 701

Re: [198:14-

199:2]

Def Objection -

Vague (611, 

403); 

Foundation 

(602); 701

OVERRULED

198:20 - 199:2 Warren, Garrad - 01-23-2020

 198 20 THE WITNESS: I think that if

 198 21 it was not properly inserted and was

 198 22 coming loose, that it would -- you

 198 23 know, had seepage around the plug,

 198 24 then it would not perform as

 198 25 originally intended, but it doesn't

 199 1 mean that it wouldn't provide any

 199 2 hearing protection.

199:4 - 199:9 Warren, Garrad - 01-23-2020

 199 4 Q. Well, if it provides less than

 199 5 represented by your company to a soldier in

 199 6 combat or serving overseas or even training,

 199 7 you would agree that's a big issue for your

 199 8 company, correct?

 199 9 A. I would say it's an issue, yes.

Re: [199:4-199:9]

Def Objection - Foundation 

(602); 701

Re: [199:4-

199:9]

Def Objection -

Foundation 

(602); 701

OVERRULED

199:10 - 199:13 Warren, Garrad - 01-23-2020

 199 10 Q. And if, in fact, the Combat

 199 11 Arms Earplug is too short for proper

 199 12 insertion, that's a -- that's a problem with

 199 13 the plug itself, isn't it?

199:16 - 199:19 Warren, Garrad - 01-23-2020

 199 16 THE WITNESS: Again, I don't

 199 17 have the experience to say that. I

 199 18 think you'd have to talk to the R&D

 199 19 folks about that.

202:24 - 203:4 Warren, Garrad - 01-23-2020

 202 24 QUESTIONS BY MR. AYLSTOCK:

 202 25 Q. You've heard that before?

 203 1 A. I've seen it on our literature,

 203 2 that in some instances, for some users, that

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 405 of 427
Warren, Garrad - 01-23-2020 66

 203 3 you might get a better fit if you folded it

 203 4 back.

203:18 - 203:21 Warren, Garrad - 01-23-2020

 203 18 Q. And did it say that for those

 203 19 in medium and large ear canals, that's how we

 203 20 tested it to get the NRR of 22, so you should

 203 21 do it that way?

203:24 - 204:1 Warren, Garrad - 01-23-2020

 203 24 THE WITNESS: I don't know how

 203 25 it was tested, sir. That wasn't in my

 204 1 area of expertise.

204:8 - 204:10 Warren, Garrad - 01-23-2020

 204 8 Q. So how would any user know

 204 9 whether or not to fold the flanges back if

 204 10 Aearo didn't tell them?

Re: [204:8-205:1]

Improper clarification 

counter

SUSTAINED

204:13 - 204:20 Warren, Garrad - 01-23-2020

 204 13 THE WITNESS: I believe that

 204 14 there were documents that were

 204 15 published that in fact we did say

 204 16 that.

 204 17 QUESTIONS BY MR. AYLSTOCK:

 204 18 Q. Well, how would they know if

 204 19 they had an ear that needed it folded back or

 204 20 not if the loosening was imperceptible?

Re: [204:8-205:1]

Improper clarification 

counter

SUSTAINED

204:23 - 205:1 Warren, Garrad - 01-23-2020

 204 23 THE WITNESS: Again, I -- you

 204 24 know, I think they're going to have to

 204 25 rely on the audiologists and so forth

 205 1 to help them get a good fit.

Re: [204:8-205:1]

Improper clarification 

counter

SUSTAINED

205:14 - 205:16 Warren, Garrad - 01-23-2020

 205 14 Q. And if you didn't tell them,

 205 15 knowing what we know today, that would have

 205 16 been a failing by Aearo, correct?

Re: [205:14-206:9]

Improper clarification 

counter

SUSTAINED

205:18 - 205:19 Warren, Garrad - 01-23-2020

 205 18 THE WITNESS: But we did tell

 205 19 them.

Re: [205:14-206:9]

Improper clarification 

counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 406 of 427
Warren, Garrad - 01-23-2020 67

205:22 - 205:24 Warren, Garrad - 01-23-2020

 205 22 If that message wasn't

 205 23 communicated, then that would have been a

 205 24 failing.

Re: [205:14-206:9]

Improper clarification 

counter

SUSTAINED

206:1 - 206:9 Warren, Garrad - 01-23-2020

 206 1 QUESTIONS BY MR. AYLSTOCK:

 206 2 Q. Is that what you're saying?

 206 3 A. I don't know that I would agree

 206 4 that it was a failing.

 206 5 Again, in some situations with

 206 6 some subjects that did not get a proper fit,

 206 7 a suggestion was made -- or a tip, if you

 206 8 will, as we've referred to it, a tip was made

 206 9 that you might need to roll back the flange.

Re: [205:14-206:9]

Improper clarification 

counter

SUSTAINED

206:20 - 207:4 Warren, Garrad - 01-23-2020

 206 20 Q. Exhibit 25.

 206 21 You were in charge of not only

 206 22 the military sales of this but also the

 206 23 consumer sales, right?

 206 24 A. Yes.

 206 25 Q. Hunters, welders, anybody who

 207 1 wanted to have hearing protection could buy

 207 2 your product because you put it out there in

 207 3 the market, correct?

 207 4 A. Correct.

Re: [206:20-207:4]

Def Objection - Relevance 

(401, 402); Prejudice (403), 

Foundation (602)

Re: [206:20-

207:14]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403), 

Foundation 

(602)

OVERRULED

207:25 - 208:7 Warren, Garrad - 01-23-2020

 207 25 Q. If I'm a hunter or I'm a welder

 208 1 and I buy your product -- and we've got an

 208 2 example of it here -- I'd be entitled to rely

 208 3 on these instructions for use and not -- I

 208 4 wouldn't have to go to an audiologist and

 208 5 tell me how to put it in. I could look at

 208 6 the instructions and read it and put it in,

 208 7 right?

Re: [207:25-209:5]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [207:25-

209:18]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

208:11 - 208:20 Warren, Garrad - 01-23-2020

 208 11 Q. That was the intent of this,

 208 12 correct?

 208 13 A. Yeah, we instructed the user

Re: [207:25-209:5]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [207:25-

209:18]

Def Objection -

Relevance 

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 407 of 427
Warren, Garrad - 01-23-2020 68

 208 14 how to -- how to insert the plug, yes.

 208 15 Q. Okay. And where on this does

 208 16 it say fold back the flanges or -- well,

 208 17 where on this does it say the earplug is too

 208 18 short for proper insertion?

 208 19 Does it say that at all?

 208 20 A. No.

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

208:21 - 208:24 Warren, Garrad - 01-23-2020

 208 21 Q. Does it say that for medium and

 208 22 large ear canals, in particular, the earplug

 208 23 can imperceptibly loosen?

 208 24 A. It does not say that, no.

Re: [207:25-209:5]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [207:25-

209:18]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

208:25 - 209:5 Warren, Garrad - 01-23-2020

 208 25 Q. Does it say to get our NRR of

 209 1 22, which is here in a box, that we had to

 209 2 fold back the flanges on the people to do

 209 3 that because when we got -- did it without

 209 4 folding back the flanges, we got an NRR of

 209 5 10.7?

Re: [207:25-209:5]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [207:25-

209:18]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

209:6 - 209:6 Warren, Garrad - 01-23-2020

 209 6 Does it say that, sir?

209:9 - 209:10 Warren, Garrad - 01-23-2020

 209 9 THE WITNESS: It does not say

 209 10 that, no.

Re: [209:9-209:18]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [207:25-

209:18]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 408 of 427
Warren, Garrad - 01-23-2020 69

Re: [209:12-

209:18]

Def Objection -

3M MIL No. 

21; Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

209:12 - 209:18 Warren, Garrad - 01-23-2020

 209 12 Q. Okay. And where does it say on

 209 13 this, sir, that you need to fold back the

 209 14 flanges at all to get a proper insertion?

 209 15 A. Well, first of all, not

 209 16 everybody needed to fold back the flange, but

 209 17 directly to your question, it does not say

 209 18 that.

Re: [209:9-209:18]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [209:12-209:18]

Def Objection - 3M MIL No. 

21; Relevance (401, 402); 

Prejudice (403)

Re: [207:25-

209:18]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

Re: [209:12-

209:18]

Def Objection -

3M MIL No. 

21; Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

209:19 - 210:4 Warren, Garrad - 01-23-2020

 209 19 Q. Okay. Having read the flange

 209 20 report we just looked at by Mr. Berger and

 209 21 Mr. Kieper, don't you think it should have

 209 22 said those things?

 209 23 A. First of all, again, this is

 209 24 the first time that I -- that I recall having

 209 25 seen this, and we took the -- we in marketing

 210 1 took the direction from our technical

 210 2 community in terms of what the appropriate

 210 3 NRRs were and so forth, relied upon them to

 210 4 do the proper testing.

Re: [209:19-210:4]

Def Objection - Foundation 

(602); 701

Re: [209:19-

210:4]

Def Objection -

Foundation 

(602); 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 409 of 427
Warren, Garrad - 01-23-2020 70

210:20 - 210:24 Warren, Garrad - 01-23-2020

 210 20 QUESTIONS BY MR. AYLSTOCK:

 210 21 Q. Well, and R&D, part of the R&D,

 210 22 is to make sure that whatever product you're

 210 23 putting out there is safe for its intended

 210 24 user, right?

211:2 - 211:6 Warren, Garrad - 01-23-2020

 211 2 THE WITNESS: Well, again, as

 211 3 relates to R&D and the E-A-RCAL lab,

 211 4 their responsibility was to do the

 211 5 testing and inform us as to what the

 211 6 proper, you know, ratings were.

211:8 - 211:25 Warren, Garrad - 01-23-2020

 211 8 Q. And if they were looking to a

 211 9 marketing person to determine what rating

 211 10 should be put on an earplug, that wouldn't be

 211 11 the right chain of command, right?

 211 12 A. We -- we sometimes -- in

 211 13 development process, we sometimes set targets

 211 14 as to what NRR we would like to achieve based

 211 15 upon competitive situations and other factors

 211 16 in the marketplace.

 211 17 Q. Sure.

 211 18 A. But R&D, you know, as they were

 211 19 developing the product, was shooting for

 211 20 that, but they -- if they received -- if they

 211 21 got -- if they got a 15 and we were shooting

 211 22 for a 27, they would tell us it was a 15, and

 211 23 then we had a couple choices to what to do.

 211 24 We could either redesign the product, or we

 211 25 could move on to another project.

212:1 - 212:3 Warren, Garrad - 01-23-2020

 212 1 Q. That's the way it should be

 212 2 done, right?

 212 3 A. That's the way it was done.

212:4 - 212:8 Warren, Garrad - 01-23-2020

 212 4 Q. You shouldn't change the

 212 5 testing and manipulate the testing just to

 212 6 get the NRR that marketing needs to sell the

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 410 of 427
Warren, Garrad - 01-23-2020 71

 212 7 product. That would be wrong.

 212 8 A. Absolutely.

213:9 - 213:18 Warren, Garrad - 01-23-2020

 213 9 (Warren Exhibit 29 marked for

 213 10 identification.)

 213 11 QUESTIONS BY MR. AYLSTOCK:

 213 12 Q. All right. If we look at the

 213 13 next exhibit, 29.

 213 14 And this is a memo from

 213 15 Elliott -- well, from Ron Kieper to Elliott

 213 16 Berger dated August 17, 2000.

 213 17 Do you see that?

 213 18 A. I do.

Re: [213:9-214:4]

Def Objection - Foundation 

(602)

Re: [213:12-

214:4]

Def Objection -

Foundation 

(602)

OVERRULED

213:19 - 214:4 Warren, Garrad - 01-23-2020

 213 19 Q. And it's talking about these

 213 20 two tests that are reflected in the flange

 213 21 report, Exhibit 28, correct? The 213015 and

 213 22 213017, right?

 213 23 A. Yes. Yes.

 213 24 Q. And what it says is, "The

 213 25 initial test, 213015, was stopped after eight

 214 1 subjects because the results were variable

 214 2 and the NRR was quite low, 11."

 214 3 Do you see that?

 214 4 A. I do.

Re: [213:9-214:4]

Def Objection - Foundation 

(602)

Re: [213:12-

214:4]

Def Objection -

Foundation 

(602)

OVERRULED

214:5 - 214:17 Warren, Garrad - 01-23-2020

 214 5 Q. In your experience in passive

 214 6 hearing protection, that would be a quite low

 214 7 NRR, correct?

 214 8 A. 11?

 214 9 Q. Yes.

 214 10 A. It would be lower, yes.

 214 11 Q. That would make it --

 214 12 A. The lower end of the scale.

 214 13 Q. That would make it harder to

 214 14 sell?

 214 15 A. Absolutely.

 214 16 Q. If not impossible to sell?

 214 17 A. Absolutely.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 411 of 427
Warren, Garrad - 01-23-2020 72

214:18 - 214:23 Warren, Garrad - 01-23-2020

 214 18 Q. Okay. "At all tested

 214 19 frequencies, test 213017 means are higher,

 214 20 and SDs are lower than those of 213015, and

 214 21 the NRR is 22."

 214 22 Do you see that?

 214 23 A. I do.

Re: [214:18-214:23]

Def Objection - Foundation 

(602)

Re: [214:18-

214:23]

Def Objection -

Foundation 

(602)

OVERRULED

214:24 - 215:4 Warren, Garrad - 01-23-2020

 214 24 Q. So at any point in time did you

 214 25 ever see any packaging or instructions or

 215 1 communications to the military, consumers,

 215 2 anybody using the Combat Arms version 2, that

 215 3 the company had received an NRR that was

 215 4 quite low at 11?

Re: [214:24-215:10]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [214:24-

215:10]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

215:7 - 215:10 Warren, Garrad - 01-23-2020

 215 7 THE WITNESS: I had never seen

 215 8 anything to the military, nor,

 215 9 frankly, had I seen anything

 215 10 internally that suggested that.

Re: [214:24-215:10]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

Re: [214:24-

215:10]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

215:11 - 215:15 Warren, Garrad - 01-23-2020

 215 11 QUESTIONS BY MR. AYLSTOCK:

 215 12 Q. Okay. This is the first time,

 215 13 today, as we sit here in 2020, that you've

 215 14 ever seen or heard anything about this?

 215 15 A. That I recall, yes.

215:16 - 215:22 Warren, Garrad - 01-23-2020

 215 16 Q. And then could you read the

 215 17 next sentence to the jury?

 215 18 A. "Because the UltraFit plug's

 215 19 stem is so short, it was difficult to fit the

 215 20 plug deeply into some subjects' ear canals,

Re: [215:16-215:22]

Def Objection - Foundation 

(602)

Re: [215:16-

215:22]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 412 of 427
Warren, Garrad - 01-23-2020 73

 215 21 especially those subjects with medium and

 215 22 larger ear canals."

216:9 - 216:20 Warren, Garrad - 01-23-2020

 216 9 Q. Okay. And then, again, it

 216 10 talks about the geometry of the ear canal

 216 11 opening sometimes inhibited the deep plug

 216 12 insertion required for maximum attenuation

 216 13 values.

 216 14 Do you see that?

 216 15 A. I do.

 216 16 Q. And then it talks about this

 216 17 flange issue pressing against the subject's

 216 18 ear canal and folding up.

 216 19 Do you see that?

 216 20 A. I do.

Re: [216:9-216:20]

Def Objection - Foundation 

(602)

Re: [216:9-

216:20]

Def Objection -

Foundation 

(602)

OVERRULED

220:13 - 221:2 Warren, Garrad - 01-23-2020

 220 13 Q. Okay. Show you Exhibit 30.

 220 14 This is dated May 12th of 2000,

 220 15 less than a month after the last document we

 220 16 looked at, talking about the Combat Arms

 220 17 Earplug and the UltraFit end.

 220 18 Do you see that?

 220 19 A. I do.

 220 20 Q. It says, "Note the original

 220 21 study was stopped with eight subjects."

 220 22 So do you understand -- or do

 220 23 you have an understanding about what he's

 220 24 talking about, stopping a study?

 220 25 A. I was not aware that there was

 221 1 a -- there was an initial study that was

 221 2 stopped with eight prior to this process, no.

Re: [220:13-221:2]

Def Objection - Foundation 

(602)

Re: [220:13-

221:2]

Def Objection -

Foundation 

(602)

OVERRULED

221:3 - 221:7 Warren, Garrad - 01-23-2020

 221 3 Q. Well, should a study be stopped

 221 4 because the results don't -- because the

 221 5 results that are obtained aren't good enough

 221 6 to market the product? Is that a reason to

 221 7 stop the study?

221:10 - 221:15 Warren, Garrad - 01-23-2020

 221 10 THE WITNESS: There are various

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 413 of 427
Warren, Garrad - 01-23-2020 74

 221 11 reasons why one might stop a study,

 221 12 and, you know -- but again, I don't

 221 13 know, you know, why that occurred in

 221 14 this particular case. You'd have to

 221 15 talk to Elliott Berger.

224:3 - 224:7 Warren, Garrad - 01-23-2020

 224 3 But in none of the marketing

 224 4 materials or any materials that you saw that

 224 5 went to the government was there ever an NRR

 224 6 of 11. Or 10.7?

 224 7 A. Not to my knowledge, no.

224:8 - 224:10 Warren, Garrad - 01-23-2020

 224 8 Q. Or to the consumers who might

 224 9 go to Walmart and get it?

 224 10 A. Not to my knowledge, no.

224:11 - 224:20 Warren, Garrad - 01-23-2020

 224 11 Q. So it says on this -- read the

 224 12 second sentence there to the jury, if you

 224 13 would.

 224 14 A. "Note the original study was

 224 15 stopped with eight subjects."

 224 16 Q. And what does the third

 224 17 sentence say?

 224 18 A. "The second study was with the

 224 19 folded-back flanges on the end sticking out

 224 20 of the ear."

224:21 - 224:25 Warren, Garrad - 01-23-2020

 224 21 Q. Okay. So was it ever

 224 22 communicated to anybody, to your knowledge,

 224 23 that the way in which Aearo achieved an NRR

 224 24 was by folding the flanges back on the end

 224 25 sticking out of the ear?

225:3 - 225:10 Warren, Garrad - 01-23-2020

 225 3 THE WITNESS: I don't -- I

 225 4 don't know the answer to that

 225 5 question.

 225 6 QUESTIONS BY MR. AYLSTOCK:

 225 7 Q. Have you seen -- can you point

 225 8 the jury to anything ever?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 414 of 427
Warren, Garrad - 01-23-2020 75

 225 9 A. I don't recall that I've seen

 225 10 anything, no.

225:22 - 226:9 Warren, Garrad - 01-23-2020

 225 22 Q. Well, Elliott asks Brian, the

 225 23 marketing person: "Should I share this with

 225 24 Ohlin?"

 225 25 Do you see that?

 226 1 A. I do.

 226 2 Q. And read to the jury what else

 226 3 he says about the Combat Arms version 2.

 226 4 A. You're saying the last

 226 5 sentence?

 226 6 Q. Yes, sir.

 226 7 A. "It looks like the existing

 226 8 product has problems unless the user

 226 9 instructions are revised."

Re: [225:22-226:9]

Def Objection - Foundation 

(602)

Re: [225:22-

226:9]

Def Objection -

Foundation 

(602)

OVERRULED

226:18 - 226:23 Warren, Garrad - 01-23-2020

 226 18 Q. Is there any valid reason you

 226 19 can think of why Mr. Berger, the technical

 226 20 person, would be asking Brian Myers, who is

 226 21 going to market and sell this product, if he

 226 22 should share this information with somebody

 226 23 from the government?

Re: [226:18-227:8]

Def Objection - Foundation 

(602)

Re: [226:18-

227:8]

Def Objection -

Foundation 

(602)

OVERRULED

227:1 - 227:8 Warren, Garrad - 01-23-2020

 227 1 THE WITNESS: You'd have to ask

 227 2 Elliott Berger. I have no idea what

 227 3 his intention was.

 227 4 QUESTIONS BY MR. AYLSTOCK:

 227 5 Q. Can you think of any reason

 227 6 why --

 227 7 A. It would be speculation and,

 227 8 no, I can't.

Re: [226:18-227:8]

Def Objection - Foundation 

(602)

Re: [226:18-

227:8]

Def Objection -

Foundation 

(602)

OVERRULED

228:24 - 229:6 Warren, Garrad - 01-23-2020

 228 24 When you came on as president,

 228 25 we established that Brian Myers was your

 229 1 direct subordinate.

 229 2 A. Yes, sir.

 229 3 Q. And did he ever tell you that,

 229 4 look, on the Combat Arms, we have an issue

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 415 of 427
Warren, Garrad - 01-23-2020 76

 229 5 with the user instructions, at all, ever?

 229 6 A. No.

229:7 - 229:12 Warren, Garrad - 01-23-2020

 229 7 Q. Did he ever tell you that,

 229 8 look, we tested it with the flanges folded

 229 9 back, and I shared this with Doug Ohlin at

 229 10 CHPPM?

 229 11 Did you ever --

 229 12 A. I'm not aware that he did that.

229:13 - 229:15 Warren, Garrad - 01-23-2020

 229 13 Q. Okay. And you don't know why

 229 14 Mr. Berger would be asking Mr. Myers in

 229 15 marketing whether to share it either, do you?

Re: [229:13-229:19]

Def Objection - Cumulative 

(403); Foundation (602)

Re: [229:13-

229:19]

Def Objection -

Cumulative 

(403); 

Foundation 

(602)

SUSTAINED

229:18 - 229:19 Warren, Garrad - 01-23-2020

 229 18 THE WITNESS: No, I don't.

 229 19 You'd have to ask Mr. Berger.

Re: [229:13-229:19]

Def Objection - Cumulative 

(403); Foundation (602)

Re: [229:13-

229:19]

Def Objection -

Cumulative 

(403); 

Foundation 

(602)

SUSTAINED

229:20 - 229:21 Warren, Garrad - 01-23-2020

 229 20 (Warren Exhibit 31 marked for

 229 21 identification.)

230:11 - 230:16 Warren, Garrad - 01-23-2020

 230 11 Q. Okay. Take a look at

 230 12 Exhibit 31, if you would.

 230 13 A. Okay.

 230 14 Q. This was a document that came

 230 15 out of 3M's files, actually, but it's a CHPPM

 230 16 document. So 3M had this.

230:19 - 230:24 Warren, Garrad - 01-23-2020

 230 19 Q. And it's a lengthy document,

 230 20 but the entitle -- the title of it is

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 416 of 427
Warren, Garrad - 01-23-2020 77

 230 21 "Personal Hearing Protective Devices: Their

 230 22 Fitting, Care and Use."

 230 23 Do you see that?

 230 24 A. I do.

234:1 - 234:11 Warren, Garrad - 01-23-2020

 234 1 Q. Okay. And it doesn't say in

 234 2 here that because the earplug is so short

 234 3 that it could be difficult to fit in people

 234 4 with medium or large ear canals, does it?

 234 5 A. No, it does not say that.

 234 6 Q. And it doesn't say that the

 234 7 test results, if you don't fold the flanges

 234 8 back, have an NRR of 11.

 234 9 Doesn't say that either, does

 234 10 it?

 234 11 A. No.

243:8 - 243:12 Warren, Garrad - 01-23-2020

 243 8 (Warren Exhibit 34 marked for

 243 9 identification.)

 243 10 QUESTIONS BY MR. AYLSTOCK:

 243 11 Q. Okay. Let me show you

 243 12 Exhibit 34.

243:19 - 244:1 Warren, Garrad - 01-23-2020

 243 19 Q. And specifically the e-mail

 243 20 from James Jolissaint to Doug Ohlin.

 243 21 And what he tells Doug Ohlin

 243 22 and others is that "General Wallace just

 243 23 approved the Combat earplug for RFI issue to

 243 24 all soldiers."

 243 25 Do you see that?

 244 1 A. I do.

244:17 - 244:19 Warren, Garrad - 01-23-2020

 244 17 Q. So it looks like Mr. Ohlin here

 244 18 was excited that the Combat Arms was going to

 244 19 be used for all soldiers, right?

244:22 - 245:10 Warren, Garrad - 01-23-2020

 244 22 THE WITNESS: You'd have to ask

 244 23 Mr. Ohlin.

 244 24 QUESTIONS BY MR. AYLSTOCK:

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 417 of 427
Warren, Garrad - 01-23-2020 78

 244 25 Q. Okay. Well, it says it's "too

 245 1 good to be true." I'd like to notice

 245 2 Mr. Ohlin, but unfortunately he's passed

 245 3 away.

 245 4 In any event, Colonel

 245 5 Jolissaint says in the next page up, "In

 245 6 theory, as approved at the meeting, it is for

 245 7 deploying troops and for basic combat

 245 8 trainees."

 245 9 Do you see that?

 245 10 A. I do.

246:4 - 246:17 Warren, Garrad - 01-23-2020

 246 4 Q. And then you get a copy of all

 246 5 of this as well, don't you, from Mr. Myers?

 246 6 A. Finally, yes.

 246 7 Q. Okay. And what does Mr. Myers

 246 8 tell you about this?

 246 9 A. "This looks very good for our

 246 10 Combat Arms business. Apparently the

 246 11 initiative I sent to you last week is

 246 12 intended both for deploying troops and for

 246 13 basic trainees as well. It's just that

 246 14 apparently funds have to be appropriated for

 246 15 the latter. However, it looks like the

 246 16 military folks are trying to get coordinated

 246 17 to ensure that funding is in place."

246:18 - 246:25 Warren, Garrad - 01-23-2020

 246 18 Q. And at this point in time,

 246 19 we're at war in Iraq, correct?

 246 20 A. The timing sounds about

 246 21 correct, yes.

 246 22 Q. In fact, I think we have many,

 246 23 many troops deployed, right?

 246 24 A. Yeah. I'm not sure about the

 246 25 exact date, but, generally, yes.

247:1 - 247:5 Warren, Garrad - 01-23-2020

 247 1 Q. Okay. And so Mr. Myers is

 247 2 sending this to you because this is a good

 247 3 development for the Combat Arms on the sales

Re: [247:1-247:5]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 418 of 427
Warren, Garrad - 01-23-2020 79

 247 4 and profit?

 247 5 A. Yes.

291:4 - 291:21 Warren, Garrad - 01-23-2020

 291 4 (Warren Exhibit 46 marked for

 291 5 identification.)

 291 6 QUESTIONS BY MR. AYLSTOCK:

 291 7 Q. We're back, Mr. Warren. In

 291 8 front of you is Exhibit 46.

 291 9 It's a short e-mail, but it's

 291 10 from you to who, sir?

 291 11 A. Mike McLain, the CEO.

 291 12 Q. He is your boss, right?

 291 13 A. Yes.

 291 14 Q. And the subject is what, sir?

 291 15 A. Combat Arms Earplug.

 291 16 Q. And what do you tell your boss,

 291 17 the CEO?

 291 18 A. That one of our military

 291 19 distributors, ADS, received a 1.4 million

 291 20 Combat Arms order today for March shipment.

 291 21 Have a good weekend."

291:22 - 292:4 Warren, Garrad - 01-23-2020

 291 22 Q. Okay. So your boss,

 291 23 Mr. McLain, was also interested in the sales

 291 24 of CAE, apparently?

 291 25 A. Of course.

 292 1 Q. Okay. Because they were an

 292 2 important part of the sales and profits for

 292 3 the company, right?

 292 4 A. Sure, yes.

Re: [292:1-292:4]

403, Relevance, Baker MIL 

1

OVERRULED

292:8 - 292:11 Warren, Garrad - 01-23-2020

 292 8 Q. Let me show you Exhibit 47.

 292 9 And this is an exhibit -- in fairness, we

 292 10 created it based upon the sales data we were

 292 11 provided.

292:22 - 292:25 Warren, Garrad - 01-23-2020

 292 22 A. Are these global sales or US

 292 23 sales, or do you know?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 419 of 427
Warren, Garrad - 01-23-2020 80

 292 24 Q. My understanding is that these

 292 25 are global sales.

293:4 - 293:18 Warren, Garrad - 01-23-2020

 293 4 But let me just ask you as

 293 5 president of the company and somebody who was

 293 6 following the sales of the version 2 and

 293 7 reporting those to your superior, the CEO:

 293 8 Does this look reasonably correct to you as

 293 9 far as the sales of the Combat Arms

 293 10 version 2?

 293 11 A. You know, again, sir, the

 293 12 reason I asked whether they were global or

 293 13 not, I don't have a good handle on what we

 293 14 were doing from a global standpoint. I have

 293 15 no reason to dispute these numbers, but I

 293 16 really can't comment on whether or not

 293 17 they're accurate, so...

 293 18 Q. That's fair enough.

301:3 - 301:8 Warren, Garrad - 01-23-2020

 301 3 You, Mr. Warren, as president,

 301 4 and your superior, Mike McLain, as CEO, are

 301 5 very interested in the sales and sales growth

 301 6 for the Combat Arms Earplugs because that

 301 7 helps the bottom line, right?

 301 8 A. Yes.

Re: [301:3-301:25]

Baker MIL 1, 403

OVERRULED

306:6 - 306:9 Warren, Garrad - 01-23-2020

 306 6 Q. Okay. Now, ultimately -- we

 306 7 talked about this -- you were involved in

 306 8 pitching the sale of Aearo to 3M, correct?

 306 9 A. Yes, among others, but, yes.

Re: [306:6-306:9]

Def Objection - 3M MIL No. 

7

Re: [306:6-

306:14]

Def Objection -

3M MIL No. 7

OVERRULED

307:1 - 307:6 Warren, Garrad - 01-23-2020

 307 1 Why'd you sell it?

 307 2 A. We felt we could get a good

 307 3 price for it.

 307 4 Q. And, in fact, you were a part

 307 5 owner in Aearo?

 307 6 A. I was.

Re: [307:1-309:3]

Def Objection - 3M MIL No. 

7

Re: [306:24-

310:20]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [307:1-307:18]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 420 of 427
Warren, Garrad - 01-23-2020 81

307:7 - 307:18 Warren, Garrad - 01-23-2020

 307 7 (Warren Exhibit 53 marked for

 307 8 identification.)

 307 9 QUESTIONS BY MR. AYLSTOCK:

 307 10 Q. These are some schedules to the

 307 11 plan to merger -- the sale, basically, of

 307 12 Aearo to 3M.

 307 13 A. Okay.

 307 14 Q. Are you familiar with this?

 307 15 A. I am.

 307 16 Q. It's Exhibit 53.

 307 17 What's the date on it?

 307 18 A. November 14, 2007.

Re: [307:1-309:3]

Def Objection - 3M MIL No. 

7

Re: [306:24-

310:20]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [307:1-307:18]

Baker MIL 1, 403

OVERRULED

307:22 - 308:9 Warren, Garrad - 01-23-2020

 307 22 Q. -- about four pages in, it

 307 23 actually lists the number of common shares

 307 24 and preferred shares you have, correct?

 307 25 A. That's correct.

 308 1 Q. And you have 86,102 common

 308 2 shares and 776.668 preferred shares, right?

 308 3 A. Correct.

 308 4 Q. And so when 3M purchased Aearo,

 308 5 it had to purchase all these shares, correct?

 308 6 A. That is correct.

 308 7 Q. And it bought them from you.

 308 8 Or the ones you owned, you sold, right?

 308 9 A. That is correct.

Re: [307:1-309:3]

Def Objection - 3M MIL No. 

7

Re: [306:24-

310:20]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [307:22-308:9]

Baker MIL 1, 403

OVERRULED

308:19 - 308:21 Warren, Garrad - 01-23-2020

 308 19 Q. Well, it was -- it ended up

 308 20 being millions of dollars, right, sir?

 308 21 A. Yes.

Re: [307:1-309:3]

Def Objection - 3M MIL No. 

7

Re: [306:24-

310:20]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [308:19-309:3]

Baker MIL 1, 403

OVERRULED

308:22 - 309:3 Warren, Garrad - 01-23-2020

 308 22 Q. Okay. And, in fact, you also

 308 23 had options in the company as well, correct?

 308 24 A. That's correct.

 308 25 Q. And if you turn to the page

 309 1 that ends in 218, there's a schedule of

Re: [307:1-309:3]

Def Objection - 3M MIL No. 

7

Re: [306:24-

310:20]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [308:19-309:3]

Baker MIL 1, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 421 of 427
Warren, Garrad - 01-23-2020 82

 309 2 options, and you're there?

 309 3 A. Yes, I am.

310:2 - 310:10 Warren, Garrad - 01-23-2020

 310 2 Q. Okay. And so you also made

 310 3 millions of dollars on the options side as

 310 4 well, correct?

 310 5 A. Yeah. Whatever that math is,

 310 6 yes.

 310 7 Q. Okay. And after you sold out

 310 8 your shares, your ownership, of Aearo to 3M,

 310 9 you moved on?

 310 10 A. I retired.

Re: [310:2-310:10]

Def Objection - 3M MIL No. 

7

Re: [306:24-

310:20]

Def Objection -

3M MIL No. 7

OVERRULED

Re: [310:2-310:10]

Baker MIL 1, 403

OVERRULED

317:13 - 319:20 Warren, Garrad - 01-23-2020

 317 13 QUESTIONS BY MR. FIELDS:

 317 14 Q. Based on your recollection,

 317 15 what was the NRR that was published for the

 317 16 open end of the Combat Arms Earplug

 317 17 version 2?

 317 18 A. Zero.

 317 19 Q. With respect to the closed mode

 317 20 of the Combat Arms Earplug version 2, do you

 317 21 recall what was the published NRR value?

 317 22 A. 22.

 317 23 Q. Can you look at -- maybe we can

 317 24 just pull up Exhibit 25.

 317 25 Exhibit 25 was, it looks like,

 318 1 a copy of -- you don't --

 318 2 A. Okay. I've got it.

 318 3 Q. It looks like some artwork

 318 4 relating to a Peltor Combat Arms Earplugs.

 318 5 Do you see that?

 318 6 A. I do.

 318 7 Q. And this was a document you

 318 8 were asked questions about earlier?

 318 9 A. I was.

 318 10 Q. Do you know whether or not this

 318 11 package, artwork for this package, was the

 318 12 final version that was used in marketing the

 318 13 Peltor Combat Arms Earplug?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 422 of 427
Warren, Garrad - 01-23-2020 83

 318 14 A. I do not.

 318 15 Q. Can you turn your attention to

 318 16 Exhibit 33?

 318 17 A. Okay.

 318 18 Q. And specifically counsel

 318 19 earlier asked you a few questions about this

 318 20 particular document.

 318 21 Do you recall looking at this

 318 22 document earlier in the deposition?

 318 23 A. I do.

 318 24 Q. And I wanted to turn your

 318 25 attention to the page that ends in 657, and

 319 1 specifically the top entry on that page.

 319 2 A. Okay.

 319 3 Q. Do you recall being asked

 319 4 questions about the org chart of the lab

 319 5 for -- as of December 1, 2000?

 319 6 A. I do.

 319 7 Q. Now, first of all, with respect

 319 8 to the timing, as of December 1, 2000, did

 319 9 you have any responsibility for marketing at

 319 10 Aearo?

 319 11 A. No.

 319 12 Q. As of December 2000, was the

 319 13 laboratory in your chain of -- the

 319 14 organizational chain for you, or the

 319 15 organizational chart -- well, let me ask a

 319 16 different question.

 319 17 As of December 1, 2000, was the

 319 18 laboratory or the director of the laboratory

 319 19 one of your subordinates?

 319 20 A. He was not.

319:21 - 320:6 Warren, Garrad - 01-23-2020

 319 21 Q. At some point in time, you

 319 22 became president of Aearo's North American

 319 23 safety products group?

 319 24 A. Yes, sir.

 319 25 Q. What year was that?

 320 1 A. 2003.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 423 of 427
Warren, Garrad - 01-23-2020 84

 320 2 Q. When you became president of

 320 3 North -- of Aearo's North American safety

 320 4 products group, at that point in time were

 320 5 you responsible for marketing?

 320 6 A. I was.

320:7 - 323:1 Warren, Garrad - 01-23-2020

 320 7 Q. Beginning in 2003 until the

 320 8 time the company was sold to 3M in 2008, did

 320 9 you -- did the laboratory fall under your

 320 10 purview?

 320 11 A. Did not.

 320 12 Q. During that period of time, do

 320 13 you recall to whom the laboratory reported?

 320 14 A. Yes. It ultimately reported to

 320 15 Bob Klun, who was, I think, vice president of

 320 16 R&D.

 320 17 Q. Now, prior to you becoming

 320 18 president of North American -- of the North

 320 19 American safety products group, had you had

 320 20 any interactions with Elliott Berger?

 320 21 A. Not that I recall.

 320 22 Q. Okay. As you sit here today,

 320 23 do you ever recall Elliott Berger raising any

 320 24 concerns with you about actual or potential

 320 25 conflicts of interest that his lab was having

 321 1 with the marketing function?

 321 2 A. No.

 321 3 Q. While you were president of the

 321 4 North American safety products group, do you

 321 5 recall having any conversations with Elliott

 321 6 Berger wherein Elliott Berger raised concerns

 321 7 about actual or potential conflicts of

 321 8 interest the E-A-RCAL lab was having with the

 321 9 marketing function?

 321 10 A. No.

 321 11 Q. While you were president of the

 321 12 North American products safety group, did

 321 13 anyone ever raise any concern with you about

 321 14 potential or actual conflicts of interest

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 424 of 427
Warren, Garrad - 01-23-2020 85

 321 15 between the laboratory, the E-A-RCAL

 321 16 laboratory, and the marketing function at the

 321 17 company?

 321 18 A. No.

 321 19 Q. If you would turn your

 321 20 attention to Exhibit 23.

 321 21 A. Okay.

 321 22 Q. Exhibit 23 was a document that

 321 23 you were shown earlier in a deposition.

 321 24 Do you recall that?

 321 25 A. I do.

 322 1 Q. And this particular document

 322 2 was an e-mail that -- at least there was a

 322 3 cover e-mail from Theresa Schulz to Doug

 322 4 Ohlin, copying Marc Santoro?

 322 5 A. Yes.

 322 6 Q. Okay. Now, do you recall being

 322 7 a recipient of this particular e-mail in or

 322 8 around November 2005?

 322 9 A. No.

 322 10 Q. During this time period,

 322 11 November of 2005, would it have been the

 322 12 regular course or practice of folks that

 322 13 worked for you to show you drafts of all

 322 14 contracts or statement -- draft statement of

 322 15 work?

 322 16 A. Not in the draft form, no.

 322 17 Q. With respect to this particular

 322 18 exhibit, you see attached to this is a

 322 19 document entitled "Agreement between Aearo

 322 20 Corporation and the US Army Center for Health

 322 21 Promotion and Preventive Medicine."

 322 22 Do you see that?

 322 23 A. I do.

 322 24 Q. Do you recall reviewing a draft

 322 25 of this agreement in November 2005 or any

 323 1 point in 2005?

323:4 - 323:11 Warren, Garrad - 01-23-2020

 323 4 THE WITNESS: I do not.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 425 of 427
Warren, Garrad - 01-23-2020 86

 323 5 QUESTIONS BY MR. FIELDS:

 323 6 Q. At any point in time prior to

 323 7 today, do you recall reviewing a draft of

 323 8 this agreement between -- or statement of

 323 9 work between Aearo Corporation and the

 323 10 US Army Center for Health Promotion and

 323 11 Preventive Medicine?

323:14 - 325:7 Warren, Garrad - 01-23-2020

 323 14 THE WITNESS: I do not.

 323 15 QUESTIONS BY MR. FIELDS:

 323 16 Q. Do you know whether or not

 323 17 Aearo Corporation and the US Army Center for

 323 18 Health Promotion and Preventive Medicine ever

 323 19 executed or agreed -- came to an agreement

 323 20 and finalized this statement of work?

 323 21 A. I do not.

 323 22 Q. Can you tell the jury whether,

 323 23 when you became president of the North

 323 24 American safety products group, whether or

 323 25 not the Combat Arms Earplug version 2 had

 324 1 already been developed?

 324 2 A. It had been, yes.

 324 3 Q. Okay. Did you play any role in

 324 4 the development of the Combat Arms Earplug

 324 5 version 2?

 324 6 A. I did not.

 324 7 Q. Do you know what role, if any,

 324 8 the US government had in the development of

 324 9 the Combat Arms Earplug version 2?

 324 10 A. No, I do not.

 324 11 Q. Do you know what

 324 12 specifications, if any, the US government

 324 13 provided to Aearo for the development of the

 324 14 Combat Arms Earplug version 2?

 324 15 A. Specifically, no.

 324 16 Q. Now, did you ever have any

 324 17 conversations with Doug Ohlin about the

 324 18 development of the Combat Arms Earplug

 324 19 version 2?

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 426 of 427
Warren, Garrad - 01-23-2020 87

 324 20 A. No.

 324 21 Q. When you became president of

 324 22 the North American safety products group, did

 324 23 you try to investigate who invented or

 324 24 provided specifications for the Combat Arms

 324 25 Earplug version 2?

 325 1 A. I did not, no.

 325 2 Q. Would it have been your custom

 325 3 and practice to investigate the development

 325 4 of a product that was already on the market

 325 5 at the time that you became leader?

 325 6 A. No, it would not.

 325 7 MR. FIELDS: That's all I have.

Case 7:20-cv-00039-MCR-GRJ Document 145-1 Filed 06/03/21 Page 427 of 427