EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 1 of 221
Falco, Robert 2-11-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

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Falco, Robert 2-11-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

10:5 - 10:12 Falco, Robert 2-11-2020

 10 5 Q. Will you state your name for

 10 6 the record?

 10 7 A. My name is Robert Nicolo Falco,

 10 8 Senior.

 10 9 Q. I was just fixing to ask,

 10 10 Junior or Senior.

 10 11 You are Robert Falco, Senior?

 10 12 A. Correct.

10:13 - 10:14 Falco, Robert 2-11-2020

 10 13 Q. All right. Mr. Falco, my

 10 14 name's Tom Pirtle, and I'm a lawyer from

Re: [10:13-10:14]

Incomplete designation; beyond 

scope of counter

SUSTAINED

10:18 - 20:21 Falco, Robert 2-11-2020

 10 18 You understand I'm on the

 10 19 opposite of the lawsuit from your former

 10 20 employer?

 10 21 A. Yes.

 10 22 (Falco Exhibit 1 marked for

 10 23 identification.)

 10 24 QUESTIONS BY MR. PIRTLE:

 10 25 Q. I want to hand you what I've

 11 1 marked as Exhibit 1, ask if you've seen it.

 11 2 It's the notice of deposition.

 11 3 MR. PIRTLE: I also understand

 11 4 there was a subpoena attached. You

 11 5 responded, and I believe I have those

 11 6 documents.

 11 7 MR. BLAIKLOCK: To the

 11 8 subpoena. Yeah, to the subpoena you

 11 9 sent last week?

 11 10 MR. PIRTLE: Yes.

 11 11 MR. BLAIKLOCK: Yes.

 11 12 MS. ELIZABETH: Do you have

 11 13 another copy, Tom?

 11 14 MR. PIRTLE: I do.

 11 15 MS. ELIZABETH: Okay. Great.

 11 16 MR. BLAIKLOCK: Is this 1?

Re: [10:18-10:18]

Continuing objection 10:18-

20:21 as beyond scope of 

counter

Re: [14:23-15:5]

402, 403; beyond scope of 

counter

Re: [15:6-15:16]

beyond scope of counter

Re: [15:13-15:13]

403

SUSTAINED

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Falco, Robert 2-11-2020 3

 11 17 MS. ELIZABETH: Yes.

 11 18 MR. PIRTLE: That's 1.

 11 19 QUESTIONS BY MR. PIRTLE:

 11 20 Q. Mr. Falco, how long did you

 11 21 work for 3M?

 11 22 A. Several years.

 11 23 Q. I've got it that you started in

 11 24 1971, so you were there a while, weren't you?

 11 25 A. That was when I was working

 12 1 with the Cabot Corporation.

 12 2 Q. I understand, and I should have

 12 3 been clear.

 12 4 When I say "3M," I'm going back

 12 5 all the way through the chain of companies

 12 6 that 3M has purchased.

 12 7 I understand it was Cabot

 12 8 Safety and then it was Aearo. Then it became

 12 9 3M, I believe, in 2008; am I correct?

 12 10 A. That's -- I guess that's

 12 11 correct.

 12 12 Q. Before we get going, let me go

 12 13 over a few things that might help us get out

 12 14 of here a little bit quicker, hopefully.

 12 15 One, and very importantly, if

 12 16 you don't understand a question that I ask,

 12 17 ask me to repeat it, and I'll repeat it as

 12 18 many times as necessary until we have a

 12 19 meeting of the minds.

 12 20 All right?

 12 21 A. Okay.

 12 22 Q. Along the same lines, if you

 12 23 answer one of the questions that I ask, I'm

 12 24 going to assume that you've understood it.

 12 25 Is that fair?

 13 1 A. That's fair.

 13 2 Q. And it's wholly possible you

 13 3 might not, because I'm from the deep South

 13 4 and I might have an accent.

 13 5 If you need to take a break,

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 4 of 221
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 13 6 just let me know. As long as a question is

 13 7 not pending, you can break at any time.

 13 8 All right?

 13 9 A. Yes.

 13 10 Q. And please remember that this

 13 11 testimony is under oath as if you're in front

 13 12 of a judge and jury and will be used in this

 13 13 rather large lawsuit pending in Pensacola,

 13 14 Florida.

 13 15 All right?

 13 16 A. Okay.

 13 17 Q. First off, have you given

 13 18 testimony before under oath?

 13 19 A. Yes.

 13 20 Q. All right. Deposition?

 13 21 A. Yes.

 13 22 Q. What depositions have you

 13 23 given?

 13 24 A. It was a deposition for a

 13 25 patent case.

 14 1 Q. All right. I think I saw that

 14 2 in your documentation, and I believe it was

 14 3 in the job review in like 2005 that it talked

 14 4 about that you had testified in a patent case

 14 5 between 3M, or Aearo at the time, and another

 14 6 company --

 14 7 A. Yes.

 14 8 Q. -- is that fair?

 14 9 Is that the only time that

 14 10 you've testified in a deposition?

 14 11 A. Yes.

 14 12 Q. Have you given any statements,

 14 13 sworn or otherwise, like to the US Justice

 14 14 Department?

 14 15 MS. ELIZABETH: Objection.

 14 16 Form.

 14 17 THE WITNESS: Not that I know

 14 18 of.

 14 19 QUESTIONS BY MR. PIRTLE:

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 14 20 Q. Testified at court or any

 14 21 matter?

 14 22 A. No.

 14 23 Q. I also understand from looking

 14 24 at what you provided to me, you're a former

 14 25 service member?

 15 1 A. Yes.

 15 2 Q. And you served in Vietnam?

 15 3 A. Yes.

 15 4 Q. As a combat engineer?

 15 5 A. Yes.

 15 6 Q. My father was a combat

 15 7 engineer, so I have good feelings about that.

 15 8 What did you -- you got out of

 15 9 the military in '68, I believe, 1968?

 15 10 A. Yes.

 15 11 Q. And then between '68 and '71,

 15 12 what did you do?

 15 13 A. I left the service. I went up

 15 14 and moved to Muskegon, Michigan, stayed there

 15 15 for a while, and then I moved back home to

 15 16 Massachusetts.

 15 17 Q. And how did you make your way

 15 18 out here to Indianapolis?

 15 19 A. I took a job with Cabot

 15 20 Corporation, and from there worked my way up

 15 21 through the company.

 15 22 They acquired another company,

 15 23 the one that made the earplugs, foamed

 15 24 earplugs, and when they moved out to

 15 25 Indianapolis, I moved with them.

 16 1 Q. Okay. So the company moved and

 16 2 you moved with them?

 16 3 A. Yes.

 16 4 Q. Okay. And then you relocated

 16 5 here in Indianapolis and I guess have been

 16 6 here ever since?

 16 7 A. Repeat the question.

 16 8 Q. I said, then you relocated here

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 16 9 in Indianapolis and have been here ever

 16 10 since?

 16 11 A. Yes.

 16 12 Q. I was not clear from reviewing

 16 13 your records that I have when you retired.

 16 14 When did you -- or when you left the company.

 16 15 Did you retire?

 16 16 A. I was terminated from the

 16 17 company.

 16 18 Q. All right. When were you

 16 19 terminated from the company?

 16 20 A. Approximately 2010.

 16 21 Q. That was a date that came to my

 16 22 mind.

 16 23 So you were terminated.

 16 24 What were the reasons, or the

 16 25 reason?

 17 1 A. Inappropriate use of the

 17 2 company's computer system.

 17 3 Q. What specifically are you

 17 4 talking about?

 17 5 MR. BLAIKLOCK: I'm going to

 17 6 object and instruct him not to answer

 17 7 that. It's -- I can represent to you

 17 8 it's nothing illegal. It's got

 17 9 nothing to do with the case. It's got

 17 10 nothing to do with any products. I'm

 17 11 going to instruct him not to answer

 17 12 that.

 17 13 QUESTIONS BY MR. PIRTLE:

 17 14 Q. Are you going to follow your

 17 15 lawyer's advice?

 17 16 A. Yes.

 17 17 Q. Even though it may mean that

 17 18 we're going to come back here?

 17 19 A. Yes.

 17 20 Q. All right. Let's see what I

 17 21 can do now.

 17 22 This lawyer that you have over

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 7 of 221
Falco, Robert 2-11-2020 7

 17 23 here that's objecting, are you paying him?

 17 24 A. No.

 17 25 Q. Who is?

 18 1 A. 3M.

 18 2 Q. Prior to getting noticed for

 18 3 this deposition, did you know this fellow

 18 4 who's representing you?

 18 5 A. No.

 18 6 Q. And did you select him?

 18 7 A. No.

 18 8 Q. Who did?

 18 9 MS. ELIZABETH: Objection.

 18 10 Form. Foundation.

 18 11 THE WITNESS: I don't know.

 18 12 QUESTIONS BY MR. PIRTLE:

 18 13 Q. But it wasn't you?

 18 14 A. Yes.

 18 15 Q. How did he appear?

 18 16 MS. ELIZABETH: Objection.

 18 17 Form.

 18 18 MR. BLAIKLOCK: Objection.

 18 19 QUESTIONS BY MR. PIRTLE:

 18 20 Q. How did you meet him?

 18 21 A. Through this deposition.

 18 22 Q. I mean, the first time you met

 18 23 him -- I understand it was for the

 18 24 deposition, but the first time you met him,

 18 25 how did you meet him?

 19 1 A. I don't remember.

 19 2 Q. Did you look him up in the

 19 3 Yellow Pages?

 19 4 A. Did I look him up in the Yellow

 19 5 Pages? No.

 19 6 Q. I shouldn't even say that. I

 19 7 don't even know whether they have Yellow

 19 8 Pages anymore.

 19 9 All right.

 19 10 MR. PIRTLE: I have agreed for

 19 11 you not to make an appearance in this

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 8 of 221
Falco, Robert 2-11-2020 8

 19 12 case, think you ought to now.

 19 13 MS. ELIZABETH: I'm sorry. Did

 19 14 you hear that? I'm sorry.

 19 15 ZMR. PIRTLE: Did I not speak

 19 16 clearly?

 19 17 I said, I think you ought to

 19 18 make an appearance in the case now if

 19 19 you're going to determine that certain

 19 20 things are not related to this

 19 21 litigation and that be the basis of an

 19 22 instruction. I think you need to make

 19 23 an appearance in the case.

 19 24 MR. BLAIKLOCK: I appreciate

 19 25 your opinion.

 20 1 MR. PIRTLE: All right.

 20 2 QUESTIONS BY MR. PIRTLE:

 20 3 Q. Who terminated you?

 20 4 MS. ELIZABETH: Objection to

 20 5 form.

 20 6 THE WITNESS: I have no idea.

 20 7 QUESTIONS BY MR. PIRTLE:

 20 8 Q. Who told you that you were

 20 9 terminated?

 20 10 A. I don't remember.

 20 11 Q. Did you have a supervisor at

 20 12 the time you were terminated?

 20 13 A. Yes.

 20 14 Q. What's the name of the

 20 15 supervisor?

 20 16 A. I don't remember his name.

 20 17 Q. We'll go through some names up

 20 18 into 2010, and I think we'll be able to

 20 19 identify who that person was.

 20 20 His name wasn't Hamer, was it?

 20 21 A. No.

10:25 - 11:2 Falco, Robert 2-11-2020

 10 25 Q. I want to hand you what I've

 11 1 marked as Exhibit 1, ask if you've seen it.

 11 2 It's the notice of deposition.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 9 of 221
Falco, Robert 2-11-2020 9

11:20 - 12:11 Falco, Robert 2-11-2020

 11 20 Q. Mr. Falco, how long did you

 11 21 work for 3M?

 11 22 A. Several years.

 11 23 Q. I've got it that you started in

 11 24 1971, so you were there a while, weren't you?

 11 25 A. That was when I was working

 12 1 with the Cabot Corporation.

 12 2 Q. I understand, and I should have

 12 3 been clear.

 12 4 When I say "3M," I'm going back

 12 5 all the way through the chain of companies

 12 6 that 3M has purchased.

 12 7 I understand it was Cabot

 12 8 Safety and then it was Aearo. Then it became

 12 9 3M, I believe, in 2008; am I correct?

 12 10 A. That's -- I guess that's

 12 11 correct.

14:23 - 15:5 Falco, Robert 2-11-2020

 14 23 Q. I also understand from looking

 14 24 at what you provided to me, you're a former

 14 25 service member?

 15 1 A. Yes.

 15 2 Q. And you served in Vietnam?

 15 3 A. Yes.

 15 4 Q. As a combat engineer?

 15 5 A. Yes.

Re: [14:23-15:5]

402, 403; beyond scope of 

counter

SUSTAINED

15:11 - 15:25 Falco, Robert 2-11-2020

 15 11 Q. And then between '68 and '71,

 15 12 what did you do?

 15 13 A. I left the service. I went up

 15 14 and moved to Muskegon, Michigan, stayed there

 15 15 for a while, and then I moved back home to

 15 16 Massachusetts.

 15 17 Q. And how did you make your way

 15 18 out here to Indianapolis?

 15 19 A. I took a job with Cabot

 15 20 Corporation, and from there worked my way up

 15 21 through the company.

Re: [15:6-15:16]

beyond scope of counter

Re: [15:13-15:13]

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 10 of 221
Falco, Robert 2-11-2020 10

 15 22 They acquired another company,

 15 23 the one that made the earplugs, foamed

 15 24 earplugs, and when they moved out to

 15 25 Indianapolis, I moved with them.

25:22 - 26:1 Falco, Robert 2-11-2020

 25 22 Q. And are you being compensated

 25 23 in any form for those hours or for your

 25 24 preparation for the testimony here today?

 25 25 Are you getting paid?

 26 1 A. Oh, no.

33:11 - 33:21 Falco, Robert 2-11-2020

 33 11 Q. What type of machine work did

 33 12 you do?

 33 13 A. Repairing machines.

 33 14 Q. Machines like the punches and

 33 15 things like that?

 33 16 A. The punch press, the punches,

 33 17 yes.

 33 18 Q. I see from the CV that you've

 33 19 provided or -- that you in '83 went to

 33 20 vocational school?

 33 21 A. Yes.

34:3 - 34:9 Falco, Robert 2-11-2020

 34 3 Q. What's the difference between

 34 4 machining and -- or machine work versus

 34 5 machine tool design?

 34 6 I think I know, but help me.

 34 7 A. The course was a course in

 34 8 advanced machining, mills, lathes and design

 34 9 of jigs, fixtures.

34:13 - 34:16 Falco, Robert 2-11-2020

 34 13 Q. You went to the tenth grade in

 34 14 high school, and then did you join the

 34 15 service?

 34 16 A. Yes.

Re: [34:13-34:16]

403; beyond scope of counter

SUSTAINED

36:4 - 36:8 Falco, Robert 2-11-2020

 36 4 Q. What were you doing as a

 36 5 prototype parts worker?

 36 6 A. I manufactured first-run

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 11 of 221
Falco, Robert 2-11-2020 11

 36 7 prototype parts. Also made jigs and

 36 8 fixtures.

36:16 - 36:18 Falco, Robert 2-11-2020

 36 16 Q. Now, I assume that you were

 36 17 manufacturing prototype hearing protection

 36 18 devices?

36:21 - 36:22 Falco, Robert 2-11-2020

 36 21 THE WITNESS: I manufactured

 36 22 several things.

36:24 - 37:1 Falco, Robert 2-11-2020

 36 24 Q. What were the several things?

 36 25 A. The jigs and the fixtures used

 37 1 for testing.

38:2 - 38:11 Falco, Robert 2-11-2020

 38 2 Q. Are you familiar with the

 38 3 product called the 3M Combat Arms Earplug?

 38 4 A. Yes.

 38 5 Q. And how did you become familiar

 38 6 with 3M Combat Arms?

 38 7 A. I was asked to make some parts

 38 8 for it.

 38 9 Q. What parts were you asked to

 38 10 make?

 38 11 A. The earplugs, the tips.

38:12 - 38:18 Falco, Robert 2-11-2020

 38 12 Q. Okay. Let me hand you a set of

 38 13 these and see if you can identify those for

 38 14 me.

 38 15 A. I manufactured -- well, I

 38 16 provided the yellow and the green eartips.

 38 17 Q. For this product?

 38 18 A. Yes.

38:19 - 39:6 Falco, Robert 2-11-2020

 38 19 Q. And is this a 3M Combat Arms

 38 20 what they call version 2?

 38 21 A. I believe that's true.

 38 22 Q. And the version 2 uses tips

 38 23 that actually you're the inventor of,

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 12 of 221
Falco, Robert 2-11-2020 12

 38 24 correct? At least as far as you hold a

 38 25 patent?

 39 1 A. I hold the patent for the

 39 2 UltraFit earplug.

 39 3 Q. The UltraFit earplug was an

 39 4 earplug that you had worked on prior to the

 39 5 introduction of the 3M Combat Arms version 2?

 39 6 A. Yes.

39:7 - 39:16 Falco, Robert 2-11-2020

 39 7 Q. And it was a single-ended

 39 8 earplug that used one tip versus two tips for

 39 9 each plug?

 39 10 A. Okay. Repeat the question.

 39 11 Q. Sure.

 39 12 It's a single-ended plug --

 39 13 A. Which is the single-ended plug?

 39 14 Q. The first one, the UltraFit.

 39 15 A. The UltraFit is a single-ended

 39 16 plug, yes.

Re: [39:7-39:16]

cumulative, confusing

OVERRULED

39:22 - 39:24 Falco, Robert 2-11-2020

 39 22 So what you did was you adapted

 39 23 a tip that you had worked with before to put

 39 24 onto the 3M Combat Arms version 2?

40:2 - 40:3 Falco, Robert 2-11-2020

 40 2 THE WITNESS: I'm not sure of

 40 3 that.

40:5 - 40:7 Falco, Robert 2-11-2020

 40 5 Q. What are you unsure about?

 40 6 A. I'm not -- I guess I don't

 40 7 understand the question.

Re: [40:5-40:7]

Confusing, distracting, 403

SUSTAINED

40:9 - 40:14 Falco, Robert 2-11-2020

 40 9 You used some tips that were

 40 10 already in existence that 3M -- that Aearo at

 40 11 the time was already making; is that true?

 40 12 A. Was Aearo making the tips?

 40 13 Q. Yes, sir.

 40 14 A. No.

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43:23 - 44:9 Falco, Robert 2-11-2020

 43 23 Q. How does that work?

 43 24 Assuming I don't know anything

 43 25 about it -- you used the word "change" one of

 44 1 the pins in the tool -- will you describe the

 44 2 pins in the tool for me?

 44 3 A. There are many parts in the

 44 4 injection molding mold. Several of the parts

 44 5 of the mold make the flanges. There's a part

 44 6 of the body of the mold with a pin for

 44 7 venting that's in the base of the mold.

 44 8 There's a pin in that. And if you lengthen

 44 9 that pin, it makes the stem shorter.

45:3 - 45:18 Falco, Robert 2-11-2020

 45 3 Q. What parts are they? What are

 45 4 you talking about?

 45 5 A. One part has a hole through it.

 45 6 Now, for that part, the pin that was used to

 45 7 shorten the stem had an additional section on

 45 8 it that made the through-hole. One would

 45 9 just have a longer pin. The other would have

 45 10 a longer pin with an extension on it that

 45 11 would make the through-hole.

 45 12 Q. Okay. So the yellow one would

 45 13 have a pin with an extension through it that

 45 14 would make the through-hole?

 45 15 A. Correct.

 45 16 Q. And the green one would just

 45 17 have a pin?

 45 18 A. Correct.

46:9 - 46:11 Falco, Robert 2-11-2020

 46 9 Q. Did you do any other work on

 46 10 the Combat Arms version 2?

 46 11 A. No.

Re: [46:9-46:11]

402

OVERRULED

48:15 - 48:23 Falco, Robert 2-11-2020

 48 15 Q. -- in that it -- the version 3

 48 16 was single-sided?

 48 17 A. Version 3 was single-sided,

 48 18 yes.

Re: [48:15-48:23]

beyond scope of counter

Re: [48:19-48:23]

Cumulative, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 14 of 221
Falco, Robert 2-11-2020 14

 48 19 Q. Version 3 also did use

 48 20 through-hole ultra tip fit -- tips, correct?

 48 21 A. Yes.

 48 22 Q. It had a filter?

 48 23 A. Yes.

52:12 - 52:14 Falco, Robert 2-11-2020

 52 12 And what did Marc Doty do with

 52 13 you?

 52 14 A. Marc was our draftsperson.

52:21 - 53:4 Falco, Robert 2-11-2020

 52 21 Q. What did he draft?

 52 22 A. Parts.

 52 23 Q. Is that another way of saying

 52 24 he drew parts?

 52 25 A. Excuse me?

 53 1 Q. Is that another way of saying

 53 2 he drew parts?

 53 3 A. He formalized drawings for our

 53 4 system.

53:10 - 53:12 Falco, Robert 2-11-2020

 53 10 Q. Would he work with the

 53 11 computer?

 53 12 A. Yes.

53:24 - 54:1 Falco, Robert 2-11-2020

 53 24 Q. Knauer?

 53 25 A. Knauer.

 54 1 Q. Knauer.

56:12 - 56:15 Falco, Robert 2-11-2020

 56 12 Q. I want to show you what I'm

 56 13 going to mark as Exhibit 2 to your

 56 14 deposition. See if we can put some names

 56 15 with the products.

57:12 - 57:13 Falco, Robert 2-11-2020

 57 12 Q. The date on these e-mails are

 57 13 April of 1999, correct?

57:17 - 58:6 Falco, Robert 2-11-2020

 57 17 Q. I've got it blown up on the

 57 18 screen there for you.

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Falco, Robert 2-11-2020 15

 57 19 A. I can see that.

 57 20 Q. April of 1999?

 57 21 A. That's what it says there on

 57 22 the screen.

 57 23 Q. And there's some correspondence

 57 24 back and forth. There's a Brian Myers in

 57 25 here.

 58 1 I would assume you knew

 58 2 Mr. Myers?

 58 3 A. I knew of him, yes.

 58 4 Q. You say you knew of him.

 58 5 What do you mean?

 58 6 A. Well, I didn't work with him.

58:15 - 58:16 Falco, Robert 2-11-2020

 58 15 Q. On the ladder, was he above or

 58 16 below you?

58:19 - 58:21 Falco, Robert 2-11-2020

 58 19 THE WITNESS: I don't -- I

 58 20 don't -- he was in a different

 58 21 department. I don't know what he was.

63:5 - 63:8 Falco, Robert 2-11-2020

 63 5 Q. I'm going to hand you what I've

 63 6 marked as Exhibit 3 to your deposition. I

 63 7 think this is some of Mr. Doty's work, but it

 63 8 bears your name.

64:4 - 64:5 Falco, Robert 2-11-2020

 64 4 Q. And they are drawings of the 3M

 64 5 Combat Arms version 2 earplug, correct?

Re: [64:4-64:16]

Confusing, cumulative, 403

SUSTAINED

64:8 - 64:9 Falco, Robert 2-11-2020

 64 8 THE WITNESS: I'm not sure. It

 64 9 says it's an UltraFlex earplug short.

Re: [64:4-64:16]

Confusing, cumulative, 403

SUSTAINED

64:11 - 64:13 Falco, Robert 2-11-2020

 64 11 Q. And that was one of the tip

 64 12 ends for -- or the tip ends for the Combat

 64 13 Arms version 2, correct?

Re: [64:4-64:16]

Confusing, cumulative, 403

SUSTAINED

64:16 - 64:16 Falco, Robert 2-11-2020

 64 16 THE WITNESS: I'm not sure.

Re: [64:4-64:16]

Confusing, cumulative, 403

SUSTAINED

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66:25 - 67:5 Falco, Robert 2-11-2020

 66 25 And you assembled prototypes

 67 1 for the Combat Arms version 2, correct?

 67 2 A. Did I assemble them?

 67 3 Q. Or you caused them to be

 67 4 assembled?

 67 5 A. No.

71:24 - 72:8 Falco, Robert 2-11-2020

 71 24 Q. Now, go back to the preceding

 71 25 exhibit, Exhibit 3. Turn to page 784. Let's

 72 1 blow it up down at the bottom.

 72 2 You quoted the number yourself

 72 3 by -- that's what you-all go by, 2041-3,

 72 4 correct?

 72 5 A. That's correct.

 72 6 Q. That is the same drawing, isn't

 72 7 it?

 72 8 A. Version 3, yes.

72:12 - 72:13 Falco, Robert 2-11-2020

 72 12 Q. -- and it gives some

 72 13 dimensions, correct?

72:17 - 73:7 Falco, Robert 2-11-2020

 72 17 THE WITNESS: Yeah. All right.

 72 18 I'm looking at 2041-3, correct.

 72 19 And what was the question?

 72 20 QUESTIONS BY MR. PIRTLE:

 72 21 Q. And I said, and there are some

 72 22 dimensions listed, correct?

 72 23 A. Yes. It's an assembly drawing.

 72 24 Q. And it shows certain dimensions

 72 25 for various parts, including the overall

 73 1 length?

 73 2 A. That's correct.

 73 3 Q. And the overall length of the

 73 4 plug is listed at what?

 73 5 A. 1.404 inches,

 73 6 35.66 centimeters -- or millimeters. I guess

 73 7 it's centimeters.

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73:18 - 74:8 Falco, Robert 2-11-2020

 73 18 Q. And then if you'll go back two

 73 19 pages, there's another diagram. This is

 73 20 2041-1. On the MDL page it's 782.

 73 21 There's also dimensions listed

 73 22 by this particular representation of the

 73 23 version 2 assembly, correct?

 73 24 A. That's the drawing for Combat

 73 25 Arms Earplug assembly version 1.

 74 1 Q. Version 1?

 74 2 A. Correct.

 74 3 Q. And what is the length on that?

 74 4 A. Total length is 1.588 inches.

 74 5 Q. Or 40.34?

 74 6 A. Yes.

 74 7 Q. Centimeters?

 74 8 A. Centimeters.

75:23 - 75:24 Falco, Robert 2-11-2020

 75 23 Q. All right. And you approved

 75 24 this, correct?

Re: [75:23-76:3]

Cumulative, confusing; beyond 

scope of counter

OVERRULED 

76:2 - 76:3 Falco, Robert 2-11-2020

 76 2 THE WITNESS: I'm not sure.

 76 3 No, I'm not sure.

Re: [75:23-76:3]

Cumulative, confusing; beyond 

scope of counter

OVERRULED

79:21 - 79:23 Falco, Robert 2-11-2020

 79 21 Q. All right. And would that be

 79 22 something that you would do, approve

 79 23 revisions?

80:1 - 80:1 Falco, Robert 2-11-2020

 80 1 THE WITNESS: I'm not sure.

Re: [80:1-80:6]

Nonresponsive, confusing

OVERRULED

80:3 - 80:6 Falco, Robert 2-11-2020

 80 3 Q. Why are you not sure?

 80 4 A. The revision might have come

 80 5 from someone else, and all I did was do what

 80 6 they wanted.

Re: [80:1-80:6]

Nonresponsive, confusing

OVERRULED

80:21 - 80:22 Falco, Robert 2-11-2020

 80 21 Q. That would be something you

 80 22 would remember, wouldn't it?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 18 of 221
Falco, Robert 2-11-2020 18

80:25 - 81:1 Falco, Robert 2-11-2020

 80 25 THE WITNESS: I don't know

 81 1 that.

81:7 - 81:8 Falco, Robert 2-11-2020

 81 7 Q. And you're not aware of anybody

 81 8 from the Army ever doing it either, are you?

Re: [81:7-81:12]

cumulative

OVERRULED

81:11 - 81:12 Falco, Robert 2-11-2020

 81 11 THE WITNESS: I'm not sure of

 81 12 that.

Re: [81:7-81:12]

cumulative

OVERRULED

83:3 - 83:19 Falco, Robert 2-11-2020

 83 3 It says up here at the top,

 83 4 "List of accomplishments that will contribute

 83 5 to Aearo business success."

 83 6 A. I see that.

 83 7 Q. It says, "Bob is a dedicated

 83 8 team player, committed to manufacturing

 83 9 products that meets the highest standards."

 83 10 Did I read that correctly?

 83 11 A. Yes.

 83 12 Q. "He's a hands-on engineer

 83 13 that's not afraid to get dirty in making sure

 83 14 the job gets done right."

 83 15 Did I read that correctly?

 83 16 A. Yes.

 83 17 Q. Go down to number 2. "What do

 83 18 you think are the main areas of strength of

 83 19 this employee? Give some specific examples."

Re: [83:3-83:19]

402, 403, MIL 12; beyond scope 

of counter

SUSTAINED

102:2 - 102:5 Falco, Robert 2-11-2020

 102 2 Q. You don't recall nonlinear

 102 3 plugs at all?

 102 4 A. Not really. It's just too long

 102 5 ago.

102:14 - 102:16 Falco, Robert 2-11-2020

 102 14 Q. Have you made an effort to try

 102 15 to not think about your work there at 3M and

 102 16 Aearo?

Re: [102:14-102:20]

402, 403, cumulative, confusing; 

beyond scope of counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 19 of 221
Falco, Robert 2-11-2020 19

102:19 - 102:20 Falco, Robert 2-11-2020

 102 19 THE WITNESS: I'm not sure I

 102 20 understand your question.

Re: [102:14-102:20]

402, 403, cumulative, confusing; 

beyond scope of counter

SUSTAINED

103:19 - 103:20 Falco, Robert 2-11-2020

 103 19 Q. Did you look for other work?

 103 20 A. No.

103:24 - 104:14 Falco, Robert 2-11-2020

 103 24 Q. Did you apply anywhere?

 103 25 A. I thought about it, but I

 104 1 didn't.

 104 2 Q. Why is that?

 104 3 A. I like being retired. Every

 104 4 day is Saturday.

 104 5 Q. That's for sure.

 104 6 You like riding motorcycles,

 104 7 too?

 104 8 A. Yes.

 104 9 Q. Did you yourself try to open

 104 10 any other business?

 104 11 A. No.

 104 12 Q. What have you done with your

 104 13 time?

 104 14 A. Enjoyed my retirement.

Re: [104:2-104:14]

402, 403; beyond scope of 

counter

SUSTAINED

122:18 - 122:24 Falco, Robert 2-11-2020

 122 18 Q. Now, I don't mean this to be --

 122 19 to sound anything other than just me

 122 20 inquiring, but I got to ask you, so I'm not

 122 21 trying to be rude.

 122 22 Have you had anything happen to

 122 23 you since you left that affects your memory?

 122 24 A. Age.

Re: [122:18-122:24]

403; beyond scope of counter

SUSTAINED

123:20 - 123:23 Falco, Robert 2-11-2020

 123 20 Q. Anything that has to do with

 123 21 the brain?

 123 22 A. I've had a few motorcycle

 123 23 wrecks.

124:18 - 124:18 Falco, Robert 2-11-2020

 124 18 Q. This is Exhibit 9.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 20 of 221
Falco, Robert 2-11-2020 20

138:4 - 138:5 Falco, Robert 2-11-2020

 138 4 Q. So we're looking at tips for

 138 5 the Combat Arms, aren't we?

Re: [138:4-138:9]

cumulative, confusing; beyond 

scope of counter

OVERRULED

138:8 - 138:9 Falco, Robert 2-11-2020

 138 8 THE WITNESS: No, I'm not sure

 138 9 of that.

Re: [138:4-138:9]

cumulative, confusing; beyond 

scope of counter

OVERRULED

139:23 - 139:25 Falco, Robert 2-11-2020

 139 23 Q. Let me turn back into here.

 139 24 This is -- we do not have page numbers on

 139 25 this.

140:3 - 140:7 Falco, Robert 2-11-2020

 140 3 MR. PIRTLE: Same exhibit.

 140 4 Book number H1026. That's it.

 140 5 QUESTIONS BY MR. PIRTLE:

 140 6 Q. Are these Mr. Doty's

 140 7 handwritten notes?

Re: [140:3-140:11]

Beyond scope of counter

SUSTAINED

140:10 - 140:11 Falco, Robert 2-11-2020

 140 10 THE WITNESS: It says -- it's

 140 11 recorded by what looks like Marc Doty.

Re: [140:3-140:11]

Beyond scope of counter

SUSTAINED

140:25 - 141:5 Falco, Robert 2-11-2020

 140 25 Q. It says down here on number 2,

 141 1 "The three flanges are dimensioned as radii.

 141 2 However, none are circular."

 141 3 Did I make that out correct?

 141 4 A. It reads, "However, none are

 141 5 circular."

Re: [140:25-141:5]

Cumulative; beyond scope of 

counter

SUSTAINED

141:22 - 141:25 Falco, Robert 2-11-2020

 141 22 Q. Are you familiar when the

 141 23 Combat Arms Earplugs version 2 went onto the

 141 24 market?

 141 25 A. No, I'm not aware of that.

144:18 - 145:7 Falco, Robert 2-11-2020

 144 18 Q. Combat Arms, we've talked about

 144 19 some of your work on Combat Arms, right?

 144 20 A. Yes, I made parts for the

 144 21 Combat Arms.

 144 22 Q. Product description and

 144 23 positioning: Nonlinear plug.

Re: [144:18-145:10]

Cumulative; beyond scope of 

counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 21 of 221
Falco, Robert 2-11-2020 21

 144 24 Now, we hadn't agreed on

 144 25 nonlinear, but you don't know what that

 145 1 means?

 145 2 A. I don't remember exactly what

 145 3 it is.

 145 4 Q. To be sold to the military and

 145 5 as shooter's plug.

 145 6 Do you know what a shooter's

 145 7 plug is?

145:10 - 145:10 Falco, Robert 2-11-2020

 145 10 THE WITNESS: Not really, no.

Re: [144:18-145:10]

Cumulative; beyond scope of 

counter

SUSTAINED

145:20 - 145:21 Falco, Robert 2-11-2020

 145 20 Q. Okay. Not aware of supplying

 145 21 earplugs for, say, hunters?

145:24 - 146:1 Falco, Robert 2-11-2020

 145 24 THE WITNESS: I have no

 145 25 recollection of that. That's not my

 146 1 department.

150:23 - 151:16 Falco, Robert 2-11-2020

 150 23 Q. When did you author this

 150 24 document?

 150 25 A. After I left the company.

 151 1 That's all I remember.

 151 2 Q. And it says, "Future goal:

 151 3 Seeking employment in motivated company and

 151 4 develop new, innovative products from

 151 5 conception to design to fulfill production

 151 6 launch -- to full production launch."

 151 7 Did I read that correctly,

 151 8 reasonably?

 151 9 A. Yes.

 151 10 Q. So at one point in time, is it

 151 11 fair to say, that you were thinking about

 151 12 seeking other employment?

 151 13 A. I was thinking about it.

 151 14 Q. And did you interview with

 151 15 anybody?

 151 16 A. No.

Re: [150:23-151:16]

beyond scope of counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 22 of 221
Falco, Robert 2-11-2020 22

167:4 - 167:6 Falco, Robert 2-11-2020

 167 4 Q. Do you have memory of proposing

 167 5 this change to the UltraFit?

 167 6 A. No, I don't.

173:8 - 173:9 Falco, Robert 2-11-2020

 173 8 Let me hand you what I've

 173 9 marked as Exhibit 12.

173:14 - 174:10 Falco, Robert 2-11-2020

 173 14 Q. It's a safety products lab

 173 15 analytical report requested by your boss.

 173 16 The date on the document is 10/12 of '05.

 173 17 A. Okay.

 173 18 Q. Do you see that?

 173 19 A. Yes.

 173 20 Q. Subject, heat resistance of

 173 21 Combat Arms Earplug.

 173 22 Did I read that reasonably

 173 23 correct?

 173 24 A. That's correct.

 173 25 Q. Now, this particular document

 174 1 is addressing loud noises or encountered from

 174 2 electrical arcs.

 174 3 What they're basically doing is

 174 4 they're exposing a Combat Arms Earplug to

 174 5 various oven temperatures for a period of ten

 174 6 minutes, correct?

 174 7 A. That's what it says here.

 174 8 Q. And they were looking to see if

 174 9 by exposing these earplugs to high heat they

 174 10 could observe any detrimental effects --

Re: [173:14-174:10]

402, 403, cumulative, beyond 

scope of counter

SUSTAINED

174:14 - 174:22 Falco, Robert 2-11-2020

 174 14 Q. -- correct?

 174 15 A. I'm not familiar with this

 174 16 document or any testing like that.

 174 17 Q. I understand.

 174 18 Are you familiar with a plug

 174 19 called an Arc blast plug?

 174 20 A. No.

Re: [174:14-174:22]

beyond scope of counter; 402, 

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 23 of 221
Falco, Robert 2-11-2020 23

 174 21 Q. Never heard of Arc blast?

 174 22 A. No.

177:18 - 177:20 Falco, Robert 2-11-2020

 177 18 Q. Do you know what was going on

 177 19 in the world as pertains to the Combat Arms

 177 20 Earplugs?

Re: [177:18-177:23]

Vague, confusing, incomplete 

designation, beyond scope of 

counter

SUSTAINED

177:23 - 177:23 Falco, Robert 2-11-2020

 177 23 THE WITNESS: No, I don't.

Re: [177:18-177:23]

Vague, confusing, incomplete 

designation, beyond scope of 

counter

SUSTAINED

180:21 - 180:23 Falco, Robert 2-11-2020

 180 21 Q. I said, would you take into

 180 22 account the results of testing when you were

 180 23 designing parts for various products?

Re: [180:21-180:23]

Cumulative, beyond scope of 

counter

SUSTAINED

186:24 - 187:1 Falco, Robert 2-11-2020

 186 24 Q. All right. I'm going to hand

 186 25 you what I've marked as Exhibit 14, ask you

 187 1 to take a look at it.

187:9 - 187:17 Falco, Robert 2-11-2020

 187 9 Q. All right. It appears that

 187 10 Exhibit 14 is another first article

 187 11 inspection, right?

 187 12 A. Yes.

 187 13 Q. And since you told me that that

 187 14 was standardly done around Aearo, I would

 187 15 assume that this is a document format that

 187 16 you're familiar with, fair?

 187 17 A. It was generally used, yes.

Re: [187:9-187:17]

Cumulative; 402; beyond scope 

of counter

SUSTAINED

197:10 - 197:11 Falco, Robert 2-11-2020

 197 10 Q. And you still don't know what

 197 11 nonlinear attenuation is, right?

Re: [197:10-198:2]

cumulative; 402; 403; beyond 

scope of counter

SUSTAINED

197:14 - 197:22 Falco, Robert 2-11-2020

 197 14 THE WITNESS: It's the name of

 197 15 the part. That's it.

 197 16 QUESTIONS BY MR. PIRTLE:

 197 17 Q. Sorry?

 197 18 A. It's just the name of the part.

 197 19 Q. Well, the name of the part's a

Re: [197:10-198:2]

cumulative; 402; 403; beyond 

scope of counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 24 of 221
Falco, Robert 2-11-2020 24

 197 20 filter.

 197 21 Nonlinear attenuation is what

 197 22 it does, isn't it?

197:25 - 198:2 Falco, Robert 2-11-2020

 197 25 THE WITNESS: That's what -- it

 198 1 says here on the -- it is a filter for

 198 2 a nonlinear plug.

Re: [197:10-198:2]

cumulative; 402; 403; beyond 

scope of counter

SUSTAINED

199:22 - 199:24 Falco, Robert 2-11-2020

 199 22 Q. Now, the size specifications

 199 23 for the flanges and those type of things can

 199 24 affect fit, can't it?

Re: [199:22-200:3]

beyond scope of counter; 402

SUSTAINED

200:2 - 200:3 Falco, Robert 2-11-2020

 200 2 THE WITNESS: That, I'm not

 200 3 aware of.

Re: [199:22-200:3]

beyond scope of counter; 402

SUSTAINED

238:6 - 238:10 Falco, Robert 2-11-2020

 238 6 Q. I'm going to hand you what I've

 238 7 marked as Exhibit 18 to your deposition.

 238 8 Let me know when you've looked

 238 9 at the document.

 238 10 A. Okay. I've looked this over.

238:11 - 239:13 Falco, Robert 2-11-2020

 238 11 Q. All right. Do you recognize

 238 12 this document?

 238 13 A. No.

 238 14 Q. Have you ever seen it before

 238 15 today?

 238 16 A. Not that I can recall.

 238 17 Q. This is important. Back in --

 238 18 can you see this document is dated July

 238 19 the 10, 2000?

 238 20 A. Yes.

 238 21 Q. Back when you were the -- what

 238 22 is it, project engineer for Combat Arms

 238 23 version 2? I believe that was your title.

 238 24 A. Okay. If that's what you say.

 238 25 Q. Were you ever shown a copy of

 239 1 this document, to your knowledge?

 239 2 A. Not to my knowledge, no.

 239 3 Q. Have you heard of the document?

Re: [238:11-239:8]

Def Objection - Prejudice (403); 

Foundation (602)

Re: [239:9-239:13]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [238:11-

239:8]

Def Objection -

Prejudice (403); 

Foundation 

(602)

OVERRULED

Re: [239:9-

239:23]

Def Objection -

Vague; 

Compound 

(611, 403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 25 of 221
Falco, Robert 2-11-2020 25

 239 4 A. Actually, no.

 239 5 Q. Ever heard of something called

 239 6 "the flange report"?

 239 7 A. Doesn't ring a bell with me. I

 239 8 don't recall it.

 239 9 Q. Okay. You see the introduction

 239 10 here? "The Combat Arms Earplug was shortened

 239 11 at the request of the Army so it would fit in

 239 12 the carrying case. Because of this, the plug

 239 13 is shorter than any other UltraFit design."

240:1 - 240:15 Falco, Robert 2-11-2020

 240 1 "The purpose of this report is

 240 2 to document that the current length of the

 240 3 UltraFit earplug end of the Combat Arms plug

 240 4 is too short for proper insertion and how

 240 5 changing this fitting technique -- the

 240 6 fitting technique affected the results of

 240 7 real-ear test of this plug."

 240 8 Did I read that reasonably

 240 9 correct?

 240 10 A. That's what it reads here, yes.

 240 11 Q. Okay. And you're telling me

 240 12 that as the project designer on this earplug,

 240 13 Combat Arms version 2, this is the first

 240 14 time, sitting here today, you've ever seen

 240 15 this document?

Re: [240:1-240:10]

Def Objection - Prejudice (403); 

Foundation (602)

Re: [240:11-240:20]

Def Objection - Compound; 

Argumentative; Asked (611, 

403); Prejudice (403); 

Foundation (602)

Re: [239:24-

240:10]

Def Objection -

Prejudice (403); 

Foundation 

(602)

OVERRULED

Re: [240:11-

240:20]

Def Objection -

Compound; 

Argumentative; 

Asked (611, 

403); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

240:18 - 241:2 Falco, Robert 2-11-2020

 240 18 THE WITNESS: I don't recall

 240 19 this document. Testing of the product

 240 20 is something that's out of my field.

 240 21 QUESTIONS BY MR. PIRTLE:

 240 22 Q. Got it. I understand.

 240 23 Do you ever recall anybody

 240 24 coming to you and saying, "Mr. Falco," or

 240 25 "Bob," as some of them call you, "this plug,

 241 1 this Combat Arms version 2, is too short.

 241 2 Let's do something about it"?

Re: [240:11-240:20]

Def Objection - Compound; 

Argumentative; Asked (611, 

403); Prejudice (403); 

Foundation (602)

Re: [240:21-241:6]

Def Objection - Vague; 

Compound; Assumes (611, 403); 

Prejudice (403)

Re: [240:11-

240:20]

Def Objection -

Compound; 

Argumentative; 

Asked (611, 

403); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 26 of 221
Falco, Robert 2-11-2020 26

Re: [240:21-

241:6]

Def Objection -

Vague; 

Compound; 

Assumes (611, 

403); Prejudice 

(403)

OVERRULED

241:5 - 241:6 Falco, Robert 2-11-2020

 241 5 THE WITNESS: No, I don't

 241 6 recall that.

Re: [240:21-241:6]

Def Objection - Vague; 

Compound; Assumes (611, 403); 

Prejudice (403)

Re: [240:21-

241:6]

Def Objection -

Vague; 

Compound; 

Assumes (611, 

403); Prejudice 

(403)

OVERRULED

241:8 - 241:16 Falco, Robert 2-11-2020

 241 8 Q. You did, from time to time,

 241 9 request certain tests be run, and I can

 241 10 remember one right off the top of my head on

 241 11 whether or not it was ever a comfortable fit

 241 12 on an earplug design that you were working

 241 13 on.

 241 14 As far as tips, you would

 241 15 request stuff like that to be done from time

 241 16 to time, wouldn't you?

Re: [241:8-241:20]

beyond scope of counter

SUSTAINED

241:19 - 241:20 Falco, Robert 2-11-2020

 241 19 THE WITNESS: No. I don't

 241 20 recall that, no.

Re: [241:8-241:20]

beyond scope of counter

SUSTAINED

242:4 - 242:6 Falco, Robert 2-11-2020

 242 4 Q. But nobody came to you and

 242 5 said, "Hey, listen, let's redesign this

 242 6 thing. Let's do something different"?

242:25 - 243:1 Falco, Robert 2-11-2020

 242 25 Q. Were you ever told that the

 243 1 earplug was too long?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 27 of 221
Falco, Robert 2-11-2020 27

243:4 - 243:5 Falco, Robert 2-11-2020

 243 4 THE WITNESS: I don't recall

 243 5 that, no.

248:14 - 248:16 Falco, Robert 2-11-2020

 248 14 Q. Do you ever recall ever

 248 15 recommending that this plug be worn any other

 248 16 way than like that or like that?

Re: [248:14-249:5]

Def Objection - Vague; 

Compound (611, 403)

Re: [248:14-

249:5]

Def Objection -

Vague; 

Compound 

(611, 403)

OVERRULED

Re: [249:5-

249:10]

Def Objection -

Vague (611, 

403); Relevance 

(401, 402); 

Prejudice (403); 

Foundation 

(602)

OVERRULED

248:21 - 249:2 Falco, Robert 2-11-2020

 248 21 THE WITNESS: Not to my

 248 22 recollection, no.

 248 23 QUESTIONS BY MR. PIRTLE:

 248 24 Q. You never, ever, recommended a

 248 25 roll-down or articulated that somehow, some

 249 1 way, the flanges of this plug should be

 249 2 folded back?

Re: [248:14-249:5]

Def Objection - Vague; 

Compound (611, 403)

Re: [248:14-

249:5]

Def Objection -

Vague; 

Compound 

(611, 403)

OVERRULED

Re: [249:5-

249:10]

Def Objection -

Vague (611, 

403); Relevance 

(401, 402); 

Prejudice (403); 

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 28 of 221
Falco, Robert 2-11-2020 28

249:5 - 249:7 Falco, Robert 2-11-2020

 249 5 THE WITNESS: No.

 249 6 QUESTIONS BY MR. PIRTLE:

 249 7 Q. Make any sense to you?

Re: [248:14-249:5]

Def Objection - Vague; 

Compound (611, 403)

Re: [249:5-249:10]

Def Objection - Vague (611, 

403); Relevance (401, 402); 

Prejudice (403); Foundation 

(602)

Re: [248:14-

249:5]

Def Objection -

Vague; 

Compound 

(611, 403)

OVERRULED

Re: [249:5-

249:10]

Def Objection -

Vague (611, 

403); Relevance 

(401, 402); 

Prejudice (403); 

Foundation 

(602)

OVERRULED

249:10 - 249:10 Falco, Robert 2-11-2020

 249 10 THE WITNESS: No.

Re: [249:5-249:10]

Def Objection - Vague (611, 

403); Relevance (401, 402); 

Prejudice (403); Foundation 

(602)

Re: [248:14-

249:5]

Def Objection -

Vague; 

Compound 

(611, 403)

OVERRULED

Re: [249:5-

249:10]

Def Objection -

Vague (611, 

403); Relevance 

(401, 402); 

Prejudice (403); 

Foundation 

(602)

OVERRULED

311:16 - 313:7 Falco, Robert 2-11-2020

 311 16 Q. One more subject area that I'm

 311 17 going to try to see if I can understand.

 311 18 Did the company, Aearo, 3M,

 311 19 utilize employees and relatives of employees

Re: [311:16-312:8]

Def Objection - Relevance (401, 

402); Prejudice (403); 3M MIL 

No. 23

Re: [311:16-

312:8]

Def Objection -

Relevance (401, 

402); Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 29 of 221
Falco, Robert 2-11-2020 29

 311 20 as test subjects for REAT testing of

 311 21 products?

 311 22 I think I've showed you where

 311 23 Mandy was on one.

 311 24 A. Oh, the company used some of

 311 25 its employees and outside people that they

 312 1 hired to do testing.

 312 2 Q. They used you before?

 312 3 A. For a REAT test?

 312 4 Q. Yeah.

 312 5 A. Probably not.

 312 6 Q. What about for another type of

 312 7 test, like a comfort test?

 312 8 A. I don't remember.

 312 9 Q. All right. See if I can get an

 312 10 understanding of -- this is Exhibit 125 -- of

 312 11 number 26.

 312 12 Now, we put this up on the

 312 13 screen. It's fairly simple. We've actually

 312 14 went out and created this document by pulling

 312 15 out testing panel results from folks that

 312 16 either -- that have your name, and I want to

 312 17 ask you who they are.

 312 18 A. These are my family members.

 312 19 Q. Okay. Thought so.

 312 20 Deena Veronica Falco, who is

 312 21 that?

 312 22 A. That was my -- at that time my

 312 23 wife.

 312 24 Q. Okay. And I understand she's

 312 25 passed on.

 313 1 A. Yes.

 313 2 Q. Sorry to hear that.

 313 3 And it looks like she was

 313 4 involved in a test panel that we have listed

 313 5 there that we could go into.

 313 6 Robert Nicolo Falco, Senior,

 313 7 that's you?

Re: [312:9-313:7]

Def Objection - Relevance (401, 

402); Prejudice (403); 3M MIL 

No. 23

(403); 3M MIL 

No. 23

OVERRULED

Re: [312:9-

313:7]

Def Objection -

Relevance (401, 

402); Prejudice 

(403); 3M MIL 

No. 23

SUSTAINED 

as to 

Thought so

at 312:19. 

SUSTAINED 

as to 313:3-5; 

313:8-11. 

Otherwise 

OVERRULED.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 30 of 221
Falco, Robert 2-11-2020 30

313:16 - 313:16 Falco, Robert 2-11-2020

 313 16 A. I'm the senior, yes.

Re: [313:16-314:2]

Def Objection - Relevance (401, 

402); Prejudice (403); 3M MIL 

No. 23

Re: [313:12-

314:2]

Def Objection -

Relevance (401, 

402); Prejudice 

(403); 3M MIL 

No. 23

OVERRULED

313:17 - 314:5 Falco, Robert 2-11-2020

 313 17 Q. And there's a test panel there

 313 18 for you.

 313 19 Mandy Katherine (Jared) Falco,

 313 20 and that is --

 313 21 A. That's my daughter.

 313 22 Q. That's your daughter.

 313 23 James Edward Falco?

 313 24 A. That's one of my sons.

 313 25 Q. And Robert N. Falco, Junior, is

 314 1 another one of your sons?

 314 2 A. Another one of my sons.

 314 3 Q. Okay. So you have wife at the

 314 4 time, daughter and two sons and yourself?

 314 5 A. Yes. That's on the --

Re: [313:16-314:2]

Def Objection - Relevance (401, 

402); Prejudice (403); 3M MIL 

No. 23

Re: [313:12-

314:2]

Def Objection -

Relevance (401, 

402); Prejudice 

(403); 3M MIL 

No. 23

OVERRULED

315:2 - 315:23 Falco, Robert 2-11-2020

 315 2 Q. How do these people that are

 315 3 your family members get selected as testing

 315 4 subjects?

 315 5 A. Well, they applied through an

 315 6 outside source. We needed people to test --

 315 7 we had many people test products. We had

 315 8 panels, different panels. And it was rather

 315 9 hard getting some people to come in and work

 315 10 for an hour and have to drive in there and,

 315 11 you know, get $25 for a test or whatever the

 315 12 price was. I'm not sure what exactly the

 315 13 price was.

 315 14 And, you know, everyone --

 315 15 every person here lived within a mile of the

 315 16 company.

Re: [315:20-315:23]

402

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 31 of 221
Falco, Robert 2-11-2020 31

 315 17 Q. Okay. So --

 315 18 A. Convenience. Probably they got

 315 19 picked because of convenience.

 315 20 Q. For one reason would be

 315 21 convenience.

 315 22 Another reason, they got some

 315 23 type of compensation, albeit minor?

316:2 - 316:17 Falco, Robert 2-11-2020

 316 2 Q. You said $25 or so, whatever it

 316 3 was?

 316 4 A. Whatever the outside panel -- I

 316 5 mean, the people who paid them. I didn't

 316 6 really, you know, get into that.

 316 7 Q. And what I was asking you was,

 316 8 is that more Elliott Berger's area than your

 316 9 area?

 316 10 A. These people would be testing

 316 11 in the NVLAP that Elliott was the manager of.

 316 12 Q. That's what I was getting at.

 316 13 So Elliott was the manager, and

 316 14 this pool of people, which includes some of

 316 15 your family members, would be called by the

 316 16 NVLAP from time to time to test certain

 316 17 products?

Re: [316:2-316:17]

Cumulative, beyond scope of 

counter

SUSTAINED

316:21 - 316:22 Falco, Robert 2-11-2020

 316 21 Q. Or a person. One -- maybe one

 316 22 at a time, the way I understand it worked.

Re: [316:21-317:2]

beyond scope of counter

SUSTAINED

316:25 - 317:2 Falco, Robert 2-11-2020

 316 25 THE WITNESS: There's different

 317 1 tests. I don't know that because

 317 2 there was different types of tests.

Re: [316:21-317:2]

beyond scope of counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 32 of 221
Falco, Robert 2-12-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 33 of 221
Falco, Robert 2-12-2020 (revised) 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

371:4 - 371:6 Falco, Robert 2-12-2020 (revised)

 371 4 Q. All right. Fair enough.

 371 5 Do you recognize the document?

 371 6 A. No, I do not.

374:5 - 374:14 Falco, Robert 2-12-2020 (revised)

 374 5 Q. Well, I can get out his title

 374 6 in this project. I think he's senior project

 374 7 manager, but we'll let that set. That was

 374 8 three documents ago.

 374 9 "We have received several

 374 10 smaller sustainment orders since the launch,

 374 11 but are starting to see the new CAE take hold

 374 12 in the US military."

 374 13 That's what he wrote, correct?

 374 14 A. Yes, that's what he wrote.

Re: [374:5-374:14]

improper counter

SUSTAINED

374:20 - 375:5 Falco, Robert 2-12-2020 (revised)

 374 20 Q. All right. What it says -- he

 374 21 writes to you, "We have received several

 374 22 smaller sustainment orders since the launch,

 374 23 but we are starting to see the new CLE" -- I

 374 24 mean "CAE take hold in the US military."

 374 25 Correct?

 375 1 A. That's what it reads here, yes.

 375 2 Q. All right. So this is a --

 375 3 he's conveying to you that this is a product

 375 4 that the military is starting to like as of

 375 5 2010?

Re: [374:20-375:5]

improper counter

SUSTAINED

375:11 - 375:17 Falco, Robert 2-12-2020 (revised)

 375 11 Q. "As you can see below, thanks

 375 12 to your design and work with your colleagues,

 375 13 we're getting more institutional activity.

 375 14 Last month, one order alone was for

 375 15 1.7 million."

 375 16 Did I read that correctly?

 375 17 A. That's what it says here, yes.

388:6 - 388:15 Falco, Robert 2-12-2020 (revised)

 388 6 Q. All right. One thing, I had

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 34 of 221
Falco, Robert 2-12-2020 (revised) 3

 388 7 handed you yesterday a set of Combat Arms

 388 8 Earplugs that I believe you identified as

 388 9 Combat Arms Earplugs. I'm going to hand them

 388 10 back to you.

 388 11 And just so my record is clear,

 388 12 as we are here, will you identify what I've

 388 13 handed to you on the video record?

 388 14 A. I believe this is the Combat

 388 15 Arms version 2.

388:21 - 388:23 Falco, Robert 2-12-2020 (revised)

 388 21 Q. And it's a product that you

 388 22 worked on while you were at 3M?

 388 23 A. That's correct.

389:2 - 389:14 Falco, Robert 2-12-2020 (revised)

 389 2 Q. There are two ends. Can you

 389 3 hold that product up?

 389 4 A. (Witness complies.)

 389 5 Q. And there is an olive drab or

 389 6 green type of end?

 389 7 A. Yes.

 389 8 Q. And there is a yellow end?

 389 9 A. Yes.

 389 10 Q. And the yellow end in is your

 389 11 left hand?

 389 12 A. That's correct.

 389 13 Q. Now, what's the difference

 389 14 between the two ends?

Re: [389:2-389:14]

improper counter

SUSTAINED

389:18 - 389:21 Falco, Robert 2-12-2020 (revised)

 389 18 Q. Other than color.

 389 19 A. One has a hole in it.

 389 20 Q. Okay. And what is the purpose

 389 21 of that hole?

Re: [389:18-389:21]

improper counter

SUSTAINED

389:24 - 389:25 Falco, Robert 2-12-2020 (revised)

 389 24 THE WITNESS: There's a

 389 25 through-hole in it.

Re: [389:24-389:25]

improper counter

SUSTAINED

390:2 - 390:2 Falco, Robert 2-12-2020 (revised)

 390 2 Q. Okay. And what does it do?

Re: [390:2-390:2]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 35 of 221
Falco, Robert 2-12-2020 (revised) 4

390:4 - 390:5 Falco, Robert 2-12-2020 (revised)

 390 4 THE WITNESS: It's a sound

 390 5 path.

Re: [390:4-390:5]

improper counter

SUSTAINED

390:7 - 390:9 Falco, Robert 2-12-2020 (revised)

 390 7 Q. And so the sound would go out

 390 8 of that hole into the person's ear if it was

 390 9 inserted into the ear?

Re: [390:7-390:9]

improper counter

SUSTAINED

390:12 - 390:16 Falco, Robert 2-12-2020 (revised)

 390 12 THE WITNESS: Yes, the sound

 390 13 path is through the -- there's a piece

 390 14 in the middle here, and it goes

 390 15 through that and then through the

 390 16 earplug.

Re: [390:12-390:16]

improper counter

SUSTAINED

390:18 - 390:20 Falco, Robert 2-12-2020 (revised)

 390 18 Q. Okay. And what is in between

 390 19 the hole in the middle and the hole in the

 390 20 end?

Re: [390:18-390:20]

improper counter

SUSTAINED

390:23 - 390:25 Falco, Robert 2-12-2020 (revised)

 390 23 THE WITNESS: There's another

 390 24 part in there, a little a black part,

 390 25 the filter.

Re: [390:23-390:25]

improper counter

SUSTAINED

391:2 - 391:9 Falco, Robert 2-12-2020 (revised)

 391 2 Q. The filter?

 391 3 A. The filter, yeah.

 391 4 Q. So that's where this I-S-L

 391 5 filter is, ISL filter is?

 391 6 A. Yes.

 391 7 Q. And what would be the purpose

 391 8 of someone putting the yellow end into the

 391 9 ear --

Re: [391:2-391:9]

improper counter

SUSTAINED

391:12 - 391:12 Falco, Robert 2-12-2020 (revised)

 391 12 Q. -- versus the green end?

Re: [391:12-391:12]

improper counter

SUSTAINED

391:15 - 391:15 Falco, Robert 2-12-2020 (revised)

 391 15 THE WITNESS: I'm not sure.

Re: [391:15-391:15]

improper counter

SUSTAINED

391:17 - 391:21 Falco, Robert 2-12-2020 (revised)

 391 17 Q. All right. Which end of that

 391 18 earplug is the attenuating end?

 391 19 If I wanted to get nonlinear

Re: [391:17-391:21]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 36 of 221
Falco, Robert 2-12-2020 (revised) 5

 391 20 attenuation from the earplug, which end would

 391 21 I put into the ear?

391:24 - 391:25 Falco, Robert 2-12-2020 (revised)

 391 24 THE WITNESS: The one with the

 391 25 hole in it.

Re: [391:24-391:25]

improper counter

SUSTAINED

392:2 - 392:3 Falco, Robert 2-12-2020 (revised)

 392 2 Q. Okay. What's the purpose of

 392 3 the green end?

Re: [392:2-392:3]

improper counter

SUSTAINED

392:5 - 392:6 Falco, Robert 2-12-2020 (revised)

 392 5 THE WITNESS: It's to block

 392 6 sound.

Re: [392:5-392:6]

improper counter

SUSTAINED

392:8 - 392:10 Falco, Robert 2-12-2020 (revised)

 392 8 Q. And so is it a total sound

 392 9 block in terms of there's no hole in the end

 392 10 of that?

Re: [392:8-392:10]

improper counter

SUSTAINED

392:8 - 392:10 Falco, Robert 2-12-2020 (revised)

 392 8 Q. And so is it a total sound

 392 9 block in terms of there's no hole in the end

 392 10 of that?

Re: [392:8-392:10]

improper counter

SUSTAINED

392:13 - 392:14 Falco, Robert 2-12-2020 (revised)

 392 13 THE WITNESS: No, I'm not sure

 392 14 of that.

Re: [392:13-392:14]

improper counter

SUSTAINED

392:16 - 392:18 Falco, Robert 2-12-2020 (revised)

 392 16 Q. Why are you unsure?

 392 17 A. Could have a bad fit. Sound

 392 18 goes through your body also.

Re: [392:16-392:23]

improper counter

SUSTAINED

392:16 - 392:23 Falco, Robert 2-12-2020 (revised)

 392 16 Q. Why are you unsure?

 392 17 A. Could have a bad fit. Sound

 392 18 goes through your body also.

 392 19 Q. "Could have a bad fit," what do

 392 20 you mean by that?

 392 21 A. Whoever was putting it in the

 392 22 ear, they might have not put it in correctly.

 392 23 It might not just have fit.

Re: [392:16-392:23]

improper counter

SUSTAINED

395:9 - 395:10 Falco, Robert 2-12-2020 (revised)

 395 9 Q. No other part, no other thing

 395 10 to do to it? That's it?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 37 of 221
Falco, Robert 2-12-2020 (revised) 6

395:13 - 395:14 Falco, Robert 2-12-2020 (revised)

 395 13 THE WITNESS: That's the way

 395 14 you properly fit an UltraFit.

395:16 - 395:17 Falco, Robert 2-12-2020 (revised)

 395 16 Q. All right. Is that the way you

 395 17 properly fit a Combat Arms version 2?

395:20 - 395:21 Falco, Robert 2-12-2020 (revised)

 395 20 THE WITNESS: I'm not sure of

 395 21 that.

396:23 - 396:25 Falco, Robert 2-12-2020 (revised)

 396 23 Q. Do you know of any other way

 396 24 other than what you showed me, is my

 396 25 question.

397:3 - 397:5 Falco, Robert 2-12-2020 (revised)

 397 3 THE WITNESS: You'd have to

 397 4 look at the instructions. That's the

 397 5 way to put it in.

445:19 - 445:24 Falco, Robert 2-12-2020 (revised)

 445 19 One of the issues that's been

 445 20 discussed, and I think the jury heard, is

 445 21 your role in designing the Combat Arms

 445 22 Earplug.

 445 23 Have you -- do you believe you

 445 24 designed the Combat Arms version 2 earplug?

Re: [445:23-446:5]

Def Objection - Vague; Asked 

(611, 403); Prejudice (403); 

Cumulative (403)

Re: [445:23-

446:5]

Def Objection -

Vague; Asked 

(611, 403); 

Prejudice 

(403); 

Cumulative 

(403)

OVERRULED

446:2 - 446:5 Falco, Robert 2-12-2020 (revised)

 446 2 THE WITNESS: Did I design it?

 446 3 QUESTIONS BY MR. OVERHOLTZ:

 446 4 Q. Yes.

 446 5 A. No.

Re: [445:23-446:5]

Def Objection - Vague; Asked 

(611, 403); Prejudice (403); 

Cumulative (403)

Re: [445:23-

446:5]

Def Objection -

Vague; Asked 

(611, 403); 

Prejudice 

(403); 

Cumulative 

(403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 38 of 221
Falco, Robert 2-12-2020 (revised) 7

447:3 - 447:10 Falco, Robert 2-12-2020 (revised)

 447 3 Do you remember the exhibit

 447 4 where they talked about the fact that the

 447 5 designer was on vacation, and when he got

 447 6 back they'd try to shorten the plug by a

 447 7 quarter-inch?

 447 8 A. I don't remember that.

 447 9 Q. Maybe we can -- can I get your

 447 10 stack of exhibits there? It's Exhibit 2.

Re: [447:3-447:10]

Cumulative (403)

OVERRULED

447:23 - 447:25 Falco, Robert 2-12-2020 (revised)

 447 23 THE WITNESS: I may have looked

 447 24 at it, yes. It's just not ringing a

 447 25 bell.

Re: [447:23-447:25]

Cumulative (403)

OVERRULED

448:5 - 448:10 Falco, Robert 2-12-2020 (revised)

 448 5 Q. So this is the e-mail, and it

 448 6 said, "I spoke with Dick Knauer."

 448 7 That was your boss, right?

 448 8 A. He was the department manager,

 448 9 yes.

 448 10 Q. Sure.

448:11 - 449:5 Falco, Robert 2-12-2020 (revised)

 448 11 It says, "I spoke with Dick

 448 12 Knauer, who believes that we can probably

 448 13 shorten the plug by the quarter-inch required

 448 14 to fit your current container. The designer

 448 15 will look at this when he gets back from

 448 16 vacation on the 19th."

 448 17 Do you recall that e-mail?

 448 18 A. No.

 448 19 Q. Okay. So I asked Mr. Berger

 448 20 about it -- and if I could get the ELMO.

 448 21 I asked Mr. Berger about it,

 448 22 and I said: "All right. In reviewing this

 448 23 e-mail" -- and I read it to him -- "I

 448 24 spoke with Dick Knauer, who believes we

 448 25 can probably shorten the plug. Do you

 449 1 see that?

 449 2 "Yes.

 449 3 "The designer will look at this

Re: [448:11-449:6]

Cumulative (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 39 of 221
Falco, Robert 2-12-2020 (revised) 8

 449 4 when he gets back from vacation on the

 449 5 19th, right?"

449:6 - 449:6 Falco, Robert 2-12-2020 (revised)

 449 6 "Yes."

Re: [448:11-449:6]

Cumulative (403)

OVERRULED

449:14 - 450:5 Falco, Robert 2-12-2020 (revised)

 449 14 Q. "The designer will look at this

 449 15 when he gets back from vacation on the

 449 16 19th, right?

 449 17 "Yes."

 449 18 So I was reading this e-mail to

 449 19 Elliott Berger.

 449 20 A. Okay.

 449 21 Q. And I said -- the next thing I

 449 22 asked him was: "And the designer you're

 449 23 talking about there is Bob Falco,

 449 24 right?"

 449 25 And he says: "Correct."

 450 1 Right?

 450 2 A. That's what it says here, yes.

 450 3 Q. Yeah. So Elliott Berger

 450 4 considered you the designer of the plug,

 450 5 right?

Re: [449:14-449:25]

Cumulative (403)

Re: [450:1-450:5]

(602, 403)

OVERRULED

450:9 - 450:19 Falco, Robert 2-12-2020 (revised)

 450 9 THE WITNESS: What plug are you

 450 10 talking about?

 450 11 QUESTIONS BY MR. OVERHOLTZ:

 450 12 Q. The Combat Arms plug.

 450 13 A. Which Combat Arms?

 450 14 Q. The version 2.

 450 15 A. What is the question?

 450 16 Q. Elliott Berger, when I asked

 450 17 him who the designer was in Exhibit 2, that

 450 18 e-mail, he says it would have been you they

 450 19 were talking about.

Re: [450:9-450:19]

(602, 403)

OVERRULED

451:12 - 452:4 Falco, Robert 2-12-2020 (revised)

 451 12 MR. OVERHOLTZ: I didn't mark

 451 13 it as an exhibit. It's just testimony

 451 14 from a prior deposition. We can make

 451 15 it an exhibit.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 40 of 221
Falco, Robert 2-12-2020 (revised) 9

 451 16 We'll mark it as Exhibit 39.

 451 17 (Falco Exhibit 39 marked for

 451 18 identification.)

 451 19 QUESTIONS BY MR. OVERHOLTZ:

 451 20 Q. So this e-mail that was

 451 21 Exhibit 2 that I asked Elliott Berger about,

 451 22 when I asked Elliott Berger who the designer

 451 23 they're talking about there, he said it was

 451 24 Bob Falco, right?

 451 25 A. Which plug are you talking

 452 1 about?

 452 2 Q. Well, that e-mail was talking

 452 3 about the Combat Arms version 2 back in 1999.

 452 4 A. Okay.

452:10 - 452:14 Falco, Robert 2-12-2020 (revised)

 452 10 Q. Yep.

 452 11 And Elliott Berger said who

 452 12 they were talking about in that e-mail on

 452 13 behalf of the company in 1999 when they said

 452 14 the designer, they were talking about you.

452:20 - 452:25 Falco, Robert 2-12-2020 (revised)

 452 20 THE WITNESS: Is that what they

 452 21 said?

 452 22 QUESTIONS BY MR. OVERHOLTZ:

 452 23 Q. That's what Elliott Berger

 452 24 said.

 452 25 A. Okay.

Re: [452:23-453:16]

Def Objection - Prejudice (403); 

Foundation (602)

Re: [452:23-

453:16]

Def Objection -

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

453:1 - 453:5 Falco, Robert 2-12-2020 (revised)

 453 1 Q. Did you know he had told us

 453 2 that you were the designer?

 453 3 A. The designer of Combat Arms 2?

 453 4 Q. Yes.

 453 5 A. I didn't design that.

Re: [452:23-453:16]

Def Objection - Prejudice (403); 

Foundation (602)

Re: [452:23-

453:16]

Def Objection -

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

453:6 - 453:11 Falco, Robert 2-12-2020 (revised)

 453 6 Q. Okay. So we got to spend

 453 7 several days with Elliott Berger -- and this

Re: [452:23-453:16]

Def Objection - Prejudice (403); 

Foundation (602)

Re: [452:23-

453:16]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 41 of 221
Falco, Robert 2-12-2020 (revised) 10

 453 8 is 602.

 453 9 (Falco Exhibit 40 marked for

 453 10 identification.)

 453 11 QUESTIONS BY MR. OVERHOLTZ:

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

453:12 - 453:16 Falco, Robert 2-12-2020 (revised)

 453 12 Q. So I've shown you what we'll

 453 13 mark as Exhibit 40, which is a deposition of

 453 14 Elliott Berger that we took back in December,

 453 15 December 11, 2019, and I'll direct your

 453 16 attention down to the bottom on line 22.

Re: [452:23-453:16]

Def Objection - Prejudice (403); 

Foundation (602)

Re: [452:23-

453:16]

Def Objection -

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

453:23 - 454:20 Falco, Robert 2-12-2020 (revised)

 453 23 Q. And you see the question was --

 453 24 well, it starts -- if we look at 17 first:

 453 25 "Would you have been the top dog with

 454 1 regard to design?" was asked of

 454 2 Mr. Berger.

 454 3 And he said: "Part of a team."

 454 4 And then the question was:

 454 5 "Who were the other members of the

 454 6 team?"

 454 7 "Bob Falco, Dick Knauer, I'd

 454 8 say, would be the principal people."

 454 9 Do you see that?

 454 10 A. Yes.

 454 11 Q. And then if we turn over, it

 454 12 says, starting at line 3: "If you were

 454 13 ranking the people with regard to

 454 14 design, would you put yourself at the

 454 15 top or would you put Knauer at the

 454 16 top?"

 454 17 And he says: "He was the

 454 18 manager of the group."

 454 19 That's true, right? Knauer was

 454 20 the manager?

454:23 - 455:3 Falco, Robert 2-12-2020 (revised)

 454 23 THE WITNESS: He was the

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 42 of 221
Falco, Robert 2-12-2020 (revised) 11

 454 24 department manager, yes.

 454 25 

 455 1 QUESTIONS BY MR. OVERHOLTZ:

 455 2 Q. Okay. And then question:

 455 3 "Okay?"

455:4 - 455:13 Falco, Robert 2-12-2020 (revised)

 455 4 Next answer from Elliott

 455 5 Berger: "The person who actually drew the

 455 6 parts, conceived of the way the dual

 455 7 end would go together initially, would

 455 8 be Bob Falco."

 455 9 Do you see that?

 455 10 A. Yes.

 455 11 Q. So he said you conceived of the

 455 12 way this two-ended plug would go together,

 455 13 right?

455:16 - 455:20 Falco, Robert 2-12-2020 (revised)

 455 16 THE WITNESS: That's what it

 455 17 reads here.

 455 18 QUESTIONS BY MR. OVERHOLTZ:

 455 19 Q. Okay. Now, was he telling the

 455 20 truth when he said that?

Re: [455:19-455:20]

Hearsay (403, 602)

OVERRULED

455:23 - 455:24 Falco, Robert 2-12-2020 (revised)

 455 23 THE WITNESS: Well, this is

 455 24 what he says here.

Re: [455:23-455:24]

Hearsay (403, 602)

OVERRULED

456:2 - 456:2 Falco, Robert 2-12-2020 (revised)

 456 2 Q. Well, is he telling the truth?

Re: [456:2-456:2]

Hearsay (403, 602)

OVERRULED

456:5 - 456:6 Falco, Robert 2-12-2020 (revised)

 456 5 THE WITNESS: What is the

 456 6 question?

Re: [456:5-456:6]

Hearsay (403, 602)

OVERRULED

456:8 - 456:12 Falco, Robert 2-12-2020 (revised)

 456 8 Q. Was Elliott Berger telling the

 456 9 truth when he said that the person who drew

 456 10 the parts and conceived of the way the

 456 11 dual-end would go together initially was you,

 456 12 Bob Falco?

Re: [456:8-456:19]

Def Objection - Vague; 

Compound; Argumentative; 

Misstates (611, 403); Prejudice 

(403); Foundation (602)

Re: [456:8-

456:19]

Def Objection -

Vague; 

Compound; 

Argumentative; 

Misstates (611, 

403); Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 43 of 221
Falco, Robert 2-12-2020 (revised) 12

(403); 

Foundation 

(602)

OVERRULED

456:15 - 456:17 Falco, Robert 2-12-2020 (revised)

 456 15 THE WITNESS: No.

 456 16 QUESTIONS BY MR. OVERHOLTZ:

 456 17 Q. He wasn't telling the truth?

Re: [456:8-456:19]

Def Objection - Vague; 

Compound; Argumentative; 

Misstates (611, 403); Prejudice 

(403); Foundation (602)

Re: [456:8-

456:19]

Def Objection -

Vague; 

Compound; 

Argumentative; 

Misstates (611, 

403); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

456:19 - 456:19 Falco, Robert 2-12-2020 (revised)

 456 19 THE WITNESS: Yes.

Re: [456:8-456:19]

Def Objection - Vague; 

Compound; Argumentative; 

Misstates (611, 403); Prejudice 

(403); Foundation (602)

Re: [456:8-

456:19]

Def Objection -

Vague; 

Compound; 

Argumentative; 

Misstates (611, 

403); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

457:6 - 457:17 Falco, Robert 2-12-2020 (revised)

 457 6 Q. So we got to take your boss,

 457 7 Dick Knauer's, deposition too. Let me show

 457 8 you what we'll mark as Exhibit Number 41.

 457 9 And this was the deposition

 457 10 that we took of Dick Knauer on the 17th of

 457 11 December, 2019, here in Indianapolis.

 457 12 And if you turn with me -- if

 457 13 you look with me at the top, they're talking

 457 14 about shortening that plug by a quarter-inch.

 457 15 Do you remember the Exhibit 2

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 44 of 221
Falco, Robert 2-12-2020 (revised) 13

 457 16 that talked about shortening the plug by a

 457 17 quarter-inch?

457:23 - 458:13 Falco, Robert 2-12-2020 (revised)

 457 23 Q. Do you see that at the top,

 457 24 they're talking about the quarter-inch?

 457 25 "When you made the decision

 458 1 that the plug could be shortened by a

 458 2 quarter-inch, were you looking at the

 458 3 capabilities of the plug or were you

 458 4 looking at the manufacturing process

 458 5 necessary to create the plug?"

 458 6 And Dick Knauer said: "We were

 458 7 looking at -- I -- I was

 458 8 specifically or Bob Falco was

 458 9 specifically looking at the capability

 458 10 of being able to manufacture a shorter

 458 11 plug."

 458 12 Do you see that?

 458 13 A. Yes.

459:23 - 460:18 Falco, Robert 2-12-2020 (revised)

 459 23 Q. Dick Knauer said: "To the best

 459 24 of my memory, what we did, we took

 459 25 the -- because we had the UltraFit

 460 1 tips, we took them and cut them down to

 460 2 certain lengths, put a filter in the

 460 3 adapter and put them together and sent

 460 4 them and said, 'Hey, Doug, is this what

 460 5 you want? Is this not what you want?'

 460 6 that type of thing."

 460 7 And the question: "So who did

 460 8 that? Was it you?

 460 9 "No, it was not me," is what

 460 10 Knauer said.

 460 11 "Okay.

 460 12 "The most likely person that

 460 13 had made the actual sample, Bob Falco,

 460 14 the design engineer."

 460 15 Do you see that?

 460 16 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 45 of 221
Falco, Robert 2-12-2020 (revised) 14

 460 17 Q. So he's saying that you came up

 460 18 with the two-sided design.

460:22 - 460:22 Falco, Robert 2-12-2020 (revised)

 460 22 Q. That wasn't true, right?

461:2 - 461:9 Falco, Robert 2-12-2020 (revised)

 461 2 THE WITNESS: I don't recall

 461 3 this.

 461 4 QUESTIONS BY MR. OVERHOLTZ:

 461 5 Q. Okay. You don't recall being

 461 6 asked --

 461 7 A. No.

 461 8 Q. -- to come up with the

 461 9 two-sided design?

461:17 - 461:21 Falco, Robert 2-12-2020 (revised)

 461 17 Q. When Berger said, "The person

 461 18 who actually drew up the parts, conceived of

 461 19 the way the dual-end would go together

 461 20 initially, would be Bob Falco," he was lying

 461 21 there?

Re: [461:17-461:21]

Hearsay (403, 602)

OVERRULED

461:24 - 461:25 Falco, Robert 2-12-2020 (revised)

 461 24 THE WITNESS: I have no

 461 25 knowledge of that.

Re: [461:24-461:25]

Hearsay (403, 602)

OVERRULED

462:21 - 463:2 Falco, Robert 2-12-2020 (revised)

 462 21 Q. The question is: When Elliott

 462 22 Berger testified on behalf of the company --

 462 23 or for himself that the person who actually

 462 24 drew the parts, conceived of the way the

 462 25 dual-end would go together initially would be

 463 1 Bob Falco, he wasn't telling the truth,

 463 2 right?

463:5 - 463:6 Falco, Robert 2-12-2020 (revised)

 463 5 THE WITNESS: I don't recall

 463 6 that.

463:15 - 463:18 Falco, Robert 2-12-2020 (revised)

 463 15 Q. You have no understanding as to

 463 16 why Elliott Berger would testify that the

 463 17 person who came up with this two sides to go

 463 18 together would be Bob Falco?

Re: [463:15-463:22]

Def Objection - Compound; 

Asked; Misstates (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [463:15-

463:22]

Def Objection -

Compound; 

Asked; 

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 46 of 221
Falco, Robert 2-12-2020 (revised) 15

Misstates (611, 

403); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

463:21 - 463:22 Falco, Robert 2-12-2020 (revised)

 463 21 THE WITNESS: I didn't come up

 463 22 with that design.

Re: [463:15-463:22]

Def Objection - Compound; 

Asked; Misstates (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [463:15-

463:22]

Def Objection -

Compound; 

Asked; 

Misstates (611, 

403); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

464:6 - 464:10 Falco, Robert 2-12-2020 (revised)

 464 6 Q. If people at 3M are testifying

 464 7 in this case that it was you who designed

 464 8 this plug, this Combat Arms version 2, do you

 464 9 have an understanding as to why they would

 464 10 say that if it wasn't true?

Re: [464:6-464:24]

Def Objection - Vague; 

Compound; Asked; Misstates; 

Argumentative (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [464:6-

464:24]

Def Objection -

Vague; 

Compound; 

Asked; 

Misstates; 

Argumentative 

(611, 403); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

464:16 - 464:16 Falco, Robert 2-12-2020 (revised)

 464 16 THE WITNESS: I have no idea.

Re: [464:6-464:24]

Def Objection - Vague; 

Compound; Asked; Misstates; 

Argumentative (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [464:6-

464:24]

Def Objection -

Vague; 

Compound; 

Asked; 

Misstates; 

Argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 47 of 221
Falco, Robert 2-12-2020 (revised) 16

(611, 403); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

464:18 - 464:19 Falco, Robert 2-12-2020 (revised)

 464 18 Q. Your testimony today is they'd

 464 19 be wrong for saying that?

Re: [464:6-464:24]

Def Objection - Vague; 

Compound; Asked; Misstates; 

Argumentative (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [464:6-

464:24]

Def Objection -

Vague; 

Compound; 

Asked; 

Misstates; 

Argumentative 

(611, 403); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

464:23 - 464:24 Falco, Robert 2-12-2020 (revised)

 464 23 THE WITNESS: I have no idea

 464 24 why they'd say that.

Re: [464:6-464:24]

Def Objection - Vague; 

Compound; Asked; Misstates; 

Argumentative (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [464:6-

464:24]

Def Objection -

Vague; 

Compound; 

Asked; 

Misstates; 

Argumentative 

(611, 403); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

466:13 - 467:4 Falco, Robert 2-12-2020 (revised)

 466 13 Q. Okay. And so if you look with

 466 14 me on the next page, there's a section here

 466 15 called "Brief History of Passive Earplugs."

 466 16 Do you see that?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 48 of 221
Falco, Robert 2-12-2020 (revised) 17

 466 17 A. Yes.

 466 18 Q. And the first was the ear

 466 19 classic, first patented disposable foam

 466 20 earplug developed in the '70s, and then the

 466 21 next one is the UltraFit earplug, right?

 466 22 A. Yes, that's what it says here.

 466 23 Q. And you did come up with the

 466 24 UltraFit, right?

 466 25 A. Yes.

 467 1 Q. And you hold the patent on the

 467 2 UltraFit?

 467 3 A. I'm the inventor of it. The

 467 4 patent is held by the corporation.

468:3 - 468:7 Falco, Robert 2-12-2020 (revised)

 468 3 Q. So you see this picture of the

 468 4 ear, and then there's four descriptions there

 468 5 of how earplugs function.

 468 6 Do you see those?

 468 7 A. Yes.

Re: [468:3-468:7]

improper counter

SUSTAINED

471:18 - 471:21 Falco, Robert 2-12-2020 (revised)

 471 18 Q. As the design engineer who was

 471 19 designing the plugs at Aearo and then 3M,

 471 20 you're not aware of whether poor fit can

 471 21 result in poor performance for a plug?

471:24 - 471:25 Falco, Robert 2-12-2020 (revised)

 471 24 THE WITNESS: No, I'm not aware

 471 25 of that.

474:11 - 474:14 Falco, Robert 2-12-2020 (revised)

 474 11 Q. I mean, when you learned that

 474 12 something didn't work, did you just keep

 474 13 doing it as the design engineer, or did you

 474 14 try to change?

Re: [474:11-474:14]

Overbroad

OVERRULED

474:16 - 474:16 Falco, Robert 2-12-2020 (revised)

 474 16 THE WITNESS: I don't know.

Re: [474:16-474:16]

Overbroad

OVERRULED

475:6 - 475:13 Falco, Robert 2-12-2020 (revised)

 475 6 Q. If you had been told, hey, you

 475 7 need to work on this and make it better,

 475 8 would you have done that?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 49 of 221
Falco, Robert 2-12-2020 (revised) 18

 475 9 A. I don't remember anybody ever

 475 10 saying that to me.

 475 11 Q. No one ever told you that,

 475 12 right?

 475 13 A. I'm not aware of that.

490:7 - 490:10 Falco, Robert 2-12-2020 (revised)

 490 7 Q. As the product designer of the

 490 8 plug, you didn't have an idea about whether

 490 9 it was important that they get manufactured

 490 10 without defects?

Re: [490:7-490:14]

Def Objection - Vague; 

Argumentative (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [490:6-

490:14]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Prejudice 

(403); 

Foundation 

(602)

SUSTAINED

490:13 - 490:14 Falco, Robert 2-12-2020 (revised)

 490 13 THE WITNESS: I have no

 490 14 knowledge of that.

Re: [490:7-490:14]

Def Objection - Vague; 

Argumentative (611, 403); 

Prejudice (403); Foundation 

(602)

Re: [490:6-

490:14]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Prejudice 

(403);

Foundation 

(602)

SUSTAINED

497:13 - 498:2 Falco, Robert 2-12-2020 (revised)

 497 13 So this is a series of drawings

 497 14 related to the Combat Arms plug version 2, so

 497 15 I wanted to go and look at a few of these.

 497 16 And we'll probably come back to this as we go

 497 17 through them.

 497 18 But you recognize these

 497 19 drawings?

 497 20 A. The one that's marked UltraFlex

 497 21 earplug short?

 497 22 Q. Right.

 497 23 A. 2068?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 50 of 221
Falco, Robert 2-12-2020 (revised) 19

 497 24 Q. Right.

 497 25 A. Yes.

 498 1 Q. That's one of the parts for

 498 2 this Combat Arms version 2, right?

498:5 - 498:6 Falco, Robert 2-12-2020 (revised)

 498 5 THE WITNESS: I'm not sure.

 498 6 This is for an UltraFlex earplug.

499:18 - 499:21 Falco, Robert 2-12-2020 (revised)

 499 18 Q. That's the 2039.

 499 19 And part B is 2068, which is

 499 20 the UltraFlex earplug, right?

 499 21 A. Yes.

502:10 - 502:13 Falco, Robert 2-12-2020 (revised)

 502 10 Q. So these drawings, they start

 502 11 out by hand or they start in the CAD program?

 502 12 A. I'm not sure of that. Marc

 502 13 Doty took care of the drawings.

503:24 - 504:2 Falco, Robert 2-12-2020 (revised)

 503 24 Did anyone tell you that this

 503 25 needed to be a hard plastic stem in the

 504 1 middle?

 504 2 A. Not that I'm aware of, no.

504:24 - 504:25 Falco, Robert 2-12-2020 (revised)

 504 24 Q. It's possible to use a

 504 25 different material, right?

Re: [504:24-505:16]

improper counter

OVERRULED

505:3 - 505:4 Falco, Robert 2-12-2020 (revised)

 505 3 THE WITNESS: I'm -- I don't

 505 4 know that.

Re: [504:24-505:16]

improper counter

OVERRULED

505:6 - 505:12 Falco, Robert 2-12-2020 (revised)

 505 6 Q. I mean, you chose materials for

 505 7 lots of different things, right?

 505 8 A. I'm not sure I chose that

 505 9 material.

 505 10 Q. Okay. But the company could

 505 11 have chosen a different material for this

 505 12 plastic insert, right?

Re: [504:24-505:16]

improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 51 of 221
Falco, Robert 2-12-2020 (revised) 20

505:15 - 505:16 Falco, Robert 2-12-2020 (revised)

 505 15 THE WITNESS: I don't have any

 505 16 knowledge of that.

Re: [504:24-505:16]

improper counter

OVERRULED

648:3 - 648:3 Falco, Robert 2-12-2020 (revised)

 648 3 THE WITNESS: Excuse me?

Re: [647:16-648:3]

Def Objection - Vague; 

Compound; Misstates; (611, 

403); Relevance (401, 402); 

Prejudice (403); Foundation 

(602)

Re: [647:16-

648:6]

Def Objection -

Vague; 

Compound; 

Misstates; (611, 

403); 

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

SUSTAINED 

 confusing.

648:18 - 648:21 Falco, Robert 2-12-2020 (revised)

 648 18 Q. Were there any drawings made by

 648 19 you or Marc Doty that showed those flanges

 648 20 folded back on the Combat Arms plug?

 648 21 A. On the Combat Arms plug?

Re: [648:18-649:1]

Def Objection - Vague; 

Compound; Asked (611, 403); 

Relevance (401, 402); 

Foundation (602)

Re: [648:18-

649:1]

Def Objection -

Vague; 

Compound; 

Asked (611, 

403); 

Relevance 

(401, 402); 

Foundation 

(602)

OVERRULED

648:25 - 649:4 Falco, Robert 2-12-2020 (revised)

 648 25 Q. Yes.

 649 1 A. Not that I remember.

 649 2 Q. You never designed a version of

 649 3 the plug that would have the flanges folded

 649 4 back, right?

Re: [648:18-649:1]

Def Objection - Vague; 

Compound; Asked (611, 403);

Relevance (401, 402); 

Foundation (602)

Re: [649:2-649:8]

Def Objection - Vague (611, 

403); Relevance (401, 402); 

Prejudice (403)

Re: [648:18-

649:1]

Def Objection -

Vague; 

Compound; 

Asked (611, 

403); 

Relevance 

(401, 402); 

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 52 of 221
Falco, Robert 2-12-2020 (revised) 21

Foundation 

(602)

OVERRULED

Re: [649:2-

649:8]

Def Objection -

Vague (611, 

403); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

649:7 - 649:21 Falco, Robert 2-12-2020 (revised)

 649 7 THE WITNESS: I don't recall

 649 8 that, no.

 649 9 QUESTIONS BY MR. OVERHOLTZ:

 649 10 Q. Did you do any testing, ever,

 649 11 of the Combat Arms plug with the flanges

 649 12 folded back?

 649 13 A. Me personally?

 649 14 Q. Yes.

 649 15 A. No.

 649 16 Q. Were you aware of any testing

 649 17 done on the Combat Arms plug as far as the --

 649 18 what it means to the material and the quality

 649 19 of the material and strength of the material

 649 20 from a manufacturing perspective if the

 649 21 flanges are folded back?

Re: [649:2-649:8]

Def Objection - Vague (611, 

403); Relevance (401, 402); 

Prejudice (403)

Re: [649:9-649:15]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [649:16-649:25]

Def Objection - Vague; 

Compound (611, 403); 

Relevance (401, 402); Prejudice 

(403); Foundation (602)

Re: [649:2-

649:8]

Def Objection -

Vague (611, 

403); 

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [649:9-

649:15]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403) 

OVERRULED

Re: [649:16-

649:25]

Def Objection -

Vague; 

Compound 

(611, 403); 

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 53 of 221
Falco, Robert 2-12-2020 (revised) 22

(602)

OVERRULED

649:24 - 651:2 Falco, Robert 2-12-2020 (revised)

 649 24 THE WITNESS: I don't recall

 649 25 any of -- anything like that.

 650 1 QUESTIONS BY MR. OVERHOLTZ:

 650 2 Q. You said the flanges were made

 650 3 out of some kind of elastomer; is that right?

 650 4 A. Yes.

 650 5 Q. Did you ever do any testing of

 650 6 the elastomer and what would happen to the

 650 7 elastomer as far as whether it could tear or

 650 8 crack if the flanges were folded back?

 650 9 A. Any testing of it?

 650 10 Q. Yeah.

 650 11 A. No.

 650 12 Q. In your design of the Combat

 650 13 Arms version 3 and then version 4 that you

 650 14 designed, right?

 650 15 A. Yes.

 650 16 Q. On those plugs, did you ever

 650 17 design any of them for having the flanges

 650 18 folded back?

 650 19 A. Not that I remember.

 650 20 Q. And when you worked on the

 650 21 UltraFit -- that was your design as well, the

 650 22 UltraFit plug, right?

 650 23 A. Yes.

 650 24 Q. Did you ever design the

 650 25 UltraFit plug, ever do any drawings with the

 651 1 flanges of the UltraFit folded back?

 651 2 A. Not that I can recall.

Re: [649:16-649:25]

Def Objection - Vague; 

Compound (611, 403); 

Relevance (401, 402); Prejudice 

(403); Foundation (602)

Re: [650:5-650:15]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [650:16-650:19]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [650:24-651:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [649:16-

649:25]

Def Objection -

Vague; 

Compound 

(611, 403); 

Relevance 

(401, 402); 

Prejudice 

(403); 

Foundation 

(602)

OVERRULED

Re: [650:5-

650:15]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [650:16-

650:19]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

Re: [650:24-

651:2]

Def Objection -

Relevance 

(401, 402); 

Prejudice (403)

OVERRULED

653:7 - 653:8 Falco, Robert 2-12-2020 (revised)

 653 7 THE WITNESS: Not that I'm

 653 8 aware of.

Re: [653:7-653:8]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [653:3-

653:8]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 54 of 221
Falco, Robert 2-12-2020 (revised) 23

Vague (611, 

403); 

Foundation 

(602)

OVERRULED

658:24 - 658:25 Falco, Robert 2-12-2020 (revised)

 658 24 THE WITNESS: No, I'm not aware

 658 25 of that.

664:24 - 711:14 Falco, Robert 2-12-2020 (revised)

 664 24 Q. Good afternoon, Mr. Falco.

 664 25 My name is Sierra Elizabeth,

 665 1 and I represent 3M in this litigation. Thank

 665 2 you for your time today.

 665 3 You understand that you're

 665 4 still under oath?

 665 5 A. Yes.

 665 6 Q. I want to follow up on some

 665 7 questions from plaintiff's counsel about your

 665 8 background.

 665 9 You mentioned that you went to

 665 10 high school, right?

 665 11 A. Up to the tenth grade, yes.

 665 12 Q. Okay. And you decided to then

 665 13 go to the military?

 665 14 A. Yes.

 665 15 Q. Tell us about why you made that

 665 16 decision, to leave tenth grade and go to the

 665 17 military.

 665 18 A. We had a fire in our school;

 665 19 half of it burned down. We were on half-day

 665 20 sessions. I was kind of tired of school. I

 665 21 was kind of patriotic, and the war was going

 665 22 on in Vietnam, and I decided to join the

 665 23 Army. I figured I could finish my education

 665 24 in the Army. At the time I was 17, couldn't

 665 25 go overseas until you were 18, so I

 666 1 guaranteed a year in the States.

 666 2 And on my 18th birthday I got a

 666 3 little message from the government, and then

Re: [664:24-711:14]

improper counter - designated 50 

minutes from direct without 

regard to affirmative testimony 

designated by plaintiffs. 402; 

403; cumulative with defendants' 

affirmative designation.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 55 of 221
Falco, Robert 2-12-2020 (revised) 24

 666 4 I went to Vietnam.

 666 5 I went into the service, which

 666 6 went -- I went to basic training in Fort Dix,

 666 7 New Jersey, advanced training in Fort Leonard

 666 8 Wood, Missouri, as a combat engineer. I was

 666 9 still 17, so I was deployed to a company in

 666 10 Fort Riley, Kansas, an engineering company

 666 11 that built bridges.

 666 12 And then shortly after that I

 666 13 turned 18, and I got my orders for Vietnam.

 666 14 Q. Thank you.

 666 15 Can you describe to the jury

 666 16 what a combat engineer is?

 666 17 A. A combat engineer, my

 666 18 particular group is called 12A10. We were

 666 19 called pioneers. We were what you might

 666 20 think as a kind of a construction worker, an

 666 21 expedient engineer. We were called to clear

 666 22 roads with minesweeping, build perimeters in

 666 23 Vietnam.

 666 24 We were helicoptered into areas

 666 25 and dropped through ropes into the jungle,

 667 1 and then we would use demolition and

 667 2 chainsaws to clear the area to build fire

 667 3 bases.

 667 4 Q. What kind of training did you

 667 5 receive to prepare you to be able to take on

 667 6 those duties?

 667 7 A. Most of that was all in the

 667 8 engineer school at Fort Leonard Wood,

 667 9 Missouri.

 667 10 Q. And that was when you were how

 667 11 old?

 667 12 A. I was still 17 then.

 667 13 Q. And you said you thought you

 667 14 could finish your degree in the military.

 667 15 Did you do that?

 667 16 A. Yes.

 667 17 Q. When did you do that?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 56 of 221
Falco, Robert 2-12-2020 (revised) 25

 667 18 A. While I was there, I think it

 667 19 was still in the States, I got a GED, which

 667 20 was a high school equivalency.

 667 21 Q. How long were you a combat

 667 22 engineer in the military?

 667 23 A. My whole time in the service,

 667 24 with the exception of basic training, which

 667 25 was about eight weeks.

 668 1 Q. So how long were you in the

 668 2 military?

 668 3 A. Three years.

 668 4 Q. Were you honorably discharged?

 668 5 A. Yes, I was.

 668 6 Q. What did you do when you left

 668 7 the service?

 668 8 A. I left the service. I was --

 668 9 at that time there I was stationed in Fort

 668 10 Carson, Colorado. I had a son on the way,

 668 11 and so we left the service in Fort Carson,

 668 12 Colorado, and moved to Muskegon, Michigan,

 668 13 where my wife was from so we had a base and a

 668 14 hospital to have the child. And shortly

 668 15 after that, I moved back to Massachusetts.

 668 16 Q. Before we talk about your move

 668 17 back to Massachusetts, is that where you grew

 668 18 up?

 668 19 A. Yes.

 668 20 Q. Tell me what you were doing in

 668 21 Muskegon, Michigan, other than having your

 668 22 first born.

 668 23 A. Well, for there, it was just a

 668 24 place to go that we had family. My wife's

 668 25 father owned a restaurant, so I helped him

 669 1 out in the restaurant and, you know, just

 669 2 earned my keep.

 669 3 Q. What did you do?

 669 4 A. I cooked. I cleaned. I fixed

 669 5 his equipment. Just anything that needed to

 669 6 be done.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 57 of 221
Falco, Robert 2-12-2020 (revised) 26

 669 7 Q. And how long were you in

 669 8 Muskegon, Michigan?

 669 9 A. Probably less than a year.

 669 10 Q. Okay. And then you said you

 669 11 moved back to Massachusetts?

 669 12 A. Yes.

 669 13 Q. Where did you move?

 669 14 A. I moved back to Malden,

 669 15 Massachusetts.

 669 16 Q. Where is that?

 669 17 A. That's about four or five miles

 669 18 north of Boston.

 669 19 Q. And why did you move back to

 669 20 Massachusetts?

 669 21 A. I had moved back to

 669 22 Massachusetts because that's where I came

 669 23 from, that's a better place to get jobs, and

 669 24 I had family there. Lots of family.

 669 25 Q. Were you able to find a job?

 670 1 A. Yes.

 670 2 Q. What kind of work were you

 670 3 doing?

 670 4 A. Well, at first I got a job at

 670 5 the Malden Hospital, pretty much just doing

 670 6 janitorial work and light maintenance.

 670 7 Q. And how long were you working

 670 8 at the Malden Hospital?

 670 9 A. Probably less than a year.

 670 10 Q. And what did you do next?

 670 11 A. The next thing I did was I got

 670 12 a job in Everett in Ober Tool & Die Shop as a

 670 13 machinist.

 670 14 Q. And is that Everett,

 670 15 Massachusetts?

 670 16 A. Everett, Massachusetts.

 670 17 Q. Where is Everett?

 670 18 A. Everett is about three miles

 670 19 north of Boston.

 670 20 Q. Okay. And you said you got a

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 670 21 job at Open Tool & Die?

 670 22 A. Ober, O-b-e-r, Ober.

 670 23 Q. O-b-e-r.

 670 24 A. Yes.

 670 25 Q. And what you were doing there?

 671 1 A. I was doing general machine

 671 2 work, running mills, lathes, fabrication

 671 3 work, tooling -- some tool and die work.

 671 4 Q. Why did you decide to work for

 671 5 Ober Tool & Die?

 671 6 A. I made more money there.

 671 7 Q. If you don't mind me asking,

 671 8 approximately how much were you making?

 671 9 A. Boy, that's a good question. I

 671 10 don't remember.

 671 11 Q. Okay. And did you receive any

 671 12 training in order to fulfill your duties at

 671 13 Ober Tool & Die?

 671 14 A. Yes, I took courses at

 671 15 Middlesex Community College and a regional

 671 16 vocational trade school. Night school.

 671 17 Q. What kind of courses did you

 671 18 take?

 671 19 A. Well, in the regional

 671 20 vocational school I took machine shop, tool

 671 21 and fixture manufacturing.

 671 22 Q. So I think you mentioned two

 671 23 different schools: Middlesex Community

 671 24 College and then Indiana vocational.

 671 25 Do I have that right?

 672 1 A. The Middlesex -- that was in

 672 2 Massachusetts.

 672 3 Q. Okay.

 672 4 A. And Ivy Tech was here in

 672 5 Indianapolis.

 672 6 Q. Okay. So the classes that you

 672 7 took related to tool and fixture, machine

 672 8 shop, manufacturing, was that at Middlesex?

 672 9 A. No, at Middlesex I took some

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 672 10 general courses. I took an anthropology

 672 11 course. I took, let's see -- the

 672 12 anthropology one I remember. I forget what

 672 13 the rest of them were.

 672 14 Q. So how long did you work at

 672 15 Ober Tool & Die?

 672 16 A. Less than a year.

 672 17 Q. What did you do next?

 672 18 A. Next from Ober Tool & Die, at

 672 19 the time I was living -- I had moved from

 672 20 Malden, and I moved to a place called

 672 21 Billerica, Massachusetts, which is about

 672 22 30 miles north of Boston --

 672 23 Q. Okay.

 672 24 A. -- where I acquired a small

 672 25 house. And I was -- now I had to -- I got a

 673 1 better deal on a house, but now I had to

 673 2 commute back to Everett, which was about 30

 673 3 miles. And at the time I had a motorcycle.

 673 4 And I had to do this out on Route 128, which

 673 5 was almost worse than a combat zone.

 673 6 And one day I was in Billerica.

 673 7 I passed by a driveway, and I saw this sign

 673 8 that said the Cabot Corporation. And I was

 673 9 just curious, so I went down this driveway

 673 10 that led into the woods, and in there was the

 673 11 Cabot Corporation research and development

 673 12 headquarters.

 673 13 Q. In Billerica, Massachusetts?

 673 14 A. In Billerica, Massachusetts,

 673 15 which is now only about a mile away from my

 673 16 house.

 673 17 So I went in there and I --

 673 18 Q. One question --

 673 19 A. Okay.

 673 20 Q. -- on that.

 673 21 Do you know what year this was

 673 22 when you were driving down and saw the Cabot

 673 23 Corporation sign?

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 673 24 A. The later part of '69 or into

 673 25 the -- 1970.

 674 1 Q. Okay.

 674 2 A. I do remember that I started at

 674 3 Cabot at 1970.

 674 4 Q. Okay. So you see the Cabot

 674 5 Corporation sign --

 674 6 A. Uh-huh.

 674 7 Q. -- and what happens next?

 674 8 A. I ran into the lobby, and I --

 674 9 I asked them if they had any, you know, job

 674 10 openings.

 674 11 And a person from personnel

 674 12 came down and talked with me, and she just

 674 13 said, well, you know -- wanted to know a

 674 14 little bit about who I was.

 674 15 Gave her that, and I told her I

 674 16 was an Army veteran. And at the time, I was

 674 17 only 20 years old, so they knew if they hired

 674 18 me, I wasn't going to get drafted.

 674 19 So there were two job openings:

 674 20 One was a technician working in one of their

 674 21 pilot plants, the pilot laboratory there on

 674 22 the grounds; and the other was in the

 674 23 mailroom.

 674 24 I didn't get the job as the

 674 25 technician, somebody else in the company

 675 1 bumped into that one there, so I took the job

 675 2 in the mailroom delivering mail.

 675 3 And that's how it all started

 675 4 in Cabot Corporation.

 675 5 Q. How long were you delivering

 675 6 mail at the Cabot Corporation?

 675 7 A. Probably the better part of a

 675 8 year, maybe, you know, or less.

 675 9 Q. What happened next?

 675 10 A. Cabot acquired a company called

 675 11 National Research Corporation for other

 675 12 reasons. This company was a turnkey research

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Falco, Robert 2-12-2020 (revised) 30

 675 13 and development facility. They would invent

 675 14 things, and they would look for prospective

 675 15 buyers to come into these laboratories. And

 675 16 if they liked what they saw, it was turnkey.

 675 17 If you liked what you saw, they would build

 675 18 you -- you'd tell them where they {sic}

 675 19 wanted you to build the plant, and they did

 675 20 it from there.

 675 21 And it was more of a

 675 22 technology -- they were selling technology.

 675 23 Some of the things that came

 675 24 out of National Research were Minute Maid

 675 25 orange juice process, freeze-dried coffee,

 676 1 the ability to make sound movies on

 676 2 8-millimeter.

 676 3 And they also had a laboratory

 676 4 there that had a lot of the information on

 676 5 cryogenics, the distribution and storage of

 676 6 liquid natural gas.

 676 7 Also in this company, down in

 676 8 the basement, was this company, fledging

 676 9 company, called at that time E-A-R. I was

 676 10 sent down there from Billerica, from the

 676 11 mailroom, to help clear out some of these

 676 12 laboratories. And I had met this gentleman

 676 13 called Ross Gardner.

 676 14 Q. Before we talk about Ross

 676 15 Gardner, you said you were sent down there.

 676 16 What do you mean by that?

 676 17 A. Well, I was -- being a mailroom

 676 18 person, we did all kinds of duties, you know.

 676 19 If they needed snow shoveling or if they

 676 20 needed to deliver the mail or, you know,

 676 21 drive the company truck to pick up some

 676 22 parts, you know, these are just general -- if

 676 23 you worked in the mailroom, you just did a

 676 24 lot of general stuff. Just a good helper.

 676 25 Q. And you said you were sent down

 677 1 to E-A-R?

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 677 2 A. When Cabot bought this National

 677 3 Research Corporation, all of these labs were

 677 4 being slowly disbanded, you know. Cabot just

 677 5 wanted the things that they wanted. And the

 677 6 rest, they were just attrition. They were,

 677 7 you know, closing down these labs.

 677 8 I went down there to help move

 677 9 some material around with our company truck.

 677 10 We were, you know, either disposing things or

 677 11 moving them to a new location.

 677 12 Q. What happened next?

 677 13 A. I met this gentleman called

 677 14 Ross Gardner. It was in the basement of the

 677 15 building.

 677 16 Ross Gardner was punching these

 677 17 little yellow earplugs, so I helped to move

 677 18 some boxes and stuff around there. And I

 677 19 talked with him a little bit, but he was

 677 20 telling me something about, you know,

 677 21 polymers and plastics and, you know, what he

 677 22 was doing and this little earplug that he

 677 23 made.

 677 24 And as I was walking away from

 677 25 him, he flips me this little blue ball. So I

 678 1 caught it. I just walked away, and I threw

 678 2 it down on the concrete floor and it went

 678 3 thud. It did not bounce. And being a

 678 4 curious person, I picked it up, and I walked

 678 5 back to Ross and I said, "How come this

 678 6 didn't bounce?"

 678 7 And in about two hours later, I

 678 8 had the full story, and I had this vision

 678 9 that this guy was really on to something.

 678 10 And I told him, I says, you know, if you --

 678 11 once you -- they were also going to be moving

 678 12 up to Billerica. We had some space up there

 678 13 that they could move their operation into.

 678 14 Q. Where was E-A-R located at the

 678 15 time?

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 678 16 A. E-A-R was -- that was on

 678 17 Memorial Drive in Cambridge, right next to

 678 18 MIT. Right on the river.

 678 19 Q. Okay.

 678 20 A. Okay.

 678 21 Q. Well, let me ask you a

 678 22 clarifying question.

 678 23 What do you mean when you said

 678 24 Ross Gardner was punching these little yellow

 678 25 earplugs?

 679 1 A. In a room, there is a -- this

 679 2 ancient, 100-year-old USM clicking machine.

 679 3 This is what they used to punch shoe parts

 679 4 out of up in like -- in the -- in the New

 679 5 England area, there are massive factories

 679 6 building shoes and parts. They had these --

 679 7 they would like have a hundred of these

 679 8 machines.

 679 9 Well, anyway, Ross Gardner, I

 679 10 guess his budget was pretty tight. But

 679 11 anyway, they acquired one of these machines.

 679 12 And they had a board with these punches in

 679 13 it, and this thing would just stomp it, and

 679 14 you'd get these little, cylindrical, yellow

 679 15 earplugs.

 679 16 And so that's -- they were

 679 17 packaging these things by hand, and they had

 679 18 some salespeople that were going out there

 679 19 and, you know, trying to sell them.

 679 20 Q. Do you know what those earplugs

 679 21 were called?

 679 22 A. They were called an E-A-R plug.

 679 23 Q. Okay. And do you know who

 679 24 invented those earplugs?

 679 25 A. The inventor was Ross Gardner.

 680 1 Q. Okay. And I also want to

 680 2 revisit your comment about the blue ball that

 680 3 he threw you.

 680 4 A. Yes.

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 680 5 Q. Did you ever learn about what

 680 6 that was?

 680 7 A. Oh, yeah. Oh, I knew exactly

 680 8 what that did.

 680 9 Q. What was it?

 680 10 A. Ross Gardner was a chemist, and

 680 11 he had worked on polymers, plastic vinyl

 680 12 polymers. And he had formulations -- a

 680 13 method to make the rubber, this flexible

 680 14 rubber material, absorb the energy.

 680 15 When that ball hit the ground,

 680 16 okay, normal ball would have -- it would have

 680 17 absorbed the energy and then released it to

 680 18 make it bounce up. Well, this didn't. It

 680 19 absorbed the energy and held it there. And

 680 20 that's -- to me, that was the -- just unique,

 680 21 you know.

 680 22 And like I said, it took almost

 680 23 two hours for him to go through the whole

 680 24 routine, explain everything. And along the

 680 25 way he also told me about the earplugs that

 681 1 he was making.

 681 2 The polymer that made the

 681 3 E-A-R -- the ball was a very similar polymer

 681 4 that made the earplug energy absorbant.

 681 5 Q. So you were saying that E-A-R,

 681 6 they were thinking about relocating it to

 681 7 Billerica, Massachusetts?

 681 8 A. Yes.

 681 9 Q. Okay. Tell me about that.

 681 10 A. We had space in a warehouse and

 681 11 some -- vacant laboratories in Billerica.

 681 12 And, of course, they didn't have a buyer for

 681 13 the E-A-R group, and anybody that, you know,

 681 14 they couldn't get rid of through attrition,

 681 15 well, they had to move them up. There was

 681 16 something in a contract when they bought the

 681 17 company that they couldn't just close down

 681 18 labs and fire people. Somehow it was worked

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 681 19 in it so that they had to -- there had to be

 681 20 some kind of attrition.

 681 21 A lot of the labs would

 681 22 either -- you know, they were through -- they

 681 23 would either disband themselves or we would

 681 24 absorb them. They absorbed the laboratory

 681 25 that did the cryogenic work, and they -- what

 682 1 was left was E-A-R, and they didn't really

 682 2 like E-A-R. It was kind of a, well -- it was

 682 3 way, way out of their marketing.

 682 4 But they took it on, they had

 682 5 the room, and so that's how it got started.

 682 6 Q. Okay. And what happened next

 682 7 in terms of your employment?

 682 8 A. Well, it had seemed that at

 682 9 that time, a lot of companies were being sued

 682 10 because their workers were losing their

 682 11 hearing. And so this came -- quite a bit of

 682 12 these companies were really getting -- you

 682 13 know, losing lots of money because they had

 682 14 to settle these lawsuits.

 682 15 There was a mad scramble to

 682 16 find how could we, you know, address this

 682 17 problem.

 682 18 Well, some people says, well,

 682 19 we'll try to, you know, quiet down the

 682 20 facilities, but some places it was just

 682 21 impossible to quiet down.

 682 22 This earplug that Ross Gardner

 682 23 made, one -- at the time, it won an IR-100

 682 24 award, which meant this was one of the

 682 25 most -- 100 of the most significant

 683 1 inventions for that year. So it was, you

 683 2 know, the classic right time, right place.

 683 3 We started punching this thing,

 683 4 and the salesmen were going out, and it was

 683 5 part of their sales pitch to a corporation

 683 6 to -- this is a very inexpensive product.

 683 7 Your workers -- it's an earplug, and the

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Falco, Robert 2-12-2020 (revised) 35

 683 8 earplug was almost as good as an earmuff.

 683 9 Q. Now, were you still in the

 683 10 mailroom at this time?

 683 11 A. No, at this time here -- this

 683 12 is when I transitioned. As I told you, I

 683 13 asked Mr. Gardner if he ever needed any help,

 683 14 I would like to transfer into his group.

 683 15 Q. And you did that?

 683 16 A. And I did that, yes.

 683 17 Q. Okay. So tell us about what

 683 18 happened after you transferred into his --

 683 19 Ross Gardner's group.

 683 20 A. Well, as I transferred into

 683 21 Ross Gardner's group, I was the guy now

 683 22 punching the earplugs and sweeping the floors

 683 23 and doing anything they needed.

 683 24 I had -- I had a unique talent

 683 25 that at the beginning of this company's

 684 1 fledgeling beginning, I was -- I became

 684 2 valuable.

 684 3 The company actually had two --

 684 4 they really had two products. One was like

 684 5 products made out of the material that was in

 684 6 that rubber ball, like grommets and isolators

 684 7 and damping material, and then there was this

 684 8 consumer, industrial product, the earplug.

 684 9 So when I could punch plugs,

 684 10 Ross Gardner could work more on his polymers

 684 11 and other things, so I was just there -- I

 684 12 relieved some of the duties that Ross was

 684 13 doing.

 684 14 Q. What happened next?

 684 15 A. Well, as I said, this earplug

 684 16 really started to catch on. And we were

 684 17 getting orders, and it was more than we could

 684 18 make with that little machine that we were

 684 19 using.

 684 20 So we had moved up to -- out of

 684 21 Cambridge. We moved up to Billerica. We

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Falco, Robert 2-12-2020 (revised) 36

 684 22 made a bigger room. We -- I think we ended

 684 23 up with two punching presses, and I think

 684 24 there was another person they hired to run

 684 25 that.

 685 1 Plus also, the foam that we

 685 2 made had to be made out in Ravenna, Ohio.

 685 3 And one of the other duties that I, you know,

 685 4 grew into was to go out and supervise the

 685 5 manufacturing of this foam, you know.

 685 6 After working with Ross Gardner

 685 7 for a while, you know, he was -- he was

 685 8 teaching me. He was training me. He was my

 685 9 mentor.

 685 10 And so I guess he felt

 685 11 comfortable enough to let me go out and

 685 12 supervise these runs and to record, you

 685 13 know -- I had to make a lot of measurements

 685 14 on the foam. I had to work with the people

 685 15 out at this company to ensure that, you know,

 685 16 they were keeping it within the

 685 17 specifications that we were required.

 685 18 Q. Did you have a job title?

 685 19 A. Just an hourly employee, you

 685 20 know, at the time.

 685 21 Q. What happened next?

 685 22 A. Well, like I said, the company

 685 23 was -- really needed to make more earplugs.

 685 24 It got to the point where we needed to move

 685 25 out of the Billerica facility and we -- after

 686 1 some time, they agreed to build -- or lease a

 686 2 big warehouse in Westwood, Massachusetts.

 686 3 At first Cabot didn't want to

 686 4 kind of -- you know, they didn't get it. And

 686 5 because I was in the mailroom, I had a

 686 6 unique -- I had a unique insight into all of

 686 7 this because I knew everybody. And they knew

 686 8 me, too.

 686 9 So when I was around in

 686 10 Billerica, people would, you know, hey, how

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 686 11 you doing, Bob, how's it going over there.

 686 12 And I would really play up the E-A-R, and I

 686 13 would say, "Hey, this is really a big thing.

 686 14 It's really going." And I would give them an

 686 15 insight.

 686 16 I would talk to like some of

 686 17 the Cabot people that were -- you know, the

 686 18 vice presidents, the heads of their legal

 686 19 department. You know, a lot of people that I

 686 20 met, they were the highest echelon of the

 686 21 company.

 686 22 And so I built up more

 686 23 confidence that this was really a good idea.

 686 24 And I don't know, you know, they just liked

 686 25 me and they figured, he's not lying to me,

 687 1 you know. I know that guy. You know, he

 687 2 always made sure my packages went out on

 687 3 time.

 687 4 And they agreed to give us the

 687 5 extra money to go into the facility in

 687 6 Westwood, Massachusetts. We bought enormous

 687 7 punch presses. We were -- we were making

 687 8 runs to Ohio to make the foam almost on a

 687 9 biweekly basis. And these were -- oh, let's

 687 10 see, we would probably make, you know, 60 or

 687 11 70 rolls of foam that had 150 feet of -- by

 687 12 54 inches wide of foam. And we would store

 687 13 it in our facility at Westwood.

 687 14 Q. So by the time the company

 687 15 moved -- or the E-A-R facility moved to

 687 16 Westwood, Massachusetts --

 687 17 A. Yes.

 687 18 Q. -- how long had you been with

 687 19 the Cabot Corporation?

 687 20 A. Including Cabot and the move to

 687 21 Westwood? Probably several years.

 687 22 Q. So after moving -- uh-huh.

 687 23 A. Well, from Westwood --

 687 24 Q. So let me ask the question.

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 687 25 A. Okay.

 688 1 Q. So after moving into the

 688 2 Westwood facility --

 688 3 A. Facility.

 688 4 Q. -- what were your job duties?

 688 5 A. By that year, I was pretty much

 688 6 working in the lab. You know, the company

 688 7 was drawing -- we were hiring a lot of

 688 8 people. You know, probably had more than 20

 688 9 or 30 people working at the company. We were

 688 10 running it -- the punching presses 24 hours a

 688 11 day.

 688 12 We were at that point there

 688 13 like the McDonald's of the earplug business.

 688 14 We were making millions a day.

 688 15 And I also worked with Gardner

 688 16 because of my machining skills. I helped

 688 17 develop better tools, better punches that

 688 18 lasted longer, that could produce the earplug

 688 19 without an hourglass in it.

 688 20 Q. Tell me what you mean.

 688 21 A. Well, when you punch something,

 688 22 you -- if it's a piece of foam, it all

 688 23 compresses. But when that gets compressed,

 688 24 it gets compressed and then the final cut is

 688 25 cut. And then when it relaxes, well, it has

 689 1 a distortion in it. It comes out like an

 689 2 hourglass.

 689 3 And so by manipulating how we

 689 4 manufactured the punches and the conditions

 689 5 that we -- you know, we kept the foam at --

 689 6 the foam was kept pretty cold. It was like

 689 7 at, I don't know, maybe 58 degrees or

 689 8 something that we kept it, so it improved the

 689 9 punching quality of it.

 689 10 Q. And you said you helped develop

 689 11 better tools to help the punches last longer?

 689 12 A. The punches to last longer and

 689 13 to cut the plugs straight. And also to build

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 689 14 big gangs -- I mean, there's like, you know,

 689 15 72 punches in a -- one die, and they were all

 689 16 ganged together. And we had to calculate the

 689 17 space in between the punches, and we had to

 689 18 figure out ways to put, you know, little

 689 19 injector pieces of plastic in between the

 689 20 punches so it would release the foam from all

 689 21 the punches, and develop a conveyor system to

 689 22 convey the plugs out of the tool.

 689 23 Q. How did you come up with these

 689 24 ideas?

 689 25 A. Trial and error.

 690 1 Q. Tell me what happened next.

 690 2 A. Well, again, when we moved to

 690 3 Westwood, and that probably was from around

 690 4 May -- I'm going to say maybe 1972 to about

 690 5 1977, that's when I moved out to

 690 6 Indianapolis.

 690 7 Q. Why did you move to

 690 8 Indianapolis?

 690 9 A. We moved to Indianapolis for

 690 10 possibly two reasons. One, we needed more

 690 11 space. And at this time here, everybody

 690 12 agreed that we were -- we were an entity. We

 690 13 were producing lots of cash. We had about a

 690 14 200 percent profit margin on our product. We

 690 15 were mostly into the industrial market.

 690 16 And when we moved out to

 690 17 west -- to Indianapolis, it was an ideal

 690 18 location for us for shipping reasons. We

 690 19 were -- we were selling air. You'd have a

 690 20 giant case, and it might weigh 7 pounds, you

 690 21 know. And when you're in the East Coast,

 690 22 you're trying to ship to the West Coast,

 690 23 you're going to pay for that.

 690 24 So they decided on coming to

 690 25 Indianapolis. That was the winning city.

 691 1 They looked at Atlanta, and they might have

 691 2 looked at -- I think they might have looked

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 691 3 at Chicago, but it seemed like Indianapolis

 691 4 had the best -- it was the best buy. Things

 691 5 were pretty inexpensive out here. Kind of

 691 6 this little sleepy town, but it was growing.

 691 7 But the main thing was for

 691 8 transportation purposes, it was the hub of

 691 9 the United States. It was the crossroads of

 691 10 America.

 691 11 So that's it, we just kept

 691 12 growing and growing, and still here today.

 691 13 Q. So in around 1977, you moved

 691 14 your family to Indianapolis to continue

 691 15 working for E-A-R?

 691 16 A. Yes.

 691 17 Q. Okay. And then when you moved

 691 18 to Indianapolis, did your job duties change

 691 19 at all?

 691 20 A. Yes, a little bit.

 691 21 By now I was, you know, in the

 691 22 technical department. I was also the only

 691 23 hourly employee they moved. They -- a lot of

 691 24 the people that moved -- they stayed behind.

 691 25 And I was the one that they moved out there

 692 1 with all the professional people. It came

 692 2 out in, like, kind of a couple of waves.

 692 3 So I was the first one they

 692 4 chose to move out with us, basically because

 692 5 I -- you know, I worked in the lab. And the

 692 6 lab work and troubleshooting and -- you know,

 692 7 I had more experience than anybody else that

 692 8 held like, you know -- they absorbed me into

 692 9 the lab and -- kind of like I was still an

 692 10 hourly employee for many years, but I had

 692 11 a -- I had some features that they thought

 692 12 were worth keeping close. I was creative.

 692 13 Seemed like they -- you know,

 692 14 I -- some of the business, the noise

 692 15 dampening and the isolation business, we had

 692 16 a lot of people coming to us because they had

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Falco, Robert 2-12-2020 (revised) 41

 692 17 heard about our materials, but we really

 692 18 didn't have any way in the company to

 692 19 manufacture a prototype part for them.

 692 20 And that's when I kind of, you

 692 21 know, really stepped in. And I had machine

 692 22 experience, I had some mold experience, and I

 692 23 just convinced Gardner that -- you know, he

 692 24 showed me a drawing of something, yeah, I can

 692 25 make that. And I was fast. I was super

 693 1 fast.

 693 2 Q. Well, can you tell me -- so

 693 3 when you moved to Indianapolis, I think what

 693 4 we talked about before is that you went to

 693 5 Indiana Vocational Technical Institute?

 693 6 A. Yes.

 693 7 Q. All right. What were your

 693 8 reasons for going there?

 693 9 A. I wanted more -- more technical

 693 10 knowledge of machining. And a lot of the

 693 11 information that I learned wasn't

 693 12 particularly for what I needed at work, but I

 693 13 was finding that I was being the liaison to

 693 14 go out to other shops to get things

 693 15 manufactured. And I had a better knowledge

 693 16 of -- you know, if you go into a company

 693 17 that's building molds or tools, you know, I

 693 18 had a little bit more better knowledge than

 693 19 everybody, and it was easier for me to

 693 20 interface with them. I had a good rapport

 693 21 with them, and that was just part of my new

 693 22 assignments.

 693 23 Q. Did you get a degree from the

 693 24 technical institute?

 693 25 A. Did I get a degree?

 694 1 Q. Yes.

 694 2 A. No.

 694 3 Q. Okay. How long were you there?

 694 4 A. I think I was there about two

 694 5 years.

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Falco, Robert 2-12-2020 (revised) 42

 694 6 Q. What happened next in terms of

 694 7 your employment at E-A-R?

 694 8 A. Well, I kept advancing in the

 694 9 company, and I -- because I was in the

 694 10 laboratory, we get a lot of requests for all

 694 11 kinds of items. And I -- like I said before,

 694 12 I would do the prototyping.

 694 13 And marketing at one time came

 694 14 to us because at the time, the marketing

 694 15 department that was dealing with the hearing

 694 16 protection, we were only selling earplugs,

 694 17 and they wanted more -- and sometimes they

 694 18 wanted more things. We did a line of

 694 19 earmuffs.

 694 20 But it came to -- our main

 694 21 product was the earplugs. They came to us

 694 22 and said that there were certain markets that

 694 23 they couldn't get into because the worker had

 694 24 to roll down this foam earplug. So it was

 694 25 very difficult for the mining industry and

 695 1 certain other industries that the workers

 695 2 were, you know, dirty, you know, it was a

 695 3 dirty environment, it really wasn't, you

 695 4 know -- we weren't making progress in selling

 695 5 our product in there.

 695 6 So marketing came back to the

 695 7 technical department, which Ross Gardner was

 695 8 the head of, and they had requested, can we

 695 9 come up with a semi-permanent earplug.

 695 10 And they gave us kind of a --

 695 11 you know, their idea of what they wanted to

 695 12 be able to compete. At the time, there was

 695 13 lots of semi-permanent earplugs on the

 695 14 market.

 695 15 We invented the foamed earplug

 695 16 market. But the rest of the market that was

 695 17 already there was established. There was

 695 18 one, you know, semi-permanent plugs.

 695 19 Q. What is a semi-permanent

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Falco, Robert 2-12-2020 (revised) 43

 695 20 earplug, just generally?

 695 21 A. A semi-permanent earplug would

 695 22 be a molded -- like a rubbery product. It

 695 23 would have some type of a flange or it would

 695 24 have a solid member that, you know, you would

 695 25 put in your ear.

 696 1 Q. So the marketing department

 696 2 came to the technical department --

 696 3 A. Yes.

 696 4 Q. -- because they were trying to

 696 5 find a semi-permanent earplug to sell.

 696 6 What happened next?

 696 7 A. Okay. The -- you know, they

 696 8 actually came to Ross Gardner, and he came --

 696 9 you know, we had our meetings, and he would

 696 10 tell us what marketing was, you know, looking

 696 11 for.

 696 12 And marketing had said that

 696 13 basically they wanted a plug that was more

 696 14 comfortable than the most comfortable earplug

 696 15 on the market and had an attenuation -- the

 696 16 best attenuating plug on market.

 696 17 So I looked at a lot of

 696 18 these -- Gardner came to me and kind gave me

 696 19 the -- he told me, okay, see what you can

 696 20 come up with.

 696 21 Q. Do you know why he did that?

 696 22 A. Well, I think he had confidence

 696 23 in me. I was -- you know, I was his

 696 24 right-hand man. You know, I was there to

 696 25 assist him.

 697 1 You know, he had a lot of --

 697 2 you know, he had a ton of good ideas, and I

 697 3 was -- you know, he needed things made to

 697 4 prove his, you know, concepts and stuff. And

 697 5 I was there, and I enjoyed working for this

 697 6 guy. He was -- he was just fantastic.

 697 7 Q. So he came to you?

 697 8 A. He came to me with this request

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Falco, Robert 2-12-2020 (revised) 44

 697 9 that came down from marketing, and I said

 697 10 okay.

 697 11 So I looked at all the earplugs

 697 12 that were semi-permanent earplugs on the

 697 13 market. And I looked at them all and I tried

 697 14 to figure out, well, how does this one work

 697 15 and how does this one work.

 697 16 And after looking at all these,

 697 17 you know, I figured, you know -- I told Ross

 697 18 Gardner, I says, you know, "I have an idea

 697 19 that I think I can do this, but I need a

 697 20 lathe to work on." Because we didn't have

 697 21 that in the place.

 697 22 So he agreed to purchase a

 697 23 lathe. It was like $10,000 for this thing.

 697 24 So it was -- you know, that's -- you know, I

 697 25 got an idea. Give me $10,000.

 698 1 Well, you know, but he believed

 698 2 in me. So he let me go out and look around,

 698 3 and I bought a brand new lathe, and I brought

 698 4 it into the shop. And I started to build

 698 5 what I -- I sketched out in my head.

 698 6 I had some drawings of what my

 698 7 concept was, and I made molds that made each

 698 8 individual section of what is now the

 698 9 UltraFit. I made different sizes. I made --

 698 10 and I made these in a way so that we could --

 698 11 like a kit, we could put things together

 698 12 until we got it right.

 698 13 And I made them out of silicone

 698 14 because I could -- I could mold that. We had

 698 15 presses and -- you know, that's what it was

 698 16 made out of in the beginning.

 698 17 And we came up with a product

 698 18 that I submitted. I gave it to Ross Gardner,

 698 19 and we submitted it. At the time we had an

 698 20 acoustical lab, and we submitted it to the

 698 21 acoustical lab to be tested.

 698 22 At the time we were also

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Falco, Robert 2-12-2020 (revised) 45

 698 23 testing -- we had a laboratory that we tested

 698 24 all kinds of earplugs. We were just in

 698 25 the -- you know, we had a special room, a

 699 1 room that would just -- you'd sit in there

 699 2 and you'd listen to these little chirping

 699 3 sounds, and they could tell when you heard it

 699 4 and when you didn't hear it, and that was a

 699 5 form of this test.

 699 6 I didn't really get into

 699 7 testing. That was way out of my league. I

 699 8 didn't know anything about it. I kept away

 699 9 from it.

 699 10 My specialty was making things.

 699 11 Tell me what you want, and I would make it

 699 12 for you.

 699 13 Q. So you gave your prototype of

 699 14 what eventually became the UltraFit --

 699 15 A. Yeah.

 699 16 Q. -- to the acoustical lab to

 699 17 test?

 699 18 A. Yes.

 699 19 Q. Did they test it?

 699 20 A. Yes, they did.

 699 21 Q. What happened after that?

 699 22 A. We found that we had made a

 699 23 plug that gave good attenuation, better than

 699 24 what was already out there, and it was more

 699 25 comfortable.

 700 1 Q. So what happened next?

 700 2 A. So that was -- this was a

 700 3 technical department, you know, request.

 700 4 Everything was cleared through Ross Gardner.

 700 5 And so Ross Gardner reported

 700 6 back to marketing and says, "Hey, we think

 700 7 we've got a prototype that gives you what

 700 8 you've been asking for."

 700 9 And at first, I don't know why,

 700 10 but the marketing department just didn't want

 700 11 to be bothered with it. For whatever reason.

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Falco, Robert 2-12-2020 (revised) 46

 700 12 I wasn't in the marketing department; I

 700 13 didn't make their decisions.

 700 14 And so Ross Gardner said,

 700 15 "Well, you know, are you going to -- you

 700 16 know, we need $8,000 to be build the tool to

 700 17 be start making these. We only have a

 700 18 prototype."

 700 19 To go to production, you had to

 700 20 have the production part. That part, even

 700 21 though we tested a plug that was almost

 700 22 identical to it, we had to have a real, true

 700 23 production part to get a certified test so

 700 24 that they could, you know -- so they could

 700 25 make their claims.

 701 1 Q. So did you get that production

 701 2 part?

 701 3 A. Pardon me?

 701 4 Q. Did you get that production

 701 5 part?

 701 6 A. Yes, eventually we got it.

 701 7 At first marketing didn't want

 701 8 to fork over the money.

 701 9 Gardner told them, if you don't

 701 10 buy the tool -- you've requested this. We've

 701 11 delivered. If you don't do it -- he told

 701 12 them he was going to leave the company and

 701 13 take me with him. And after that, they

 701 14 forked over the money. It was about $8,000.

 701 15 We built a small, I think it

 701 16 was maybe a six-cavity tool, and we started

 701 17 producing the plugs.

 701 18 One of my jobs was to find

 701 19 somebody that would make the tool, and I

 701 20 found a company in Springville, Indiana. It

 701 21 was a fledgeling company called D & M Tool,

 701 22 which, yeah, it turned into D & M Tool/PRD.

 701 23 That was...

 701 24 Q. And when you say you found

 701 25 someone to make the tool, what does that

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Falco, Robert 2-12-2020 (revised) 47

 702 1 mean?

 702 2 A. That means that I found

 702 3 somebody that -- a company that had the

 702 4 ability to fabricate and make hard tools,

 702 5 hard molds, and they also had the ability to

 702 6 run these molds in their injection modeling

 702 7 machines.

 702 8 So it was kind of -- it was the

 702 9 part of the -- D & M Tool was the part of the

 702 10 company that made the tools, and PRD was --

 702 11 Plastic Research and Development, they were

 702 12 the ones who owned the injection molding

 702 13 machines that actually physically made the

 702 14 parts.

 702 15 Q. Have you ever heard of the

 702 16 term -- or the phrase "one size fits most"?

 702 17 A. That was one of the -- that's

 702 18 how they described how -- what they wanted in

 702 19 an earplug, this semi-permanent earplug.

 702 20 Q. I see.

 702 21 So was the UltraFit -- did you

 702 22 consider the UltraFit a one-size-fits-most

 702 23 plug?

 702 24 A. Yes.

 702 25 Q. What does that mean?

 703 1 A. It means it would fit most

 703 2 people. They didn't want to say one size

 703 3 fits all. It was too -- you know, they

 703 4 didn't want to do that. So they said, well,

 703 5 let's say it's one size fits most.

 703 6 You know, knowing that -- you

 703 7 know, somebody can't say this plug doesn't

 703 8 fit me. They could say, well, we made a plug

 703 9 that only fits most of the people. You might

 703 10 be an outlier. You know, if the guy had a

 703 11 tiny, tiny ear canal or a gigantic ear canal,

 703 12 you know, it might not have worked for him.

 703 13 Q. When you were coming up with

 703 14 the concept for UltraFit, is there any reason

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Falco, Robert 2-12-2020 (revised) 48

 703 15 why you didn't make different sizes instead

 703 16 of the one size fits most?

 703 17 A. Well, we -- that was part of

 703 18 the -- what we were assigned to do was make a

 703 19 plug that fits almost anybody. You know,

 703 20 they didn't want a bunch of different

 703 21 products. They wanted -- you know, just like

 703 22 the UltraFit -- no. Just like the foamed

 703 23 earplug would fit most people, they wanted a

 703 24 semi-permanent plug that fit most people.

 703 25 That way they had two plugs. They can go

 704 1 into anyplace and say, "You can either use

 704 2 this, or we have this other one here if this

 704 3 one is not for you."

 704 4 Q. And how did you create the

 704 5 UltraFit to fit most?

 704 6 A. We made molds of different

 704 7 people's ear canals, and from there we would

 704 8 make measurements of the, you know, sizes of

 704 9 the ear canals.

 704 10 There was also some devices

 704 11 that were used to measure people's ear

 704 12 canals. One of them was kind of an offshoot

 704 13 of an old military earplug called the V-51R.

 704 14 This was a real standard for the military for

 704 15 many, many years. And it was an earplug that

 704 16 had to be fit in the dispensary, you know,

 704 17 the medical dispensary. And they had some

 704 18 tools that were like little balls on stems

 704 19 that they would, you know, fit your ear, and

 704 20 they could tell if, you know, if it...

 704 21 And from that information and

 704 22 from measurements that we made, we came up

 704 23 with what we've considered, you know, the

 704 24 perfect size, and tested it and it worked.

 704 25 Q. And as we talked about a lot

 705 1 today, or as you talked about a lot today,

 705 2 you have a patent on the UltraFit?

 705 3 A. Yes.

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Falco, Robert 2-12-2020 (revised) 49

 705 4 Q. Okay. Do you hold any other

 705 5 patents?

 705 6 A. Yes.

 705 7 Q. Approximately how many?

 705 8 A. Approximately 30.

 705 9 Q. And on what kind of products?

 705 10 A. Everything from earplugs to

 705 11 cords to packages to earmuffs. Cords,

 705 12 earmuffs, earplug stems, and also methods of

 705 13 manufacturing.

 705 14 Q. What does that mean?

 705 15 A. I came up with ideas for how we

 705 16 would make certain products. We got into

 705 17 making molded foam earplugs, and we had a lot

 705 18 of difficulty making them because of the

 705 19 chemicals that were used in making the molded

 705 20 foam. It starts off as a liquid and grows

 705 21 into a foam before it sets.

 705 22 These chemicals would attack

 705 23 the molds, and so you would, you know, make a

 705 24 limited amount in this tool, and then they

 705 25 would stick. And you'd have to throw the

 706 1 tools away.

 706 2 So we started off by -- again,

 706 3 I went to Ross Gardner and I says, "We're

 706 4 going through those molds" -- these molds

 706 5 were made out of house. It's another job

 706 6 that I -- I contracted this out to somebody

 706 7 else to produce these molds. They were made

 706 8 out of plastic, and we would pour our

 706 9 material in it and it would foam.

 706 10 But we were -- we were wearing

 706 11 them out faster than we could make them,

 706 12 plugs that we needed.

 706 13 I started off by telling Ross

 706 14 Gardner, I says, "Well, let me buy a

 706 15 computer-controlled machine," so that I could

 706 16 set the machine up and it would, you know,

 706 17 put the block in there of plastic with the

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Falco, Robert 2-12-2020 (revised) 50

 706 18 tools. It would cut all the tools and, you

 706 19 know, we just -- nobody had -- once it was

 706 20 programmed, it would just keep repeating

 706 21 itself.

 706 22 So at the time, we were making

 706 23 the tools about at the same rate that we were

 706 24 destroying them.

 706 25 And then I came up with an

 707 1 idea, and I presented it to Ross. I says, "I

 707 2 think I have an idea how we can fix this."

 707 3 And I made inserts, a plastic

 707 4 insert, out of a better material that once --

 707 5 they were lasting longer, but still -- and

 707 6 eventually they would -- they would wear out.

 707 7 The stuff would stick to it.

 707 8 But now we had an inexpensive

 707 9 little insert where it would pop them out of

 707 10 the mainframe, put new ones in, and you were

 707 11 back in business. So I cut the cost of

 707 12 manufacturing these tools down dramatically.

 707 13 Not only did that help, but

 707 14 because we made these standardized, we could

 707 15 now change what shape of plug we wanted to

 707 16 make. We'd just buy a different insert. The

 707 17 outside dimension of it was standard, but the

 707 18 inside dimension was of the new shape.

 707 19 And so that -- we started

 707 20 making different -- different earplugs,

 707 21 different-shaped earplugs.

 707 22 Q. You may recall plaintiff's

 707 23 counsel asked you some questions about the

 707 24 r�sum� that you had drafted.

 707 25 A. Yes.

 708 1 Q. One of the points here that you

 708 2 have -- it's in Exhibit 6, if you need to

 708 3 look at it -- says, "patented military

 708 4 hearing protectors, Combat Arms," and then

 708 5 there's a handwritten note that says "three

 708 6 types."

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Falco, Robert 2-12-2020 (revised) 51

 708 7 What did you mean by that?

 708 8 A. In one of the many things that

 708 9 we were developing, there was a need for this

 708 10 Combat Arms. The original concept for this

 708 11 was really -- started to be developed by

 708 12 another source. There was a source in

 708 13 Europe, I think. And they made a part that

 708 14 was a little canister. It was a filter.

 708 15 And at first they came, and I

 708 16 believe we somehow got together with them.

 708 17 And we started manufacturing an UltraFit, and

 708 18 I -- my job was to come up with a way to put

 708 19 this filter inside of the UltraFit.

 708 20 And, you know, there was some

 708 21 tool changes that we made so that you could

 708 22 assemble the -- you could put the filter

 708 23 inside -- bury it deep inside of the

 708 24 UltraFit.

 708 25 And so you'd have this earplug

 709 1 that had a through-hole, and you could hear

 709 2 more -- more natural sound. But at an

 709 3 impulse, the sound pressure would hit this

 709 4 canister, this filter, and it would block the

 709 5 sound intermittently. You know, just like if

 709 6 a pulse hit it -- and you can always -- it's

 709 7 kind of like -- you can only fit so much

 709 8 through a small orifice. If the pressure of

 709 9 this material, which would be air, was too

 709 10 great, that small hole acted like a stop.

 709 11 And then the one stop would lead into the

 709 12 inner part of this canister, and there was

 709 13 another small hole in the other side. So it

 709 14 kind of like freezed the pulse before it

 709 15 would get to your ear.

 709 16 And, you know, that was -- that

 709 17 was a field that was way out of my league.

 709 18 That was some kind of science that -- I mean,

 709 19 I made the product that this could fit in,

 709 20 but that canister was a technology that we

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Falco, Robert 2-12-2020 (revised) 52

 709 21 purchased from some other company.

 709 22 Q. Okay. So when you referred to

 709 23 three types of Combat Arms, which three types

 709 24 are you talking about?

 709 25 A. Well, the ones that I was

 710 1 concerned with and was involved with was,

 710 2 one, the first one, the UltraFit with the

 710 3 canister in it, and then later on there were

 710 4 new -- they wanted new features into it.

 710 5 One, they wanted a feature so

 710 6 that they could mechanically open and close

 710 7 this device. So the first one was a little

 710 8 filter. You would put one UltraFit on it,

 710 9 and then there was a sound path that would go

 710 10 through it, and there was a little

 710 11 cylindrical disk that you could rotate, and

 710 12 it would turn it on and off. That was the

 710 13 switch to turn it on and off. That was the

 710 14 first one. It was very low profile. It was

 710 15 very -- there was not a lot of material in

 710 16 this part.

 710 17 And then later on, they came

 710 18 back with -- they wanted newer features into

 710 19 this thing. They said that, well, we're

 710 20 having -- you know, people have difficulty,

 710 21 you know, switching it on and off. You'd

 710 22 almost have to have two hands to do this.

 710 23 So they came and they said,

 710 24 "Well, we want this concept. We want to be

 710 25 able to turn it on and off with a gloved hand

 711 1 or one finger."

 711 2 And so I -- again I got this,

 711 3 you know, job to do. And I looked it over

 711 4 and, quite frankly, one day I saw a shampoo

 711 5 bottle that I was looking at, and I was

 711 6 opening and closing it, and I says -- I just

 711 7 said, you know, this is -- this is a switch.

 711 8 And so I said -- I looked it

 711 9 over, and I went back and I had -- at this

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Falco, Robert 2-12-2020 (revised) 53

 711 10 time I now had a computer-aided design

 711 11 computer, and I was able to, you know, take

 711 12 the feature of one, merge them together with

 711 13 some of the other features, and I came up

 711 14 with the number 4.

711:15 - 712:19 Falco, Robert 2-12-2020 (revised)

 711 15 Q. So just so that I'm clear, in

 711 16 your r�sum� here when you talk about the

 711 17 Combat Arms, are you referencing Combat Arms

 711 18 version 2 at all?

 711 19 A. Version 2?

 711 20 Q. Yes.

 711 21 A. I wasn't really -- no, that was

 711 22 not my design. I made parts for that. You

 711 23 know, if someone would come in to me and say,

 711 24 "We have this, but, you know, we need some of

 711 25 your tips to put on it," I could reach -- I

 712 1 could go in and reshape the tool, make the

 712 2 orders to change the tool to make the part

 712 3 that would -- that they were -- that they

 712 4 desired.

 712 5 Q. Okay. Given that the Combat

 712 6 Arms version 2 was not your design, were you

 712 7 referencing Combat Arms version 2 in your

 712 8 bullet point on your r�sum� when you said,

 712 9 "Responsible for over $1 billion in sales"?

 712 10 A. I think I might have taken a

 712 11 little liberty, but there was a lot of plugs

 712 12 being sold, and I was told that the UltraFit

 712 13 was a really a big seller.

 712 14 And when I said a billion sold,

 712 15 you know, I -- I did take some liberties

 712 16 there, probably. But at the time as far as,

 712 17 you know, earplugs and maybe stuff that I was

 712 18 developing and selling, probably, you know,

 712 19 it could -- it could have reached that high.

712:20 - 716:1 Falco, Robert 2-12-2020 (revised)

 712 20 I might have thrown in the earmuffs but not

 712 21 mentioned it completely.

Re: [712:20-716:1]

improper counter; 402; 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 85 of 221
Falco, Robert 2-12-2020 (revised) 54

 712 22 Q. I think you said you were

 712 23 responsible for approximately 30 patents over

 712 24 your career?

 712 25 A. Yes.

 713 1 Q. And that was all during your

 713 2 time at Cabot or E-A-R, Aearo or 3M?

 713 3 A. That's correct.

 713 4 Q. Okay. To what do you

 713 5 contribute {sic} your success?

 713 6 A. I've always been creative. I

 713 7 come from a very creative family. I had a

 713 8 lot of experience with a lot of things

 713 9 growing up as a child. I was exposed to a

 713 10 number of things, from construction work to

 713 11 machine work to just everything, flying

 713 12 airplanes, helping build airplanes with my

 713 13 uncle, learning how to -- learning how to put

 713 14 guns together with a friend of my dad's.

 713 15 Just a myriad of different

 713 16 exposures that I had growing up.

 713 17 Q. How long did you work for Ross

 713 18 Gardner?

 713 19 A. Until he passed away.

 713 20 Q. And you said he was your

 713 21 mentor?

 713 22 A. Yes.

 713 23 Q. What did he teach you?

 713 24 A. He taught me good practice and,

 713 25 you know, how to -- how to analyze things.

 714 1 Basically that was his main thing. He was

 714 2 a -- excellent at analyzing things. You

 714 3 know, how to separate, you know, what was --

 714 4 what was relevant and what was not relative

 714 5 {sic}. How to follow the path of -- you

 714 6 know, if you're searching for something, you

 714 7 know, how to change one thing at a time so

 714 8 you always knew what was going on. You know,

 714 9 like in a formula.

 714 10 I didn't really get into

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Falco, Robert 2-12-2020 (revised) 55

 714 11 chemistry. I got to observe a lot of it,

 714 12 but -- you know, there was a lot of chemistry

 714 13 experiments with polymers that we did in the

 714 14 lab, different foams that we manufactured

 714 15 and -- you know, I could observe and see

 714 16 how -- you know, they would make a series

 714 17 like, well, we're going to change this one

 714 18 component in the formula. You know, we're

 714 19 only going to change it so much, we're going

 714 20 to test it, and then we're going to make

 714 21 another bunch. Then we're going to change

 714 22 this so much.

 714 23 So I got to see how -- how to

 714 24 develop something.

 714 25 Q. You've been retired for ten

 715 1 years now?

 715 2 A. Over ten years now, yes.

 715 3 Q. What do you do now?

 715 4 A. Right now I take care of my

 715 5 wife. She's had a -- she's had a problem

 715 6 that arose about two years ago, so I've been

 715 7 pretty much -- I'm -- I have to take quite a

 715 8 bit care of her.

 715 9 In the meantime, I've just

 715 10 enjoyed being retired. I thought I would

 715 11 have a lot of time, but there's -- at home,

 715 12 there's always something to do. I do all my

 715 13 own work. I don't -- I don't contract

 715 14 anything out to anybody. If I need something

 715 15 done, plumbing, I do it myself. If I need --

 715 16 unless I have to like -- well, I had to

 715 17 change the roof on my house. Now, I didn't

 715 18 do that; I contracted that out.

 715 19 But most other things, I am

 715 20 just self-sufficient. I just ride my

 715 21 motorcycle. I enjoy my life.

 715 22 MS. ELIZABETH: Well, thank you

 715 23 so much for your time, Mr. Falco. I

 715 24 will turn it back over to plaintiffs

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 87 of 221
Falco, Robert 2-12-2020 (revised) 56

 715 25 if they have any follow-up questions.

 716 1 And thank you again for coming.

716:11 - 716:16 Falco, Robert 2-12-2020 (revised)

 716 11 Q. Good evening, Mr. Falco. We've

 716 12 taken a brief recess. I've gotten back in

 716 13 the chair.

 716 14 You ready to finish up this

 716 15 deposition?

 716 16 A. Yes, I am.

716:17 - 716:20 Falco, Robert 2-12-2020 (revised)

 716 17 Q. All right. You seem to have

 716 18 gotten a better memory than what you had when

 716 19 I was asking you questions.

 716 20 Do you agree with that?

Re: [716:17-716:20]

Argumentative (403)

SUSTAINED

716:23 - 717:17 Falco, Robert 2-12-2020 (revised)

 716 23 THE WITNESS: I'm not sure of

 716 24 that.

 716 25 

 717 1 QUESTIONS BY MR. PIRTLE:

 717 2 Q. Well, for example, early on in

 717 3 a friendly manner I asked you: "Quickly or

 717 4 as quickly as you want take me through

 717 5 the progression of where you came from

 717 6 and went to at Cabot, Aearo and 3M."

 717 7 I said, "I'm going to say 3M

 717 8 here, but my understanding, I'm talking

 717 9 about the whole thing."

 717 10 Your answer to me, as I

 717 11 remember it, was: "I don't recall the exact

 717 12 progression."

 717 13 Isn't that what you just walked

 717 14 through in narrative form with the 3M lawyer,

 717 15 your progression, as when you started with

 717 16 Cabot, when you went to Aearo and your time

 717 17 at 3M?

Re: [716:23-717:17]

Argumentative (403)

SUSTAINED

717:20 - 718:6 Falco, Robert 2-12-2020 (revised)

 717 20 THE WITNESS: When I was asked

 717 21 that question, you know, I was free to

 717 22 speak. I wasn't being asked a

Re: [717:20-718:6]

Argumentative (403)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 88 of 221
Falco, Robert 2-12-2020 (revised) 57

 717 23 specific item.

 717 24 QUESTIONS BY MR. PIRTLE:

 717 25 Q. Well, I anticipate that this is

 718 1 going to -- this transcript is going to read,

 718 2 and the video is going to say, "as quickly,

 718 3 or as quickly as you want to, take me through

 718 4 the progression."

 718 5 Did you not feel free when I

 718 6 asked you that question?

718:9 - 718:10 Falco, Robert 2-12-2020 (revised)

 718 9 THE WITNESS: No, I'm not --

 718 10 no.

Re: [718:9-718:10]

Argumentative (403)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 89 of 221
Gates, Kathy 5-29-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 90 of 221
Gates, Kathy 5-29-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

19:21 - 20:1 Gates, Kathy 5-29-2020

 19 21 Q. (BY MR. MORRISS:) Good morning,

 19 22 Col. Gates.

 19 23 A. Good morning.

 19 24 Q. Would you, just for the record,

 19 25 identify yourself to the jury, please?

 20 1 A. Yes, I am Kathy Gates.

21:13 - 21:23 Gates, Kathy 5-29-2020

 21 13 Q. Could you tell the jury a little bit

 21 14 about your formal education, where you went to

 21 15 college, postgraduate work?

 21 16 A. I -- I did my undergraduate work at

 21 17 State University of New York in Plattsburgh in

 21 18 speech and hearing science. I went to University

 21 19 of Maryland at College Park and obtained my

 21 20 master's in audiology. And then I went to A.T.

 21 21 Still University through a distance learning

 21 22 program and obtained my audiology clinical

 21 23 doctorate degree.

22:7 - 22:14 Gates, Kathy 5-29-2020

 22 7 Q. Are you currently licensed as an

 22 8 audiologist?

 22 9 A. Yes.

 22 10 Q. And in what state or states?

 22 11 A. In New Jersey and New York.

 22 12 Q. How long have you been a licensed

 22 13 audiologist?

 22 14 A. Since 1988, I guess.

24:1 - 24:6 Gates, Kathy 5-29-2020

 24 1 Q. What year did you join the Army?

 24 2 A. Well, I initially joined in 1983. I

 24 3 was enlisted as an ammunition specialist. And then

 24 4 in 1987, I obtained a direct commission and became

 24 5 a first lieutenant in the Army under the Medical

 24 6 Service Corps.

25:4 - 25:18 Gates, Kathy 5-29-2020

 25 4 Q. And can you just briefly describe as

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 91 of 221
Gates, Kathy 5-29-2020 3

 25 5 an audiologist what your roles and responsibilities

 25 6 were?

 25 7 A. I was the chief of the audiology

 25 8 clinic, and my primary roles were to provide

 25 9 clinical audiology services to soldiers and their

 25 10 family members, also retirees. And then the other

 25 11 portion of my responsibility was hearing loss

 25 12 prevention or hearing conservation and providing

 25 13 health education and earplug fittings to the basic

 25 14 training soldiers there at Fort Dix that were

 25 15 attending basic training.

 25 16 Q. And what year did you retire from

 25 17 that?

 25 18 A. I retired in 2011.

28:4 - 28:8 Gates, Kathy 5-29-2020

 28 4 Q. Let me repeat it. So did you have

 28 5 some involvement with hearing conservation and

 28 6 hearing protection devices at every job while you

 28 7 were in the military?

 28 8 A. Yes.

32:14 - 32:23 Gates, Kathy 5-29-2020

 32 14 Q. During your military career, did you

 32 15 have an opportunity to work with the Department of

 32 16 Defense working group?

 32 17 A. I did. While I was assigned at the

 32 18 Center For Health Promotion and Preventive

 32 19 Medicine, I was a participant in the DoD Hearing

 32 20 Conservation Working Group while I was there. 

And

 32 21 then later on in my career, for a brief time, I

 32 22 served as the chair of the Hearing Conservation

 32 23 Working Group.

38:19 - 39:8 Gates, Kathy 5-29-2020

 38 19 Q. Has the -- has the military issued

 38 20 regulations relating to noise exposure and hearing

 38 21 protection devices from the time that you were an

 38 22 audiologist with the Army?

 38 23 A. Yes.

 38 24 Q. In other words, there's been some

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 92 of 221
Gates, Kathy 5-29-2020 4

 38 25 form of regulation in place since you joined the

 39 1 Army, although there may have been modifications to

 39 2 it along the way?

 39 3 A. That's correct, yes.

 39 4 Q. Do those regulations include -- have

 39 5 they always included the requirement that military

 39 6 personnel wear hearing protection devices, at least

 39 7 in some settings where noise creates a hazard?

 39 8 A. Yes, that is correct.

40:5 - 40:12 Gates, Kathy 5-29-2020

 40 5 Q. As a military audiologist, are there

 40 6 some noises military personnel are exposed to that

 40 7 no hearing protection device can protect them from

 40 8 damage?

 40 9 A. I am unaware of -- I mean, I am

 40 10 unaware of that. I think if someone has the

 40 11 hearing protection device in, then it protects

 40 12 their hearing.

40:13 - 40:14 Gates, Kathy 5-29-2020

 40 13 Q. May still cause damage, but provides

 40 14 some protection?

Re: [40:13-40:17]

Improper counter; Leading; 

403; Touhy

OVERRULED

40:17 - 40:17 Gates, Kathy 5-29-2020

 40 17 A. Correct.

Re: [40:13-40:17]

Improper counter; Leading; 

403; Touhy

OVERRULED

41:17 - 42:7 Gates, Kathy 5-29-2020

 41 17 Q. You mentioned earlier the Hearing

 41 18 Conservation Program. What is a Hearing

 41 19 Conservation Program?

 41 20 A. The Hearing Conservation Program is a

 41 21 program that-- for DoD, there's a regulation, DoDI

 41 22 6055.12, and it specifically provides information

 41 23 on the individual elements of a Hearing

 41 24 Conservation Program. There are seven elements

 41 25 that make up the Hearing Conservation Program, and

 42 1 each service, then, from the DoDI, they take

 42 2 their -- that information and then develop their

 42 3 own service-specific regulation. For the Army that

 42 4 is DA PAM 40-501, but the seven elements of the

 42 5 program are similar across all services. They can

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 93 of 221
Gates, Kathy 5-29-2020 5

 42 6 make their regulation more stringent, but it cannot

 42 7 be less stringent than the DoDI.

42:8 - 42:10 Gates, Kathy 5-29-2020

 42 8 MR. MORRISS: So, Will, if you will

 42 9 pull Tab 38. And if you will mark that as Exhibit

 42 10 3.

Re: [42:8-42:10]

Improper counter

SUSTAINED

43:23 - 44:7 Gates, Kathy 5-29-2020

 43 23 Q. And if we turn over to the third page

 43 24 of the document, Section 6.1, does it require that

 43 25 each branch prepare a written plan for the

 44 1 implementation of a comprehensive Hearing

 44 2 Conservation Program?

 44 3 A. Yes. That is correct.

 44 4 Q. And did that include addressing

 44 5 hearing protection devices?

 44 6 A. Yes. That was one of the elements of

 44 7 the Hearing Conservation Program.

Re: [43:23-44:7]

Plt Objection - Improper counter, 

403

SUSTAINED

44:8 - 44:22 Gates, Kathy 5-29-2020

 44 8 Q. And then if you will turn over to

 44 9 Page 7, Section 6.6.2. Does the DoD give guidance

 44 10 on when hearing protectors were to be available to

 44 11 military personnel?

 44 12 A. Yes.

 44 13 Q. And can you describe that, please?

 44 14 A. The individual service members were

 44 15 provided hearing protection by -- well, the units

 44 16 were responsible for providing them unit -- hearing

 44 17 protection. However, at the time of monitoring

 44 18 audiometry, usually they are -- they are also

 44 19 provided hearing protection and instruction

 44 20 regarding proper fitting and wear of the hearing

 44 21 protection. And I am speaking normally on behalf

 44 22 of the Army because that is my experience.

46:1 - 46:14 Gates, Kathy 5-29-2020

 46 1 Q. (BY MR. MORRISS:) I will ask it

 46 2 again, Col. Gates. If we go to 6.6.7, is there a

 46 3 section that deals with preformed earplugs?

 46 4 A. Yes.

 46 5 Q. And what is your understanding as an

Re: [46:1-46:14]

Plt Objection - 403, cumulative, 

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 94 of 221
Gates, Kathy 5-29-2020 6

 46 6 audiologist, what is a preformed earplug?

 46 7 A. A preformed earplug is an earplug

 46 8 that can be used over and over again. They come in

 46 9 different sizes, and depending on the ear canal

 46 10 size determines the -- the size of the earplug.

 46 11 Early on in my career we had

 46 12 single-flange earplugs or triple-flange earplugs,

 46 13 and those were the earplugs that we would fit our

 46 14 soldiers with.

46:15 - 47:3 Gates, Kathy 5-29-2020

 46 15 Q. Would the Combat Arms Version 2

 46 16 dual-ended plug that we are here about today, would

 46 17 that be a preformed earplug?

 46 18 A. Yes.

 46 19 Q. All right. And does the DoD set out

 46 20 how the preformed earplugs would be fitted and

 46 21 issued?

 46 22 A. There are hearing conservationists

 46 23 that are assigned to units, and they are provided

 46 24 training and become hearing conservation

 46 25 technicians so that they can assist and educate and

 47 1 make sure that soldiers under their command

 47 2 understand how to properly use and insert the

 47 3 earplug.

47:24 - 48:3 Gates, Kathy 5-29-2020

 47 24 Q. All right. Now, then, the DoD would

 47 25 be sort of the guidance that the individual branch

 48 1 would use in putting their programs together; is

 48 2 that correct?

 48 3 A. That's correct.

Re: [47:24-48:3]

Plt Objection - 403; improper 

counter

Re: [47:24-48:3]

602, 802, MIL 16

SUSTAINED

48:4 - 48:10 Gates, Kathy 5-29-2020

 48 4 Q. And did, in fact, the Army, during

 48 5 the time that you were there, have a Hearing

 48 6 Conservation Program that was in place?

 48 7 A. Yes.

 48 8 Q. And did the written program comply

 48 9 with the DoD requirements?

 48 10 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 95 of 221
Gates, Kathy 5-29-2020 7

48:22 - 49:20 Gates, Kathy 5-29-2020

 48 22 A. Oh, Tab 39? Okay. Okay. I have it

 48 23 opened. It says "DA PAM 40-501," dated December 

of

 48 24 1998.

 48 25 Q. And is this the Hearing Conservation

 49 1 Program that would have been implemented by the

 49 2 Army following the DoD requirements for a Hearing

 49 3 Conservation Program?

 49 4 A. Yes, sir.

 49 5 Q. Do you know how long this particular

 49 6 version of the Hearing Conservation Program was in

 49 7 place until it was amended or changed in some

 49 8 substantive way?

 49 9 A. It was updated, I think it was 2012,

 49 10 the -- the DA PAM 40-501 was revised to reflect the

 49 11 Army Hearing Program.

 49 12 Q. All right. Let me show you what we

 49 13 will mark as Tab 40, and it will be Exhibit 5.

 49 14 (Exhibit 5 was marked for

 49 15 identification.)

 49 16 Q. (BY MR. MORRISS:) And if you can

 49 17 identify Exhibit 5 for us, please.

 49 18 A. That is the DA PAM 40-501 Army

 49 19 Hearing Program, and the date is 2015. So I was a

 49 20 little bit early on the date.

Re: [48:22-49:20]

Improper counter, 403 (waste 

of time, cumulative)

OVERRULED

50:6 - 50:14 Gates, Kathy 5-29-2020

 50 6 Did the -- did the Army Hearing

 50 7 Conservation Program have a section that dealt with

 50 8 hearing protectors?

 50 9 A. Yes.

 50 10 Q. In compliance with the DoD

 50 11 requirements, did it require that all personnel

 50 12 working or visiting in potentially hazardous noise

 50 13 areas be provided hearing protection?

 50 14 A. Yes.

50:25 - 51:17 Gates, Kathy 5-29-2020

 50 25 Q. And who was responsible for fitting

 51 1 and examining these earplugs when they were given

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 96 of 221
Gates, Kathy 5-29-2020 8

 51 2 to soldiers or other military personnel?

 51 3 A. The audiology clinic, as part of

 51 4 monitoring audiometry, would -- I -- the clinics

 51 5 that I managed, we incorporated the hearing

 51 6 protection fitting at the time of monitoring

 51 7 audiometry. So we would fit their -- recheck their

 51 8 hearing testing annually at the time of their

 51 9 annual hearing test.

 51 10 There are other ways of doing this as

 51 11 well. Soldier readiness processing, the -- that is

 51 12 an annual requirement. That is another way of

 51 13 accomplishing the refitting and the recheck of the

 51 14 hearing protection. And then also the individual

 51 15 unit hearing conservation NCO is also trained to --

 51 16 to fit and evaluate the hearing protection on an

 51 17 annual basis.

51:24 - 52:14 Gates, Kathy 5-29-2020

 51 24 Q. Was there sort of an order or ranking

 51 25 of the type plug that would first be tried when

 52 1 this medically trained person was fitting the plug

 52 2 on a particular soldier or military personnel?

 52 3 A. Well, oftentimes if you are doing a

 52 4 large group fitting, you go with the -- the medium

 52 5 orange triple-flange earplug and -- and just have

 52 6 the group, by the numbers, insert the earplug.

 52 7 And then I would have them

 52 8 single-file up, and we would evaluate their

 52 9 earplug. And then if it was too small or too

 52 10 large, we would have them either go with the green

 52 11 triple-flange or the blue triple-flange and then

 52 12 have them go through the line again to make sure

 52 13 that they were fitted properly with the hearing

 52 14 protection.

52:24 - 53:13 Gates, Kathy 5-29-2020

 52 24 Q. During the -- sort of the late '90s,

 52 25 early 2000 time frame, who would have been the

 53 1 individuals physically helping fit the earplug,

 53 2 checking the fitting, examining the plug -- who

 53 3 would have been the pool of people that could do

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 97 of 221
Gates, Kathy 5-29-2020 9

 53 4 that? Not individual names, but like the type of

 53 5 people that could do that?

 53 6 A. Trained hearing conservationists, the

 53 7 ear, nose and throat, ENT, technicians, civilian

 53 8 occupational nurse personnel, and then the hearing

 53 9 conservationists that were trained under the

 53 10 hearing conservation training program would be unit

 53 11 medics and other NCOs that had been appointed to

 53 12 serve as the hearing conservation officer within

 53 13 the unit.

55:7 - 55:9 Gates, Kathy 5-29-2020

 55 7 Q. And the tools of this training, would

 55 8 they have included PowerPoints and slide decks?

 55 9 A. Sure.

55:13 - 55:17 Gates, Kathy 5-29-2020

 55 13 Q. Were pamphlets or wallet cards or

 55 14 things like that made available from time to time

 55 15 to either the people doing the fitting or to the

 55 16 actual military personnel on how to fit a plug?

 55 17 A. Yes.

Re: [55:13-55:17]

Plt Objection - compound, 

vague; improper counter

Re: [55:13-55:17]

MIL 1; 602, foundation; 611 

SUSTAINED. 

Compound, 

vague; 

improper 

counter.

57:1 - 57:7 Gates, Kathy 5-29-2020

 57 1 Q. Let me ask a better question. Do you

 57 2 remember the Combat Arms Version 2 dual-ended 

plug,

 57 3 what it looked like?

 57 4 A. I do. From the working group, we did

 57 5 have the opportunity to experiment with the

 57 6 dual-ended Combat Arms earplug. And so I am

 57 7 familiar with that dual-ended-type device.

58:5 - 58:16 Gates, Kathy 5-29-2020

 58 5 Q. Do you recall preparing or seeing any

 58 6 of the training material that related specifically

 58 7 to the Combat Arms Version 2 plug?

 58 8 A. I -- I do recall seeing the -- some

 58 9 of the materials for the -- the Version 2 Combat

 58 10 Arms earplug.

 58 11 Q. Do you recall at some point that one

 58 12 of the instructions or fitting tips for proper

 58 13 insertion of the plug including folding back the

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 98 of 221
Gates, Kathy 5-29-2020 10

 58 14 third flange of the plug that was sticking out of

 58 15 the ear?

 58 16 A. I don't recall that.

58:17 - 58:19 Gates, Kathy 5-29-2020

 58 17 Q. Do you recall reviewing and

 58 18 commenting on a wallet card that had that specific

 58 19 instruction?

Re: [58:17-58:19]

Plt Objection - improper counter

Re: [58:17-58:19]

cumulative

SUSTAINED. 

Improper 

counter.

58:22 - 59:1 Gates, Kathy 5-29-2020

 58 22 A. While I was at the Surgeon General's

 58 23 Office, I may have seen that. Dr. Ohlin may have

 58 24 sent me that. However, I -- I just don't remember

 58 25 seeing the -- that instruction in the wallet-sized

 59 1 card.

Re: [58:22-59:1]

Plt Objection - Improper counter

Re: [58:22-59:1]

cumulative

SUSTAINED. 

Improper 

counter.

76:11 - 76:19 Gates, Kathy 5-29-2020

 76 11 Q. (BY MR. MORRISS:) Is it fair to say,

 76 12 Col. Gates, that Lt. Merkley would have been in

 76 13 that early 2000 time frame the person best able to

 76 14 now tell us what information was being provided to

 76 15 the audiology community and to military personnel

 76 16 fitting the plug about how to properly insert the

 76 17 Combat Arms Version 2 dual-ended plug?

 76 18 A. I don't -- I don't understand the

 76 19 question. Are -- he wasn't the head of anything.

Re: [76:11-76:19]

602

OVERRULED

85:7 - 85:11 Gates, Kathy 5-29-2020

 85 7 Q. Do you recall after leaving the

 85 8 working group that you had an occasion to use the

 85 9 Combat Arms Earplug, either first version or second

 85 10 version?

 85 11 A. No.

144:8 - 146:5 Gates, Kathy 5-29-2020

 144 8 Q. Good. Col. Gates, were you -- I'm

 144 9 going to try to understand what you do now. As I

 144 10 understood your testimony, you retired in 2011 from

 144 11 the Army?

 144 12 A. Yes, I did.

 144 13 Q. But now you're -- or almost

 144 14 immediately you went back to work for, what was 

it,

 144 15 the Department of Defense?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 99 of 221
Gates, Kathy 5-29-2020 11

 144 16 A. No. I initially took a position with

 144 17 the CHPPM, and I worked as a contractor and 

rewrote

 144 18 the DA PAM to reflect the hearing program because

 144 19 the Army went through a transition while I was

 144 20 still on active duty. We changed from hearing

 144 21 conservation to an Army hearing program.

 144 22 So I had the opportunity to write the

 144 23 first draft for that. And then, once that project

 144 24 was completed, I was contacted and I took a

 144 25 position with the DoD Hearing Center of 

Excellence,

 145 1 working as a contractor in the prevention branch.

 145 2 Q. Okay. And is that your only employer

 145 3 today?

 145 4 A. Yes.

 145 5 Q. Okay. You mentioned -- and you

 145 6 talked about Doug Ohlin a number of times in your

 145 7 testimony this morning. Do you remember that?

 145 8 A. Yes.

 145 9 Q. And at some point in time, I think

 145 10 you said Doug Ohlin was actually your boss?

 145 11 A. Yes, he was.

 145 12 Q. Now, do you know where Doug Ohlin

 145 13 ended his career?

 145 14 A. Well, he retired from CHPPM, and then

 145 15 he took on another position working for 3M.

 145 16 Q. Okay. Do you know how -- how many

 145 17 days passed before -- between the time he retired

 145 18 from CHPPM and went to work for 3M?

 145 19 A. I do not.

 145 20 Q. Did Eric Fallon take Doug Ohlin's

 145 21 position when he left?

 145 22 A. Yes, he did.

 145 23 Q. Do you know where Eric Fallon works

 145 24 today?

 145 25 A. He works for 3M.

 146 1 Q. Okay. And do you know how long he's

 146 2 worked for 3M?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 100 of 221
Gates, Kathy 5-29-2020 12

 146 3 A. Eric retired I think around 2013 or

 146 4 '14. And upon his retirement, he took a position

 146 5 with 3M.

147:22 - 148:17 Gates, Kathy 5-29-2020

 147 22 Q. Okay. Have you ever been approached

 147 23 by 3M to go work for them?

 147 24 A. No.

 147 25 Q. Okay.

 148 1 A. Well, maybe -- maybe indirectly, but

 148 2 I -- I took a position with The Hearing Center of

 148 3 Excellence, so I wasn't interested.

 148 4 Q. Tell me about the indirect approach.

 148 5 A. Well, Doug Moses, I know him through

 148 6 just conferences. And, you know, just mentioned

 148 7 that there might be an opportunity for a position

 148 8 if I was interested, because he knew I was

 148 9 retiring.

 148 10 And at the time, I wasn't interested

 148 11 because I didn't want to move to wherever they're

 148 12 located, Minneapolis or something like that. So --

 148 13 and that was the only conversation.

 148 14 Q. He approached you; you told him you

 148 15 weren't interested, and it didn't go any further

 148 16 than that?

 148 17 A. Correct.

Re: [147:22-148:17]

Def Objection - Relevance (401, 

402); Prejudice (403)

OVERRULED

149:5 - 149:7 Gates, Kathy 5-29-2020

 149 5 Q. Okay. And Doug Moses, you know he's

 149 6 in -- in sales for 3M?

 149 7 A. That's correct, yes.

Re: [149:5-149:7]

Def Objection - Foundation 

(602)

OVERRULED

149:11 - 149:15 Gates, Kathy 5-29-2020

 149 11 Q. Okay. Are there any other 3M

 149 12 employees that you can think of that you know?

 149 13 A. I guess Elliott Berger, I knew, and

 149 14 Laurie Wells. Yeah, I think there's one other

 149 15 person, I'm blanking on his name. Oh, Ted 

Madison.

Re: [149:11-149:15]

Def Objection - Relevance (401, 

402)

OVERRULED

150:13 - 150:16 Gates, Kathy 5-29-2020

 150 13 Q. Okay. Did you ever go to the bases

 150 14 or garrisons or installations when that type of

Re: [150:13-150:18]

Plt Objection - 403 cumulative; 

improper counter

Re: [150:13-150:18]

611

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 101 of 221
Gates, Kathy 5-29-2020 13

 150 15 training was going on, when a vendor was training

 150 16 someone at the base level?

150:18 - 150:18 Gates, Kathy 5-29-2020

 150 18 A. No.

Re: [150:13-150:18]

Plt Objection - 403 cumulative; 

improper counter

Re: [150:13-150:18]

611

SUSTAINED

150:19 - 150:25 Gates, Kathy 5-29-2020

 150 19 Q. (BY MR. SEAN TRACEY:) Okay. Are you

 150 20 aware that that kind of thing occurred, that the

 150 21 vendors would go to the bases and speak to the base

 150 22 commanders or base audiologists about their

 150 23 products?

 150 24 A. I believe that would happen from time

 150 25 to time.

151:11 - 151:17 Gates, Kathy 5-29-2020

 151 11 Q. (BY MR. SEAN TRACEY:) Okay. Col.

 151 12 Gates, were you aware that the U.S. Department of

 151 13 Justice, in conjunction with the Department of

 151 14 Army, instigated an investigation into the sale of

 151 15 the Combat Arms Earplugs?

 151 16 A. No. I didn't know about it until it

 151 17 hit the news.

Re: [151:11-151:22]

Def Objection - Relevance (401, 

402); Prejudice (403); 3M MIL 6

Re: [151:11-151:22]

Baker MIL 1

SUSTAINED. 

Relevance (401, 

402); Prejudice 

(403); 3M MIL 

6

158:13 - 158:21 Gates, Kathy 5-29-2020

 158 13 MR. SEAN TRACEY: Can you put the

 158 14 document back up, please, Exhibit 19?

 158 15 Q. (BY MR. SEAN TRACEY:) Col. Gates, do

 158 16 you know who Michael B. Peake is, Col. Brian 

Peake?

 158 17 A. No, I do not.

 158 18 Q. Okay. This is a communication dated

 158 19 October the 15th, 2019. In October of 2019, where

 158 20 were you working?

 158 21 A. At The Hearing Center of Excellence.

Re: [158:13-158:21]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

159:5 - 159:21 Gates, Kathy 5-29-2020

 159 5 Q. So the -- this says the attachment is

 159 6 3M Hearing Protection Device Letter, and this is

 159 7 from Maj. Whitney to Col. Peake. Do you know 

what

 159 8 BLUF stands for?

 159 9 A. Bottom line up front.

Re: [159:15-159:21]

Def Objection - Foundation 

(602); Prejudice (403); 

Relevance (401, 402)

Re: [159:5-159:21]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 102 of 221
Gates, Kathy 5-29-2020 14

 159 10 Q. Okay. Is that a military term?

 159 11 A. Yeah. It's kind of, you know,

 159 12 getting the main point right out there.

 159 13 Q. Both sides?

 159 14 A. Yes.

 159 15 Q. And it says, "Bioenvironmental

 159 16 engineering personnel verified that 3M Dual-Ended

 159 17 Combat Earplugs are not being used for hearing

 159 18 protection enterprises" -- "for hearing protection

 159 19 purposes in the Air Force enterprise as of 15

 159 20 October 2019." Is that what that says?

 159 21 A. Yes, that's what it says.

161:8 - 161:17 Gates, Kathy 5-29-2020

 161 8 Q. (BY MR. SEAN TRACEY:) All right. So

 161 9 Col. Gates, after S/B it says, "3M Dual-Ended

 161 10 Combat Earplugs were found to be defective and did

 161 11 not protect the wearer to the advertised level of

 161 12 protection. There is a risk of hearing loss should

 161 13 individuals continue to use these earplugs."

 161 14 Here's my question: Did anybody from

 161 15 3M or Aearo ever communicate what's in that

 161 16 sentence to you?

 161 17 A. No.

Re: [161:8-161:17]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [161:8-163:17]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

162:3 - 162:20 Gates, Kathy 5-29-2020

 162 3 Q. (BY MR. SEAN TRACEY:) Col. Gates,

 162 4 did anybody from 3M while you were with the

 162 5 military ever instruct you to stop using the Combat

 162 6 Arms Earplugs Version 2 because it was too short

 162 7 for proper insertion?

 162 8 A. No.

 162 9 Q. Did anybody from 3M during your

 162 10 entire time in the military ever instruct you that

 162 11 the testing that they had done with the Combat 

Arms

 162 12 Earplug was testing done with the flanges folded

 162 13 back?

 162 14 A. No.

 162 15 Q. Did anybody from 3M ever tell you

 162 16 during your entire time in the military that they

Re: [161:8-163:17]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 103 of 221
Gates, Kathy 5-29-2020 15

 162 17 tested the Combat Arms Earplug Version 2 two

 162 18 different ways depending on which end was in the

 162 19 ear?

 162 20 A. No.

163:2 - 163:7 Gates, Kathy 5-29-2020

 163 2 Q. (BY MR. SEAN TRACEY:) Did anybody

 163 3 from 3M ever instruct you in all your interactions

 163 4 with them that if you failed to fold the flanges

 163 5 back, you would get ninety percent less protection

 163 6 than they advertised?

 163 7 A. No.

Re: [163:2-163:8]

Def Objection - Argumentative, 

Misstates, Compound (611, 403)

Re: [161:8-163:17]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

163:10 - 163:15 Gates, Kathy 5-29-2020

 163 10 Q. (BY MR. SEAN TRACEY:) I'm going to

 163 11 ask that question again. Did anybody from 3M ever

 163 12 instruct you or tell you that when you inserted the

 163 13 green end in, if you didn't have the flanges folded

 163 14 back, that you would not get their claimed

 163 15 protection?

Re: [163:10-163:16]

Def Objection - Misstates (611, 

403)

Re: [161:8-163:17]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

163:17 - 163:17 Gates, Kathy 5-29-2020

 163 17 A. No.

Re: [163:17-163:17]

Def Objection - Misstates (611, 

403)

Re: [161:8-163:17]

Relevance, 403, Baker MIL 1, 

602

OVERRULED

164:9 - 164:23 Gates, Kathy 5-29-2020

 164 9 Q. Okay. Let me ask it this way: Is it

 164 10 important for you to know the truth about the

 164 11 products that you're issuing to the troops?

 164 12 A. Yes.

 164 13 Q. Is it important to you for the people

 164 14 that design, manufacture, market and sell products

 164 15 to the military that they tell you the truth?

 164 16 A. Yes.

 164 17 Q. Do you rely on the vendors that

 164 18 design, manufacture, market and sell their products

 164 19 to tell you the truth?

 164 20 A. Yes.

 164 21 Q. Do you expect them to tell you the

 164 22 truth?

 164 23 A. Yes.

Re: [164:9-164:23]

Def Objection - Relevance (401, 

402), Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 104 of 221
Gates, Kathy 5-29-2020 16

170:17 - 171:10 Gates, Kathy 5-29-2020

 170 17 Q. (BY MR. SEAN TRACEY:) Col. Gates,

 170 18 are you familiar with the document that we've been

 170 19 calling the flange report? The official title of

 170 20 it is "How Folding the Flanges Back Affects REAT

 170 21 Results of the UltraFit Earplug End of the Combat

 170 22 Arms Earplug."

 170 23 A. I'm not familiar with that report.

 170 24 I've seen it in the exhibit folder, but I'm not

 170 25 familiar with it, no.

 171 1 Q. Did you have a chance to read it and

 171 2 review it before your deposition today?

 171 3 A. I -- I skimmed over it quickly, but I

 171 4 didn't read the whole thing, no.

 171 5 Q. Okay. Would it be fair to say that

 171 6 the information in that report was not information

 171 7 you had during your time in the military?

 171 8 A. Yes.

 171 9 Q. When you looked at the information in

 171 10 that report, were you shocked?

Re: [170:17-171:10]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

172:3 - 172:12 Gates, Kathy 5-29-2020

 172 3 A. I was not aware of this document

 172 4 until I saw it in the -- in the notebook.

 172 5 Q. (BY MR. SEAN TRACEY:) Yes, ma'am.

 172 6 And this document is dated July the 10th, 2000,

 172 7 isn't it?

 172 8 A. Yes.

 172 9 Q. And the authors are R. W. Kieper and

 172 10 E. H. Berger. And you told us you knew Elliott

 172 11 Berger earlier, right?

 172 12 A. Yes. I do know Elliott Berger.

Re: [172:3-172:12]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

172:20 - 173:3 Gates, Kathy 5-29-2020

 172 20 Q. Okay. If you flip over to the next

 172 21 page, this is really what I want to ask you about,

 172 22 is in the second and third sentence, it says, "The

 172 23 purpose of this report is to document that the

 172 24 current length of the UltraFit Earplug end of the

 172 25 Combat Arms plug is too short for proper insertion,

 173 1 and how changing the fitting technique affected the

Re: [172:20-173:5]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 105 of 221
Gates, Kathy 5-29-2020 17

 173 2 results of real-ear tests of this plug."

 173 3 Do you see that, Col. Gates?

173:5 - 173:5 Gates, Kathy 5-29-2020

 173 5 A. I see it.

Re: [172:20-173:5]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

174:17 - 174:19 Gates, Kathy 5-29-2020

 174 17 Q. Right. And if the earplug is too

 174 18 short to get an adequate seal, that's a problem,

 174 19 isn't it?

Re: [174:17-174:20]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

174:21 - 175:18 Gates, Kathy 5-29-2020

 174 21 A. I don't know the answer to that.

 174 22 I -- I -- I guess it could be a problem if it is

 174 23 too short.

 174 24 Q. (BY MR. SEAN TRACEY:) And do you

 174 25 remember earlier you were talking with Mr. Morriss

 175 1 about the fact that you yourself used Version 1 of

 175 2 the Combat Arms Earplug? Do you remember that?

 175 3 A. Yes, I do.

 175 4 Q. And that was the one before it was

 175 5 shortened, right?

 175 6 A. That's correct.

 175 7 Q. And you told us, I remember you said,

 175 8 I didn't have any problems with the Version 1 that

 175 9 was longer, right, didn't you say that?

 175 10 A. That's correct, yes.

 175 11 Q. You had a good fit and a good seal

 175 12 and you said it worked for you, didn't you?

 175 13 A. Yes.

 175 14 Q. Did you know that after they

 175 15 shortened the plug, that they did testing on it, on

 175 16 the shortened plug?

 175 17 A. I -- I don't know the answer to that,

 175 18 whether they did or not.

Re: [174:21-175:18]

Def Objection - Relevance (401, 

402); Prejudice (403); 

Foundation (602)

OVERRULED

175:21 - 175:25 Gates, Kathy 5-29-2020

 175 21 A. I don't recall. Again, I left CHPPM

 175 22 and so my area of focus wasn't really on the Combat

 175 23 Arms Earplug anymore. I was doing more strategic

 175 24 work at Walter Reed and the Surgeon General's

 175 25 Office.

Re: [175:21-175:25]

Plt Objection - incomplete 

designation; 403 cumulative; 

Improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 106 of 221
Gates, Kathy 5-29-2020 18

176:3 - 176:7 Gates, Kathy 5-29-2020

 176 3 Q. (BY MR. SEAN TRACEY:) Col. Gates,

 176 4 are you familiar with technical guides that are

 176 5 issued by the United States Army Public Health

 176 6 Command?

 176 7 A. Yes, I am.

177:16 - 178:3 Gates, Kathy 5-29-2020

 177 16 Q. (BY MR. SEAN TRACEY:) I'm not going

 177 17 to go through this document, except if you turn

 177 18 over to Page 11 at the top it says, "What Does a

 177 19 Soldier with a High Frequency Hearing Loss Miss 

in

 177 20 Terms of Readiness." And then if you scroll down

 177 21 to the bottom, in a big box bolded, it says, "Most

 177 22 Noise-Induced Hearing Loss Occurs During 

Training."

 177 23 A. Yes.

 177 24 Q. Are you familiar with that fact?

 177 25 A. It's something that was -- yeah, I am

 178 1 familiar with that, something that was shared

 178 2 throughout our career, that most hearing loss

 178 3 occurs during training.

203:3 - 204:1 Gates, Kathy 5-29-2020

 203 3 Q. All right. We're going to look at

 203 4 this next exhibit number. This is in Tab Number 7.

 203 5 It will be Exhibit 25.

 203 6 MR. SMITH: 25.

 203 7 (Exhibit 25 was marked for

 203 8 identification.)

 203 9 Q. (BY MR. SEAN TRACEY:) 25. We call

 203 10 this TG41. I hope you do too.

 203 11 A. Okay. I see it, yeah.

 203 12 Q. And are you familiar with TG41?

 203 13 A. Yes.

 203 14 Q. From CHPPM?

 203 15 A. Yes.

 203 16 Q. Now, this is called "Personal Hearing

 203 17 Protective Devices, Their Fitting, Care and Use."

 203 18 It's dated March 2006, right?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 107 of 221
Gates, Kathy 5-29-2020 19

 203 19 A. That's correct, yes.

 203 20 Q. And it says it supercedes TG41 from

 203 21 October of '75?

 203 22 A. Yes.

 203 23 Q. What is TG41? How would you explain

 203 24 this to a layperson?

 203 25 A. TG41 was -- is just an older version

 204 1 of the hearing production technical guide.

204:14 - 204:22 Gates, Kathy 5-29-2020

 204 14 Q. Who -- who would use this -- this

 204 15 TG41? Who was it for?

 204 16 A. It -- it -- the technical guide could

 204 17 be used for train -- training purposes, for hearing

 204 18 conservation sort of education courses. It could

 204 19 be disseminated out to unit commanders to give 

them

 204 20 additional information regarding hearing

 204 21 protection, and also given out to the audiology

 204 22 community to use as a technical guide.

207:1 - 208:10 Gates, Kathy 5-29-2020

 207 1 Actually Page 11 is called Chapter 4, "Approved

 207 2 Earplugs and Carrying Case." And if you will just

 207 3 scroll down you will see there's a variety of

 207 4 earplugs, it looks like, to choose from. I think

 207 5 we've seen some of those already, haven't we?

 207 6 A. Yes.

 207 7 Q. And then they're giving sample --

 207 8 sample types of approved Army earplugs. And in

 207 9 there we see the Combat Arms, don't we?

 207 10 A. Yes.

 207 11 Q. Okay. If you flip over two pages to

 207 12 13, they've got the Combat Arms Earplug

 207 13 double-ended, and there we see the picture, don't

 207 14 we?

 207 15 A. Yes.

 207 16 Q. No flanges folded back, right?

 207 17 A. No.

 207 18 Q. And then if you flip over to the next

 207 19 page, we've got a real person with a real Combat

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 108 of 221
Gates, Kathy 5-29-2020 20

 207 20 Arms Earplug in their ear, don't we?

 207 21 A. Yes.

 207 22 Q. And if you scroll down a little bit,

 207 23 they've got the green end in there and then we've

 207 24 got the yellow end in there with the green end

 207 25 sticking out.

 208 1 A. Yes.

 208 2 Q. Figure 14 and 15?

 208 3 A. Yeah.

 208 4 Q. Neither one of those have the flanges

 208 5 folded back, do they?

 208 6 A. No.

 208 7 Q. Look at Figure 15, does that look

 208 8 like, from your experience, the right way to fit an

 208 9 earplug?

 208 10 A. Yes.

209:10 - 210:10 Gates, Kathy 5-29-2020

 209 10 Q. So turn over to Page 30, then,

 209 11 because we're going to look at the insertion

 209 12 techniques for the Combat Arms Earplug, Col. 

Gates,

 209 13 it's Figure 51 and 52. Do you see that?

 209 14 A. Yes, I do.

 209 15 Q. It says, "Double-Ended Combat Arms

 209 16 Earplug Insertion Technique. The Double-Ended

 209 17 Combat Arms Earplug is properly fitted and 

provides

 209 18 the best attenuation when all three flanges, olive

 209 19 drab or yellow, snugly contact all sides of the ear

 209 20 canal. Insert this item by positioning one arm

 209 21 behind the head and pulling the ear gently up and

 209 22 away from the head, using the freehand to fit the

 209 23 earplug." And then it shows us Figure 51 and 52 as

 209 24 an illustration of how to do that, right?

 209 25 A. Yes.

 210 1 Q. Does that all look right to you?

 210 2 A. Yes.

 210 3 Q. And then if you flip over, this is a

 210 4 good document, on the next page they show you the

Re: [209:10-210:10]

Def Objection - 701; 702; 

Relevance (401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 109 of 221
Gates, Kathy 5-29-2020 21

 210 5 wrong way to do it, don't they?

 210 6 A. Yes.

 210 7 Q. On the left, 53 is the right way,

 210 8 that's snug up, can't see any of the yellow, can

 210 9 you?

 210 10 A. That's correct, yeah.

210:25 - 211:5 Gates, Kathy 5-29-2020

 210 25 Q. Okay. And then if you look at Figure

 211 1 54, next to it you'll see a frank difference

 211 2 between the way this one is fitted, won't you?

 211 3 A. That's correct, yes.

 211 4 Q. And Figure 54 is the wrong way?

 211 5 A. Correct.

Re: [210:25-211:7]

Def Objection - 701; 702; 

Relevance (401, 402)

OVERRULED

211:8 - 211:12 Gates, Kathy 5-29-2020

 211 8 A. Correct.

 211 9 Q. (BY MR. SEAN TRACEY:) Yeah. And in

 211 10 neither one of those, the right way or the wrong

 211 11 way, are the flanges folded back?

 211 12 A. Correct, yeah.

Re: [211:8-211:8]

Def Objection - 701; 702; 

Relevance (401, 402)

OVERRULED

211:20 - 211:22 Gates, Kathy 5-29-2020

 211 20 A. It's a technical guide that I didn't

 211 21 actually participate in writing, but I would say

 211 22 yes.

Re: [211:20-211:22]

Def Objection - 701; 702; 

Relevance (401, 402)

OVERRULED

212:12 - 212:16 Gates, Kathy 5-29-2020

 212 12 Q. And you go from 70, Page 70. And

 212 13 then the very next page is called Appendix A,

 212 14 Hearing Protective Devices Posters.

 212 15 A. Okay. Yes. I see them.

 212 16 Q. So A-1 --

212:19 - 213:3 Gates, Kathy 5-29-2020

 212 19 Q. (BY MR. SEAN TRACEY:) And the

 212 20 hearing device posters, what are the posters?

 212 21 A. Just a visual of proper techniques to

 212 22 insert the different types of hearing protection.

 212 23 Q. And were these posters put in the

 212 24 barracks or the garrisons or someplace soldiers

 212 25 could see them?

 213 1 A. They could possibly have been. It

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 110 of 221
Gates, Kathy 5-29-2020 22

 213 2 depends on the local hearing conservation officer

 213 3 and how they display and market their program.

213:8 - 213:17 Gates, Kathy 5-29-2020

 213 8 Q. You see it says, "For maximum

 213 9 protection and comfort, insert the Combat Arms

 213 10 Earplug, Double-Ended, as follows." And then they

 213 11 explain all the things that we talked about

 213 12 earlier, don't they?

 213 13 A. Yes.

 213 14 Q. And then we got the picture, and in

 213 15 neither picture do we see flanges folded back, do

 213 16 we?

 213 17 A. No.

224:17 - 224:25 Gates, Kathy 5-29-2020

 224 17 Q. (BY MR. MORRISS:) So, Col. Gates,

 224 18 before our technical glitch, we had been discussing

 224 19 the "Just the Facts" CHPPM publication and it

 224 20 talked about the Combat Arms Earplug, right?

 224 21 A. Yes, that's correct.

 224 22 Q. And we had established that CHPPM

 224 23 understood that folding back the flange was an

 224 24 insertion technique and had published about it,

 224 25 correct?

Re: [224:17-225:11]

Improper counter; 602, 611, 

foundation, 403 (undue delay, 

waste of time, needless 

presentation of cumulative 

evidence)

SUSTAINED

225:2 - 225:11 Gates, Kathy 5-29-2020

 225 2 A. Yes, in the "Just the Facts"

 225 3 document, yes.

 225 4 Q. (BY MR. MORRISS:) And then the next

 225 5 document I wanted you to look at is Exhibit Number

 225 6 8. And this is the wallet card that we talked

 225 7 about earlier, correct?

 225 8 A. Yes. Uh-huh.

 225 9 Q. This is also a USACHPPM-generated

 225 10 document, true?

 225 11 A. That's correct, yes.

Re: [224:17-225:11]

Improper counter; 602, 611, 

foundation, 403 (undue delay, 

waste of time, needless 

presentation of cumulative 

evidence)

OVERRULED

225:20 - 226:14 Gates, Kathy 5-29-2020

 225 20 Q. Then if we go to the second page of

 225 21 the wallet card, do you see that it has

 225 22 instructions and information on how to insert the

 225 23 Dual-Ended Combat Arms Earplug; is that correct?

Re: [225:20-226:14]

Improper counter; 602, 611, 

foundation, 403 (undue delay, 

waste of time, needless 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 111 of 221
Gates, Kathy 5-29-2020 23

 225 24 A. Yes, uh-huh.

 225 25 Q. We go down to the second bullet point

 226 1 below the ear; it has a bullet point that says "For

 226 2 very large ear canals, fold opposing plug back,"

 226 3 correct?

 226 4 A. Correct, yes.

 226 5 Q. And then it actually has a picture on

 226 6 the wallet card with the flange folded back,

 226 7 correct?

 226 8 A. Yes. I see that, yes; uh-huh.

 226 9 Q. And the idea behind the wallet card

 226 10 is that it would be distributed to audiologists and

 226 11 military personnel and folks doing the fitting to

 226 12 understand how to insert the Combat Arms plug,

 226 13 correct?

 226 14 A. Yes.

presentation of cumulative 

evidence)

247:1 - 247:10 Gates, Kathy 5-29-2020

 247 1 Q. Col. Gates, y'all talked a lot about

 247 2 this fitting tip that says "for exceptionally large

 247 3 ear canals, fold opposing plug back to enhance

 247 4 proper insertion." I just read that verbatim from

 247 5 the "Just the Facts" CHPPM document. Do you

 247 6 remember talking about that a minute ago?

 247 7 A. Yes, uh-huh.

 247 8 Q. That doesn't say if you don't fold

 247 9 back the flanges, you will lose ninety-four percent

 247 10 protection, does it?

Re: [247:8-247:11]

Def Objection - Argumentative, 

Misstates (611, 403)

OVERRULED

247:12 - 247:17 Gates, Kathy 5-29-2020

 247 12 A. No.

 247 13 Q. (BY MR. SEAN TRACEY:) If that were

 247 14 the truth, Col. Gates, that if you didn't fold back

 247 15 the flanges you lose ninety-four percent of the

 247 16 protection, is that something you think a user

 247 17 would want to know?

Re: [247:12-247:17]

Def Objection - Foundation 

(602); 701; 702

OVERRULED

247:24 - 248:5 Gates, Kathy 5-29-2020

 247 24 A. Yes.

 247 25 Q. I mean losing ninety-four percent of

 248 1 your protection is tantamount to no protection,

 248 2 isn't it?

Re: [247:24-248:5]

Def Objection - Foundation 

(602); 701; 702; Argumentative 

(611, 403); Relevance (401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 112 of 221
Gates, Kathy 5-29-2020 24

 248 3 A. Yes.

 248 4 Q. I mean that is a useless hearing

 248 5 protection device, isn't it?

248:14 - 248:18 Gates, Kathy 5-29-2020

 248 14 A. Yes.

 248 15 Q. Now, I am going to pull back up the

 248 16 flange report because we are going to compare what

 248 17 the flange report said to what these fitting tips

 248 18 said.

249:7 - 249:18 Gates, Kathy 5-29-2020

 249 7 Q. (BY MR. SEAN TRACEY:) Do you see

 249 8 that fourth paragraph that says, the second

 249 9 sentence says, "Because the stem of the green,

 249 10 solid end of the plug is so short, it was difficult

 249 11 for the experimenter to insert the plug deeply into

 249 12 some subjects' ear canals, especially those

 249 13 subjects with medium and larger ear canals"? Do

 249 14 you see that?

 249 15 A. I do, yes.

 249 16 Q. Now, that fitting tip doesn't say

 249 17 anything about medium-sized ear canals, does it?

 249 18 A. No.

Re: [249:2-249:18]

Def Objection - Foundation 

(602); 702; Relevance (401, 402)

OVERRULED

251:2 - 251:6 Gates, Kathy 5-29-2020

 251 2 Q. (BY MR. SEAN TRACEY:) Are you aware

 251 3 of whether or not anybody from 3M, Elliott Berger,

 251 4 Brian Myers, Doug Moses or anybody in the 

company,

 251 5 ever responded to correct that language in the

 251 6 wallet card?

Re: [251:2-251:6]

Def Objection - Foundation 

(602); Relevance (401, 402)

OVERRULED

251:8 - 251:12 Gates, Kathy 5-29-2020

 251 8 A. I don't know. I am not aware of

 251 9 that, no.

 251 10 Q. (BY MR. SEAN TRACEY:) Are you aware

 251 11 that Elliott Berger testified in this case that the

 251 12 wallet card information was incorrect?

Re: [251:7-251:9]

Def Objection - Foundation 

(602); Relevance (401, 402)

Re: [251:10-251:13]

Def Objection - Foundation 

(602); Misstates (611, 403)

OVERRULED

251:14 - 251:18 Gates, Kathy 5-29-2020

 251 14 A. No, I did not know that.

 251 15 Q. (BY MR. SEAN TRACEY:) Are you aware

 251 16 that the genesis of the wallet card came not from

Re: [251:14-251:14]

Def Objection - Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 113 of 221
Gates, Kathy 5-29-2020 25

 251 17 CHPPM, but from Aearo Technologies and 3M?

 251 18 A. No.

Re: [251:15-251:19]

Def Objection - Misstates, 

Argumentative (611, 403); 

Relevance (401, 402)

251:20 - 251:20 Gates, Kathy 5-29-2020

 251 20 A. I was not.

Re: [251:20-251:20]

Def Objection - Foundation 

(602)

OVERRULED

257:7 - 257:11 Gates, Kathy 5-29-2020

 257 7 Q. (BY MR. SEAN TRACEY:) Does this

 257 8 refresh your recollection of whether or not

 257 9 vendors, and 3M in particular, did participate in

 257 10 creating training modules and training materials

 257 11 for CHPPM?

Re: [257:7-257:17]

Improper counter; 403, waste 

of time

OVERRULED

257:13 - 257:17 Gates, Kathy 5-29-2020

 257 13 A. Again, I was at Walter Reed at the

 257 14 time, so I wasn't directly involved with this. So

 257 15 I -- I am not familiar with what was going on at

 257 16 the time with the training materials for the Combat

 257 17 Arms Earplugs.

Re: [257:7-257:17]

Improper counter; 403, waste 

of time

OVERRULED

257:25 - 258:2 Gates, Kathy 5-29-2020

 257 25 Q. (BY MR. SEAN TRACEY:) You are

 258 1 familiar with materials like this being created by

 258 2 vendors; are you not?

258:4 - 258:11 Gates, Kathy 5-29-2020

 258 4 A. I -- I know that hearing protection

 258 5 vendors do have their own materials and they have

 258 6 their website with their educational materials,

 258 7 their training materials. Yes, I am aware of that,

 258 8 uh-huh.

 258 9 Q. (BY MR. SEAN TRACEY:) And you -- you

 258 10 are aware of them sharing them with CHPPM and 

the

 258 11 Department of the Army; are you not?

258:13 - 258:15 Gates, Kathy 5-29-2020

 258 13 A. I am not aware of that, but, you

 258 14 know, we -- we have used their training materials

 258 15 off their websites.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 114 of 221
Gates, Kathy 5-29-2020 26

258:18 - 258:20 Gates, Kathy 5-29-2020

 258 18 Q. So y'all would rely on the materials

 258 19 on their websites for training?

 258 20 A. Sometimes.

258:22 - 258:23 Gates, Kathy 5-29-2020

 258 22 A. It all depends on the material and

 258 23 the target audience that we are focusing on, yeah.

260:15 - 260:18 Gates, Kathy 5-29-2020

 260 15 Q. (BY MR. SEAN TRACEY:) Let me ask you

 260 16 this: Do you have any idea, as we sit here today,

 260 17 whether you are supposed to fold back the flanges

 260 18 with the Combat Arms Version 2 or not?

Re: [260:15-260:18]

Def Objection - Foundation 

(602)

OVERRULED

260:20 - 260:24 Gates, Kathy 5-29-2020

 260 20 A. Again, I -- while I was active duty,

 260 21 I was unaware of the folding back of the flange.

 260 22 But, again, I -- my focus and attention was staff

 260 23 duty work and was more in the clinical side of the

 260 24 house, so I just wasn't aware of it.

Re: [260:20-260:24]

Def Objection - Foundation 

(602)

OVERRULED

260:25 - 261:6 Gates, Kathy 5-29-2020

 260 25 Q. (BY MR. SEAN TRACEY:) No, I know

 261 1 that. But now, after you have reviewed everything

 261 2 that you have reviewed, you have seen everything

 261 3 that -- that -- that 3M sent you and we sent you

 261 4 for the deposition, do you think you ought to be

 261 5 folding back the flanges if you want full

 261 6 protection?

Re: [260:25-261:20]

701

SUSTAINED

261:16 - 261:20 Gates, Kathy 5-29-2020

 261 16 A. I guess I -- I think of it as an

 261 17 older generation of the product and would hope that

 261 18 our service members have access to the singleended

 261 19 Combat Arms Earplug that doesn't require any

 261 20 folding back of the flanges.

Re: [260:25-261:20]

701

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 115 of 221
Hannah, Kevin 12-14-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 116 of 221
Hannah, Kevin 12-14-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

7:22 - 8:2 Hannah, Kevin 12-14-2020

 7 22 Q. Good morning, Lieutenant

 7 23 Colonel Hannah. My name is Shawn Fox and I'm

 8 1 with the law firm of Tracey, Fox, King and

 8 2 Walters. I represent Specialist Lloyd Baker

8:15 - 8:17 Hannah, Kevin 12-14-2020

 8 15 Q. Lieutenant Colonel Hannah, could

 8 16 you please state your full name for the record.

 8 17 A. Yes. Kevin Allen Hannah.

11:20 - 12:2 Hannah, Kevin 12-14-2020

 11 20 Q. Okay. And you also understand

 11 21 that you're giving limited testimony today

 11 22 based on your personal knowledge as the former

 11 23 hearing program manager at Fort Benning from

 12 1 2004 to 2006?

 12 2 A. That is correct.

12:3 - 12:15 Hannah, Kevin 12-14-2020

 12 3 Q. Are you familiar with the 3M

 12 4 Combat Arms Earplug Version II?

 12 5 A. Yes, I am.

 12 6 Q. And just so we're on the same

 12 7 page, the Combat Arms Version II Earplug that

 12 8 I'm talking about is a dual ended preformed

 12 9 earplug. Is that right?

 12 10 A. That is correct.

 12 11 Q. And the one end -- the yellow end

 12 12 provides nonlinear protection for impulse noise

 12 13 like gunfire. And then the olive end provides

 12 14 protection for steady state noise. Is that

 12 15 your understanding?

12:20 - 12:20 Hannah, Kevin 12-14-2020

 12 20 A. Okay. Yes, I understand that.

13:6 - 13:10 Hannah, Kevin 12-14-2020

 13 6 Q. Okay. So today I'll try to call

 13 7 it the Combat Arms Version II or Combat Arms

 13 8 and try not to refer to it as the CAEv2 just to

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 117 of 221
Hannah, Kevin 12-14-2020 3

 13 9 make this clear. Okay?

 13 10 A. Yes, sir.

13:11 - 13:19 Hannah, Kevin 12-14-2020

 13 11 Q. Do you recall the first time that

 13 12 you learned about the Combat Arms Version II

 13 13 Earplug?

 13 14 A. Yes. I believe maybe -- maybe

 13 15 2002, 2003.

 13 16 Q. And how was it that you came to

 13 17 learn about the Combat Arms Earplug Version II?

 13 18 A. It was mentioned in a training

 13 19 conference.

13:20 - 14:3 Hannah, Kevin 12-14-2020

 13 20 Q. Do you remember where that

 13 21 training conference was?

 13 22 A. No, I do not recall, sir. It's

 13 23 some place in the United States. It was a

 14 1 training conference I attended. But I do not

 14 2 recall what state or the exact year or the

 14 3 date.

14:4 - 14:10 Hannah, Kevin 12-14-2020

 14 4 Q. And what was it that was happening

 14 5 at this training conference that imparted the

 14 6 knowledge about the Combat Arms Version II

 14 7 Earplug?

 14 8 A. It was an annual military training

 14 9 that was available to people in my -- my field

 14 10 to attend.

14:11 - 15:14 Hannah, Kevin 12-14-2020

 14 11 Q. And at this conference does the --

 14 12 was it a presenter that was presenting

 14 13 information about the Combat Arms Earplugs?

 14 14 A. No.

 14 15 Q. So how did you learn about it

 14 16 then?

 14 17 A. It was brought up in a discussion

 14 18 by Dr. Doug Ohlin who worked for Army Public

 14 19 Health Command at that time.

 14 20 Q. And do you remember what it was

Re: [14:11-15:14]

FRE 402/403; 802; 805; 

701/702; Plaintiff's MIL #s 1, 15, 

16; improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 118 of 221
Hannah, Kevin 12-14-2020 4

 14 21 back in 2002 or 2003 that Mr. Ohlin or

 14 22 Dr. Ohlin would have said at that training

 14 23 conference about the Combat Arms Earplug?

 15 1 A. He said it was a -- again, I do

 15 2 not recall the exact words that he used. But

 15 3 he said it was a better alternative than what

 15 4 we were using for a combat environment.

 15 5 Q. And at the time in 2002 to 2003,

 15 6 do you remember what the alternatives were that

 15 7 were being used at that time for combat

 15 8 soldiers?

 15 9 A. Just standard hearing protection

 15 10 that we have available that totally occludes

 15 11 the ear. So at that time we really did not

 15 12 have any type of hearing protection -- standard

 15 13 hearing protection available that would allow

 15 14 some sound to pass through.

16:2 - 16:17 Hannah, Kevin 12-14-2020

 16 2 Q. Okay. Well, I'll represent to you

 16 3 that Aearo Technologies or Aearo Company was

 16 4 the manufacturer -- initially the manufacturer

 16 5 of the Combat Arms Version II Earplug and they

 16 6 were subsequently bought by 3M Company. Does

 16 7 that ring a bell to you?

 16 8 A. Yes. I think I have heard -- now

 16 9 that you word it that way, I have heard of that

 16 10 company, that they originally designed the

 16 11 product.

 16 12 Q. And so when you -- when I say

 16 13 Combat Arms Earplugs, do you -- would you

 16 14 normally associate 3M with that product?

 16 15 A. Yes. I would -- that would be the

 16 16 first thing that comes to my mind versus Aearo.

 16 17 Correct.

Re: [16:2-16:11]

602

OVERRULED

17:3 - 18:9 Hannah, Kevin 12-14-2020

 17 3 Q. And from what I understand from

 17 4 the information that was given to me by the

 17 5 Government, you have never met or don't ever

 17 6 remember meeting Specialist Lloyd Baker. Is

Re: [17:16-17:23]

Hearsay

Re: [18:6-18:13]

Leading, 602,403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 119 of 221
Hannah, Kevin 12-14-2020 5

 17 7 that right?

 17 8 A. Sir, it does not ring a bell

 17 9 unless there's --

 17 10 Q. Okay.

 17 11 A. -- documentation, you know, on a

 17 12 medical record that I actually did an

 17 13 evaluation, that would be the only instance

 17 14 that I would be able to say that I've actually

 17 15 met him.

 17 16 Q. Certainly. And I'm sure you've

 17 17 met tons of soldiers. And I'm not trying to

 17 18 imply that you have met him before. I'm just

 17 19 trying to establish that what the Government

 17 20 told me which was, number one, that you don't

 17 21 recall anybody named Lloyd Baker. Is that

 17 22 true?

 17 23 A. That is correct.

 18 1 Q. And you don't ever remember

 18 2 examining a soldier named Lloyd Baker. Is that

 18 3 true?

 18 4 A. That is true to the best of my

 18 5 knowledge.

 18 6 Q. Okay. And so likewise you

 18 7 wouldn't have any information about Lloyd

 18 8 Baker's use of hearing protection devices or

 18 9 exposure to noise. Is that right?

18:12 - 18:13 Hannah, Kevin 12-14-2020

 18 12 Q. You can answer.

 18 13 A. No, sir.

Re: [18:6-18:13]

Leading, 602,403

OVERRULED

18:14 - 19:6 Hannah, Kevin 12-14-2020

 18 14 Q. All right. Lieutenant

 18 15 Colonel Hannah, are you currently in the

 18 16 military?

 18 17 A. Yes, I am.

 18 18 Q. And what's your current role?

 18 19 A. I am the regional consultant for

 18 20 Public Health Command Europe.

 18 21 Q. And is it true you got your

 18 22 master's in audiology from the University of

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 120 of 221
Hannah, Kevin 12-14-2020 6

 18 23 South Carolina?

 19 1 A. Yes, sir.

 19 2 Q. And then you got your BS in

 19 3 audiology and speech pathology from the

 19 4 University of West Virginia?

 19 5 A. Yes, sir. West Virginia

 19 6 University.

19:10 - 20:6 Hannah, Kevin 12-14-2020

 19 10 All right. Lieutenant Colonel Hannah, I

 19 11 want to talk to you now about Fort Benning from

 19 12 2004 to 2006. During 2004 to 2006 was

 19 13 Fort Benning a base where the U.S. Army

 19 14 Infantry trained?

 19 15 A. They -- they did have a brigade

 19 16 that was stationed at Fort Benning.

 19 17 Q. When I say infantry training, what

 19 18 I'm talking about is the one station unit

 19 19 training for the Army Infantry. Did that take

 19 20 place in -- at Fort Benning from 2004 to 2006?

 19 21 A. Are you referring to recruit

 19 22 training, sir?

 19 23 Q. Yes, sir. Recruit training, the

 20 1 one unit -- the one station unit training for

 20 2 combat soldiers and infantry, specifically

 20 3 11 Bravo?

 20 4 A. Yes. Yes. They had recruit

 20 5 training for infantry down at Fort Benning

 20 6 during that timeframe.

20:7 - 20:22 Hannah, Kevin 12-14-2020

 20 7 Q. Okay. So Lieutenant Hannah (sic),

 20 8 I'm going to refer to this then as recruit

 20 9 training, but it sounds like that's what the

 20 10 nomenclature is. And the reason I'm going to

 20 11 focus on that is because just by way of

 20 12 background, Mr. Baker attended combat training

 20 13 or recruit training at Fort Benning in the 2005

 20 14 timeframe. Okay?

 20 15 A. Okay.

 20 16 Q. All right. And so therefore the

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 121 of 221
Hannah, Kevin 12-14-2020 7

 20 17 focus of my questions here today is going to be

 20 18 about that -- that recruit training. And I'll

 20 19 try to preface my questions with that. But

 20 20 just know that that this is my focus today.

 20 21 Okay?

 20 22 A. Yes, sir.

21:4 - 21:7 Hannah, Kevin 12-14-2020

 21 4 Q. All right. And were you the

 21 5 hearing conservation program manager at

 21 6 Fort Benning from 2004 to 2006?

 21 7 A. That is correct, sir.

21:8 - 21:11 Hannah, Kevin 12-14-2020

 21 8 Q. Do you remember when it was that

 21 9 you arrived at Fort Benning in 2004?

 21 10 A. I believe it was -- it was summer

 21 11 2004, maybe June, July timeframe.

21:12 - 21:19 Hannah, Kevin 12-14-2020

 21 12 Q. And can you tell me what is your

 21 13 understanding, what is the hearing conservation

 21 14 program in the Army?

 21 15 A. The hearing conservation program

 21 16 breaks down to four specific areas. One is the

 21 17 conservation aspect, another one would be

 21 18 monitoring, another could be diagnostic

 21 19 services, and another could be education.

22:14 - 23:9 Hannah, Kevin 12-14-2020

 22 14 Q. All right. And so can you put a

 22 15 gloss on that? Can you just give us a little

 22 16 bit more detail about what your duties were as

 22 17 the hearing conservation program manager at

 22 18 Fort Benning from 2004 to 2006?

 22 19 A. Sure, sir. So the primary focus

 22 20 had to do with recruit training for

 22 21 in-processing. We screened every soldier who

 22 22 came through for hearing -- for hearing

 22 23 testing. We fit every soldier with hearing

 23 1 protection. We did follow-up diagnostic

 23 2 services for soldiers who did not meet entrance

 23 3 standards. We did evaluations, medical

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 122 of 221
Hannah, Kevin 12-14-2020 8

 23 4 evaluations for other populations at the

 23 5 installation. We also provided hearing

 23 6 screening services for other units at the

 23 7 installation in addition to providing

 23 8 educational training for the units for their

 23 9 hearing program officers.

24:3 - 25:19 Hannah, Kevin 12-14-2020

 24 3 Q. And I think I heard you say this,

 24 4 Lieutenant Colonel, but was it part of your

 24 5 responsibility during 2004 to 2006 as the

 24 6 hearing conservation program manager at

 24 7 Fort Benning to ensure that medically trained

 24 8 personnel fit the individual recruit --

 24 9 recruits that were coming in through

 24 10 in-processing or otherwise?

 24 11 A. The people who fit the hearing

 24 12 protection were medically trained to provide

 24 13 that service. That is correct. The people who

 24 14 worked for me were -- had attended a Department

 24 15 of Defense course that was certified by the

 24 16 Council of Accreditation for Hearing

 24 17 Conservationists. That's the requirement to

 24 18 function as a hearing technician in the

 24 19 military. So they had all attended that

 24 20 training course. And one of the -- one of the

 24 21 blocks of instruction for the training course

 24 22 had to do with proper fitting of hearing

 24 23 protection. I was not the one that gave them

 25 1 the training course. So they could go anywhere

 25 2 to attend that training to get that

 25 3 qualification.

 25 4 Q. Okay. So let's unpack that a

 25 5 little bit. So there are other people there at

 25 6 Fort Benning from 2004 to 2006 other than

 25 7 audiologists that were trained and certified to

 25 8 distribute hearing protection. Is that

 25 9 correct?

 25 10 A. My staff primarily. And if

 25 11 somebody would come through my hearing program

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 123 of 221
Hannah, Kevin 12-14-2020 9

 25 12 officer course, we would give them instruction

 25 13 on proper fitting and hearing protection.

 25 14 Q. Okay. And when you say your

 25 15 staff, this is kind of what I was getting at,

 25 16 do you have other people on your staff besides

 25 17 audiologists that were distributing hearing

 25 18 protection during the 2004 to 2006 timeframe at

 25 19 Benning?

25:21 - 25:23 Hannah, Kevin 12-14-2020

 25 21 A. Yes. Oh, sorry.

 25 22 Q. Was that a yes?

 25 23 A. Yes.

26:1 - 26:17 Hannah, Kevin 12-14-2020

 26 1 Q. Okay. And who were some of these

 26 2 other people? In other words, what was their

 26 3 job titles during 2004 to 2006 at Fort Benning,

 26 4 these other people, part of your staff that

 26 5 were certified to distribute hearing protection

 26 6 devices?

 26 7 A. They were hearing technicians.

 26 8 Q. And do you -- do you recall during

 26 9 the 2004 to 2006 timeframe how many hearing

 26 10 technicians that you had on your staff?

 26 11 A. I'm going to say approximately

 26 12 six.

 26 13 Q. And so other than the six hearing

 26 14 technicians that you had on your staff, do you

 26 15 recall anyone else at Fort Benning that -- that

 26 16 may have been distributing hearing protection

 26 17 devices to combat training recruits?

Re: [26:8-26:19]

FRE 401/402/403; 602; 

speculation; Plaintiff's MIL # 1, 

2, 16

SUSTAINED

26:19 - 27:7 Hannah, Kevin 12-14-2020

 26 19 A. No, sir.

 26 20 Q. Okay. Lieutenant Colonel Hannah,

 26 21 who is it at the Army that gets enrolled in the

 26 22 hearing conservation program?

 26 23 MR. BHIMANI: Object to the form.

 27 1 Q. Or rather, who does the hearing

 27 2 conservation program apply to? Does that make

 27 3 sense?

Re: [26:8-26:19]

FRE 401/402/403; 602; 

speculation; Plaintiff's MIL # 1, 

2, 16

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 124 of 221
Hannah, Kevin 12-14-2020 10

 27 4 A. Everybody in the United States

 27 5 Army, irrelevant of what your MOS is, are

 27 6 considered enrolled in the Army hearing

 27 7 program.

27:8 - 27:12 Hannah, Kevin 12-14-2020

 27 8 Q. Okay. And is it mandatory under

 27 9 the hearing conservation program for soldiers

 27 10 to wear hearing protection while around

 27 11 hazardous noise at Fort Benning from 2004 to

 27 12 2006?

27:14 - 27:14 Hannah, Kevin 12-14-2020

 27 14 A. That would be correct.

28:1 - 28:4 Hannah, Kevin 12-14-2020

 28 1 Q. But nevertheless, if a combat

 28 2 recruit was not wearing hearing protection

 28 3 devices in a required area, it's possible they

 28 4 could be reprimanded. True?

Re: [28:1-28:6]

Leading

OVERRULED

28:6 - 28:6 Hannah, Kevin 12-14-2020

 28 6 A. Yes.

Re: [28:1-28:6]

Leading

OVERRULED

28:14 - 29:1 Hannah, Kevin 12-14-2020

 28 14 Q. So in your experience at

 28 15 Fort Benning from 2004 to 2006, what were the

 28 16 potential ways a new combat recruit could

 28 17 acquire hearing protection?

 28 18 A. They would acquire it from recruit

 28 19 training. In-processing we would issue them

 28 20 the hearing protection.

 28 21 Q. Do you recall whether or not the

 28 22 Combat Arms Earplug Version II was available

 28 23 for distribution at Fort Benning from 2004 to

 29 1 2006?

Re: [28:21-29:9]

FRE 402/403; 602; 701/702; 

Plaintiff MIL # 1, 2, 16

OVERRULED

29:3 - 29:9 Hannah, Kevin 12-14-2020

 29 3 A. Not to my knowledge, sir.

 29 4 Q. Okay. So -- so you don't remember

 29 5 Combat Arms Version II Earplugs being at

 29 6 Fort Benning from 2004 to 2006?

 29 7 A. Again, not to my knowledge. We

Re: [28:21-29:9]

FRE 402/403; 602; 701/702; 

Plaintiff MIL # 1, 2, 16

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 125 of 221
Hannah, Kevin 12-14-2020 11

 29 8 did not have that earplug available for

 29 9 recruits.

29:15 - 30:11 Hannah, Kevin 12-14-2020

 29 15 Q. Training for -- so I think you

 29 16 just told me that the potential ways that a new

 29 17 recruit could acquire hearing protection at

 29 18 Fort Benning was through your staff and through

 29 19 recruit training that was done. Is that

 29 20 correct?

 29 21 A. That's correct, sir.

 29 22 Q. Okay. Could you tell us a little

 29 23 bit about that training? Who provided the

 30 1 training and what was the subject and substance

 30 2 of that training?

 30 3 A. Well, soldiers -- recruits who

 30 4 came in before they started their initial

 30 5 training, they would get a hearing screening

 30 6 performed and they would also be given an

 30 7 instructional brief, a verbal instructional

 30 8 brief about noise exposure and about wearing

 30 9 hearing protection. This was done by my staff.

 30 10 And they would fit -- fit the hearing

 30 11 protection of the soldiers at that time.

Re: [29:22-30:11]

403

OVERRULED

30:12 - 30:21 Hannah, Kevin 12-14-2020

 30 12 Q. Okay. And would this be a

 30 13 classroom type setting or something else?

 30 14 A. Yes, sir, a classroom setting.

 30 15 Q. Okay. And at this training in the

 30 16 classroom, would -- would slides be used to

 30 17 educate the new recruits or PowerPoint or

 30 18 anything like that?

 30 19 A. It could occasionally. It

 30 20 depends. Sometimes it would just be all

 30 21 verbal. Sometimes they might use a PowerPoint.

Re: [30:12-30:21]

403, 602

OVERRULED

32:9 - 32:17 Hannah, Kevin 12-14-2020

 32 9 Q. So in your experience at

 32 10 Fort Benning as far as new recruits are

 32 11 concerned, there wasn't anybody -- any other

 32 12 commanding officers or NCOs or anything like

Re: [32:9-32:17]

FRE 402/403; 602; 701/702; 

speculation; Plaintiff MIL # 1, 2, 

16

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 126 of 221
Hannah, Kevin 12-14-2020 12

 32 13 that at Benning during that timeframe that

 32 14 would have been distributing hearing

 32 15 protection? Is that correct? That would have

 32 16 all been done by your staff?

 32 17 A. That's correct, sir.

33:22 - 34:3 Hannah, Kevin 12-14-2020

 33 22 Q. Let me back up. Let me put a

 33 23 little gloss on it. Could you explain the

 34 1 process of how yourself or somebody on your

 34 2 staff would have fit a preformed earplug like

 34 3 the Combat Arms Version II Earplug?

Re: [33:22-34:8]

FRE 402/403; 404; 602; 

701/702; speculation; Plaintiff 

MIL # 1, 2, 16

OVERRULED

34:6 - 36:17 Hannah, Kevin 12-14-2020

 34 6 A. I can't say that, sir, because we

 34 7 did not fit the Combat Arms Earplugs at

 34 8 Fort Benning during my time there.

 34 9 Q. Okay. Have you ever fit the

 34 10 Combat Arms Earplugs at any time?

 34 11 A. Not the generation two. Primarily

 34 12 I fit the -- the predecessor after that.

 34 13 Q. And is it -- can I ask you why you

 34 14 have never fit the Combat Arms Version II?

 34 15 Well, first let me back up. Have you ever

 34 16 distributed the Combat Arms Version II Earplugs

 34 17 ever at any time?

 34 18 A. I'm going to -- I'm going to say

 34 19 no, sir, because like I said, I was familiar

 34 20 with the Combat Arms Earplug prior to coming to

 34 21 Fort Benning. But when I came to Benning, we

 34 22 had considered Combat Arms for like recruit

 34 23 training, but opted not to fit them and chose

 35 1 to go with a standard earplug instead of the

 35 2 Combat Arms Earplug.

 35 3 Q. Do you remember why it was that --

 35 4 that at least as far as recruits are concerned

 35 5 at Benning that you decided not to go with the

 35 6 Combat Arms Version II and decided to go with a

 35 7 different earplug?

 35 8 A. Sure. It was due to cost.

 35 9 Q. Okay. And so instead of the

Re: [33:22-34:8]

FRE 402/403; 404; 602; 

701/702; speculation; Plaintiff 

MIL # 1, 2, 16

Re: [34:13-35:8]

FRE 402/403; 602; 701/702; 

speculation; nonresponsive 

answer(s); Plaintiff MIL # 1, 2, 

16

Re: [35:9-36:22]

FRE 402/403; 602; 701/702; 

802; speculation; Plaintiff MIL # 

1, 2, 16

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 127 of 221
Hannah, Kevin 12-14-2020 13

 35 10 Combat Arms Earplug for recruit trainees during

 35 11 that 2004 to 2006 timeframe, what was it that

 35 12 you did distribute to combat recruits?

 35 13 A. We distributed initially the --

 35 14 it's a four-flange plug called the Quattro

 35 15 plug. It's pretty flexible as far as like

 35 16 fitting different ear sizes. If for some

 35 17 reason that was not functional for the recruit,

 35 18 then we would issue them another type of

 35 19 design. It was a triple-flanged plug. And

 35 20 they come in different sizes. The Quattro only

 35 21 came in one size. And then we also had

 35 22 available at that time another earplug that was

 35 23 called the single-flange plug that came in four

 36 1 sizes.

 36 2 Q. And so in your experience at

 36 3 Fort Benning from 2004 to 2006 as far as which

 36 4 particular hearing protection devices were

 36 5 issued to the new recruits, was that your

 36 6 decision to make?

 36 7 A. Yes. Well, the initial fit was

 36 8 always going to be the four-flange Quattro

 36 9 earplug. If that did not fit, then my

 36 10 technicians were to fit the soldiers with one

 36 11 of the other types that we had available that

 36 12 was going to be a better fit for the recruit.

 36 13 Q. Okay. And so the -- and so it

 36 14 sounds like that the four-flange Quattro

 36 15 earplug was going to be the standard issue.

 36 16 And then that decision was made by somebody

 36 17 else higher up. Is that true?

36:19 - 37:4 Hannah, Kevin 12-14-2020

 36 19 A. Well, I was the one that made the

 36 20 decision because of, you know, as far as like

 36 21 the cost of what was going to be available for

 36 22 funding.

 36 23 Q. Okay. So -- so is it fair you

 37 1 considered using the Combat Arms Version II

 37 2 Earplug for combat trainees during that 2004 to

Re: [35:9-36:22]

FRE 402/403; 602; 701/702; 

802; speculation; Plaintiff MIL # 

1, 2, 16

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 128 of 221
Hannah, Kevin 12-14-2020 14

 37 3 2006 timeframe, but decided to use something

 37 4 different because of cost? Is that fair?

37:6 - 37:14 Hannah, Kevin 12-14-2020

 37 6 A. That is fair.

 37 7 Q. I didn't hear your answer, sir.

 37 8 A. Yes. That's correct, sir.

 37 9 Q. Okay. Lieutenant Colonel Hannah,

 37 10 do you recall during the 2004, excuse me, to

 37 11 the 2006 timeframe, do you recall anyone from

 37 12 Aearo or 3M coming on the base at Fort Benning

 37 13 to assist in training recruits regarding

 37 14 hearing protection?

Re: [37:9-37:23]

Plaintiff MIL # 1, 2, 16

OVERRULED

37:16 - 37:21 Hannah, Kevin 12-14-2020

 37 16 A. No, sir.

 37 17 Q. During the 2004 to 2006 timeframe,

 37 18 do you recall anyone from Aearo or 3M coming on

 37 19 the base at Fort Benning to give presentations

 37 20 to you or your staff regarding hearing

 37 21 protection devices?

Re: [37:9-37:23]

Plaintiff MIL # 1, 2, 16

OVERRULED

37:23 - 37:23 Hannah, Kevin 12-14-2020

 37 23 A. No, sir. No, sir.

Re: [37:9-37:23]

Plaintiff MIL # 1, 2, 16

OVERRULED

38:10 - 38:23 Hannah, Kevin 12-14-2020

 38 10 Q. No? Okay. So during the 2004 to

 38 11 2006 timeframe when you were at Fort Benning,

 38 12 would you have been the person responsible for

 38 13 ordering and purchasing hearing protection

 38 14 devices?

 38 15 A. For recruit training, sir?

 38 16 Q. Yes, sir.

 38 17 A. Yes. Yeah. Like I said, we -- we

 38 18 were the ones who ordered hearing protection

 38 19 for recruit training through the hospital.

 38 20 Q. And during that 2004 to 2006

 38 21 timeframe at Fort Benning, did you -- do you

 38 22 remember purchasing Combat Arms Version II

 38 23 Earplugs?

Re: [38:10-38:19]

FRE 401/402/403; 602; 

701/702; speculation; Plaintiff 

MIL # 1, 2, 16

OVERRULED

39:3 - 39:8 Hannah, Kevin 12-14-2020

 39 3 A. No, sir.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 129 of 221
Hannah, Kevin 12-14-2020 15

 39 4 Q. Okay. And -- and when I'm asking

 39 5 this question, I want to make it a little bit

 39 6 broader than just training recruits and ask did

 39 7 you ever purchase them at any time during 2004

 39 8 to 2006 at Fort Benning?

39:11 - 39:11 Hannah, Kevin 12-14-2020

 39 11 A. No, sir.

40:11 - 40:15 Hannah, Kevin 12-14-2020

 40 11 Q. Lieutenant Colonel Hannah, in your

 40 12 experience would there have been anybody else

 40 13 at Fort Benning that may have ordered hearing

 40 14 protection devices, including the Combat Arms

 40 15 Version II Earplugs other than you?

40:18 - 41:9 Hannah, Kevin 12-14-2020

 40 18 A. Not that I know of. Like I said,

 40 19 I was the -- well, are you referring to recruit

 40 20 training again?

 40 21 Q. Well, I'm -- do you remember a

 40 22 company called Brock Sales?

 40 23 A. I've heard of Brock Sales, yes.

 41 1 Q. Do you ever remember ordering any

 41 2 earplugs or hearing protection devices from

 41 3 Brock Sales?

 41 4 A. Not that I could say -- well, I'm

 41 5 going to say -- I'm going to say no because we

 41 6 order our hearing protection through logistics.

 41 7 Who they pick as the vendor or whoever they --

 41 8 whoever they authorize as the vendor, I -- I

 41 9 really don't know.

41:13 - 42:3 Hannah, Kevin 12-14-2020

 41 13 Q. Lieutenant Colonel Hannah, can you

 41 14 see the document that we have on the screen

 41 15 there?

 41 16 A. Yes, sir.

 41 17 Q. Okay. And I'm going to attach

 41 18 this as the first exhibit to your deposition.

 41 19 I'll represent to you that those are sales

 41 20 records from a company called Brock Sales. And

 41 21 you just told me you heard of Brock Sales, but

Re: [41:13-43:6]

602, hearsay

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 130 of 221
Hannah, Kevin 12-14-2020 16

 41 22 you don't recall ordering any hearing

 41 23 protection devices from Brock Sales. Is that

 42 1 true?

 42 2 (Plaintiff's Exhibit Number 1

 42 3 is marked for identification.)

42:5 - 42:15 Hannah, Kevin 12-14-2020

 42 5 A. Yes, sir.

 42 6 Q. Okay. And so we can see her at

 42 7 the top of this sales record, it says

 42 8 Combat Arms Hearing Protectors NRR 22dB and

 42 9 then it gives a number. Do you see that?

 42 10 A. Yes, sir.

 42 11 Q. Okay. And this is -- I'll

 42 12 represent to you that those are the records

 42 13 that Brock Sales provided us when we asked

 42 14 about records regarding sales of Combat Arms

 42 15 Version II Earplugs.

Re: [41:13-43:6]

602, hearsay

OVERRULED

42:20 - 43:2 Hannah, Kevin 12-14-2020

 42 20 Q. Okay. And if we look here about

 42 21 two-thirds of the way down the page, on

 42 22 February 17, 2005, there's an entry here for

 42 23 U.S. Army at Fort Benning, quantity 200. Do

 43 1 you see that Lieutenant Colonel?

 43 2 A. Yes, I see it, sir.

Re: [41:13-43:6]

602, hearsay

OVERRULED

43:4 - 43:7 Hannah, Kevin 12-14-2020

 43 4 Q. Okay. And so -- and so at least

 43 5 according to these records, it appears there

 43 6 was sales of Combat Arms Earplugs to

 43 7 Fort Benning as of February of 2005. Correct?

Re: [41:13-43:6]

602, hearsay

OVERRULED

43:10 - 43:13 Hannah, Kevin 12-14-2020

 43 10 A. That's correct, sir.

 43 11 Q. All right. At least that's what

 43 12 it says. But you don't recall ordering these

 43 13 earplugs. Is that true?

43:15 - 44:10 Hannah, Kevin 12-14-2020

 43 15 A. That's correct, sir. That's

 43 16 correct.

 43 17 Q. Okay. And so what I wanted to

 43 18 explore then is if there -- if it's possible

Re: [43:17-45:16]

602, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 131 of 221
Hannah, Kevin 12-14-2020 17

 43 19 that somebody else had ordered the Combat Arms

 43 20 Earplugs besides -- besides yourself.

 43 21 A. What I can comment on that, sir,

 43 22 so we ordered the hearing protection for

 43 23 recruit training. Now, there were other units

 44 1 on the installation. And that's the unit

 44 2 responsibility to order their hearing

 44 3 protection. It could be a variety of units

 44 4 down there ordering Combat Arms Earplugs.

 44 5 There was a -- one of the brigades down there

 44 6 belonged to 3rd ID. It's possible that they

 44 7 may have been the ones that may have ordered

 44 8 this. But for what we did for recruit

 44 9 training, we did not order Combat Arms Earplugs

 44 10 to the best of my knowledge.

44:11 - 44:18 Hannah, Kevin 12-14-2020

 44 11 Q. Okay. So there was a -- there

 44 12 were other divisions there and other brigades.

 44 13 You just mentioned the 3rd Infantry Division.

 44 14 And think the 75th Ranger Regiment was there

 44 15 also. Correct?

 44 16 A. I'm not familiar with them. But

 44 17 if you say that they were down there, I believe

 44 18 you.

Re: [43:17-45:16]

602, 403

OVERRULED

44:20 - 45:2 Hannah, Kevin 12-14-2020

 44 20 Q. Okay. And I think what you just

 44 21 said is those other units would have had

 44 22 personnel that would be responsible for

 44 23 ordering hearing protection for those units.

 45 1 Is that true?

 45 2 A. That's correct, sir.

Re: [43:17-45:16]

602, 403

OVERRULED

45:3 - 45:7 Hannah, Kevin 12-14-2020

 45 3 Q. Do you recall whether or not at

 45 4 Fort Benning there was a -- a base store or

 45 5 store where soldiers could go and purchase

 45 6 equipment like hearing -- hearing protection

 45 7 devices and so forth?

Re: [43:17-45:16]

602, 403

OVERRULED

45:9 - 45:16 Hannah, Kevin 12-14-2020

 45 9 A. I know that there's a -- there's

Re: [43:17-45:16]

602, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 132 of 221
Hannah, Kevin 12-14-2020 18

 45 10 usually a facility on-post where units can go

 45 11 in there and purchase items for -- for their

 45 12 units. Is that what you're referring to, sir?

 45 13 Q. Yes, sir, I am.

 45 14 A. Yeah. That's -- yeah. I'm

 45 15 familiar with that. But I could not tell you

 45 16 the products that they were carrying.

45:17 - 46:3 Hannah, Kevin 12-14-2020

 45 17 Q. Do you have any personal knowledge

 45 18 or recollection about how -- how it was that

 45 19 the Combat Arms Version II Earplugs were

 45 20 packaged?

 45 21 A. How they were packaged?

 45 22 Q. Yes, sir.

 45 23 A. Not -- not way back in that

 46 1 timeframe, no, sir. I can't -- I can't tell

 46 2 you.

 46 3 Q. Okay.

46:6 - 46:14 Hannah, Kevin 12-14-2020

 46 6 Q. Oh, and let me ask you this.

 46 7 Lieutenant Colonel, do you remember or do you

 46 8 recall when it was that you had left

 46 9 Fort Benning in 2006?

 46 10 A. I was there until 2008, sir.

 46 11 Q. Okay. So you were there from 2004

 46 12 to 2008 then. Is that correct?

 46 13 A. That's correct. That's correct,

 46 14 sir.

46:18 - 47:1 Hannah, Kevin 12-14-2020

 46 18 Q. And so if we go about halfway down

 46 19 the page, we see another entry. This is

 46 20 February 2, 2005 at Fort Benning, an order of

 46 21 50 pair of Combat Arms. Do you see that --

 46 22 A. Yes, sir.

 46 23 Q. -- Lieutenant Colonel Hannah?

 47 1 A. Yep.

Re: [46:18-48:23]

602, 403

OVERRULED

47:5 - 47:13 Hannah, Kevin 12-14-2020

 47 5 Q. Halfway down the page, August 29,

 47 6 2006.

Re: [46:18-48:23]

602, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 133 of 221
Hannah, Kevin 12-14-2020 19

 47 7 MR. FOX: Can you highlight that

 47 8 right there?

 47 9 A. Yep.

 47 10 Q. Got another entry for 50 pairs of

 47 11 Combat Arms Earplugs for August 29, 2006. And

 47 12 this would have been during the timeframe that

 47 13 you were at Fort Benning. Correct?

47:15 - 47:15 Hannah, Kevin 12-14-2020

 47 15 A. That's correct, sir.

Re: [46:18-48:23]

602, 403

OVERRULED

47:19 - 47:23 Hannah, Kevin 12-14-2020

 47 19 Q. If we look right there almost in

 47 20 the middle of the page, there's two more

 47 21 entries on the same date, June 23, 2006 at

 47 22 Fort Benning for 300 pair of Combat Arms

 47 23 Earplugs. Do you see that, Lieutenant Colonel?

Re: [46:18-48:23]

602, 403

OVERRULED

48:3 - 48:9 Hannah, Kevin 12-14-2020

 48 3 A. Yes. Yes, I do, sir.

 48 4 Q. All right. And then one more

 48 5 entry.

 48 6 MR. FOX: Page seven, Gina.

 48 7 Q. April 27, 2006 we have another

 48 8 order for 200 pairs of Combat Arms Earplugs.

 48 9 Do you see that, Lieutenant Colonel?

Re: [46:18-48:23]

602, 403

OVERRULED

48:12 - 48:18 Hannah, Kevin 12-14-2020

 48 12 A. Yes, sir.

 48 13 Q. Okay. So I -- I think what we've

 48 14 just established is that it looks like -- it

 48 15 appears that there were Combat Arms Earplugs

 48 16 that went to Fort Benning, but you -- but you

 48 17 were not the person that ordered those. Is

 48 18 that correct?

Re: [46:18-48:23]

602, 403

OVERRULED

48:21 - 48:23 Hannah, Kevin 12-14-2020

 48 21 Q. Do you agree with that statement

 48 22 that I just made?

 48 23 A. Yes, sir.

Re: [46:18-48:23]

602, 403

OVERRULED

49:23 - 50:12 Hannah, Kevin 12-14-2020

 49 23 Q. Good morning, Colonel Hannah. How

 50 1 are you?

Re: [49:23-50:7]

FRE 402/403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 134 of 221
Hannah, Kevin 12-14-2020 20

 50 2 A. I'm doing good, sir.

 50 3 Q. Good. As Mr. Fox mentioned, my

 50 4 name is Jay Bhimani. I represent 3M and the

 50 5 Defendants in this case. And I'm going to ask

 50 6 you some questions as well this morning. Okay?

 50 7 A. Yes, sir.

 50 8 Q. Just for the record, can you just

 50 9 state the date and time that we're taking this

 50 10 deposition today? I know you're in Germany.

 50 11 A. 14 December. I had to think about

 50 12 it, 2020.

Re: [50:8-50:12]

FRE 401/402/403

50:20 - 51:4 Hannah, Kevin 12-14-2020

 50 20 Q. All right. And as Mr. Fox

 50 21 mentioned, you are here in response to a

 50 22 subpoena that was issued by 3M. Fair enough?

 50 23 A. Yes, sir.

 51 1 Q. And you haven't been hired by

 51 2 either party as an expert or as a witness of

 51 3 any kind in this case. True?

 51 4 A. No, sir.

Re: [50:20-51:4]

FRE 401/402/403

SUSTAINED

51:11 - 51:15 Hannah, Kevin 12-14-2020

 51 11 Q. Sure. I apologize. Am I correct,

 51 12 sir, that you have no affiliation with either

 51 13 the Plaintiff, Mr. Baker, in the case or with

 51 14 any of the Defendants?

 51 15 A. No, I do not.

Re: [51:11-51:15]

FRE 401/402/403; 602/701; 

speculation

SUSTAINED

51:16 - 51:22 Hannah, Kevin 12-14-2020

 51 16 Q. Okay. And the Plaintiff in the

 51 17 case, Mr. Baker, was at Fort Benning from

 51 18 approximately June 2005 until November 2005 for

 51 19 basic training. And I think you said this

 51 20 already. Were you also at Fort Benning in the

 51 21 June 2005 to November 2005 time period?

 51 22 A. Yes, sir, I was.

51:23 - 53:10 Hannah, Kevin 12-14-2020

 51 23 Q. All right. And you were the

 52 1 hearing conservation program manager at

 52 2 Fort Benning during that time period?

 52 3 A. That is correct.

Re: [52:4-53:4]

FRE 401/402/403; improper 

bolstering; 701/702;

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 135 of 221
Hannah, Kevin 12-14-2020 21

 52 4 Q. Just so we have the context for

 52 5 that, can you just describe for us your career

 52 6 in the Army up until that time period in 2005

 52 7 at Fort Benning just in a general level.

 52 8 A. Okay. Prior to arriving at

 52 9 Fort Benning, I had spent three years in

 52 10 Wurzburg, Germany. I ran the audiology

 52 11 department at the hospital and I was involved

 52 12 with hearing conservation in Bavaria. Prior to

 52 13 that I had my own business for ten years, and I

 52 14 had actively been involved with the Army

 52 15 Reserve and the Army National Guard before I

 52 16 came back active duty.

 52 17 Q. And when you say you were actively

 52 18 involved with the Army Reserve and the Army

 52 19 National Guard, was that in a hearing

 52 20 conservation context?

 52 21 A. I was a 72 Charlie. That's my

 52 22 MOS. And I had a -- I held that MOS in the

 52 23 Army Reserve. When I was in the Army

 53 1 National Guard, I was brought in due to the

 53 2 fact that I was a 72 Charlie, but I was

 53 3 considered an administrative officer at that

 53 4 time.

 53 5 Q. All right. And if you were to

 53 6 assume that I didn't know what a 72 Charlie

 53 7 was, can you just describe --

 53 8 A. I apologize. That is an MOS

 53 9 identifier for the job that you do. 72 Charlie

 53 10 would be a military audiologist.

55:21 - 56:8 Hannah, Kevin 12-14-2020

 55 21 Q. All right. And I think you

 55 22 discussed this earlier as well. But your

 55 23 understanding of the Army requirement in Army

 56 1 pamphlet 40-501 in the 2005 time period was

 56 2 that preformed earplugs shall be fitted by

 56 3 medically trained personnel. Is that your

 56 4 understanding?

 56 5 A. That's correct, sir.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 136 of 221
Hannah, Kevin 12-14-2020 22

 56 6 Q. And the best of your memory at

 56 7 Fort Benning in 2005, was that Army requirement

 56 8 followed by the folks on the base?

56:12 - 57:1 Hannah, Kevin 12-14-2020

 56 12 A. Well, I can only speak for my

 56 13 staff. I can only speak for the training. I

 56 14 have -- I could not be the hearing police for

 56 15 every single unit for what they do. But how we

 56 16 provided the -- you know, again, my staff were

 56 17 trained. They provided proper hearing

 56 18 protection fitting. If you attended my

 56 19 educational requirement for the unit level

 56 20 hearing program officer, they were given proper

 56 21 instruction on fitting of hearing protection.

 56 22 If somebody else fits hearing protection

 56 23 without the training, it would be not in my

 57 1 scope and knowledge.

57:11 - 58:1 Hannah, Kevin 12-14-2020

 57 11 Q. Okay. And while we're talking

 57 12 about that, when you were speaking with

 57 13 Mr. Fox, Mr. Fox showed you some spreadsheets

 57 14 with some sales data in them. Do you remember

 57 15 that?

 57 16 A. Yes, sir.

 57 17 Q. Okay. So I guess really my

 57 18 question is, to the extent that Combat Arms

 57 19 Version II Earplugs were ordered by somebody at

 57 20 Fort Benning, can you be clear about the fact

 57 21 that for trainees coming in for basic training,

 57 22 the Combat Arms Version II was not a product

 57 23 that was being issued or fitted for trainees in

 58 1 basic training?

Re: [57:17-58:5]

FRE 401/402/403; speculation; 

602; 701/702; Plaintiff MIL # 1, 

2, 16

SUSTAINED

58:3 - 58:5 Hannah, Kevin 12-14-2020

 58 3 A. That's correct, sir. We did not

 58 4 fit the Combat Arms Earplugs to the recruits,

 58 5 primarily due to the cost.

Re: [57:17-58:5]

FRE 401/402/403; speculation; 

602; 701/702; Plaintiff MIL # 1, 

2, 16

SUSTAINED

59:4 - 59:18 Hannah, Kevin 12-14-2020

 59 4 Q. Okay. And -- and just to make

 59 5 sure that I'm clear about it, the 3rd Brigade

Re: [59:13-59:18]

Incomplete designation. Missing 

the answer.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 137 of 221
Hannah, Kevin 12-14-2020 23

 59 6 is something that's separate and distinct from

 59 7 the basic training program at Fort Benning. Is

 59 8 that accurate?

 59 9 A. That's correct. They're a

 59 10 deployable -- deployable brigade. They were a

 59 11 part of the 3rd Infantry Division, which was

 59 12 out of Fort Stewart, Georgia.

 59 13 Q. Okay. And so with respect to the

 59 14 fittings that were conducted, I think you said

 59 15 primary the quad-flange earplug by members of

 59 16 your staff, can you just describe what those

 59 17 fittings would entail for trainees coming into

 59 18 basic training?

59:19 - 60:16 Hannah, Kevin 12-14-2020

 59 19 A. Are you asking me how they were

 59 20 fit?

 59 21 Q. Sure. Yeah. The process.

 59 22 A. Okay. So we would do group

 59 23 fittings, group instructions. We would handout

 60 1 the hearing protection to the recruits, handout

 60 2 the case to the recruits. We would get them

 60 3 familiar with the earplug and we would have

 60 4 them insert one earplug in the ear and do a --

 60 5 what's called a tug test to determine whether

 60 6 or not it was going to be retained in the ear.

 60 7 We also would have -- we would have them --

 60 8 have their battle buddies do a visual to see if

 60 9 the earplug was flush in addition to my staff

 60 10 roaming around identifying people who may have

 60 11 not inserted the earplug in their ear properly.

 60 12 Anyone who was not able to get the earplug to

 60 13 fit in their ear properly, they were taken

 60 14 aside and they were individually fit by my

 60 15 staff to make sure that the insertion was going

 60 16 to be proper.

Re: [59:21-60:16]

403

OVERRULED

60:17 - 62:8 Hannah, Kevin 12-14-2020

 60 17 Q. And as far as your memory of the

 60 18 2005 time period, was there any -- was there

 60 19 any time during your time at Fort Benning in

Re: [60:17-61:1]

403; legal conclusion; MIL 21

Re: [60:17-62:8]

FRE 401/402/403; speculation; 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 138 of 221
Hannah, Kevin 12-14-2020 24

 60 20 that time period during which it wasn't the

 60 21 military's responsibility to fit and issue

 60 22 earplugs under the supervision of medically

 60 23 trained personnel?

 61 1 A. No.

 61 2 Q. And I think you mentioned this

 61 3 also. Was it also the Army requirement that

 61 4 annual trainings be conducted by medically

 61 5 trained personnel on the use of hearing

 61 6 protection devices?

 61 7 A. Could you restate that again, sir?

 61 8 Q. Sure. Is it your understanding

 61 9 that the Army requirement during this timeframe

 61 10 was also for annual trainings to be conducted

 61 11 by medically trained personnel on the use of

 61 12 hearing protection devices?

 61 13 A. Are you asking -- are you asking

 61 14 if soldiers were required to get an annual

 61 15 educational brief? Is that what you're asking?

 61 16 Q. Yes. Exactly.

 61 17 A. Yes. That is a -- that is an Army

 61 18 requirement.

 61 19 Q. Okay. And did those types of

 61 20 trainings indeed occur at Fort Benning during

 61 21 your time period there?

 61 22 A. To the best of my knowledge, I

 61 23 cannot -- I cannot tell you that every unit

 62 1 complied with that. I offered training

 62 2 support. Sometimes units would contact me or

 62 3 my staff to come and do an educational brief,

 62 4 which we were more than happy to do, but I

 62 5 could not force units to comply. So if they

 62 6 did, I would have seen that they did. If they

 62 7 didn't, I really don't have any documentation

 62 8 to support one way or the other.

802; 602; 701/702; Plaintiff MIL 

# 1, 2, 16

62:9 - 62:23 Hannah, Kevin 12-14-2020

 62 9 Q. Okay. And putting aside the

 62 10 trainings, was it also your understanding in

 62 11 the 2005 time period at Fort Benning that the

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 139 of 221
Hannah, Kevin 12-14-2020 25

 62 12 Army requirement was for annual examinations of

 62 13 the fit and condition of preformed earplugs by

 62 14 medically trained personnel?

 62 15 A. That's correct, sir.

 62 16 Q. And is that something that

 62 17 occurred at Fort Benning during that time

 62 18 period to the best of your memory?

 62 19 A. Yes. Whenever my staff did annual

 62 20 hearing testing, we made sure that people, if

 62 21 they had issues with hearing protection, needed

 62 22 new hearing protection, they were refit with

 62 23 proper hearing protection.

63:16 - 64:17 Hannah, Kevin 12-14-2020

 63 16 Q. So now outside of the context of

 63 17 the initial fittings, do you ever recall

 63 18 discussing NRRs or what an NRR was or the

 63 19 limitations of NRR with service members

 63 20 directly at Fort Benning?

 63 21 A. Usually as part of our annual

 63 22 educational training, we talk about hearing

 63 23 protection and we talk about NRR, noise

 64 1 reduction rating. Most of the -- the big

 64 2 takeaway is that we always tell soldiers if

 64 3 they see that number on a package, the rule of

 64 4 thumb is that the effectiveness of that earplug

 64 5 is probably only going to be half.

 64 6 Q. Okay. And is that -- is that due

 64 7 to sort of the real world environment's impact

 64 8 on an earplug when used outside of sort of a

 64 9 laboratory setting?

 64 10 A. That's correct, sir.

 64 11 Q. All right. You spoke with Mr. Fox

 64 12 a little bit about this. But he asked you some

 64 13 questions about the circumstances in which

 64 14 service members would be required to use

 64 15 hearing protection. Do you remember that

 64 16 general line of questioning?

 64 17 A. Yes, sir.

Re: [63:16-64:10]

FRE 401/402/403; 802; 805; 

602; 701/702; Plaintiff MIL # 1, 

2, 16

Re: [64:11-64:17]

FRE 401/402/403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 140 of 221
Hannah, Kevin 12-14-2020 26

64:22 - 65:11 Hannah, Kevin 12-14-2020

 64 22 Q. All right. And can you just

 64 23 describe some of the hazardous noise areas on a

 65 1 duty station in which service members would be

 65 2 required to wear hearing protection devices?

 65 3 A. Sure. Firing ranges, any -- any

 65 4 kind of -- any type of -- any kind of ranges

 65 5 that you're going to be exposed to gunfire,

 65 6 that would be a requirement. If you're around

 65 7 loud noise generators, yes, hearing protection

 65 8 is required for that. But primarily for

 65 9 recruit training, the biggest place that is

 65 10 going to be suspect to noise exposure is going

 65 11 to be firing ranges.

67:8 - 67:21 Hannah, Kevin 12-14-2020

 67 8 Q. And I think you said the standard

 67 9 issue was the quad-flange earplug. Did

 67 10 trainees in basic training have any ability to

 67 11 select between different types of hearing

 67 12 protection devices or was it the -- the hearing

 67 13 conservation program staff that were really

 67 14 making those decisions and issuing the

 67 15 earplugs?

 67 16 A. Again, what I said, when we fit,

 67 17 if the Quattro earplug did not fit in the

 67 18 recruit's ear, i.e., if it was too small, if it

 67 19 was too big, then we came up with another

 67 20 solution from the other varieties that we had

 67 21 available at the time.

Re: [67:8-67:21]

Conjecture; FRE 401/402/403; 

602; 701/702; Plaintiff MIL # 1, 

2, 16

OVERRULED

67:22 - 68:8 Hannah, Kevin 12-14-2020

 67 22 Q. Okay. And was that true of other

 67 23 types of preformed earplugs as well? In other

 68 1 words, if a preformed earplug didn't fit in a

 68 2 service member's ear, the practice and

 68 3 procedure would have been for your staff to

 68 4 issue some other type of earplug that would

 68 5 fit?

 68 6 A. Yes, sir. Yes. We don't want

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 141 of 221
Hannah, Kevin 12-14-2020 27

 68 7 people to wear earplugs that don't fit in their

 68 8 ears.

68:20 - 69:9 Hannah, Kevin 12-14-2020

 68 20 During your time period at Fort Benning and

 68 21 given your experience up until that time in the

 68 22 Army, did you have any understanding as to why

 68 23 the requirement was that preformed earplugs

 69 1 shall be fitted and issued only under the

 69 2 supervision of medically trained personnel?

 69 3 A. Oh, okay. Well, yeah.

 69 4 Everybody's ear canal sizes are different

 69 5 sizes. So it's just like we all have different

 69 6 size feet, we have different size ear canals.

 69 7 So you don't want to fit somebody with a size

 69 8 seven foot with a size nine boot. It's not

 69 9 going to function too well.

Re: [68:20-69:9]

FRE 401/402/403; 602; 701/702; 

Plaintiff MIL # 1, 2, 16

OVERRULED

70:8 - 70:16 Hannah, Kevin 12-14-2020

 70 8 Q. Okay. And you mentioned that your

 70 9 current role is as a regional consultant with

 70 10 Public Health Command. That is your current

 70 11 role. Right?

 70 12 A. That's correct, sir.

 70 13 Q. Okay. And am I correct that

 70 14 Public Health Command in the past has been

 70 15 known as CHPPM, by that acronym?

 70 16 A. Correct.

71:22 - 72:14 Hannah, Kevin 12-14-2020

 71 22 Q. Okay. And my question really was

 71 23 more general. It's really just getting at, can

 72 1 you describe for us what CHPPM's role was from

 72 2 your perspective as the hearing conservation

 72 3 program manager in providing instructional

 72 4 material that your staff could handout to

 72 5 soldiers?

 72 6 A. Okay. Well, they would provide

 72 7 educational instructional aids. They also

 72 8 dealt with looking at the numbers for hearing

 72 9 testing, what we're doing, annual compliance

 72 10 rates, standard threshold shift rates, all the

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 142 of 221
Hannah, Kevin 12-14-2020 28

 72 11 compliance rates. I'm going to say during that

 72 12 timeframe, we really did not procure a whole

 72 13 lot of educational aids from CHPPM to handout

 72 14 to soldiers or recruits while I was there.

73:4 - 73:11 Hannah, Kevin 12-14-2020

 73 4 Q. So putting aside whether you are

 73 5 issuing the Combat Arms Version II Earplug

 73 6 during this time period, which we've already

 73 7 talked about, had you ever heard anything

 73 8 during this time period regarding the folding

 73 9 back of flanges on the Combat Arms Version II

 73 10 Earplug to get a proper fit on that plug?

 73 11 A. No, not at that point, sir.

Re: [73:4-73:11]

403

OVERRULED

75:11 - 76:3 Hannah, Kevin 12-14-2020

 75 11 Q. Okay. Let me ask a more specific

 75 12 question, if you have a memory of that. It's

 75 13 possible you don't. Did you ever discuss with

 75 14 service members the disadvantages of using

 75 15 foamies over other types of preformed earplugs?

 75 16 A. I'm going to say if we did

 75 17 educational training on the installation for

 75 18 established units, that probably may have been

 75 19 mentioned. For recruits that probably was --

 75 20 again, I can't say.

 75 21 Q. Okay. Do you recall what would

 75 22 have been mentioned to the extent it was

 75 23 addressed on the use of foamies versus other

 76 1 types of preformed earplugs?

 76 2 A. I would say that foamies is not

 76 3 the best choice.

Re: [75:21-76:3]

602; 403; 402; 701/702; Plaintiff 

MIL # 1, 2, 16

SUSTAINED

76:11 - 76:21 Hannah, Kevin 12-14-2020

 76 11 Q. Okay. Did you all consider in the

 76 12 issuing process -- when you all were issuing

 76 13 earplugs to the trainees in basic training at

 76 14 Fort Benning in 2005, did you all consider the

 76 15 NRR label on the earplugs that you were issuing

 76 16 in making the decision on which earplug to

 76 17 select for service members?

 76 18 A. I'm -- I'm familiar with NRR, sir.

Re: [76:11-76:21]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 143 of 221
Hannah, Kevin 12-14-2020 29

 76 19 But most standard hearing protection usually

 76 20 should meet the standard for the exposure that

 76 21 a soldier would have at a firing range.

77:7 - 79:2 Hannah, Kevin 12-14-2020

 77 7 Q. Okay. I think -- I may -- tell me

 77 8 if I've got this wrong. I think you mentioned

 77 9 that at one point in time in the 2005 time

 77 10 period at Fort Benning you looked into whether

 77 11 ordering the Combat Arms Version II would be

 77 12 possible but ultimately didn't go forward due

 77 13 to cost reasons. My only question is,

 77 14 understanding you didn't ultimately order them,

 77 15 what was your thinking as to why you were

 77 16 looking into ordering those earplugs?

 77 17 A. Because of the design, having a --

 77 18 having the ability to be able to communicate

 77 19 more effectively in a tactical environment if

 77 20 it's worn properly compared to using the

 77 21 standard earplug.

 77 22 Q. Okay. And you spoke with Mr. Fox

 77 23 about -- I can't remember if you called it a

 78 1 training or a meeting or a conference,

 78 2 something along those lines, with Doug Ohlin

 78 3 and others related to the Combat Arms

 78 4 Version II. Can you give us just a general

 78 5 summary of what was discussed at that --

 78 6 whether it was a training or a meeting or a

 78 7 conference, just what was discussed there?

 78 8 A. Just, you know, it's like what's

 78 9 new out in the field. And it was discussed by

 78 10 Dr. Ohlin that this is one of the newest

 78 11 designs out there available for tactical --

 78 12 tactical environments. And that's -- it was

 78 13 talked about. It was shown to us.

 78 14 Q. Other than Dr. Ohlin, anyone else

 78 15 discuss or present about the Combat Arms

 78 16 Version II at that meeting?

 78 17 A. No, sir.

 78 18 Q. All right. And when --

Re: [77:22-78:17]

FRE 401/402/403; 802; 805; 

602;

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 144 of 221
Hannah, Kevin 12-14-2020 30

 78 19 A. Not that I recall.

 78 20 Q. Okay. When did that meeting

 78 21 occur? And I don't need an exact month or

 78 22 anything like that. But just a general

 78 23 timeframe.

 79 1 A. I'm going to say around 2002, 2003

 79 2 maybe.

79:12 - 79:21 Hannah, Kevin 12-14-2020

 79 12 Q. So let me ask a more specific --

 79 13 in light of the objection, let me ask a more

 79 14 specific question. What I'm really getting at,

 79 15 sir, was at the time you were at Fort Benning

 79 16 in 2005 and understanding you weren't

 79 17 personally issuing the Combat Arms Version II,

 79 18 within the military hearing conservation

 79 19 community, was the Combat Arms Version II

 79 20 Earplug something that was generally well

 79 21 regarded?

Re: [79:12-80:7]

602; speculation; 611

Re: [79:12-80:7]

FRE 401/402/403; 802; 

conjecture; 602; 701/702; 

Plaintiff MIL # 1, 2, 16

SUSTAINED

80:1 - 80:7 Hannah, Kevin 12-14-2020

 80 1 A. I would say --

 80 2 Q. You can answer.

 80 3 A. I would say -- pardon, sir?

 80 4 Q. I said you can answer, sir.

 80 5 A. Okay. Yeah, it was -- again, it

 80 6 was considered a step up over what was

 80 7 available at the time.

Re: [79:12-80:7]

602; speculation; 611

Re: [79:12-80:7]

FRE 401/402/403; 802; 

conjecture; 602; 701/702; 

Plaintiff MIL # 1, 2, 16

SUSTAINED

85:4 - 85:8 Hannah, Kevin 12-14-2020

 85 4 MR. BHIMANI: All right. So we

 85 5 will mark as Exhibit 69 what we have as our

 85 6 internal tab 19.

 85 7 (Defendant's Exhibit Number 69

 85 8 is marked for identification.)

86:4 - 89:1 Hannah, Kevin 12-14-2020

 86 4 Q. Okay. Does this appear to you to

 86 5 be a copy of an e-mail that you sent to Kathy

 86 6 Gates copying several other people on

 86 7 September 29, 2005?

 86 8 A. I am going to have to assume yes.

 86 9 If you're asking me if I remember writing it,

Re: [87:3-87:21]

Nonresponsive and narrative 

answers; speculation; FRE 

401/402/403; 802; 602; 701/702; 

Plaintiff MIL # 1, 2, 16

Re: [88:19-89:1]

Objection to "But it was not 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 145 of 221
Hannah, Kevin 12-14-2020 31

 86 10 I'll have to say no. But if you have a

 86 11 verified e-mail, then I have to assume that it

 86 12 must be original.

 86 13 Q. Okay. Fair enough. I certainly

 86 14 understand that. So my -- I just have a couple

 86 15 questions about this, sir. The first question

 86 16 is, the e-mail says Fort Benning is above 95

 86 17 percent compliance for our recruit training

 86 18 program with testing, education, and earplug

 86 19 fit. We are now working on phase two to get

 86 20 the installation up to par. Do you see that?

 86 21 A. Yes, sir.

 86 22 Q. Can you just describe in lay terms

 86 23 what those two sentences mean? Specifically

 87 1 I'm curious about the phase -- the reference to

 87 2 a phase two.

 87 3 A. Okay. So whenever I arrived at

 87 4 Fort Benning, the hearing program had a lot to

 87 5 be desired. And the compliance was very poor

 87 6 at recruit training at the time prior to my

 87 7 arriving there and in addition to on the

 87 8 installation. The recruit training, we worked

 87 9 at that to get full compliance for testing,

 87 10 fitting, education. And the same thing on

 87 11 the -- on the installation, the compliance rate

 87 12 was poor. And that was referring to -- my

 87 13 phase two is to get the installation up to par.

 87 14 Q. Okay. All right. When you say

 87 15 compliance -- I'm focused on the recruit

 87 16 training. When you say compliance was very

 87 17 poor, you're talking about the compliance with

 87 18 respect to having medically trained personnel

 87 19 do the fittings or the instruction or was it

 87 20 something else?

 87 21 A. Hearing testing.

 87 22 Q. Hearing testing. Okay.

 87 23 A. Hearing testing, yes. Hearing

 88 1 testing was not actively enforced.

 88 2 Q. Okay. All right. Anything

being actively enforced when i 

got there." FRE 401/402/403, 

conjecture, 404, Plainitff's MIL 

1, 2, 16. No objection to the 

preceding portion of the answer.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 146 of 221
Hannah, Kevin 12-14-2020 32

 88 3 else -- when you say poor compliance, anything

 88 4 else that you're mentioning there other than

 88 5 what you just described with respect to hearing

 88 6 testing?

 88 7 A. No, sir. I just, like I said,

 88 8 tried to get people to comply to hearing

 88 9 testing, thereby getting them in to make sure

 88 10 that they're wearing proper hearing protection,

 88 11 and get in some type educational -- educational

 88 12 training.

 88 13 Q. Okay. Now, would this have

 88 14 been hearing -- are you referring to hearing

 88 15 testing during sort of in-processing new

 88 16 recruit hearing testing or was this the --

 88 17 A. Yes.

 88 18 Q. -- annual hearing testing?

 88 19 A. Yes. Well, both. Okay. So if

 88 20 we're talking about recruits, we're talking

 88 21 about entry level hearing testing. So every

 88 22 recruit coming in does come in with a hearing

 88 23 test from their MEPS physical. But it was not

 89 1 being actively enforced when I got there.

89:11 - 89:14 Hannah, Kevin 12-14-2020

 89 11 Q. Okay. And is it -- is it accurate

 89 12 to say that after you got to Fort Benning, you

 89 13 saw the compliance rates improving?

 89 14 A. Correct, sir.

89:15 - 90:2 Hannah, Kevin 12-14-2020

 89 15 Q. Was that a gradual process? Was

 89 16 it a stark change after you got to

 89 17 Fort Benning? Can you just describe how that

 89 18 unfolded?

 89 19 A. Stark change.

 89 20 Q. Was that a requirement that you

 89 21 put into place once you got there?

 89 22 A. Well, yeah. We were supposed to

 89 23 have a -- we were supposed to do a job. And we

 90 1 needed to make sure that the job got done

 90 2 correct.

Re: [89:15-89:19]

Vague, confusing, FRE 

401/402/403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 147 of 221
Hannah, Kevin 12-14-2020 33

90:3 - 91:1 Hannah, Kevin 12-14-2020

 90 3 Q. All right. Mr. Fox asked you some

 90 4 questions about compliance among recruits in

 90 5 terms of having earplugs in their ears when

 90 6 they were in noisy environments and -- and the

 90 7 fact that, you know, there could be discipline

 90 8 if that was not the case. Do you have any

 90 9 memory about the extent to which soldiers

 90 10 didn't wear hearing protection in their ears in

 90 11 noisy environments and the extent to which they

 90 12 were disciplined for not having earplugs in

 90 13 their ears? And I'm talking now about

 90 14 Fort Benning.

 90 15 A. Yeah, again sir, not to my

 90 16 knowledge. I did not go out to the training

 90 17 areas to make sure the soldiers were complying.

 90 18 The -- the trainers should have had active

 90 19 knowledge that they knew you're supposed to

 90 20 wear hearing protection when you go to a range.

 90 21 And that's the responsibility of the range

 90 22 NCOIC is to make sure anybody who walks on a

 90 23 range, make sure they have hearing protection

 91 1 in their possession.

Re: [90:3-91:1]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 148 of 221
Myers, Brian 12-13-2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 149 of 221
Myers, Brian 12-13-2019 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

457:16 - 458:9 Myers, Brian 12-13-2019

 457 16 Q. When Aearo sold to 3M and when 3M paid

 457 17 $1.2 billion, didn't you personally make between your

 457 18 common stock, your preferred shares and your options

 457 19 about $2 million in that transaction?

 457 20 A. I don't recall that it was that much.

 457 21 Q. How much did you make, sir?

 457 22 A. I don't recall.

 457 23 Q. All right. What are we fussing about

 457 24 here; more than a million and a half?

 457 25 A. I don't -- I don't recall that it was even

 458 1 over a million.

 458 2 Q. What's the number you recall, sir?

 458 3 A. I don't -- I just don't recall that it was

 458 4 more than a million. But I don't honestly recall.

 458 5 Q. Is a million dollars from your

 458 6 perspective, and we can -- we can sharpen this up if

 458 7 we want to pass the agreements over, but is that a

 458 8 number we can work with today from your understanding,

 458 9 a million dollars is what you made on that deal?

Re: [457:16-458:4]

Def Objection - MIL 7; Relevance 

(401, 402); Prejudice (403)

Re: [458:5-458:9]

Def Objection - MIL 7; 

Foundation (602); ambiguous 

(611, 403); Relevance (401, 402)

Re: [457:16-458:9]

Baker MIL 1

OVERRULED

458:12 - 458:12 Myers, Brian 12-13-2019

 458 12 A. I don't recall what I made.

Re: [458:12-458:12]

Def Objection - MIL 7; 

Foundation (602); ambiguous 

(611, 403)

Re: [458:12-458:12]

Baker MIL 1

OVERRULED

459:24 - 460:9 Myers, Brian 12-13-2019

 459 24 Q. I'm passing you, sir, what's Exhibit 44 to

 459 25 your deposition, and we'll circle back to that pitch

 460 1 book to sell Aearo to 3M in a moment, but I want to

 460 2 just pin this down, if we could, on your ownership in

 460 3 various ways of Aearo securities.

 460 4 Sir, this is a copy of I guess what the

 460 5 lawyers file in connection with a transaction like

 460 6 this. It is called Schedules to the Agreement and

 460 7 Plan of Merger between Aearo and 3M.

 460 8 Do you see that, sir?

 460 9 A. I do see those words on Page 1.

Re: [459:24-459:25]

Baker MIL 1

Re: [460:1-460:9]

MIL 7

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 150 of 221
Myers, Brian 12-13-2019 3

460:16 - 460:18 Myers, Brian 12-13-2019

 460 16 You acknowledge, though, you made several

 460 17 hundred thousand dollars in connection with your sale

 460 18 of the common stock?

Re: [460:16-460:18]

Def Objection - MIL 7; Prejudice 

(403)

Re: [460:16-460:18]

Baker MIL 1

OVERRULED

460:22 - 460:23 Myers, Brian 12-13-2019

 460 22 A. I do recall in total that I made at least

 460 23 several hundred thousand dollars.

Re: [460:22-460:23]

Def Objection - MIL 7; Prejudice 

(403)

Re: [460:22-460:23]

Baker MIL 1

OVERRULED

471:18 - 471:20 Myers, Brian 12-13-2019

 471 18 Q. Okay. And let's go back into the

 471 19 presentation and see what was being said about your

 471 20 military sales.

Re: [471:18-471:20]

Def Objection - Foundation (602); 

Prejudice (403); Question 

designated but not answer

OVERRULED

471:21 - 472:5 Myers, Brian 12-13-2019

 471 21 We can agree on that page, you are talking

 471 22 about 24 percent compound annual growth over three

 471 23 years, right?

 471 24 A. That's what the bullet says.

 471 25 Q. Okay. Let's go, please, to .80.

 472 1 You kind of drill down on that military

 472 2 and law enforcement growth elsewhere in this

 472 3 presentation, don't you, sir?

 472 4 A. Again, I'm not familiar with this

 472 5 presentation.

472:6 - 472:23 Myers, Brian 12-13-2019

 472 6 Q. It says:

 472 7 "Military and law enforcement growth.

 472 8 Aearo's investment over the last few years in military

 472 9 and law enforcement has delivered excellent results."

 472 10 Did I read that correctly?

 472 11 A. The -- yes, so the title of Page 80 is

 472 12 "Military and Law Enforcement Growth."

 472 13 Q. I read it correctly, right?

 472 14 A. I'm sorry. I was trying to get to the

 472 15 page.

 472 16 Q. Okay. And there is that chart showing the

 472 17 growth, how it is growing over the years, right?

 472 18 Do you see that?

 472 19 A. I do see the -- the chart on the page.

 472 20 Q. And it says that Aearo has been focusing

 472 21 on the military as a growth opportunity, right?

Re: [472:6-472:23]

Def Objection - Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [472:6-472:23]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 151 of 221
Myers, Brian 12-13-2019 4

 472 22 A. It says: "Aearo has focused on the

 472 23 military as a growth opportunity."

477:17 - 478:18 Myers, Brian 12-13-2019

 477 17 Q. All right. Sir, we are looking at this

 477 18 chart here of Army/Marine VA Hearing Loss Disability

 477 19 Claims, and I think you told us that it looks like

 477 20 really the lowest point in there is 2000 for the Army,

 477 21 right, kind of just --

 477 22 A. Yeah, so --

 477 23 Q. -- declining, declining, declining,

 477 24 declining, kind of bottoms out at 2000, is that right?

 477 25 A. The lowest point on this chart in that

 478 1 green Army line is 2000, it looks like.

 478 2 Q. And, in fact -- yeah, and then what we see

 478 3 after -- we see after that, sir, is the rate of Army

 478 4 disability claims starts picking up again, right?

 478 5 A. Yes, so it says disability cases. I don't

 478 6 know if there is a difference between claims and

 478 7 cases.

 478 8 Q. You are correct for correcting me on that.

 478 9 Thank you. Yes, it says disability cases.

 478 10 The rate of disability cases starts

 478 11 picking up, right, after 2000?

 478 12 A. So for the Army the curve starts going

 478 13 upwards.

 478 14 Q. Okay. And you all started bringing these

 478 15 to market to the Army in your 50 packs, was that in

 478 16 late '99, early 2000?

 478 17 A. The first sales that I'm aware of were in

 478 18 late 1999.

Re: [477:17-478:18]

Def Objection - MIL 20; 

Prejudice (403); Foundation 

(602); Relevance (401, 402)

OVERRULED

480:8 - 480:11 Myers, Brian 12-13-2019

 480 8 Q. Is it true, sir, you were looking to keep

 480 9 growing that Combat Arms business in 2006?

 480 10 A. Oh, I think we were trying to grow all of

 480 11 our businesses all of the time.

486:5 - 486:12 Myers, Brian 12-13-2019

 486 5 Q. I'm passing you Exhibit 45, sir.

 486 6 For the record, Exhibit 45 is also P364, a

 486 7 two-page e-mail between yourself and Mr. Sidor. We

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 152 of 221
Myers, Brian 12-13-2019 5

 486 8 are now up to July of 2006.

 486 9 Correct, sir?

 486 10 A. The very last e-mail, if this is an e-mail

 486 11 string, yes, the very last -- well, both e-mails in

 486 12 this chain are from July of 2006.

487:19 - 488:1 Myers, Brian 12-13-2019

 487 19 Q. Okay. The first one, it's a patent that

 487 20 ends in '149, you describe as "covering the noise

 487 21 excluding sealing tips of the hearing protector,"

 487 22 right? That's how you described it?

 487 23 A. Yeah, I likely would have gotten input

 487 24 from somebody to -- to incorporate that, but, again, I

 487 25 don't recall the -- the specific details of putting

 488 1 this together.

Re: [487:19-488:1]

Plt Objection - improper counter 

per PTO 64

OVERRULED

489:6 - 489:12 Myers, Brian 12-13-2019

 489 6 Q. And then Mr. Sidor asked you for testing

 489 7 information. You provided testing information back to

 489 8 him, right?

 489 9 A. So, again, I'm relying on the document

 489 10 here, but it doesn't look like -- it looks like we

 489 11 provided information about testing, not necessarily

 489 12 the results of testing.

489:13 - 489:25 Myers, Brian 12-13-2019

 489 13 Q. Thank you, sir.

 489 14 It be -- this paragraph begins: "As far

 489 15 as testing goes," so you responded to his inquiry,

 489 16 correct?

 489 17 A. Again, I don't recall the specific details

 489 18 of what he asked me.

 489 19 Q. Well, we know that you had a call with

 489 20 him, and following the call in which you said: "It

 489 21 was good to speak with you today," you provided him

 489 22 information on the patents for the product.

 489 23 That's the first section, correct?

 489 24 A. That's what's in the e-mail, in this

 489 25 document.

Re: [489:13-489:25]

Plt Objection - improper counter 

per PTO 64

Re: [489:13-489:25]

cumulative, 403

OVERRULED

490:1 - 491:19 Myers, Brian 12-13-2019

 490 1 Q. And then in the second section you provide

 490 2 testing information, right?

Re: [491:16-492:3]

Def Objection - Argumentative 

(611, 403); Foundation (602).

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 153 of 221
Myers, Brian 12-13-2019 6

 490 3 A. Yes, I -- in this e-mail, in this

 490 4 document, it says "as far as testing goes" and then it

 490 5 talks about it looks like testing in Item 1 and it

 490 6 looks like it talks about testing in Item 2.

 490 7 Q. Right.

 490 8 So the section begins "as far as testing

 490 9 goes," and your understanding, sir, is that you are

 490 10 providing that back to Mr. Sidor because he asked for

 490 11 it, right?

 490 12 A. Again, I don't recall the specific details

 490 13 of what he asked.

 490 14 Q. Okay. And what you provide to him,

 490 15 though, with the introduction of: "As far as testing

 490 16 goes, the Combat Arms Earplug has been evaluated in

 490 17 three ways," right? That's what you said?

 490 18 A. It said -- those are the words in the

 490 19 document, yes.

 490 20 Q. Okay. You said: "As proscribed by ANSI

 490 21 S3.19-1974."

 490 22 Is that one way of testing real-ear

 490 23 attenuation at threshold, sir?

 490 24 A. That's my understanding.

 490 25 Q. That's what you wrote, right? Isn't that

 491 1 what you wrote to him?

 491 2 A. I did write: "As proscribed by ANSI

 491 3 S3.19-1974."

 491 4 Q. "Attenuation testing is performed in a lab

 491 5 (NVLAP accredited) on 10 human subjects. This is

 491 6 required to establish the Noise Reduction Rating (NRR)

 491 7 for each end of the hearing protector. This testing

 491 8 was conducted only once in our E-A-RCAL Lab. This lab

 491 9 is accredited under the NV" -- National Voluntary Lab

 491 10 Accreditation Program (NVLAP) which is administered

 491 11 under the U.S. Department of Commerce. It is one of

 491 12 only three such (commercially available) labs in the

 491 13 United States."

 491 14 Do you see that, sir?

 491 15 A. I see those words.

 491 16 Q. And we know that's not true, right?

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 154 of 221
Myers, Brian 12-13-2019 7

 491 17 A. I'm not sure I follow you. Why is that?

 491 18 Q. We know it's not true you only tested this

 491 19 once, right?

491:23 - 492:7 Myers, Brian 12-13-2019

 491 23 A. So if I read the document: "Attenuation

 491 24 testing performed in a lab on 10 human subjects." As

 491 25 I recall in the -- in the prior Ron Kieper/Elliott

 492 1 Berger report, there was an -- there was testing that

 492 2 was performed on eight subjects, but I don't think it

 492 3 was on ten.

 492 4 BY MR. BUCHANAN:

 492 5 Q. So you are saying, sir, that you decided

 492 6 not to tell them about the study that you terminated

 492 7 with the lousy NRR --

Re: [491:16-492:3]

Def Objection - Argumentative 

(611, 403); Foundation (602).

Re: [492:5-492:7]

Def Objection - Foundation (602); 

misstates, argumentative (611, 

403); Relevance (401, 402); 

Prejudice (403)

OVERRULED

492:15 - 492:23 Myers, Brian 12-13-2019

 492 15 A. Again, I don't recall the details of -- of

 492 16 this. I believe that I would have asked technical to

 492 17 provide me the information that was appropriate to

 492 18 respond to Mr. Sidor.

 492 19 Q. I mean, you know you all terminated a

 492 20 study involving this product with an NRR of 11 in

 492 21 2000. We looked at it as the subject of the flange

 492 22 report yesterday. You didn't tell Mr. Sidor about

 492 23 that?

Re: [492:15-492:23]

Def Objection - Foundation (602); 

misstates, argumentative (611, 

403); Relevance (401, 402); 

Prejudice (403)

OVERRULED

493:2 - 493:12 Myers, Brian 12-13-2019

 493 2 A. I don't recall that we told Mr. Sidor

 493 3 about that.

 493 4 BY MR. BUCHANAN:

 493 5 Q. Because he is asking you about your

 493 6 testing here in July of 2006, right?

 493 7 A. Again, I didn't recall the specific

 493 8 details of what his request was.

 493 9 Q. Well, you are certainly providing him

 493 10 information about some of your testing, right?

 493 11 A. Again, I don't recall the details, but a

 493 12 section of this is "as far as testing goes."

Re: [493:2-493:3]

Def Objection - Foundation (602); 

Vague/ambiguous (611, 403); 

Relevance (401, 402); Prejudice 

(403)

OVERRULED

494:9 - 494:11 Myers, Brian 12-13-2019

 494 9 Q. Please tell the jury now, in the camera,

Re: [494:9-494:11]

Def Objection - Foundation (602); 

relevance (401, 402); 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 155 of 221
Myers, Brian 12-13-2019 8

 494 10 the results of the study from the week before on this

 494 11 product?

Argumentative as to "in the 

camera," 403; MIL 22.

494:14 - 494:22 Myers, Brian 12-13-2019

 494 14 A. So I -- I don't recall timing around

 494 15 studies, so can I look at some exhibits to find one

 494 16 that's dated the week before this to see what that

 494 17 was?

 494 18 BY MR. BUCHANAN:

 494 19 Q. You all had done a study the week before

 494 20 and got an NRR of 4.4 on the green end for the Combat

 494 21 Arms.

 494 22 Did you know that, sir?

Re: [494:14-494:17]

Def Objection - Foundation (602; 

relevance (401, 402); 403; MIL 

22.

Re: [494:18-494:22]

Def Objection - Foundation (602); 

MIL 22; Prejudice (403)

OVERRULED

494:25 - 495:4 Myers, Brian 12-13-2019

 494 25 A. I don't recalling knowing that.

 495 1 BY MR. BUCHANAN:

 495 2 Q. Don't you think that would be pretty

 495 3 important information to share with a person

 495 4 interested in testing and performance of your product?

Re: [494:25-494:25]

Def Objection - Foundation (602); 

MIL 22; Prejudice (403)

Re: [495:1-495:4]

Def Objection - MIL 22; 

Foundation (602); Ambiguous 

(611, 403); Relevance (401, 402); 

Prejudice (403)

OVERRULED

495:22 - 496:3 Myers, Brian 12-13-2019

 495 22 (WHEREUPON, a certain document was

 495 23 marked Brian Myers Deposition Exhibit

 495 24 No. 46, for identification, as of

 495 25 12-13-2019.)

 496 1 BY MR. BUCHANAN:

 496 2 Q. I'm passing you, sir, what is marked as

 496 3 Exhibit 46 to your deposition.

Re: [495:8-496:3]

Def Objection - Foundation (602); 

Prejudice (403); (611, 403)

Re: [496:2-496:3]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403); Foundation (602)

OVERRULED

496:8 - 496:14 Myers, Brian 12-13-2019

 496 8 Q. I think it is Study 213030.

 496 9 Do you have that before you, sir?

 496 10 A. I have Exhibit 46 before me.

 496 11 Q. Okay. This is a test of the ARC Plug,

 496 12 solid end of Combat Arms Earplug, right?

 496 13 A. It says: "Device: ARC Plug, Solid end of

 496 14 Combat Arms Earplug."

Re: [496:8-496:14]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403); Foundation (602)

Re: [496:8-496:15]

401; MIL 22

OVERRULED

496:16 - 496:23 Myers, Brian 12-13-2019

 496 16 And you talked about the ARC Plug as a

 496 17 different, if you will, marketed form of the Combat

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 156 of 221
Myers, Brian 12-13-2019 9

 496 18 Arms Earplug, correct, sir?

 496 19 A. It was slightly different in a -- the

 496 20 intent was a different user application.

 496 21 Q. It was different in color, sir, right?

 496 22 A. Right. The tips were -- I think one of

 496 23 the tips was a different color.

497:2 - 497:3 Myers, Brian 12-13-2019

 497 2 Can you satisfy yourself that you got this

 497 3 result, what was that, the end of June 2006?

Re: [497:2-497:3]

Def Objection - MIL 22; 

Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

497:8 - 497:11 Myers, Brian 12-13-2019

 497 8 A. So the date on this report, the

 497 9 exhibit you've handed me, is June 2006.

 497 10 BY MR BUCHANAN:

 497 11 Q. Right. June 2006, you got an NRR of 4.4?

Re: [497:8-497:9]

Def Objection - MIL 22; 

Foundation (602); Prejudice 

(403); Relevance (401, 402)

Re: [497:11-497:11]

Def Objection - MIL 22;

Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

497:14 - 497:15 Myers, Brian 12-13-2019

 497 14 A. So this report says there is an NRR (SF)

 497 15 4.4.

Re: [497:14-497:15]

Def Objection - MIL 22; 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

498:23 - 498:25 Myers, Brian 12-13-2019

 498 23 Q. Okay. How about just a 4.4, let's stay

 498 24 with the top line here, what would you make of that

 498 25 one?

Re: [498:23-498:25]

Def Objection - MIL 22; 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

499:4 - 499:18 Myers, Brian 12-13-2019

 499 4 A. I guess I would ask technical about this

 499 5 for more information. It is a technical report.

 499 6 BY MR. BUCHANAN:

 499 7 Q. Yesterday, sir, we looked at a time when

 499 8 you looked at an NRR of 9 and were asked would this

 499 9 work and you said: "Doubt it."

 499 10 Do you remember that e-mail, sir?

 499 11 A. I do remember that e-mail.

 499 12 Q. Is the number 9 higher or lower than 4.4?

 499 13 A. 9 is higher than 4.4.

 499 14 Q. Okay. And in the scheme of NRRs, higher

 499 15 conveys greater protection, correct, sir?

Re: [499:4-499:18]

Def Objection - Foundation (602); 

Relevance (401, 402); Prejudice 

(403)

Re: [499:4-499:18]

701; 602; 403; 3M MIL 22

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 157 of 221
Myers, Brian 12-13-2019 10

 499 16 A. That's what the EPA asks us to indicate.

 499 17 Q. So 4.4 would convey less protection than

 499 18 the 9 that you doubted would work, right?

499:22 - 500:5 Myers, Brian 12-13-2019

 499 22 A. Again, I would have to talk to technical

 499 23 about what -- what the -- what the details were around

 499 24 this.

 499 25 BY MR. BUCHANAN:

 500 1 Q. What we can agree, sir, is that in

 500 2 responding to Mr. Sidor's call with you when you

 500 3 provided testing information, the company has got

 500 4 testing, what's this a week, ten days before, showing

 500 5 an NRR of 4 and you are not coming clean, right?

Re: [499:22-499:24]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403); Foundation (602)

Re: [499:22-499:24]

Def Objection - Foundation (602); 

Prejudice (403)

Re: [499:22-499:24]

701; 602; 403; 3M MIL 22

Re: [500:1-500:5]

701; 602; 403; 3M MIL 22

OVERRULED

500:9 - 500:13 Myers, Brian 12-13-2019

 500 9 A. Again, I think that technical would have

 500 10 had input into what I -- my response was. I would

 500 11 have --

 500 12 BY MR. BUCHANAN:

 500 13 Q. We can agree you didn't share it?

Re: [500:9-500:13]

701; 602; 403; 3M MIL 22

OVERRULED

500:17 - 500:18 Myers, Brian 12-13-2019

 500 17 A. I would have relied on them to provide

 500 18 what was appropriate in my response.

Re: [500:17-500:18]

701; 602; 403; 3M MIL 22

OVERRULED

500:20 - 500:21 Myers, Brian 12-13-2019

 500 20 Q. We can agree you didn't share it with

 500 21 Mr. Sidor, correct, sir?

Re: [500:20-501:1]

602

OVERRULED

500:25 - 501:1 Myers, Brian 12-13-2019

 500 25 A. Again, I don't -- I don't recall that we

 501 1 shared this.

Re: [500:20-501:1]

602

OVERRULED

502:4 - 502:4 Myers, Brian 12-13-2019

 502 4 Q. Is that what you are doing?

Re: [502:4-502:4]

Plt Objection - improper counter 

per PTO 64

Re: [502:4-502:4]

vague, speculation, 602, 

cumulative, 403

SUSTAINED

502:8 - 502:9 Myers, Brian 12-13-2019

 502 8 A. Again, I don't recall the details of what

 502 9 his inquiry was.

Re: [502:8-502:9]

Plt Objection - improper counter 

per PTO 64

Re: [502:8-502:9]

speculation, 602

SUSTAINED

503:2 - 503:5 Myers, Brian 12-13-2019

 503 2 Q. Okay. It seems to keep happening, sir,

 503 3 that you keep pointing at technical.

Re: [503:2-503:5]

Def Objection - Foundation (602); 

Relevance (401, 402); Prejudice 

(403); MIL 22.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 158 of 221
Myers, Brian 12-13-2019 11

 503 4 You are the one communicating with

 503 5 Mr. Sidor. Do I have that correct?

Re: [503:2-503:5]

Def Objection - Attorney 

commentary.

503:9 - 503:17 Myers, Brian 12-13-2019

 503 9 A. The e-mail comes from me.

 503 10 BY MR. BUCHANAN:

 503 11 Q. Right. And what you communicated to

 503 12 Mr. Sidor in response to an inquiry about testing is

 503 13 that: "As far as testing goes, the Combat Arms has

 503 14 been evaluated in three ways," right?

 503 15 A. And, again, I would have relied on

 503 16 technical input for accuracy of what I was telling

 503 17 Mr. Sidor.

Re: [503:9-503:17]

Def Objection - 611; Relevance 

(401, 402); Prejudice (403); MIL 

22.

OVERRULED

505:15 - 505:19 Myers, Brian 12-13-2019

 505 15 Q. Would it be surprise -- would it be

 505 16 surprising to you, sir, that a potential purchaser of

 505 17 a lot of hearing protection devices might be

 505 18 interested in test results that show a 4 when you are

 505 19 otherwise quoting 22 on the cover of it?

Re: [505:15-505:19]

602; vague, confusing, 

ambiguous; 611; 401

OVERRULED

505:23 - 505:24 Myers, Brian 12-13-2019

 505 23 A. Again, I don't recall the details of what

 505 24 his specific request was.

Re: [505:23-505:24]

602; vague, confusing, 

ambiguous; 611; 401

OVERRULED

507:5 - 507:5 Myers, Brian 12-13-2019

 507 5 Q. Gotcha.

507:6 - 507:7 Myers, Brian 12-13-2019

 507 6 And we could agree that 4.4 is a heck of a

 507 7 lot lower than 22, right?

Re: [507:6-507:7]

Def Objection - MIL 22; 

Vague/Ambiguous (611, 403): 

"heck of a lot lower"; Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

OVERRULED

507:11 - 507:11 Myers, Brian 12-13-2019

 507 11 A. 4.4 is less than 22.

Re: [507:11-507:11]

Def Objection - MIL 22; 

Vague/Ambiguous (611, 403): 

"heck of a lot lower"; Relevance 

(401, 402); Prejudice (403); 

Foundation (602)

OVERRULED

513:4 - 514:5 Myers, Brian 12-13-2019

 513 4 Q. Are you the same Brian Myers who went and

Re: [513:4-513:7]

Def Objection - Argumentative 

Re: [513:8-513:24]

3M MIL 22

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 159 of 221
Myers, Brian 12-13-2019 12

 513 5 presented to the EPA in 2003 about the right way to

 513 6 conduct testing on hearing protection devices?

 513 7 A. I did speak at an EPA hearing.

 513 8 Q. Well, not just that, sir. Weren't you the

 513 9 one for the company who went and presented about how

 513 10 hearing protection devices should be tested?

 513 11 A. I think in that hearing I -- what I spoke

 513 12 to was that NRRs were not a good indicator, I think it

 513 13 was widely agreed, of levels of attenuation and that

 513 14 by that time there were some better methods that were

 513 15 available to be more predictive of the performance

 513 16 that customers could expect, and I thought we should

 513 17 be -- we should provide these customers with -- with

 513 18 the -- the better information if it was available.

 513 19 Q. Right. And that's important, right, to

 513 20 provide your customers with better information if it's

 513 21 available?

 513 22 A. I believe that keeping customers informed

 513 23 at least the way I would like to run a business is --

 513 24 is good for our business.

 513 25 Q. Right. And so what was that method of

 514 1 testing that you were advocating to the EPA in 2003,

 514 2 sir?

 514 3 A. So the -- the testing that was at issue

 514 4 then was I think a testing protocol that was referred

 514 5 to as Method B.

(611, 403), Relevance (401, 402); 

Prejudice (403); Foundation (602)

Re: [513:25-514:5]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403)

514:16 - 514:20 Myers, Brian 12-13-2019

 514 16 And so you were advocating a tested method

 514 17 called Method B in 2003, if I understand your

 514 18 testimony, right?

 514 19 A. When I spoke at the EPA hearing that you

 514 20 mentioned, that's what was on my mind.

Re: [514:16-514:20]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403)

OVERRULED

514:21 - 515:3 Myers, Brian 12-13-2019

 514 21 Q. Okay. So just to be clear in terms of

 514 22 your qualifications, sir, when it came to this issue

 514 23 on the right way to test, the person that the company

 514 24 put forward to represent the right way to test was

 514 25 you, right?

 515 1 A. I don't know that the company put me

Re: [514:21-515:3]

Plt Objection - 402; 403; 602; 

improper counter per PTO 64

Re: [514:21-515:3]

speculation

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 160 of 221
Myers, Brian 12-13-2019 13

 515 2 forward. I think others from the company may have

 515 3 testified as well.

515:4 - 515:10 Myers, Brian 12-13-2019

 515 4 Q. Okay. Well, you were certainly the one or

 515 5 a person for the company that came forward and

 515 6 advocated for Aearo Method B testing, fair, sir?

 515 7 A. The message that I tried to portray was

 515 8 that if there was better information that could be

 515 9 provided to customers, that's what we should try to

 515 10 do.

515:11 - 515:21 Myers, Brian 12-13-2019

 515 11 Q. And you didn't do that with your military

 515 12 customer, sir, in July of 2006 when you had that

 515 13 better information, did you, sir?

 515 14 A. Again, in this regard I would have relied

 515 15 on technical to make sure that this response was

 515 16 appropriate.

 515 17 Q. For the jury's benefit, let's go back to

 515 18 Study 213030, Exhibit 46.

 515 19 And could you agree with me, sir, that

 515 20 this is, in fact, a study conducted using the better

 515 21 method you were advocating in 2003?

Re: [515:11-515:16]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403); cumulative (403); 

Foundation (602)

Re: [515:17-515:21]

Def Objection - MIL 22; 

Relevance (401, 402); Prejudice 

(403); cumulative (403); 

Foundation (602)

OVERRULED

515:25 - 516:4 Myers, Brian 12-13-2019

 515 25 A. I don't know the details of this study. I

 516 1 can read parts of it to you if you like. I see that

 516 2 the fitting procedure says here "Method B, Subject

 516 3 Fit," but I have not -- I don't recall ever having

 516 4 seen this study.

Re: [515:25-516:4]

Def Objection - MIL 22; 

Foundation (602); Ambiguous 

(611, 403): "better method"; 

Relevance (401, 402); 403 

(cumulative).

OVERRULED

517:9 - 517:11 Myers, Brian 12-13-2019

 517 9 Q. Okay. And for the record, the result of

 517 10 that better study method, I think you said, you called

 517 11 Method B a better study method, right, sir?

Re: [517:9-517:11]

cumulative, 403

OVERRULED

517:14 - 517:15 Myers, Brian 12-13-2019

 517 14 A. So technical characterized it as being

 517 15 more representative of what users could expect.

Re: [517:14-517:15]

cumulative, 403

OVERRULED

517:17 - 517:17 Myers, Brian 12-13-2019

 517 17 Q. That's a good thing, right?

Re: [517:17-517:17]

cumulative, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 161 of 221
Myers, Brian 12-13-2019 14

517:21 - 517:23 Myers, Brian 12-13-2019

 517 21 A. I thought -- I thought that providing

 517 22 users with better information around their

 517 23 expectations was -- was a positive thing.

Re: [517:21-517:23]

cumulative, 403

OVERRULED

523:5 - 523:8 Myers, Brian 12-13-2019

 523 5 Q. Okay. Well, now, let's get back to this

 523 6 Exhibit 45, sir, that we were talking about because

 523 7 you sent the testing information. I guess we could

 523 8 agree you sent certain information, right?

Re: [523:5-523:8]

cumulative, speculation, 602

OVERRULED

523:12 - 523:13 Myers, Brian 12-13-2019

 523 12 Q. You sent certain information to Mr. Sidor,

 523 13 right?

Re: [523:12-523:13]

cumulative, speculation, 602

OVERRULED

523:16 - 523:17 Myers, Brian 12-13-2019

 523 16 A. I -- I tried to respond to Mr. Sidor. I

 523 17 don't recall the details of what his request was.

Re: [523:16-523:17]

cumulative, speculation, 602

OVERRULED

523:19 - 523:21 Myers, Brian 12-13-2019

 523 19 Q. Okay. We can agree you didn't send other

 523 20 information, as best you recall, like 21301 -- 030,

 523 21 right?

Re: [523:19-523:21]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [523:19-523:21]

speculation, 602

OVERRULED

523:25 - 524:2 Myers, Brian 12-13-2019

 523 25 A. Again, I don't recall the specific details

 524 1 of his request. All I have to go by is the

 524 2 exhibit that you have provided to me.

Re: [523:25-524:2]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [523:25-524:2]

speculation, 602

OVERRULED

524:10 - 524:12 Myers, Brian 12-13-2019

 524 10 Q. "Another question I would like to ask

 524 11 concerns the triple flanges," right?

 524 12 A. That's what the document says.

Re: [524:8-524:19]

Hearsay; 401; 403; 701

OVERRULED

524:13 - 524:19 Myers, Brian 12-13-2019

 524 13 Q. It says: "Do they contribute to noise

 524 14 reduction or are they primarily designed for proper

 524 15 fit? If they contribute to noise reduction, to what

 524 16 extent do they contribute?"

 524 17 Do you see that, sir?

 524 18 A. I see that those questions are in this

 524 19 document.

Re: [524:8-524:19]

Hearsay; 401; 403; 701

OVERRULED

525:24 - 526:1 Myers, Brian 12-13-2019

 525 24 He is asking you what role they play and

Re: [525:24-526:1]

vague, cumulative, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 162 of 221
Myers, Brian 12-13-2019 15

 525 25 how do they contribute to performance.

 526 1 Do you see that?

526:2 - 526:14 Myers, Brian 12-13-2019

 526 2 A. I see that he asks:

 526 3 "Another question I would like to ask

 526 4 concerns the triple flanges. Do they contribute to

 526 5 noise reduction or are they primarily designed for

 526 6 proper fit? If they contribute to noise reduction, to

 526 7 what extent do they contribute?"

 526 8 That's what he asked in this e-mail.

 526 9 Q. What a great time to send Version 1.2,

 526 10 your flange report, and say, Oh, they -- they play a

 526 11 role. They play a role in imperceptibly loosening

 526 12 these in the ears of wearers.

 526 13 That would have been a good time to send

 526 14 it, right?

Re: [526:2-526:7]

Def Objection - Question not 

designated.

Re: [526:2-526:14]

Def Objection - (611); Prejudice 

(403); Foundation (602)

Re: [526:9-526:19]

Def Objection - Attorney 

Commentary; Argumentative 

(403, 611).

OVERRULED

526:18 - 527:4 Myers, Brian 12-13-2019

 526 18 A. Again, I don't -- I don't recall what or

 526 19 if we responded to Tom's question with.

 526 20 BY MR. BUCHANAN:

 526 21 Q. Yeah. In fact, those flanges can reduce

 526 22 the noise reduction by 11 if you don't wear them

 526 23 right. That's something you could have said in

 526 24 response to Mr. Sidor, right?

 526 25 A. I don't recall how we responded or if we

 527 1 responded.

 527 2 Q. Because you had a report from the one test

 527 3 you acknowledged down below that describes what role

 527 4 the flanges play in performance, didn't you?

Re: [526:9-526:19]

Def Objection - Attorney 

Commentary; Argumentative 

(403, 611).

Re: [526:18-526:19]

Def Objection - (611); Prejudice, 

Argumentative (403); Foundation 

(602)

Re: [526:20-527:4]

Def Objection - Foundation (602); 

Prejudice (403)

Re: [527:2-527:4]

Def Objection - Ambiguous (611, 

403): "test"; Prejudice (403); 

Foundation (602)

OVERRULED

527:8 - 527:18 Myers, Brian 12-13-2019

 527 8 A. Again, there was a -- a technical report

 527 9 that we looked at yesterday from Ron to Elliott that

 527 10 he shared with me and they raised a technical issue in

 527 11 that report. I don't know -- I don't recall what, if

 527 12 anything, we shared with Mr. Sidor in response to

 527 13 this.

 527 14 BY MR. BUCHANAN:

Re: [527:8-527:13]

Def Objection - Foundation (602); 

Prejudice (403)

Re: [527:14-527:18]

Def Objection - Foundation (602); 

Cumulative (403).

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 163 of 221
Myers, Brian 12-13-2019 16

 527 15 Q. Yeah, well, you told us yesterday, sir,

 527 16 you never sent the flange report to anybody at the

 527 17 military, right?

 527 18 A. I don't recall ever sending it.

531:10 - 531:13 Myers, Brian 12-13-2019

 531 10 A. Well, I have --

 531 11 BY MR. BUCHANAN:

 531 12 Q. To the best of your knowledge?

 531 13 A. I have no recall of that.

Re: [531:10-531:13]

602, speculation

OVERRULED

537:13 - 537:21 Myers, Brian 12-13-2019

 537 13 Exhibit 47, sir, at least the cover

 537 14 page indicates it's a Solicitation/Contract/Order for

 537 15 Commercial Items.

 537 16 Do you see that?

 537 17 A. Yes. That's in the title block at the

 537 18 top.

 537 19 Q. And we have your signature at the bottom

 537 20 of the first page, right?

 537 21 A. That's my signature in the bottom left.

543:15 - 543:16 Myers, Brian 12-13-2019

 543 15 Q. Okay. And did the military tell you how

 543 16 long they had to be?

Re: [543:15-543:16]

Plt Objection - improper counter 

per PTO 64; nonresponsive; 

misstates the document

Re: [543:15-543:16]

cumulative, 403

SUSTAINED

543:19 - 543:21 Myers, Brian 12-13-2019

 543 19 A. Yes, at some point Doug Ohlin insisted

 543 20 that they needed to fit in an existing case that was

 543 21 issued to the military.

Re: [543:19-543:21]

Plt Objection - improper counter 

per PTO 64; nonresponsive; 

misstates the document

Re: [543:19-543:21]

cumulative, 403

SUSTAINED

544:25 - 545:1 Myers, Brian 12-13-2019

 544 25 Q. You see no dimensions, you see no

 545 1 specifications for length, fair?

Re: [544:25-545:1]

speculation, 602, cumulative

SUSTAINED

565:22 - 565:25 Myers, Brian 12-13-2019

 565 22 Q. Sir, do you doubt that's an E-A-RCAL

 565 23 study?

 565 24 A. I don't recall ever seeing it. I don't

 565 25 know the details around the -- the test report.

Re: [565:22-565:25]

602, 402, 403

SUSTAINED

569:9 - 569:14 Myers, Brian 12-13-2019

 569 9 Q. And you know, sir, that you were getting

 569 10 regular reports from your lab about this study, right,

Re: [569:9-569:14]

MIL 22

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 164 of 221
Myers, Brian 12-13-2019 17

 569 11 this Study 213030 that we've been talking about,

 569 12 right?

 569 13 A. I don't recall getting regular reports

 569 14 from are them about this study.

575:2 - 575:10 Myers, Brian 12-13-2019

 575 2 On June 2nd, 2006, some six weeks before

 575 3 the MPID was finalized, Mr. Berger sent you, Brian

 575 4 Myers, this e-mail that said "Method B Master" with an

 575 5 attachment list being Method B studies, correct, sir?

 575 6 A. That's what you've represented to me.

 575 7 Q. That's what you have before you, correct,

 575 8 sir?

 575 9 A. And that's this -- this Exhibit 49.

 575 10 Q. Okay.

Re: [575:2-575:10]

Def Objection - Relevance (401, 

402); Prejudice (403); Foundation 

(602)

OVERRULED

576:10 - 576:14 Myers, Brian 12-13-2019

 576 10 Q. And this is that Method B, Method B

 576 11 testing, right, sir? That's what we were looking at

 576 12 from Study 213030, correct, sir?

 576 13 A. Yeah, so the -- the Test ID 213030 is

 576 14 indicated as being Method B.

Re: [576:10-576:14]

compound, cumulative, 403

OVERRULED

577:1 - 577:2 Myers, Brian 12-13-2019

 577 1 MR. BUCHANAN: Okay. Could I have P1355,

 577 2 please.

Re: [577:1-577:2]

improper counter designation, 

611, scope

SUSTAINED

578:4 - 578:21 Myers, Brian 12-13-2019

 578 4 Q. Well, so let's look at this, sir. This is

 578 5 an e-mail from an individual named John Komada. He

 578 6 was with an organization within the Department of

 578 7 Defense that took care of procurement and purchasing,

 578 8 correct, sir?

 578 9 A. I see behind his -- from -- from is DSCP

 578 10 and I know that Tom Sidor is also from DSCP.

 578 11 Q. And so the answer to my question would be

 578 12 yes, he was within DOD's procurement group, correct?

 578 13 A. That's my understanding of who is at DSCP.

 578 14 Q. And what Mr. Komada did here, 2003, is he

 578 15 sent you a copy of a document. It says, "Attached

 578 16 below is a copy of subject document."

 578 17 And the subject document from the subject

 578 18 line is: "My current draft of the spec sheet on the

Re: [578:4-578:21]

improper counter designation, 

611, scope

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 165 of 221
Myers, Brian 12-13-2019 18

 578 19 Combat Arms Earplug," I guess it's missing a G there.

 578 20 Do you see that?

 578 21 A. I do see that.

581:11 - 581:21 Myers, Brian 12-13-2019

 581 11 Q. Mr. Myers, I'm passing over what we've

 581 12 marked as Exhibit 52 to your deposition. This is a

 581 13 redline or a markup of the specification sheet that

 581 14 Mr. Komada provided to you.

 581 15 Do you see that?

 581 16 A. Yes, this exhibit looks like it -- it came

 581 17 from the attachment to the John Komada e-mail with

 581 18 changes.

 581 19 Q. And these are your edits, right, sir?

 581 20 A. I think I provided at least some of this

 581 21 as a -- as an editor input. I don't clearly recall.

Re: [581:11-581:21]

Def Objection - MIL 19; 

Prejudice (403)

OVERRULED

583:16 - 583:18 Myers, Brian 12-13-2019

 583 16 Q. Okay. You are not fussing with whether

 583 17 all of these kind of red lines on the marked exhibit

 583 18 are the changes you made, are you, sir?

Re: [583:16-583:18]

602; 611; vague; ambiguous

OVERRULED

583:22 - 584:18 Myers, Brian 12-13-2019

 583 22 A. According to what I know about Word, this

 583 23 would indicate that I would have provided the input

 583 24 that you see there in red.

 583 25 BY MR. BUCHANAN:

 584 1 Q. And then we go to the next page, sir, and

 584 2 there is a description of how the product should be

 584 3 tested.

 584 4 MR. BUCHANAN: I'm sorry. Can you go -- go to

 584 5 the next one.

 584 6 BY MR. BUCHANAN:

 584 7 Q. "The sound attenuation of both ends of the

 584 8 earplugs shall be tested in accordance with," and it

 584 9 looks like the original draft said "Method B of ANSI

 584 10 ASI/ASA 12.6-1997."

 584 11 Do you see that?

 584 12 A. I do see that.

 584 13 Q. And then you struck that out?

 584 14 A. If I made that edit, that it is --

 584 15 Q. Can we hover over? Okay.

Re: [584:1-584:18]

3M MIL 22; 401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 166 of 221
Myers, Brian 12-13-2019 19

 584 16 A. It is struck out.

 584 17 Q. So you are the one making these technical

 584 18 changes?

584:22 - 585:5 Myers, Brian 12-13-2019

 584 22 Q. To the document, correct, sir?

 584 23 A. They -- they show up in here as my edits.

 584 24 I'm sure I would have relied on technical to provide

 584 25 me with a review and input on what was appropriate to

 585 1 be here.

 585 2 Q. I'll tell you, sir, we don't have a markup

 585 3 from Elliott Berger or somebody on the technical team

 585 4 to these specifications.

 585 5 Does that surprise you?

Re: [585:2-585:5]

Def Objection - MIL 19; 

Foundation (602); Attorney 

Commentary, Argumantetive 

(403)

Re: [584:22-585:1]

3M MIL 22; 401; 403

OVERRULED

585:9 - 585:11 Myers, Brian 12-13-2019

 585 9 A. Again, I don't recall the details around

 585 10 this.

 585 11 BY MR. BUCHANAN:

Re: [585:9-585:10]

Def Objection - MIL 19; 

Foundation (602); Attorney 

Commentary, Argumantetive 

(403)

OVERRULED

585:17 - 585:18 Myers, Brian 12-13-2019

 585 17 Q. You are the one who made the technical

 585 18 changes to this document, correct, sir?

Re: [585:17-585:25]

Def Objection - MIL 19; 

Foundation (602); Prejudice (403)

OVERRULED

585:22 - 586:2 Myers, Brian 12-13-2019

 585 22 A. As I understand the way that Word works,

 585 23 these are the edits -- I mean, the ones that we've

 585 24 been over and looked at, they are edits that refer to

 585 25 my name and -- and dated February 11th.

 586 1 BY MR. BUCHANAN:

 586 2 Q. And you didn't want to give instructions?

Re: [585:17-585:25]

Def Objection - MIL 19; 

Foundation (602); Prejudice (403)

Re: [586:2-586:2]

Def Objection - MIL 19; Vague; 

Ambiguous (611, 403); 

Foundation (602); Prejudice (403)

OVERRULED

586:6 - 586:13 Myers, Brian 12-13-2019

 586 6 A. I -- I can't -- I can't recall why I would

 586 7 have made the changes that I made.

 586 8 MR. BUCHANAN: Chris, do you think you can get

 586 9 to instructions and see whose change that was. Here

 586 10 we go.

 586 11 BY MR. BUCHANAN:

 586 12 Q. That's Brian Myers. You didn't want to

 586 13 give instructions to the military for your product?

Re: [586:6-586:7]

Def Objection - MIL 19; Vague; 

Ambiguous (611, 403); 

Foundation (602); Prejudice (403)

Re: [586:12-586:13]

Def Objection - Foundation (602); 

Prejudice (403)

Re: [586:12-586:13]

Def Objection - MIL 19; 

Mischaracterizes evidence (611, 

403); Foundation (602).

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 167 of 221
Myers, Brian 12-13-2019 20

586:17 - 586:24 Myers, Brian 12-13-2019

 586 17 A. I don't recall the details of why I would

 586 18 have offered that edit.

 586 19 BY MR. BUCHANAN:

 586 20 Q. We could agree that what you did was you

 586 21 struck the paragraph saying you should provide

 586 22 instructions, right?

 586 23 A. The -- the edit that you see there does

 586 24 delete the section on instructions.

Re: [586:17-586:18]

Def Objection - Prejudice (403); 

611

Re: [586:20-587:5]

Def Objection - MIL 19.

OVERRULED

586:25 - 587:5 Myers, Brian 12-13-2019

 586 25 Q. Okay. So you've got a draft of the

 587 1 specification, Specification Sheet No. 1. You

 587 2 provided the attenuations, that's one thing you did,

 587 3 right?

 587 4 A. Yes, I made edits in the attenuation

 587 5 table.

Re: [586:20-587:5]

Def Objection - MIL 19.

OVERRULED

587:17 - 587:19 Myers, Brian 12-13-2019

 587 17 Q. And you got rid of the means of testing

 587 18 this product that you were telling the EPA the same

 587 19 year was the best way to do it, right?

Re: [587:17-587:25]

Def Objection - MIL 19; 403; 

MIL 22.

OVERRULED

587:22 - 587:25 Myers, Brian 12-13-2019

 587 22 A. Again, not recalling the details around

 587 23 this, I don't -- I'm not sure why I would have offered

 587 24 changes or edits. I think I would have relied on

 587 25 technical input as to what should have been here.

Re: [587:17-587:25]

Def Objection - MIL 19; 403; 

MIL 22.

OVERRULED

588:5 - 588:16 Myers, Brian 12-13-2019

 588 5 You say that, sir, but you are the one

 588 6 making these changes to this document, correct, sir?

 588 7 A. Again, I don't recall the specific detail

 588 8 around it, but those appear to be my edits and I would

 588 9 have relied on technical input to -- to make these

 588 10 edits.

 588 11 Q. Do you recall, sir, going to the EPA that

 588 12 same year, actually, in March of 2003, and

 588 13 recommending Method B testing saying it's superior?

 588 14 A. I do recall an EPA hearing where I --

 588 15 where I felt that we should migrate away from the

 588 16 existing test protocol.

Re: [588:5-588:10]

Def Objection - MIL 19; 403.

Re: [588:11-588:16]

Def Objection - MIL 22.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 168 of 221
Myers, Brian 12-13-2019 21

595:2 - 595:13 Myers, Brian 12-13-2019

 595 2 Q. I'm passing you Exhibit 55, sir.

 595 3 Exhibit 55 is an e-mail from yourself to a

 595 4 Dan Glucksman.

 595 5 Who is Dan?

 595 6 A. Dan -- Dan Glucksman is an attorney

 595 7 with -- as I've known him, with International Safety

 595 8 Equipment Association.

 595 9 Q. And so, Mr. Myers, you are corresponding

 595 10 with Mr. Glucksman. This is January of 2004, right?

 595 11 A. Again, I don't recall the detail of this,

 595 12 but it is an e-mail to Dan from me, dated January 5th,

 595 13 2004.

Re: [595:2-595:13]

improper counter designation, 

611, scope

SUSTAINED

597:5 - 597:19 Myers, Brian 12-13-2019

 597 5 Q. Well, your e-mail acknowledges certainly

 597 6 as of 2004 that -- your awareness, that many are using

 597 7 it in the military, right?

 597 8 A. The e-mail says: "NRR is not a good

 597 9 measure and many in the military field are now

 597 10 utilizing the new Method B protocol."

 597 11 I'm not sure that says everybody in the

 597 12 military is using the new Method B protocol. It says

 597 13 many are, but...

 597 14 Q. Well, your -- what you are doing in this

 597 15 e-mail, sir, is you are criticizing the old method of

 597 16 testing that generated the NRR using the 1974 method,

 597 17 right?

 597 18 A. That's the NRR that I speak to that is --

 597 19 that I say is not a good measure.

Re: [597:5-597:19]

improper counter designation, 

611, scope

SUSTAINED

598:12 - 598:18 Myers, Brian 12-13-2019

 598 12 Q. You don't recall going down and advocating

 598 13 for Method B on behalf of Aearo to the EPA?

 598 14 A. I believe that it was to move away from

 598 15 this NRR measure to a more progressive protocol, which

 598 16 was Method B at that time.

 598 17 Q. Okay. Because Method B is better?

 598 18 A. I was told --

Re: [598:12-598:18]

improper counter designation, 

611, scope

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 169 of 221
Myers, Brian 12-13-2019 22

598:21 - 599:3 Myers, Brian 12-13-2019

 598 21 A. Sorry. I was told by the technical group

 598 22 that it was better representative of actual

 598 23 protection, and I think that's what Elliott, the

 598 24 article that you showed me from Elliott --

 598 25 BY MR. BUCHANAN:

 599 1 Q. And so what you --

 599 2 A. -- and I didn't get to read that, but I

 599 3 think that's what he was trying to get at.

Re: [598:21-599:3]

improper counter designation, 

611, scope, 802, 602

SUSTAINED

608:24 - 609:3 Myers, Brian 12-13-2019

 608 24 Q. At this point in time when you were

 608 25 telling Mr. Komada that it was commercially impossible

 609 1 or too burdensome for you to do these tests, you were

 609 2 going to the EPA and advocating Method B testing as

 609 3 the right test, as the better test, right, sir?

Re: [608:6-609:8]

Misstates record; MIL 22; 403

Re: [608:10-609:14]

MIL 22; 403.

Re: [608:24-609:3]

Misstates record; MIL 22; 403

OVERRULED

609:6 - 609:14 Myers, Brian 12-13-2019

 609 6 A. So in the -- in the EPA hearing as I

 609 7 recall, I was advocating trying to provide our

 609 8 customers with more realistic data.

 609 9 BY MR. BUCHANAN:

 609 10 Q. Right. And more rist -- realistic data

 609 11 comes out of Method B testing, right?

 609 12 A. That's what the technical group -- I mean,

 609 13 and I think Elliott's article probably reflects that

 609 14 perception.

Re: [608:6-609:8]

Misstates record; MIL 22; 403

Re: [608:10-609:14]

MIL 22; 403.

OVERRULED

619:10 - 619:14 Myers, Brian 12-13-2019

 619 10 Q. And we know you didn't share the results

 619 11 of Study 015 with Mr. Sidor that are referenced in

 619 12 that report reflecting an NRR of 11, right?

 619 13 A. So I don't recall what was shared with

 619 14 Mr. Sidor.

Re: [619:10-619:14]

403

OVERRULED

623:10 - 623:12 Myers, Brian 12-13-2019

 623 10 Have you seen a communication from anyone

 623 11 within Aearo of the results of Study 213015 to the

 623 12 U.S. Government, military or Department of Defense?

Re: [623:10-623:12]

403; cumulative

OVERRULED

623:16 - 623:21 Myers, Brian 12-13-2019

 623 16 A. I don't recall seeing such a document.

 623 17 BY MR. BUCHANAN:

 623 18 Q. Okay. Have you seen any communication

Re: [623:18-623:25]

Def Objection - MIL 22; 403.

Re: [623:16-623:16]

403; cumulative

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 170 of 221
Myers, Brian 12-13-2019 23

 623 19 from anyone within Aearo of the results of Study

 623 20 213030 to the US military, the Department of Defense

 623 21 or the U.S. Government?

623:25 - 623:25 Myers, Brian 12-13-2019

 623 25 A. I don't recall seeing any such document.

Re: [623:18-623:25]

Def Objection - MIL 22; 403.

OVERRULED

641:19 - 642:21 Myers, Brian 12-13-2019

 641 19 Q. Mr. Myers, my name is Sean Tracy. I am a

 641 20 lawyer from Houston, Texas. I'm going to ask you some

 641 21 questions this afternoon.

 641 22 The first one I'm going to ask you is I

 641 23 have listened to your testimony now for a day and a

 641 24 half and I'm going to confess that I don't really know

 641 25 what you did for Aearo. So I'm going to get you to

 642 1 explain to me for the past -- from 1999, let's say, to

 642 2 the present, what did you do for them?

 642 3 A. From 1999?

 642 4 Q. Yeah, or 2000.

 642 5 A. Okay. So I was a product manager for the

 642 6 hearing protection piece until 2008 for Aearo when it

 642 7 was purchased by 3M which meant that, I guess, the two

 642 8 big responsibilities that come to my mind would be

 642 9 sort of convening meetings when there was an interest

 642 10 in trying to develop a new product with

 642 11 cross-functional teams to, you know, try to align and

 642 12 execute a timetable and key milestones to bring a --

 642 13 bring a product potentially to market.

 642 14 Q. Okay.

 642 15 A. And then the other part of it, I wasn't in

 642 16 a sales function, but I was in a function where I

 642 17 would interact or go visit customers who may have been

 642 18 or may have needed to use hearing protection and try

 642 19 to understand what -- where there might be

 642 20 opportunities for us to either make our products

 642 21 better or modify our products in some way to -- to

649:8 - 650:25 Myers, Brian 12-13-2019

 649 8 When did you begin working for Cabot or

 649 9 Aearo or whatever the heritage company's name was?

 649 10 A. So I -- I joined the -- the first entity

 649 11 was Cabot Corporation in November of 1989.

Re: [649:8-650:25]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [649:8-650:25]

colloquy, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 171 of 221
Myers, Brian 12-13-2019 24

 649 12 Q. 1989. That's what I was looking for.

 649 13 Okay.

 649 14 When you joined -- sorry.

 649 15 From 1989 to let's say now, has -- have

 649 16 hearing protection devices been in some way, shape or

 649 17 form in your wheelhouse?

 649 18 A. So when you say -- do you mean in --

 649 19 within my responsibilities?

 649 20 Q. Yes.

 649 21 A. No.

 649 22 Q. No, okay.

 649 23 When did hearing protection devices become

 649 24 your responsibility?

 649 25 A. So I think at -- I'm trying to remember

 650 1 my -- my CV that we looked at yesterday, but in -- I

 650 2 was in production of hearing protection devices

 650 3 briefly and then I had some respiratory

 650 4 responsibilities, but around the early I'll say mid

 650 5 like '93, we can look at the CV if you want to.

 650 6 Q. We don't need to.

 650 7 A. But around that time is when I first had

 650 8 responsibilities like I -- I described that were

 650 9 product management, marketing kinds of

 650 10 responsibilities within hearing protection, and I had

 650 11 response -- I assume you want me to go on forward?

 650 12 Q. Yeah, please.

 650 13 A. So I had responsibilities, now, at some

 650 14 point in the mid 2000s I -- there were other marketers

 650 15 who began to work for me and they may have had more 

of

 650 16 day-to-day responsibilities within that product line,

 650 17 and -- but I had some responsibilities all of the way

 650 18 up until January of 2011.

 650 19 Q. Okay.

 650 20 A. And then for about -- I think for -- it

 650 21 was for about four-and-a-half years I didn't have any

 650 22 responsibilities in hearing whatsoever, and which kind

 650 23 of leads me to where I am today where I have

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 172 of 221
Myers, Brian 12-13-2019 25

 650 24 responsibilities, that's one of the several product

 650 25 lines that -- that I oversee or manage.

654:10 - 654:18 Myers, Brian 12-13-2019

 654 10 Q. Okay. Elliott Berger explained to us that

 654 11 when the flange report was completed and the -- or

 654 12 when the initial results were brought to his

 654 13 attention, he sent you an e-mail, and we asked him,

 654 14 why are you sending Brian Myers an e-mail, a guy in

 654 15 marketing, about whether or not to share the results

 654 16 of the flange report with Doug Ohlin, and he said

 654 17 because he reported to you.

 654 18 Do you recall that being true?

Re: [654:10-654:18]

Def Objection - Attorney

Commentary (401, 402); Hearsay 

(802).

OVERRULED

654:21 - 655:4 Myers, Brian 12-13-2019

 654 21 A. So there was a period of time when Elliott

 654 22 reported to me, I recall that.

 654 23 BY MR. SEAN TRACEY:

 654 24 Q. Okay. And would the 2000 timeframe have

 654 25 been the timeframe that he reported to you as far as

 655 1 you know?

 655 2 A. He certainly could have reported to me

 655 3 during that time. I don't have a clear recollection

 655 4 of when he did and did not report to me.

Re: [654:21-654:22]

Def Objection - Attorney 

Commentary (401, 402); Hearsay 

(802).

OVERRULED

655:6 - 655:9 Myers, Brian 12-13-2019

 655 6 Let me hand you -- boy, I bet this has

 655 7 already been marked. I wonder if we should do this by

 655 8 P numbers. I'm going to hand you an e-mail from

 655 9 Elliott Berger to you. It's, yeah, 925A.1.

Re: [655:6-655:9]

colloquy, cumulative, 403

SUSTAINED 

as to 655:6-8 at 

“P numbers.” 

Otherwise 

OVERRULED

655:23 - 656:17 Myers, Brian 12-13-2019

 655 23 It's the -- it's the data from Elliott

 655 24 Berger from Ron Kieper.

 655 25 "Here is the data on the UltraFit end of

 656 1 the Combat Arms. Note the original study was stopped

 656 2 with eight subjects. The second study was with the

 656 3 folded-back flanges on the end sticking out of the

 656 4 ear."

 656 5 Do you see that?

 656 6 A. I see those words there.

 656 7 Q. Now, the question is: "Should I share

 656 8 this with Ohlin? It looks like the existing product

Re: [655:23-656:21]

602; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 173 of 221
Myers, Brian 12-13-2019 26

 656 9 has problems unless the user instructions are

 656 10 revised."

 656 11 Now, as I read this, it looks like Elliott

 656 12 Berger is telling you that there -- that there are two

 656 13 issues with the product, one of which can be solved

 656 14 with instructions. There's -- there is an existing

 656 15 problem with the product itself that exists unless you

 656 16 change the user instructions.

 656 17 Do you agree with that?

656:20 - 656:21 Myers, Brian 12-13-2019

 656 20 A. So I -- I only have the words that he has

 656 21 there to go by.

Re: [655:23-656:21]

602; 403

OVERRULED

657:8 - 657:20 Myers, Brian 12-13-2019

 657 8 Q. And do you have any recollection of

 657 9 speaking to Elliott about -- of the data from the

 657 10 flange report?

 657 11 A. I do not.

 657 12 Q. He told us -- he testified that the reason

 657 13 he went to you is because he would have been

 657 14 prohibited from sending the flange report or the data

 657 15 from the flange report outside the company due to the

 657 16 company's policy without his supervisor's approval,

 657 17 okay.

 657 18 Do you remember that being the company

 657 19 policy?

 657 20 A. I don't recall that as a policy.

Re: [656:23-657:11]

403

Re: [657:12-657:20]

Hearsay; 602

OVERRULED

658:2 - 658:8 Myers, Brian 12-13-2019

 658 2 Q. Okay. Do you recall whether you gave him

 658 3 permission to send the flange report to Doug Ohlin?

 658 4 A. I don't recall the action that I took

 658 5 here, but I would like to think that I would have

 658 6 said, yes, please share whatever data you need to with

 658 7 Dr. Ohlin and let's -- let's try to resolve this

 658 8 technical concern.

660:9 - 661:14 Myers, Brian 12-13-2019

 660 9 Q. Do you think companies that do business

 660 10 with the government should be fair and open and honest

 660 11 about the products they are selling to the government?

 660 12 A. I think they should do what the government

Re: [660:9-661:14]

401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 174 of 221
Myers, Brian 12-13-2019 27

 660 13 asks of them and requires them to do.

 660 14 Q. Is that different than being fair and open

 660 15 and honest?

 660 16 A. I don't know. I'm just not characterizing

 660 17 it the way you are.

 660 18 Q. Why not?

 660 19 A. I guess my -- my belief is the government

 660 20 can do business with whomever they want.

 660 21 Q. Right. But now I'm focusing on your

 660 22 company.

 660 23 Do you believe that your company had a

 660 24 duty, an obligation to be fair and open and honest

 660 25 with the government when they were doing business with

 661 1 them?

 661 2 A. I do -- I do think we tried to be --

 661 3 Q. Okay.

 661 4 A. -- open and honest.

 661 5 Q. Did you try to be transparent?

 661 6 A. I think we tried to be open and honest,

 661 7 yes.

 661 8 Q. Open and honest about sharing what you

 661 9 knew about the good and the bad in your products?

 661 10 A. Again, I think we would try to be open and

 661 11 honest.

 661 12 Q. Okay. You certainly would agree with me

 661 13 that you should have been open and honest?

 661 14 A. I think that that's what we tried to be.

661:15 - 661:20 Myers, Brian 12-13-2019

 661 15 Q. Okay. Do you think you were? Do you

 661 16 think you accomplished that goal?

 661 17 A. I think we -- we tried to be open and

 661 18 honest and I think most of the people that were in the

 661 19 company felt that way, that they wanted to be as open

 661 20 and honest as we could be.

Re: [661:15-661:20]

compound, vague

OVERRULED

662:5 - 662:13 Myers, Brian 12-13-2019

 662 5 Q. Have you ever been faced with a crossroad

 662 6 where you could make the right decision or the wrong

 662 7 decision?

 662 8 A. I mean, I'm sure I have had those

Re: [662:5-662:9]

401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 175 of 221
Myers, Brian 12-13-2019 28

 662 9 instances.

 662 10 Q. And you would like to think that when you

 662 11 are at crossroads that you check your motivations to

 662 12 determine why you are making the decisions you are

 662 13 making. Would you agree with me on that?

662:16 - 663:3 Myers, Brian 12-13-2019

 662 16 A. I -- if you are asking about me

 662 17 personally, I -- I try to be honest and open and I try

 662 18 to -- try to be -- live a good life. I don't know if

 662 19 that's what you are asking.

 662 20 BY MR. SEAN TRACEY:

 662 21 Q. Yeah, no, it is.

 662 22 And when you reach crossroads, you want to

 662 23 make sure that what's motivating you isn't greed or a

 662 24 drive for success or adulation, what should be driving

 662 25 and motivating you is to do the right thing. Do you

 663 1 agree with me?

 663 2 A. Generally I think that's what folks should

 663 3 do. It doesn't always happen, but that's...

Re: [662:22-663:3]

401; 403

OVERRULED

663:10 - 663:16 Myers, Brian 12-13-2019

 663 10 Q. Can you tell me if you ever actually laid

 663 11 eyes on the flange report before this litigation?

 663 12 MR. NOMELLINI: It is Exhibit 25.

 663 13 MR. SEAN TRACEY: Yeah. Thank you.

 663 14 BY THE WITNESS:

 663 15 A. So I don't -- I don't recall that I --

 663 16 that I ever saw that before this litigation.

664:3 - 664:15 Myers, Brian 12-13-2019

 664 3 Q. Okay. And if we flip open to the first

 664 4 page of the flange report, under the Introduction, it

 664 5 says: "The Combat Arms Earplug was shortened...so

 664 6 that it would fit into a carrying case. Because of

 664 7 this, the plug is shorter than any other UltraFit Plug

 664 8 design." It says: "The purpose of this report is to

 664 9 document that the current length of the UltraFit Plug

 664 10 end of the Combat Arms is too short for proper

 664 11 insertion."

 664 12 Now, have you ever seen a label, a set of

 664 13 instructions or a brochure on the Combat Arms

Re: [664:3-664:19]

Def Objection - Compound; 

Cumulative (611, 403); 

Foundation (602).

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 176 of 221
Myers, Brian 12-13-2019 29

 664 14 Version 2 that -- that informed the user that the

 664 15 Combat Arms plug was too short for proper insertion?

664:18 - 664:24 Myers, Brian 12-13-2019

 664 18 A. I don't -- I do not recall having seen

 664 19 that.

 664 20 BY MR. SEAN TRACEY:

 664 21 Q. Do you have any -- do you have any reason

 664 22 to doubt the truth of what Ron Kieper put in this

 664 23 report?

 664 24 A. I knew Ron to be a -- an honest person.

Re: [664:3-664:19]

Def Objection - Compound; 

Cumulative (611, 403); 

Foundation (602).

OVERRULED

669:10 - 669:19 Myers, Brian 12-13-2019

 669 10 Q. What about the welders and what about the

 669 11 shooters, we just -- we don't -- we don't care about

 669 12 them?

 669 13 A. I'm -- you asked the question. I'm just

 669 14 saying in the case of soldiers, I think there was

 669 15 an -- this additional training that -- that was being

 669 16 provided.

 669 17 Q. By whom?

 669 18 A. By the military, military audiologists and

 669 19 I guess experts in the military.

Re: [669:10-669:19]

improper counter designation, 

scope, 611, 602, foundation

SUSTAINED

672:5 - 672:15 Myers, Brian 12-13-2019

 672 5 Q. Now, at this time, by -- by this date in

 672 6 this report is June of -- July of 2000, you've already

 672 7 begun selling the plug to the military, haven't you?

 672 8 A. I think our first orders were in June

 672 9 of 2000. I think that's when our first shipments

 672 10 were.

 672 11 Q. Does that put you in a horribly

 672 12 embarrassing, awkward situation that you've begun

 672 13 selling this product to the military and then we find

 672 14 out after you test it for the first time that you have

 672 15 a problem?

Re: [672:5-672:15]

403; argumentative

OVERRULED

672:19 - 672:23 Myers, Brian 12-13-2019

 672 19 A. Again, I would have asked -- I would have

 672 20 asked the technical group, I believe, to review that

 672 21 information with the technical group in the military

 672 22 and see if the problem could be resolved or the

 672 23 concern -- the concern could be resolved.

Re: [672:19-672:23]

403; argumentative

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 177 of 221
Myers, Brian 12-13-2019 30

672:25 - 673:3 Myers, Brian 12-13-2019

 672 25 Q. Okay. Let's do this right now. I want to

 673 1 look at the middle of that, the first page of the

 673 2 flange report, and see what else it says.

 673 3 MR. NOMELLINI: Exhibit 25.

673:21 - 674:2 Myers, Brian 12-13-2019

 673 21 "Because the stem of the green, solid end

 673 22 of the plug is so short, it was difficult for the

 673 23 experimenter to insert the plug deeply into some

 673 24 subjects' ear canals, especially those with medium and

 673 25 larger ear canals."

 674 1 Do you see that?

 674 2 A. I -- I do see those words.

Re: [673:21-674:10]

401: 403

OVERRULED

680:8 - 680:14 Myers, Brian 12-13-2019

 680 8 Q. Did your company, that you know of, inform

 680 9 any of the stores that were selling their plugs that

 680 10 the stem was too short for people with medium and

 680 11 large ear canals?

 680 12 A. I do not recall any such communication.

 680 13 Q. Was the sum total of your communication

 680 14 through your Instructions for Use in your brochures?

Re: [680:8-680:14]

Def Objection - Foundation (602); 

Prejudice, Cumulative (403)

Re: [680:13-680:18]

Def Objection - Foundation (602); 

Cumulative (403), Prejudice (403)

Re: [680:8-680:18]

401; 602; 403

OVERRULED

680:17 - 680:18 Myers, Brian 12-13-2019

 680 17 A. I guess I'd say I don't recall any

 680 18 communication beyond that.

Re: [680:13-680:18]

Def Objection - Foundation (602); 

Cumulative (403), Prejudice (403)

Re: [680:8-680:18]

401; 602; 403

OVERRULED

680:24 - 681:11 Myers, Brian 12-13-2019

 680 24 Q. Okay. Let's go back to the flange report

 680 25 for a second and see what else they say.

 681 1 In that same paragraph, it says: "When

 681 2 the solid plug was fitted during the first test, the

 681 3 basal end of the third flange of the yellow

 681 4 level-dependent plug sometimes pressed against the

 681 5 subject's ear canal opening and folded up. When the

 681 6 inward pressure on the plug was released, the yellow

 681 7 flanges tended to return to their original shape and

 681 8 this sometimes loosened the plug, often

 681 9 imperceptible" -- "imperceptibly to the subject."

 681 10 Did I read that right?

 681 11 A. Yes, I think so.

Re: [680:24-681:14]

401; 602; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 178 of 221
Myers, Brian 12-13-2019 31

684:12 - 684:18 Myers, Brian 12-13-2019

 684 12 Q. And in 213015, they say in the sentence

 684 13 above, "the NRR was quite low (11)" or half of 22?

 684 14 A. I see that.

 684 15 "The initial test 213015 was stopped after

 684 16 eight subjects because the individual results were

 684 17 variable and the NRR was quite low (11)," parentheses

 684 18 11.

Re: [684:12-684:22]

401; 403

OVERRULED

695:7 - 696:10 Myers, Brian 12-13-2019

 695 7 Q. You corresponded a fair amount with Doug

 695 8 Ohlin by e-mail, didn't you?

 695 9 A. I did -- I did have e-mails back and forth

 695 10 with Dr. Ohlin from time to time.

 695 11 Q. So did Elliott Berger, didn't he?

 695 12 A. I think -- I think Elliott and Dr. Ohlin

 695 13 had a generally communicative relationship.

 695 14 Q. Yeah.

 695 15 A. I think he probably introduced me to

 695 16 Dr. Ohlin.

 695 17 Q. Was Dr. Ohlin personally involved with

 695 18 Aearo in the project over the Combat Arms Version 2?

 695 19 A. I certainly can recall e-mails where we

 695 20 reached out to him asking questions about what the --

 695 21 what the military's needs might be and what the --

 695 22 what the military might want in that product and

 695 23 looked for direction from him about the product that

 695 24 they wanted.

 695 25 Q. What's the answer to my question?

 696 1 A. I'm sorry. Can you repeat it?

 696 2 Q. Yeah.

 696 3 Was Dr. Ohlin personally involved in this

 696 4 project?

 696 5 A. I think he was.

 696 6 Q. Okay. That's all I need to know.

 696 7 A. Sorry.

 696 8 Q. It sounds like he was substantially

 696 9 involved in this project according to your -- your

 696 10 previous answer to my question?

Re: [695:7-696:10]

Plt Objection - improper counter 

per PTO 64

Re: [695:7-696:10]

nonresponsive, 602, speculation, 

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 179 of 221
Myers, Brian 12-13-2019 32

696:13 - 696:14 Myers, Brian 12-13-2019

 696 13 A. I do think he was involved in this -- in

 696 14 this project.

Re: [696:13-696:14]

Plt Objection - improper counter 

per PTO 64

Re: [696:13-696:14]

vague

SUSTAINED

696:16 - 697:3 Myers, Brian 12-13-2019

 696 16 Q. Personally and substantially involved?

 696 17 A. I reached out to him with e-mails. I

 696 18 don't know that we'd call them personal. They were

 696 19 reaching out to him in his professional capacity, so

 696 20 it --

 696 21 Q. Yeah, I didn't -- I didn't mean it that

 696 22 way. I meant he -- he wasn't passing the buck to

 696 23 somebody else under him, he personally interacted with

 696 24 you and Elliott and others in this project?

 696 25 A. It seems that there were some others from

 697 1 time to time, but I would -- I would characterize

 697 2 Dr. Ohlin as -- as probably the major contact that

 697 3 worked with us in the development of this product.

Re: [696:16-697:3]

Plt Objection - improper counter 

per PTO 64

Re: [696:16-697:3]

vague

SUSTAINED

699:19 - 700:7 Myers, Brian 12-13-2019

 699 19 Q. So is it your belief as a -- as an

 699 20 employee of Aearo that -- that you never have to fold

 699 21 back -- no user ever has to fold back the flanges with

 699 22 the Combat Arms?

 699 23 A. That's not necessarily my belief. You

 699 24 asked me if I had worn and it and how I wore it.

 699 25 Q. Yeah, but now I'm asking you another

 700 1 question.

 700 2 Is it your belief that nobody has to fold

 700 3 back the flanges on the Combat Arms in order to get a

 700 4 proper fit?

 700 5 A. That's a technical question, but -- but

 700 6 according to some of our instructions, they -- they do

 700 7 advise people to roll back the flanges in some cases.

Re: [699:19-700:7]

Plt Objection - improper counter 

per PTO 64; 702

Re: [699:19-700:7]

cumulative, 403, 602

SUSTAINED

712:21 - 712:24 Myers, Brian 12-13-2019

 712 21 Q. You have been claiming most of the day

 712 22 that you would hope that technical would have informed

 712 23 Doug Ohlin about all of the things related to the

 712 24 flange report that they needed to know, true?

Re: [712:21-712:24]

Plt Objection - improper counter 

per PTO 64; nonresponsive

Re: [712:21-712:24]

602, speculation, 403, 

cumulative

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 180 of 221
Myers, Brian 12-13-2019 33

713:2 - 713:5 Myers, Brian 12-13-2019

 713 2 A. I think there was an ongoing

 713 3 collaboration, if you will, of exchange of technical

 713 4 information with the technical group in the military

 713 5 and Elliott and our technical group.

Re: [713:2-713:5]

Plt Objection - improper counter 

per PTO 64; nonresponsive

Re: [713:2-713:5]

602, speculation, 403, 

cumulative

SUSTAINED

713:17 - 714:4 Myers, Brian 12-13-2019

 713 17 My question is: Most of the past two days

 713 18 you have been saying that you expected technical

 713 19 should of and did share the information in the flange

 713 20 report with Doug Ohlin, haven't you?

 713 21 A. I have said that I hope that they would

 713 22 have brought that technical concern to Doug Ohlin and

 713 23 maybe even others in the military --

 713 24 Q. Right.

 713 25 A. -- to share that and resolve that issue.

 714 1 Q. Now, you know that the United States

 714 2 Government after their two-year investigation came to

 714 3 the conclusion that it was not shared with them, don't

 714 4 you?

Re: [714:1-714:4]

Def Objection - MIL 6; Hearsay 

(801, 802); Prejudice (403); 

Foundation (602)

Re: [714:1-714:4]

Baker MIL 1

OVERRULED

714:7 - 714:7 Myers, Brian 12-13-2019

 714 7 A. I -- I don't recall knowing that.

Re: [714:7-714:7]

Def Objection - MIL 6; Hearsay 

(801, 802); Prejudice (403); 

Foundation (602)

Re: [714:7-714:7]

Baker MIL 1

OVERRULED

714:19 - 716:2 Myers, Brian 12-13-2019

 714 19 Q. Let's look at Exhibit 64. At the top of

 714 20 the page you can see this is from the Department of

 714 21 the Army, the U.S. Army Criminal Investigation

 714 22 Command, the Atlanta Fraud Resident Unit.

 714 23 Do you see that?

 714 24 A. Yes, I do.

 714 25 Q. And No. 4 on this page tells us who the

 715 1 investigators were.

 715 2 It says: "Investigated by: Mrs. Myong

 715 3 Cape and Special Agent Jennifer Coleman."

 715 4 Do you see that?

 715 5 A. I see those names in -- in Item 4.

 715 6 Q. Have you seen this document before?

 715 7 A. I don't recall ever having seen this

 715 8 document.

Re: [714:19-716:2]

Def Objection - MIL 6; Hearsay 

(801, 802); Prejudice (403); 

Foundation (602)

Re: [714:19-716:2]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 181 of 221
Myers, Brian 12-13-2019 34

 715 9 Q. In your five days of depo prep, did you

 715 10 see documents?

 715 11 A. We reviewed a number of documents.

 715 12 Q. Okay. Turn over to the next page, on

 715 13 Page 2, please. The second paragraph, it says:

 715 14 "During the course of this investigation,

 715 15 numerous interviews and record reviews were conducted

 715 16 reference the testing results and contracting process.

 715 17 Interviews of U.S. Government personnel confirmed that

 715 18 had they known about the February 2000 test results

 715 19 (i.e. that the Combat Arms Earplug was too short for

 715 20 proper insertion in the users' ears and, therefore,

 715 21 did not perform well in certain individuals) on the

 715 22 Combat Arms they may not have purchased the items."

 715 23 Do you see that, sir?

 715 24 A. I see those words on Page 2.

 715 25 Q. Did you know that that was the result of

 716 1 their investigation?

 716 2 A. No, I did not.

717:6 - 717:9 Myers, Brian 12-13-2019

 717 6 Q. No. 2 is: "Agent" -- "Agent Investigation

 717 7 Report of Special Agent Coleman, 20 June 2016,

 717 8 detailing the review of Defense Logistics Agency

 717 9 contract documents."

Re: [717:6-717:19]

Baker MIL 1; 3M MIL 6

SUSTAINED

717:10 - 717:19 Myers, Brian 12-13-2019

 717 10 Do you know what the Defense Logistics

 717 11 Agency is?

 717 12 A. I think they are the -- they are part of

 717 13 the entity that we talked about Tom Sidor and --

 717 14 Q. Yes.

 717 15 A. -- some of those folks are a part of that.

 717 16 Q. Yeah. That's who you dealt with when you

 717 17 were contracting with the government?

 717 18 A. With Tom Sidor and some people that were

 717 19 in that DSCP entity.

Re: [717:10-717:19]

Def Objection - MIL 6; Hearsay 

(801, 802); Prejudice (403); 

Foundation (602)

Re: [717:6-717:19]

Baker MIL 1; 3M MIL 6

SUSTAINED

720:1 - 722:16 Myers, Brian 12-13-2019

 720 1 Q. And then she -- No. 13, she interviewed

 720 2 Commander Joel Bealer, Deputy Director of Safety and

 720 3 Occupational Health at the Bureau of Medicine, Falls

Re: [720:1-722:12]

Def Objection - MIL 6; Hearsay 

(801, 802); Prejudice (403); 

Foundation (602)

Re: [720:1-722:12]

Baker MIL 1

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 182 of 221
Myers, Brian 12-13-2019 35

 720 4 Church, Virginia.

 720 5 Do you see that?

 720 6 A. I do. That's Item 13.

 720 7 Q. And then 14, she interviewed Mr. Brian

 720 8 Hobbs, an audiologist.

 720 9 Do you see that?

 720 10 A. I do see that.

 720 11 Q. All right. And then I want you to flip

 720 12 over -- I'm not going to finish the rest of it, but if

 720 13 you go to the next page under Status, it says that:

 720 14 "This is a Final Report. This

 720 15 investigation was conducted jointly with the Defense

 720 16 Criminal Investigative Service, case control

 720 17 No. 2016001951."

 720 18 Do you see that?

 720 19 A. I do see that.

 720 20 Q. I want you to flip over to it's

 720 21 P1079.23 -- ending in 236, .236. I'm sorry. Start on

 720 22 .234 because it is going to identify who is being

 720 23 interviewed.

 720 24 Do you know Chuck Jokel, a noise control

 720 25 engineer at the U.S. Army Public Health Center Hearing

 721 1 Program at the Aberdeen Proving Ground?

 721 2 A. I do not recall that name.

 721 3 Q. What about Lieutenant Colonel Martin

 721 4 "Marty" Robinette, Division Chief, U.S. Public Health

 721 5 Center, Army Hearing Program, Aberdeen Proving 

Ground?

 721 6 A. That seems more familiar, but honestly, I

 721 7 don't recall it.

 721 8 Q. Okay. If you flip over to the third

 721 9 page of their interview.

 721 10 A. Which is?

 721 11 Q. Ending in 236. Excuse me.

 721 12 And midway through, it says:

 721 13 "At this point in the interview, Bates

 721 14 Number 3M00005285-5290, Test Report dated July 10th,

 721 15 July 2000, was shown to both Mr. Jokel and Lieutenant

 721 16 Colonel Robinette. After reviewing they advised that

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 183 of 221
Myers, Brian 12-13-2019 36

 721 17 the test report demonstrates there were differences

 721 18 based on the way the earplug was inserted and that the

 721 19 fit of the earplug is critical."

 721 20 10th -- July 10th, 2000, is the date of

 721 21 the flange report, isn't it, Mr. Myers?

 721 22 A. Thank you.

 721 23 Q. Just verify that that's the date?

 721 24 A. Yes, yes, that is -- that's the date on

 721 25 the flange report.

 722 1 Q. Okay. The second paragraph -- the third

 722 2 paragraph in the block section says:

 722 3 "Both Mr. Jokel and Lieutenant Colonel

 722 4 Robinette agreed that the U.S. Government should know

 722 5 that there were differences in the NRR with all of the

 722 6 tests. The manufacturer needs to be on the level with

 722 7 the U.S. Government so that they (the military) can

 722 8 take appropriate remediation steps for the service

 722 9 members, including advising soldiers on the proper way

 722 10 to fit the earplugs."

 722 11 Do you see that?

 722 12 A. I do see that. You read that accurately.

 722 13 Q. Yeah.

 722 14 Do you agree that the United States

 722 15 Government is entitled to know the information that

 722 16 Mr. Jokel and Lieutenant Robinette are talking about?

722:20 - 722:22 Myers, Brian 12-13-2019

 722 20 A. Again, I thought that there was a

 722 21 technical collaboration between the military group and

 722 22 our technical group.

727:5 - 727:5 Myers, Brian 12-13-2019

 727 5 Q. What about you?

Re: [727:5-727:5]

cumulative, 403

SUSTAINED

727:9 - 727:13 Myers, Brian 12-13-2019

 727 9 A. I thought Dr. Ohlin was -- understood a

 727 10 lot about how the hearing protection and needs for

 727 11 communication in the military worked and I could

 727 12 certainly see why he would be valuable to -- to have

 727 13 in the company.

Re: [727:9-727:13]

cumulative, 403

SUSTAINED

728:1 - 728:11 Myers, Brian 12-13-2019

 728 1 Q. Okay. And Mr. Ohlin actually finished his

Re: [728:8-728:18]

Def Objection - Foundation (602); 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 184 of 221
Myers, Brian 12-13-2019 37

 728 2 career at your company, didn't he?

 728 3 A. So my understanding was he was a

 728 4 consultant for a period of time and then I had learned

 728 5 that he passed away, so I don't know if he retired

 728 6 from Aearo or I don't know if he passed away while he

 728 7 was still consulting for us. I don't know.

 728 8 Q. So the only person in this case that can

 728 9 refute your company's claim that they told Ohlin about

 728 10 the results of the flange report went to work for your

 728 11 company and is now dead, right?

Prejudice (403); attorney colloquy 

(401, 402)

Re: [728:9-729:1]

Def Objection - Prejudice (403), 

Argumentative (403)

728:15 - 729:1 Myers, Brian 12-13-2019

 728 15 A. Again, I don't -- I don't know. Certainly

 728 16 he would be one that could validate or refute such

 728 17 a -- such a claim, but I don't know that he is the

 728 18 only one.

 728 19 BY MR. SEAN TRACEY:

 728 20 Q. Well, tell me who else we can go talk to

 728 21 to verify what you and other witnesses have said about

 728 22 what you told the military about the flange report,

 728 23 somebody will contradict this criminal investigation

 728 24 that lasted two years?

 728 25 A. I -- I don't -- I don't have a name or

 729 1 somebody that I could identify for you.

Re: [728:8-728:18]

Def Objection - Foundation (602); 

Prejudice (403); attorney colloquy 

(401, 402)

Re: [728:9-729:1]

Def Objection - Prejudice (403), 

Argumentative (403)

OVERRULED

736:2 - 737:1 Myers, Brian 12-13-2019

 736 2 Q. Okay. Exhibit 66, this is a letter from

 736 3 Michael McLain who the letter tells me is the Chairman

 736 4 and President and CEO or was at least at one time of

 736 5 Aearo Company.

 736 6 Do you remember him?

 736 7 A. Yes, I do.

 736 8 Q. And was he the Chairman, President and CEO

 736 9 during your tenure?

 736 10 A. I recall that he was the President and

 736 11 CEO, but I'll believe his name block is accurate.

 736 12 Q. Okay. And look at No. 3 in the second

 736 13 section here. This section starts: "Second, I want

 736 14 to clarify Aearo's position regarding the elements of

 736 15 gree" -- "agreement in your e-mail."

 736 16 And No. 3 says: "Aearo supports that new

Re: [736:2-737:1]

401; 403; 602; 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 185 of 221
Myers, Brian 12-13-2019 38

 736 17 products rated above the designated ceiling must

 736 18 receive the rating based on testing with an outside

 736 19 lab" -- "testing laboratory. It goes without saying

 736 20 that Aearo supports that multiple testing attempts

 736 21 with the same product are not allowed because this is

 736 22 prohibited by the EPA. Further, when multiple tests

 736 23 are conducted, we must all agree and have EPA approval

 736 24 for the proper NRR labeling protocol."

 736 25 Were you aware this was your CEO's

 737 1 position and your company position in 2002?

737:5 - 737:11 Myers, Brian 12-13-2019

 737 5 A. I have not seen this document, so I'm not.

 737 6 BY MR. SEAN TRACEY:

 737 7 Q. No, no, I didn't ask you if you have seen

 737 8 the document. My question was whether you were aware

 737 9 in 2002 with respect to testing multiple testing

 737 10 attempts with the same product your company believed

 737 11 it was prohibited by the EPA?

Re: [737:5-737:5]

401; 403; 602; 701

Re: [737:7-737:11]

602

OVERRULED

737:15 - 737:16 Myers, Brian 12-13-2019

 737 15 A. Well, I was not aware that that was our

 737 16 position.

Re: [737:15-737:16]

602

OVERRULED

738:13 - 739:2 Myers, Brian 12-13-2019

 738 13 Q. Okay. You mentioned in defense of your

 738 14 company, oh, a few minutes ago before the break -- or

 738 15 you alluded to I think the wallet cards.

 738 16 Do you remember that?

 738 17 A. I think we were talking about

 738 18 collaboration in terms of, you know, why did I believe

 738 19 that there was some collaboration?

 738 20 Q. Yes.

 738 21 A. And, yes, there was a wallet card that

 738 22 Dr. Ohlin asked us if we had any input on.

 738 23 Q. Yeah. If Dr. Ohlin were to bring that up,

 738 24 it's exhibit --

 738 25 MR. SEAN TRACEY: What's the next Exhibit

 739 1 number?

 739 2 MR. OLIVIO: 67.

Re: [738:13-739:2]

cumulative, 403

SUSTAINED

739:4 - 739:11 Myers, Brian 12-13-2019

 739 4 Q. It is going to be Exhibit 67. It is an

Re: [739:4-739:11]

cumulative, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 186 of 221
Myers, Brian 12-13-2019 39

 739 5 e-mail from Dr. Ohlin to you and others about that

 739 6 very fact.

 739 7 (WHEREUPON, a certain document was

 739 8 marked Brian Myers Deposition Exhibit

 739 9 No. 67, for identification, as of

 739 10 12-13-2019.)

 739 11 BY MR. SEAN TRACEY:

739:12 - 742:21 Myers, Brian 12-13-2019

 739 12 Q. Now, you have seen this document in

 739 13 preparation for your deposition, haven't you?

 739 14 A. Yes, I've seen this document.

 739 15 Q. Okay. And this is -- this is actually I'm

 739 16 sure one of the things that you were alluding to in

 739 17 terms of collaboration between you and Dr. Ohlin or

 739 18 your company and Dr. Ohlin, right?

 739 19 A. Yes, this is one of the things I was

 739 20 referring to.

 739 21 Q. And this has -- it is from Dr. Ohlin and

 739 22 it's sent to a variety of people including Elliott

 739 23 Berger at your company, Tim McNamara at your

company,

 739 24 Brian Myers, you, at your company.

 739 25 Armand Dancer is also copied, isn't he?

 740 1 A. I see all of those people copied there as

 740 2 well as some other folks it looks like from the

 740 3 military.

 740 4 Q. Eric Fallon is also copied, isn't he?

 740 5 A. Yes, he is.

 740 6 Q. Eric Fallon was at the -- as at the -- at

 740 7 CHPPM also, wasn't he?

 740 8 A. I don't know where Eric Fallon came from.

 740 9 Q. You knew he came --

 740 10 A. I know he -- I know he was in the

 740 11 military.

 740 12 Q. And now where does he work?

 740 13 A. He does work at -- at 3M now.

 740 14 Q. He actually took Doug Fallon's position,

 740 15 didn't he, when he left?

 740 16 A. Do you mean --

Re: [739:12-742:21]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [739:12-742:21]

403, 602, speculation, 802

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 187 of 221
Myers, Brian 12-13-2019 40

 740 17 Q. Doug Ohlin, sorry, Doug Ohlin's position?

 740 18 A. I don't know that it was a one for one

 740 19 that he took Doug's position. I do just know that

 740 20 Eric works for 3M today.

 740 21 Q. And he left the military and came right to

 740 22 work for you, didn't he?

 740 23 A. I don't know. I don't have -- I don't

 740 24 recall that I have knowledge of that.

 740 25 Q. Okay. In any event, what's going on here

 741 1 is Doug Ohlin is asking for your input on these wallet

 741 2 cards that the subject is Combat Arms Earplug cards,

 741 3 he attaches this attachment PDF. He says: "These

 741 4 will be wallet-sized, laminated cards to be issued

 741 5 with the earplugs. Any comments other than the need

 741 6 to correct the NSN for the double-ended plug to" that

 741 7 number?

 741 8 Do you see that?

 741 9 A. I do see those words on this e-mail.

 741 10 Q. And let's flip over and look at the

 741 11 attachment because the attachment I think is

 741 12 important.

 741 13 This -- this part of the wallet card, this

 741 14 section has a quote from a soldier in Iraq, doesn't

 741 15 it?

 741 16 "Combat Arms Earplugs work great in this

 741 17 environment. They probably made the difference

 741 18 between eardrum/hearing damage and not. They

 741 19 definitely allow you to mentally recover quickly so

 741 20 you are able to deal with your situation versus

 741 21 standing around like a stunned mullet for a while."

 741 22 Do you see that?

 741 23 A. I see that quote.

 741 24 Q. And then there is a section on ordering,

 741 25 which says: "Double-ended earplugs (which fit most of

 742 1 adult population)" and then "Single-ended plugs (for

 742 2 smallest ear canals)," and then we have a fact sheet

 742 3 referenced and a place to go get it, right?

 742 4 A. That's -- that looks accurate as to what's

 742 5 on that side of the card.

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 188 of 221
Myers, Brian 12-13-2019 41

 742 6 Q. All right. And then flip over and we have

 742 7 a picture of an ear there at the top left, right? And

 742 8 it says: "Combat Arms Earplug. Insert yellow plugs

 742 9 for weapons fire to protect hearing and to hear

 742 10 between firings. Insert green plugs for noise in and

 742 11 around aircraft, noisy vehicles and watercraft. Check

 742 12 proper fit by gently tugging on plugs for tension."

 742 13 And No. 2, it says: "For very large ear canals, fold

 742 14 opposing plug back."

 742 15 Do you see that?

 742 16 A. Yeah, that's the second bullet -- or the

 742 17 fourth bullet, I guess, on the page.

 742 18 Q. Is that one of the facts that you are

 742 19 using to support your claim that somebody in technical

 742 20 talked to Doug Ohlin about the contents of the flange

 742 21 report?

742:25 - 743:5 Myers, Brian 12-13-2019

 742 25 A. So it seems that from that comment that

 743 1 the military technical group and Dr. Ohlin were aware

 743 2 of this technical concern that got brought forward

 743 3 because in the report that we just read from, Ron

 743 4 Kieper and I think Elliott was on it as well, they

 743 5 talked about rolling the flange back as well.

Re: [742:25-743:5]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [742:25-743:5]

403, 602, speculation, 802

SUSTAINED

743:10 - 743:18 Myers, Brian 12-13-2019

 743 10 Q. Can you answer my question?

 743 11 A. So, yes, I see both -- the commonality

 743 12 between both of the technical -- the Aearo technical

 743 13 report and the -- this wallet card that was created by

 743 14 the military technical people, and to me it -- it

 743 15 seems that there is a linkage there, that there is

 743 16 a --

 743 17 Q. Yeah, I can see that.

 743 18 A. -- similar idea.

Re: [743:10-743:18]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [743:10-743:18]

403, 602, speculation, 

nonresponsive

SUSTAINED

744:5 - 744:12 Myers, Brian 12-13-2019

 744 5 Q. I know you don't. You already told me

 744 6 that.

 744 7 A. I'm sorry.

 744 8 Q. Do you remember my question?

 744 9 A. I thought that was your question.

Re: [744:5-744:12]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [744:5-744:12]

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 189 of 221
Myers, Brian 12-13-2019 42

 744 10 Q. No. My question was: It seems like a

 744 11 very good question to know the answer to given what's

 744 12 on this wallet card, doesn't it?

744:16 - 744:21 Myers, Brian 12-13-2019

 744 16 A. So my understanding of the -- the process

 744 17 within the military, again, is that when you wore a

 744 18 plug like this, it was supposed to be fitted, and

 744 19 based on this wallet card, it would make sense that

 744 20 that fitter would advise you whether or not you were

 744 21 in that group that needed to take that action.

Re: [744:16-744:21]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [744:16-744:21]

403, 602, foundation, speculation

SUSTAINED

744:24 - 745:5 Myers, Brian 12-13-2019

 744 24 Q. But I'm going to explore that with you

 744 25 because you bring up a good point.

 745 1 If the people that are getting -- doing

 745 2 the fitting believe that only those with very large

 745 3 ear canals need the folges flanded -- the flanges

 745 4 folded back, that's all who is going to get the

 745 5 flanges folded back, right?

Re: [744:24-745:5]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [744:24-745:5]

colloquy, 402, 403

SUSTAINED

745:9 - 745:12 Myers, Brian 12-13-2019

 745 9 A. So I -- I wasn't in the military, I wasn't

 745 10 their present for any of the training, so I don't know

 745 11 how soldiers were directed, what they were directed to

 745 12 do.

Re: [745:9-745:12]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [745:9-745:12]

403, 602, foundation, speculation

SUSTAINED

745:14 - 745:20 Myers, Brian 12-13-2019

 745 14 Q. Can you answer my question?

 745 15 A. This -- this is a card that was created by

 745 16 the military. If they were going to only -- only

 745 17 ensure that just very large ear canals folded back the

 745 18 opposing flange, that's something you'd have to ask

 745 19 them. I don't know how they trained the soldiers in

 745 20 terms of wearing.

Re: [745:14-745:20]

cumulative, 403, 602, 

foundation, speculation

SUSTAINED

748:25 - 749:1 Myers, Brian 12-13-2019

 748 25 Q. Should somebody have corrected Doug,

 749 1 somebody from your company?

Re: [748:25-749:1]

Plt Objection - nonresponsive

Re: [748:25-749:1]

vague, 602, speculation

SUSTAINED

749:5 - 749:11 Myers, Brian 12-13-2019

 749 5 A. Again, I was relying on when technical

 749 6 created that concern that they would have interacted

 749 7 with the technical group from the military and Doug's

Re: [749:5-749:11]

Plt Objection - nonresponsive

Re: [749:5-749:11]

vague, 602, speculation, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 190 of 221
Myers, Brian 12-13-2019 43

 749 8 direction is wallet card and the training in the

 749 9 military would have reflected not just that input but

 749 10 the experience that they had had with soldiers at that

 749 11 time.

750:3 - 751:3 Myers, Brian 12-13-2019

 750 3 Q. I have no idea what that means.

 750 4 A. So you asked me if somebody should have

 750 5 corrected the wallet card.

 750 6 Q. Yes.

 750 7 A. And my answer is that I don't know that

 750 8 the wallet card needed to be corrected. My

 750 9 understanding is that the technical group would have

 750 10 interacted with Dr. Ohlin and maybe others within the

 750 11 military and from the benefit of that knowledge he

 750 12 would have created that wallet card.

 750 13 Q. Yeah, but you --

 750 14 A. I don't --

 750 15 Q. Yeah, go ahead. Go ahead and finish.

 750 16 A. I don't see -- so, for example, you asked

 750 17 about medium and large ear canals. I don't see those

 750 18 called out here, but my belief was that there was a

 750 19 technical interaction and ultimately when this card

 750 20 came out, even though it might not have said that,

 750 21 that it accounted for whatever this technical

 750 22 resolution would have been to the issue.

 750 23 Q. Why do you think that? Do you have any

 750 24 evidence of that?

 750 25 A. Because I thought the technical group of

 751 1 my company and the technical group of the military

 751 2 were -- were sharing information and talking with each

 751 3 other.

Re: [750:3-751:3]

Plt Objection - improper counter 

per PTO 64; cumulative

Re: [750:3-751:3]

vague, 602, speculation, 403, 

compound

SUSTAINED

752:18 - 752:22 Myers, Brian 12-13-2019

 752 18 Q. If we were going to have an open and

 752 19 honest exchange of information and we are a couple of

 752 20 technical people just trying to get our jobs done, why

 752 21 in the world wouldn't we see the transmission of the

 752 22 flange report to Doug Ohlin?

753:1 - 753:8 Myers, Brian 12-13-2019

 753 1 A. Again, I don't recall -- you asked me. I

Re: [753:7-753:8]

602; 403; Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 191 of 221
Myers, Brian 12-13-2019 44

 753 2 don't recall seeing that the flange report was shared

 753 3 with them, but to me that doesn't mean it wasn't

 753 4 shared with them. It just meant that at least I don't

 753 5 recall having seen that.

 753 6 BY MR. SEAN TRACEY:

 753 7 Q. Boy, the Feds sure don't think it was

 753 8 shared, do they?

753:12 - 753:13 Myers, Brian 12-13-2019

 753 12 A. So the paragraph that you directed me to

 753 13 in that report, you are right, draws that conclusion.

Re: [753:12-753:13]

602; 403; Baker MIL 1

OVERRULED

754:12 - 754:18 Myers, Brian 12-13-2019

 754 12 Q. You mentioned -- you mentioned that you

 754 13 expected the United States Army, and I guess other

 754 14 branches of the military who were purchasing your

 754 15 product, you expected them to do training of their

 754 16 soldiers, right?

 754 17 A. It was my understanding that the military

 754 18 did -- did training of those soldiers.

Re: [754:12-754:18]

602, speculation, 403

SUSTAINED

757:10 - 757:16 Myers, Brian 12-13-2019

 757 10 Q. How many times do you think you said "I've

 757 11 relied on technical" in the past two days?

 757 12 A. Quite a number.

 757 13 Q. How many do you think, a couple hundred?

 757 14 A. I don't know.

 757 15 Q. Elliott Berger pointed the finger at you.

 757 16 Did you know that?

Re: [757:10-757:14]

401; 403

Re: [757:15-757:24]

602, 401; 403

OVERRULED

757:20 - 757:24 Myers, Brian 12-13-2019

 757 20 A. I don't know what that means.

 757 21 BY MR. SEAN TRACEY:

 757 22 Q. That means he said he turned to you to get

 757 23 authority to release the flange report and he could

 757 24 find no evidence that you gave it?

Re: [757:15-757:24]

602, 401; 403

OVERRULED

758:3 - 758:12 Myers, Brian 12-13-2019

 758 3 A. Well, I -- we saw an e-mail, and, again, I

 758 4 said I have no recollection of what my response was.

 758 5 BY MR. SEAN TRACEY:

 758 6 Q. Remember we talked about crossroads?

 758 7 A. I recall that discussion.

 758 8 Q. Yeah. How much did you personally gain

Re: [758:3-758:4]

602, 401; 403

Re: [758:6-758:12]

403; 401; Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 192 of 221
Myers, Brian 12-13-2019 45

 758 9 when your company was sold?

 758 10 A. Again, I couldn't recall the number.

 758 11 Q. Do you make that kind of money all of the

 758 12 time?

758:15 - 758:17 Myers, Brian 12-13-2019

 758 15 Q. Is that a routine event in your life?

 758 16 A. No. It was important. It was financially

 758 17 important to my family. I said that.

Re: [758:15-758:17]

403; 401; Baker MIL 1

OVERRULED

759:8 - 759:16 Myers, Brian 12-13-2019

 759 8 Q. Let's look at this exhibit. This is a

 759 9 contract from Theresa Schulz, it's an e-mail, with a

 759 10 Draft Statement of Work to Doug Ohlin, a copy to Marc

 759 11 Santoro.

 759 12 Have you seen this document? Flip over.

 759 13 It says it's an Agreement between Aearo Corporation

 759 14 and The U.S. Army Center for Health Promotion and

 759 15 Preventive Medicine.

 759 16 A. I have seen this document or one similar.

759:17 - 760:17 Myers, Brian 12-13-2019

 759 17 Q. When did you see it?

 759 18 A. I only recall having seen it in

 759 19 preparation for --

 759 20 Q. Your deposition?

 759 21 A. -- this deposition.

 759 22 Q. What do you think of it?

 759 23 A. Of the document?

 759 24 Q. Yeah.

 759 25 A. I think that we were trying to find a way

 760 1 to support the military and their training efforts.

 760 2 Q. You were, weren't you?

 760 3 A. I mean, that was my -- that was kind of

 760 4 the gist of what I took from what was going on here.

 760 5 Q. Your company was contracting to train the

 760 6 military on how to use your company's product, right?

 760 7 A. No, that's not how I saw this document. I

 760 8 saw this document as we were going to try to support

 760 9 the military to -- to I'll say tell their story about

 760 10 how this product does work and -- and to do training

 760 11 about how to do it. I think, if I recall correctly,

Re: [759:17-760:17]

401, 402, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 193 of 221
Myers, Brian 12-13-2019 46

 760 12 some of the anticipated, and I don't know if this

 760 13 ever -- what this ever came to, but it was based on it

 760 14 sounded like doing interviews with people in the

 760 15 military to try to collect their stories and then try

 760 16 to share that back in -- in some sort of a training

 760 17 video or training -- training documents.

762:21 - 762:25 Myers, Brian 12-13-2019

 762 21 Q. Okay. Well, let's not make up what they

 762 22 said. Let's look at what they actually said. What

 762 23 they said -- what you said was you all were going to

 762 24 develop "optimal methods to train soldiers in the

 762 25 appropriate use of the Combat Arms Earplug," right?

Re: [762:21-762:25]

MIL 15

SUSTAINED 

as to “Well 

let’s not make 

up what they 

said.” 

Otherwise 

OVERRULED.

763:3 - 764:11 Myers, Brian 12-13-2019

 763 3 Q. That's what the words say, doesn't it?

 763 4 A. So those are the words that are on Page 3

 763 5 of this exhibit.

 763 6 Q. Okay. No. 2 is: "Develop strategies to

 763 7 train soldiers in the appropriate use of the Combat

 763 8 Arms Earplugs," right?

 763 9 A. Those words are on this page, yes.

 763 10 Q. No. 3 is: "Develop the training materials

 763 11 and tools to train soldiers in the use of" --

 763 12 "appropriate use of the Combat Arms Earplug," right?

 763 13 A. Those words are also on this page.

 763 14 Q. And then if we flip over, just so there is

 763 15 no confusion about who is going to do what, it says:

 763 16 "Aearo Corporation will work with Army

 763 17 personnel to identify soldiers who have successfully

 763 18 used Combat Arms in the accomplishment of their

 763 19 mission. Operational issues and health issues (both

 763 20 positive and negative) affecting use of the" -- "of

 763 21 the Combat Arms will be identified."

 763 22 And then we break up the responsibilities.

 763 23 First it says: "CHPPM personnel will assist in the

 763 24 identification of appropriate units. Aearo will work

 763 25 with local Public Affairs officers to ensure

 764 1 appropriate access...," and the Deliverables are:

 764 2 "Recommendations regarding method of training."

Re: [763:3-763:5]

602; hearsay; MIL 15

Re: [763:6-764:9]

403; hearsay; MIL 15

Re: [764:10-764:10]

602; 403; MIL 15

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 194 of 221
Myers, Brian 12-13-2019 47

 764 3 Do you see that?

 764 4 A. I see all of those words on Page 4.

 764 5 Q. Phase 2 says: "Aearo Corporation will

 764 6 create and test strategies to train deploying soldiers

 764 7 on the correct use of the Combat Arms Earplug."

 764 8 Do you see that?

 764 9 A. I do see those words on that fourth page.

 764 10 Q. Did you all send Theresa Schulz the flange

 764 11 report before she put this together?

764:14 - 764:21 Myers, Brian 12-13-2019

 764 14 A. I don't know what we've sent -- what we

 764 15 sent to Theresa Schulz.

 764 16 BY MR. SEAN TRACEY:

 764 17 Q. Do you think somebody who is training

 764 18 soldiers and tasked with the awesome responsibility of

 764 19 training combat soldiers in the appropriate use of a

 764 20 new and novel technology should have access to the

 764 21 flange report?

Re: [764:14-764:15]

602; 403; MIL 15

Re: [764:17-765:1]

602; 403; MIL 15

OVERRULED

764:25 - 765:1 Myers, Brian 12-13-2019

 764 25 A. I would think that we would have shared

 765 1 with her what was appropriate.

Re: [764:17-765:1]

602; 403; MIL 15

OVERRULED

765:12 - 765:14 Myers, Brian 12-13-2019

 765 12 My question is: Would it have been

 765 13 appropriate to share with Theresa Schulz the flange

 765 14 report given she is responsible for this task?

Re: [765:12-765:14]

602; vague; ambiguous; 403; 

speculation; MIL 15

OVERRULED

765:18 - 765:22 Myers, Brian 12-13-2019

 765 18 A. I think it would have been perhaps

 765 19 appropriate to share that report or whatever

 765 20 conclusion was reached by the group that tried to

 765 21 understand and -- and address that concern that was

 765 22 brought up.

Re: [765:18-765:22]

602; vague; ambiguous; 403; 

speculation; MIL 15

OVERRULED

767:20 - 768:2 Myers, Brian 12-13-2019

 767 20 Q. Okay.

 767 21 A. -- it looks like something we were

 767 22 proposing.

 767 23 Q. Why are you telling me maybe it got

 767 24 modified after that?

 767 25 A. Well, I don't know if this is a final

Re: [767:20-768:2]

401, 402, 403, 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 195 of 221
Myers, Brian 12-13-2019 48

 768 1 version that -- that -- it looks like it was sent to

 768 2 Doug Ohlin, so it likely was a final version, but...

783:10 - 783:19 Myers, Brian 12-13-2019

 783 10 Well, I'm going to show you this document.

 783 11 This is -- this is P1430. This is from --

 783 12 MR. SEAN TRACEY: So what exhibit number would

 783 13 this be?

 783 14 MR. OLIVIO: That would be Exhibit 71.

 783 15 MR. SEAN TRACEY: Oh, I see what you are saying.

 783 16 (WHEREUPON, a certain document was

 783 17 marked Brian Myers Deposition Exhibit

 783 18 No. 71, for identification, as of

 783 19 12-13-2019.)

Re: [783:11-784:6]

401; 403; 602; Baker MIL 1

OVERRULED

783:21 - 783:25 Myers, Brian 12-13-2019

 783 21 Q. So this is a production document, I think,

 783 22 or quality assurance document. It says the name is:

 783 23 "Release Specification for UltraFit Earplugs Without

 783 24 Through Hole. This document will be used to inspect

 783 25 and release product for sale and/or further

Re: [783:11-784:6]

401; 403; 602; Baker MIL 1

OVERRULED

784:1 - 784:1 Myers, Brian 12-13-2019

 784 1 processing."

Re: [783:11-784:6]

401; 403; 602; Baker MIL 1

OVERRULED

784:2 - 784:6 Myers, Brian 12-13-2019

 784 2 Do you see that?

 784 3 A. I see those words on this document.

 784 4 Q. Have you ever seen this document before?

 784 5 A. I don't recall ever having seen this

 784 6 document before.

Re: [783:11-784:6]

401; 403; 602; Baker MIL 1

OVERRULED

784:19 - 784:24 Myers, Brian 12-13-2019

 784 19 Q. Yeah. And the Combat Arms, the man that

 784 20 you went through this with, Dave Buchanan, yesterday,

 784 21 is -- is the two UltraFits glued together with a stem,

 784 22 right?

 784 23 A. That's probably an oversimplification, but

 784 24 it is that kind of concept.

Re: [784:19-784:24]

403

OVERRULED

785:17 - 786:6 Myers, Brian 12-13-2019

 785 17 Q. And then if you flip over to the next

 785 18 page, it gives you a place where you are supposed to

 785 19 visually inspect every UltraFit Plug. And under

Re: [785:17-786:6]

Baker MIL 1; 602; 701; 401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 196 of 221
Myers, Brian 12-13-2019 49

 785 20 11.2.1, do you see where it says: "Obvious defects

 785 21 not allowed"?

 785 22 A. I do see that.

 785 23 Q. The second one says: "Turned over or

 785 24 inverted flange," doesn't it? It says an inverted

 785 25 flange --

 786 1 A. I see it, yes.

 786 2 Q. -- is an obvious defect, doesn't it?

 786 3 A. "Turned over inverted flange," yes.

 786 4 Q. And it explains why it is an obvious

 786 5 defect. It says: "Over time the flanges will stay

 786 6 distorted," doesn't it?

786:9 - 786:15 Myers, Brian 12-13-2019

 786 9 A. That's what it says. It says that.

 786 10 BY MR. SEAN TRACEY:

 786 11 Q. So according to your production

 786 12 department, if anybody had complied with your

 786 13 company's instructions to roll back the flange, it

 786 14 would have been an obvious defect because it would

 786 15 have caused flange distortion over time, right?

Re: [786:9-786:15]

Baker MIL 1; 602; 701; 401; 403

OVERRULED

786:19 - 786:21 Myers, Brian 12-13-2019

 786 19 A. So this document says that. I have not

 786 20 seen this document. I don't know who authorized it or

 786 21 where it comes from, but it --

Re: [786:19-786:21]

Baker MIL 1; 602; 701; 401; 403

OVERRULED

786:23 - 787:2 Myers, Brian 12-13-2019

 786 23 Q. Well, let's look because there are people

 786 24 that Elliott Berger identified for me.

 786 25 On Page 2 of 18, at the top it says the

 787 1 author is Trisha Dugan. You know her, don't you?

 787 2 A. I know Trish -- I know Trisha Dugan, yes.

Re: [786:23-787:2]

401, 402, 403

SUSTAINED

787:12 - 788:2 Myers, Brian 12-13-2019

 787 12 Q. Okay. Do you know who -- who Klimmek,

 787 13 Klun, Rabenda and Shaver are?

 787 14 A. So I think I know who two of those people

 787 15 are.

 787 16 Q. Klun and Rabenda?

 787 17 A. No, I don't know a Rabenda.

 787 18 Q. Okay. Do you know who Klun is?

 787 19 A. I think that's probably Bob Klun.

Re: [787:12-788:2]

401, 402, 403, 602

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 197 of 221
Myers, Brian 12-13-2019 50

 787 20 Q. Yep.

 787 21 A. Is that -- is that correct?

 787 22 Q. I think so. I think that's what

 787 23 Mr. Berger told us.

 787 24 A. And, again, I was just going to check the

 787 25 date. So 2013, I'm not sure what Bob Klun's role was

 788 1 at that point in time. Maybe he was the quality

 788 2 manager at that point in time.

827:21 - 829:9 Myers, Brian 12-13-2019

 827 21 Q. Okay. And we've projected a PowerPoint on

 827 22 the screen. Looking at slide two of the PowerPoint,

 827 23 can you tell the jury about your work history before

 827 24 you worked for Aearo?

 827 25 A. Sure. When I graduated in 1984 I went to

 828 1 work for General Electric in a training program in

 828 2 manufacturing. I was at two locations in a couple of

 828 3 years and then took a permanent job in Louisville,

 828 4 Kentucky for another three years. Through the course

 828 5 of that I was a production manager and a process

 828 6 engineer. And then in November of -- while I was at

 828 7 GE, at night I went to school and got my MBA

 828 8 ultimately from the University of Louisville.

 828 9 In November of 1989 then I -- if you want

 828 10 to go to the next slide, in November of 1989 then I

 828 11 joined, at that time it was Cabot Corporation as a

 828 12 plant manager -- or as a production manager and then a

 828 13 plant manager for what ultimately became Cabot Safety

 828 14 Corporation.

 828 15 I served briefly, I think less than a

 828 16 year, as the product line director for our respiratory

 828 17 products and then moved into a product manager

 828 18 position with passive hearing protection that we've

 828 19 discussed. And I -- I was in that, a role like that,

 828 20 other things got added to it, but through 2008.

 828 21 And then in 2008, 3M acquired our -- our

 828 22 Aearo Corporation, and I was a portfolio manager then

 828 23 from that point until January of 2011 when I really

 828 24 left the passive hearing business and did a what's

 828 25 called lean six sigma assignment and then for another

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 829 1 two and I think a quarter years. So that was two

 829 2 years and then for another two and a quarters years I

 829 3 managed some product lines that were not hearing or --

 829 4 or associated with hearing. And ultimately then at

 829 5 that point then I got the passive hearing business and

 829 6 a number of other businesses back. And to this day

 829 7 now I manage -- I think I have six businesses that I

 829 8 manage and one of them is passive hearing products

 829 9 business.

829:15 - 830:16 Myers, Brian 12-13-2019

 829 15 Q. Let's mark the next exhibit as Exhibit 33.

 829 16 Can you tell us what the next exhibit is, sir? Sorry.

 829 17 Exhibit 77.

 829 18 A. This is from my files. It's an

 829 19 announcement about a new organization from

 829 20 November 21st, 2006.

 829 21 Q. And what is the date of this organization,

 829 22 the day of this announcement?

 829 23 A. November 20th, 2006.

 829 24 Q. What is the title of the announcement?

 829 25 A. "North American Military Strategic

 830 1 Business Unit Formed; North America Peltor

 830 2 Communications Restructured."

 830 3 Q. Okay. Can you read the first two

 830 4 sentences of page -- the third paragraph on Page 2 of

 830 5 the announcement?

 830 6 A. Certainly.

 830 7 "The formation of the military SBU

 830 8 requires us to restructure the North American

 830 9 industrial passive hearing and communications

 830 10 businesses. Responsibility for Peltor Communications

 830 11 in the industrial channel will transfer to Brian

 830 12 Myers, who has been named Vice President, Hearing

 830 13 Conservation Products."

 830 14 Q. And the date of -- what is the date of

 830 15 this document?

 830 16 A. November 20th, 2006.

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 834 4 Q. Did you have responsibility for

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 834 5 interacting with the military regarding CAE, the

 834 6 Combat Arms Version 2 on the marketing side?

 834 7 A. I did.

 834 8 Q. Did others interact with the military

 834 9 regarding the Combat Arms Version 2 on the technical

 834 10 side?

 834 11 A. They did.

 834 12 Q. And is it your understanding that the

 834 13 technical people from Aearo or 3M interacted with

 834 14 technical people from the military?

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834:17 - 834:17 Myers, Brian 12-13-2019

 834 17 A. That was my understanding.

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834:19 - 834:22 Myers, Brian 12-13-2019

 834 19 Q. And in terms of what you observed from

 834 20 e-mails, did you identify any individual from the

 834 21 military with technical who interacted with the Aearo

 834 22 or 3M technical people?

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 834 25 A. Dr. Ohlin was the -- is the one that comes

 835 1 to mind.

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 835 17 So if you could identify first what we've

 835 18 marked as Exhibit 78?

 835 19 A. The e-mail is from me, the subject is the

 835 20 "Letter for Combat Arms Earplug," there is an

 835 21 attachment, and it appears to be a forwarded message

 835 22 that came from Doug Ohlin and there is a Belva Hoffman

 835 23 at Fort Detrick who is -- is it's to and he copied me

 835 24 on this.

 835 25 Q. Okay. So in the April 12th, 1999, e-mail

 836 1 from Doug Ohlin to you and others dated April 12th,

 836 2 1999, could you read the subject line and the content

 836 3 of that e-mail, please?

 836 4 A. It's: "Re: Forward: A letter for Combat

 836 5 Arms Earplug.

 836 6 "Belva: There are at least three reasons

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 836 7 why they are going to have to shorten the production

 836 8 samples I sent you.

 836 9 "1. So they fit in the standard case.

 836 10 "2. To minimize wind noise.

 836 11 "3. To be compatible with the Kevlar

 836 12 helmet when the chinstrap is fastened."

 836 13 "The last one is a show stopper if we

 836 14 can't get the modification.

 836 15 Signed "Doug."

 836 16 Q. Did Mr. Ohlin's e-mail also include an

 836 17 attachment?

 836 18 A. It did, which I believe is also attached.

 836 19 Q. So if you go to the page that has at the

 836 20 top -- the third to last page, what's the -- what's

 836 21 the heading on that page?

 836 22 A. "Justification for a Nonlinear Earplug

 836 23 (Combat Arms Earplug)."

 836 24 Q. And can you read the fourth paragraph and

 836 25 what's included -- what Mr. -- Dr. Ohlin included as

 837 1 an attachment to the e-mail dated April 12th, 1999, to

 837 2 you and others?

 837 3 A. Of course.

 837 4 "The American" -- he writes: "The

 837 5 American military's contribution in this development

 837 6 effort has been to recommend an American-made earplug,

 837 7 the UltraFit, to house the French filter, the color

 837 8 scheme and blast overpressure testing. The

 837 9 single-sized UltraFit should accommodate most of our

 837 10 Combat Arms users."

838:3 - 838:8 Myers, Brian 12-13-2019

 838 3 Q. Could you read your e-mail to Dr. Ohlin,

 838 4 April 8th, 1999, letter for Combat Arms Earplug, the

 838 5 first sentence of the second paragraph?

 838 6 A. "I spoke with Dick Knauer who believes

 838 7 that we can probably shorten the plug by the quarter

 838 8 inch required to fit your current container."

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 838 16 Q. We've marked the next exhibit as

 838 17 Exhibit 79. Could you please identify this?

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 838 18 A. These are notes from April the 9th, 1999,

 838 19 from Annette Shaver of the design review meeting,

 838 20 addressed to Rob Bomke, Dick Knauer, Brian Myers,

 838 21 Gordon Grogan, Steve Todor and Bob Zielinski.

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 839 10 Q. Were you a recipient of the memo on the

 839 11 second page?

 839 12 A. I was listed as a recipient.

 839 13 Q. That's you, Brian Myers?

 839 14 A. That is me.

 839 15 Q. And what is the subject of the memo?

 839 16 A. "Design review."

 839 17 Q. And what does the first sentence say under

 839 18 Design Review?

 839 19 A. "A design review meeting was held on 9" --

 839 20 "on Friday, April 9th, to review the following product

 839 21 from meeting" -- "from marketing and technical.

 839 22 Combat Arms Earplugs."

 839 23 Q. Okay. And then if you could read the

 839 24 portions that under Product Design (Preliminary) from

 839 25 the design review memo of April 9th, 1999?

 840 1 A. This -- this paragraph says: "The

 840 2 Technical Department provided samples of the products

 840 3 along with Aearo drawings. The length of the earplug,

 840 4 once assembled, was discussed. It has been requested

 840 5 by the military that the earplug fit into a case,

 840 6 which is in current use by the military, this would

 840 7 require reducing the length by one-fourth of an inch."

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 840 14 Q. Can you identify Exhibit 80?

 840 15 A. It's from Dr. Ohlin, dated June 29th,

 840 16 1999, to me regarding the purchase of Combat Arms

 840 17 Earplugs.

 840 18 Q. Could you read the first four -- four

 840 19 sentences of the e-mail or enough of the e-mail to get

 840 20 to the sentence relating to purchase a thousand pair,

 840 21 the June 29th, 1999, e-mail from Doug Ohlin to you?

 840 22 A. Sure.

 840 23 "Brian, the fund side has arrived" --

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 840 24 "fund cite has arrived and the paperwork has been

 840 25 forwarded to purchase 1,000 earplugs for John King in

 841 1 Italy. His address was included for the shipment.

 841 2 Meanwhile, our command is hosting a Force Health

 841 3 Protection conference in Atlanta, 23 through 27

 841 4 August. So far 786 attendees have signed up. All

 841 5 three Surgeon Generals are supposed to be there. This

 841 6 will be a great opportunity to introduce a large

 841 7 number of medical folks to this new earplug. Bottom

 841 8 line, I also want to purchase 1,000 pairs to hand out

 841 9 at our static display."

841:16 - 841:24 Myers, Brian 12-13-2019

 841 16 Q. Can you identify Exhibit 81?

 841 17 MR. BUCHANAN: Thank you.

 841 18 BY THE WITNESS:

 841 19 A. This is -- this is another memo from

 841 20 Annette Shaver, dated August 16th. It has got that

 841 21 weird May 7th date on the front, but the memo that's

 841 22 attached is dated August 16th, 1999, subject Combat

 841 23 Arms Earplugs. I was among the recipients of this

 841 24 e-mail.

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 842 15 Q. Okay. So looking at the August 16th,

 842 16 1999, memo from Annette Shaver to you and others

 842 17 regarding Combat Arms plugs, could you read the

 842 18 portion -- first of all, can you read the first

 842 19 sentence of the memo under Combat Arms Plugs?

 842 20 A. "A design review meeting was held on

 842 21 August the 9th, 1999, to discuss the progress towards

 842 22 the manufacture and delivery of Combat Arms Earplugs.

 842 23 Attending were B. Klun, D. Knauer, A. Aufmann,

 842 24 R. Bomke, J. Jurney."

 842 25 Q. And if you look at the Short Term Issues

 843 1 section? Do you see that on the --

 843 2 A. Yes.

 843 3 Q. -- on the third page?

 843 4 A. I do see that.

 843 5 Q. Could you read what the -- it says under

 843 6 the Short Term Issues section from the Combat Arms

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 843 7 Plugs meeting on August 16th, 1999?

 843 8 A. Yes. "The bill of material needs to be

 843 9 completed." That's Item 1. Item 2 says: "Auditory

 843 10 will complete assembly."

843:18 - 844:1 Myers, Brian 12-13-2019

 843 18 Q. Could you identify Exhibit 82 for the

 843 19 jury, please?

 843 20 A. Yes. This is the original -- the original

 843 21 Bill of Material that we were able to find for the

 843 22 three -- Product Code 370-1000 which was a Combat 

Arms

 843 23 v2 earplug, and it's valid from August the 9th, 1999.

 843 24 Q. And does this correspond to the shipments

 843 25 to John King and Doug -- Dr. Ohlin that we discussed

 844 1 earlier?

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 844 4 A. Is this -- this is the BOM that reflects

 844 5 what was delivered in the early shipments.

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 844 21 Q. Can you identify what Exhibit 83 is, just

 844 22 the -- just the portion starting with the second and

 844 23 third e-mails?

 844 24 A. So, these are two e-mails back and forth

 844 25 between Dr. Ohlin and myself.

 845 1 Q. And what is the -- what does the subject

 845 2 line of the e-mail say?

 845 3 A. Regarding information on Combat Arms

 845 4 Earplugs. They are dated March 22nd, 2005, and

 845 5 March 23rd, 2005.

 845 6 Q. Can you please read the first question in

 845 7 your e-mail to Dr. Ohlin dated March 22nd, 2005, title

 845 8 "Information on Combat Arms Earplugs"?

 845 9 A. The first question I ask is: "Is it okay

 845 10 to say that the Combat Arms Earplug is 'evaluated and

 845 11 specified by the U.S. Armed Forces?'"

 845 12 Q. And staying with Exhibit 83, could you

 845 13 also read Dr. Ohlin's response to you dated

 845 14 March 23rd, 2005, entitled "Information on Combat Arms

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 845 15 Earplugs," just read the first paragraph?

 845 16 A. Sure.

 845 17 "Brian: The Combat Arms Earplug has been

 845 18 evaluated during blast overpressure studies at White

 845 19 Sands Missile Range and at the Army Research Lab at

 845 20 the Aberdeen Proving Ground. It is used extensively

 845 21 by the U.S. Army and the Marines. It has been

 845 22 approved by the DOD Hearing Conservation Working

 845 23 Group. It appears in our Defense Occupational and

 845 24 Environmental Health Readiness System - Hearing

 845 25 Conservation Application's lookup table of approved

 846 1 hearing protectors and in Department of the Army

 846 2 Pamphlet 40-501, Hearing Conservation, 10

 846 3 December 1998. Yes, I think you can say the Combat

 846 4 Arms Earplug has been 'evaluate and' -- 'evaluated and

 846 5 specified by the U.S. Armed Forces.'"

846:13 - 847:19 Myers, Brian 12-13-2019

 846 13 Q. Can you identify this document for the

 846 14 jury, please?

 846 15 A. That's a series of several e-mails that

 846 16 began with an e-mail from a Dan Ohama of the Army.

 846 17 Mike Cimino, Tim McNamara and myself are also on the

 846 18 e-mail chain.

 846 19 Q. Could you -- could you read the first two

 846 20 sentences of the second paragraph of the e-mail from

 846 21 Mr. Ohama, dated August 24th, 2004, starting with "I

 846 22 recently met"?

 846 23 A. Yes. So, Mr. Ohama writes:

 846 24 "I recently met with the Army hearing

 846 25 conservation consultants from CHPPM, Aberdeen 

Proving

 847 1 Ground. We spoke of problems with soldiers not using

 847 2 the Combat Arms Earplugs effectively; either they

 847 3 forget what was explained during initial training with

 847 4 the earplugs, there was lack of proper training or

 847 5 whatever. In some instances Combat Arms Earplug

 847 6 orders/requisitions were held up or disapproved

 847 7 because of concerns that soldiers were not using them

 847 8 correctly."

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 847 9 Q. Could you now read not the next paragraph

 847 10 but the subsequent paragraph of Mr. Ohama's e-mail

 847 11 dated August 24th, 2004, beginning with "An alternate

 847 12 idea"?

 847 13 A. "An alternate idea is to create a small

 847 14 laminated card that fits into the earplug case that

 847 15 the Army currently issues. The card will have to be

 847 16 small, approximately 1.5 inches by 1.75 inches. On

 847 17 the card would be a picture of the Combat Arms

 847 18 Earplug, along with all the small prints and pictures

 847 19 as described."

848:13 - 849:23 Myers, Brian 12-13-2019

 848 13 Q. So we've -- what I'm now handing you

 848 14 what's been marked as Exhibit 85.

 848 15 By the way, Dan Ohama, is he somebody with

 848 16 the military or is he somebody with Aearo or 3M?

 848 17 A. So his -- his signature says he is

 848 18 Audiologist/Chief, Hearing Conservation Services at

 848 19 Fort Lewis, Washington. So not with 3M or...

 848 20 Q. I've marked Exhibit 85. Could you

 848 21 identify this document, sir?

 848 22 A. It's an e-mail from Doug Ohlin to Brian

 848 23 Myers, Tim McNamara and Elliott Berger, dated

 848 24 September the 30th of 2004.

 848 25 Q. And can you read the portion of

 849 1 Dr. Ohlin's e-mail that starts with "Kevin"?

 849 2 A. "Kevin: As a result of a hearing

 849 3 conservation briefing to Major General Kiley, last

 849 4 week, my program has been asked to develop a

 849 5 laminated, wallet-sized instruction card for the

 849 6 Combat Arms Earplug. The attachments and work order

 849 7 were sent to illustration today. These" --

 849 8 Q. Okay. And what -- okay.

 849 9 A. "These will be" -- "primarily be for

 849 10 deploying troops."

 849 11 Q. Okay. And what is the relation in time

 849 12 between Exhibit 84 which is Mr. Ohama's e-mail from

 849 13 the audiologist from Fort Lewis and the e-mail from

 849 14 Dr. Ohlin regarding the Combat Arms Earplug wallet

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 849 15 card?

 849 16 A. So, it looks like there is about a month

 849 17 between them, so they were in roughly the same sort of

 849 18 timing.

 849 19 Q. Let's look at the next exhibit, which has

 849 20 previously been marked as Plaintiffs' 67. And

 849 21 counsel, I believe Mr. Tracey, asked you some

 849 22 questions about this document, correct, sir?

 849 23 A. He did.

850:5 - 850:15 Myers, Brian 12-13-2019

 850 5 Q. Can you identify this document for the

 850 6 jury, sir?

 850 7 A. It's from Doug Ohlin. It's addressed to

 850 8 it looks like a number of people in the Army, in the

 850 9 military, and then it CC's some other military people

 850 10 as well as Elliott Berger, Tim McNamara, myself,

 850 11 Armand -- and Armand Dancer. It is dated October

 850 12 the 4th, 2004, and the subject is "Combat Arms Earplug

 850 13 cards."

 850 14 Q. And does Dr. Ohlin then attach Combat Arms

 850 15 Earplug cards?

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850:18 - 850:19 Myers, Brian 12-13-2019

 850 18 A. It looks like he has a PDF attachment

 850 19 which appears to be attached to the exhibit.

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 850 21 Q. And this is the exhibit that Mr. Tracey

 850 22 asked you about, correct?

 850 23 A. This looks like the one we reviewed

 850 24 earlier.

 850 25 Q. And if you look at the second page of the

 851 1 wallet card, there is a picture of earplugs, correct?

 851 2 A. Yeah. Yes, there are several pictures of

 851 3 the earplugs.

 851 4 Q. And the picture of the earplugs in the

 851 5 bottom right of the last page of the exhibit that

 851 6 Mr. Tracey provided to you, do any of the flanges

 851 7 appear to be rolled back in that picture?

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 851 8 A. So, yes, the bottom green flange appears

 851 9 to be rolled back.

851:19 - 853:10 Myers, Brian 12-13-2019

 851 19 Q. Can you identify this document, sir?

 851 20 A. It's an e-mail stream from December

 851 21 of 2005, and the initial e-mail includes Doug -- or

 851 22 it's written to Doug Ohlin and there is a reply from

 851 23 him. Ultimately I forwarded his reply on to Marc

 851 24 Santoro who implemented what Dr. Ohlin suggested with

 851 25 the help of Kevin Spahn.

 852 1 Q. Could you read your e-mail to Dr. Ohlin

 852 2 dated December 9th, 2005, entitled with the subject

 852 3 "Instruction Sheet"?

 852 4 A. Yes.

 852 5 From December the 9th: "Doug, we are in

 852 6 the process of setting up a product which is a single

 852 7 pair of Combat Arms Earplugs on a blister card. I'll

 852 8 send you some when available. We have prepared the

 852 9 attached insert which will be printed and placed in

 852 10 the package with each pair. We are interested in any

 852 11 comments or modifications which you think are

 852 12 appropriate for us to make."

 852 13 Q. Could you read Dr. Ohlin's response to

 852 14 your e-mail regarding instruction sheet dated

 852 15 December 12th, 2005?

 852 16 A. Doug writes back: "Brian, looks great.

 852 17 You did not mention any potential sizing issues for

 852 18 the smaller ear canals and the single-sided version as

 852 19 an alternative. Are you abandoning that concept?"

 852 20 Q. And then can you read Marc Santoro's

 852 21 e-mail dated December 12th of 2005 entitled -- with

 852 22 the subject line "Instruction Sheet," the first two

 852 23 paragraphs?

 852 24 A. Yes.

 852 25 "Kevin, just got feedback from the U.S.

 853 1 Army on the instruction guide for the CAE blister

 853 2 pack. Please add a line sentence at the end of the

 853 3 'Fitting Tips' that says....

 853 4 "Some individuals with smaller ear canals

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 853 5 may experience discomfort with the dual-ended Combat

 853 6 Arms Earplug due to their restricted canal opening. A

 853 7 single-sided version of the Combat Arms Earplug is

 853 8 also available and will oftentimes provide greater

 853 9 comfort for smaller ear canals. Singling-sided Combat

 853 10 Arms Earplug - NSN No. 6515-01-512-6072."

853:16 - 854:13 Myers, Brian 12-13-2019

 853 16 Q. I'm handing you what's been marked as

 853 17 Exhibit 87. I'm giving copies to counsel.

 853 18 Can you identify this document, sir?

 853 19 A. Yes. It's -- it's from April the 10th.

 853 20 All of the -- it's an e-mail chain all from April

 853 21 the 10th, 2007, regarding NRR labeling, with Elliott

 853 22 Berger, myself, it looks like Tim McNamara, Doug 

Moses

 853 23 and Jeff Hamer are all eventually copied.

 853 24 Q. Can you read the bottom e-mail in the

 853 25 chain?

 854 1 A. It's an e-mail from Elliott Berger. It

 854 2 says:

 854 3 "Tim and/or Brian, I am unclear about

 854 4 whether product sold to the military requires labeling

 854 5 in conformance with the EPA requirements including the

 854 6 NRR label. Can you please clarify? Elliott."

 854 7 Q. And could you read your response to that

 854 8 e-mail?

 854 9 A. My response was: "My understanding is

 854 10 that the military can require whatever they wish.

 854 11 They could require different test protocols,

 854 12 calculations, et cetera. It is entirely up to them

 854 13 what they want on their packaging."

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854:19 - 857:12 Myers, Brian 12-13-2019

 854 19 Q. Let's mark this as Exhibit 88. I'll give

 854 20 copies to counsel.

 854 21 (WHEREUPON, a certain document was

 854 22 marked Brian Myers Deposition Exhibit

 854 23 No. 88, for identification, as of

 854 24 12-13-2019.)

 854 25 BY MR. NOMELLINI:

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designate affirmatively.

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Myers, Brian 12-13-2019 62

 855 1 Q. Can you tell me what the title of this

 855 2 document is?

 855 3 A. It is United States Environmental

 855 4 Protection Agency, Workshop on Hearing Protector

 855 5 Devices, Washington, D.C., March 27th through 28th,

 855 6 2003, Papers and Proceedings. Proceedings prepared by

 855 7 Alice H. Suter, Ph.D. under NIOSH contract order

 855 8 0000336337.

 855 9 Q. Okay. Can you turn to the page that's

 855 10 Bates labeled 3M_MDL000084358?

 855 11 A. Okay.

 855 12 Q. And could you read what the top of that

 855 13 page says?

 855 14 A. I'm sorry. I have the wrong number. Too

 855 15 many numbers on the page.

 855 16 Q. It is Page 160, but the Bates label is

 855 17 84358.

 855 18 A. I've got it. Thank you.

 855 19 What was your question again?

 855 20 Q. What does it say at the top?

 855 21 A. "Brian Myers, E-A-R Product Line Director,

 855 22 E-A-R/Aearo Company."

 855 23 Q. And is this the presentation that both

 855 24 Mr. Buchanan and Mr. Tracey asked you about?

 855 25 A. The -- I think it's a summary or

 856 1 highlights of the -- of the comments that I made.

 856 2 Q. Okay. And if you look at Page 161, the

 856 3 next page, could you read the first paragraph?

 856 4 A. "We support" -- it's Recommendations.

 856 5 "We support ANSI S12.6-1997, the Method B

 856 6 protocol, with one essential modification: We have

 856 7 conducted our own extensive lab-to-lab comparison and

 856 8 we found one case where the product performed as

 856 9 expected across all subjects but one. In this case,

 856 10 the subject had amplification at a key frequency,

 856 11 leading to poor mean attenuation and large standard

 856 12 deviations."

 856 13 Q. And then can you read the paragraph under

 856 14 A New Proposal?

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Myers, Brian 12-13-2019 63

 856 15 A. "A new proposal would be a 'full

 856 16 disclosure option' where manufacturers would be

 856 17 allowed to perform multiple tests. They would be

 856 18 required to submit all tests and the reasoning behind

 856 19 their rating selection to the EPA (or other suitable

 856 20 group), the materials would be reviewed, and a

 856 21 decision made within a fixed period of time."

 856 22 Q. Okay. And this is -- this -- to be clear,

 856 23 this is the presentation that Mr. Buchanan and

 856 24 Mr. Tracey asked you about?

 856 25 A. It is the presentation they asked me

 857 1 about, the hearing workshop.

 857 2 Q. Okay. And then if you look under Other

 857 3 Issues, there is a timing paragraph. Could you read

 857 4 that?

 857 5 A. I see that on the next page.

 857 6 It says: "Timing: There should be three

 857 7 and a half to four years from adoption of the

 857 8 regulation to the point of consumers. There should

 857 9 also be windows by product style. For example,

 857 10 requirements for the labeling of earmuffs, foam

 857 11 earplugs, and premolded earplugs, et cetera, should be

 857 12 separated by three-month intervals."

857:22 - 857:25 Myers, Brian 12-13-2019

 857 22 Q. Can you identify what we've marked as

 857 23 Exhibit 89?

 857 24 A. It is an e-mail to me from Dr. Ohlin,

 857 25 dated April 16th, 2002, regarding Combat Arms Earplug.

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 858 4 Q. Okay. And can you read the fourth

 858 5 paragraph of Dr. Ohlin's e-mail to you regarding the

 858 6 Combat Arms Earplug?

 858 7 A. I can. It says:

 858 8 "Please note that like any earplug it is

 858 9 absolutely essential that the CAE be properly

 858 10 inserted. This is more difficult with the CAE because

 858 11 unlike other preformed earplugs there aren't readily

 858 12 available landmarks of the plug to the ear to verify

 858 13 proper insertion. Gently tug on the plug. If there

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 858 14 is tension, that's a good indication of proper

 858 15 insertion. Also, there should be a slight occlusion

 858 16 effect, that is, the voice of the individual wearing

 858 17 the plug will sound more low toned and muffled.

 858 18 However, this sensation isn't as pronounced as it is

 858 19 with conventional hearing protection."

 858 20 MR. NOMELLINI: Okay. Let's mark the next

 858 21 document Exhibit 90.

859:2 - 859:2 Myers, Brian 12-13-2019

 859 2 Q. Can you identify this document, please?

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859:5 - 859:7 Myers, Brian 12-13-2019

 859 5 A. It's from August of 2006, and it includes

 859 6 Dr. Ohlin, Elliott Berger and myself as well as

 859 7 initial e-mails in the chain from a Mary Binseel.

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859:9 - 859:19 Myers, Brian 12-13-2019

 859 9 Q. And -- and can you read the first two

 859 10 paragraphs of Dr. Ohlin's August 17th, 2006, e-mail

 859 11 regarding the Combat Arms Earplug?

 859 12 A. I can. He writes to Elliott:

 859 13 "It is a fundamental military principle

 859 14 that the troops must train first with anything they

 859 15 use in combat to build confidence in their weapon

 859 16 systems and any other gear used in the field. The

 859 17 Combat Arms Earplug is no exception. In fact, this

 859 18 principle applies in spades for any hearing protector

 859 19 that will be used in combat."

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860:1 - 860:24 Myers, Brian 12-13-2019

 860 1 Q. Could you please identify this document?

 860 2 A. This is an e-mail that I wrote to Diane

 860 3 Crawford with the prior e-mail that she had forwarded

 860 4 from a distributor to Steve Landgraf who reported to

 860 5 her. She is a salesperson. It is dated

 860 6 November 29th, 2004 --

 860 7 Q. And could you --

 860 8 A. -- regarding Canada, Mexico restrictions.

 860 9 Q. And could you read the bottom e-mail dated

 860 10 November 24th, 2004, the first line, at 10:16 a.m.?

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 860 11 A. Sure. It says:

 860 12 "Good morning, Steve. I would like to

 860 13 know if the following list of products has any

 860 14 restrictions in Canada and Mexico."

 860 15 Q. Okay. And then could you read your e-mail

 860 16 to Diane Crawford dated November 9th -- 29th, 2004, at

 860 17 7:38 p.m.?

 860 18 A. Yes. I write back to Diane.

 860 19 "No problem with my stuff. The only one I

 860 20 would warn you about is the Combat Arms Earplugs

 860 21 (370-1000). These are not labeled as a hearing

 860 22 protector (not even in the US) and are exclusively for

 860 23 military use i.e. where separate instructions are

 860 24 begin by a trainer."

862:24 - 864:19 Myers, Brian 12-13-2019

 862 24 Q. I've handed you what's been marked as

 862 25 Exhibit 93. Can you identify this document?

 863 1 A. That's an -- it's a string of e-mail -- an

 863 2 e-mail chain that includes a -- at least a copy of

 863 3 part of an article from the Dallas Morning News.

 863 4 Ultimately it was sent to me from Elliott Berger in

 863 5 March of 2006. The subject is: "Seeking the Right

 863 6 Amount of Sound in the Furry of Combat," which was

 863 7 apparently the title of the Dallas Morning News

 863 8 article.

 863 9 Q. Okay. And can you read the portion of the

 863 10 article beginning with the word "Alarmed," the fourth

 863 11 paragraph?

 863 12 A. Yes.

 863 13 "Alarmed by the Fallujah experience, the

 863 14 Corps revised its regulations last November to require

 863 15 that every marine 'especially forward-deployed Marines

 863 16 in combat environments' be issued Combat Arms

 863 17 Earplugs, trained in how to use them and required to

 863 18 carry them."

 863 19 Q. And looking at the next page, it starts

 863 20 with the word "Handing them out," can you read that --

 863 21 that portion?

 863 22 A. Yes. It says:

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 863 23 "Handing them out with written

 863 24 instruction" -- "instructions isn't effective, said

 863 25 Douglas Ohlin, an audiologist who heads the Army's

 864 1 Hearing Conservation Program. Most people have to be

 864 2 shown how to wear earplugs."

 864 3 Q. You were -- you were asked some questions

 864 4 about a statement of work earlier by counsel.

 864 5 Do you recall that?

 864 6 A. I do.

 864 7 Q. And what was the name of the lady who was

 864 8 copied on the e-mails regarding statement of work?

 864 9 A. Do you mean Theresa Schulz?

 864 10 Q. Yes.

 864 11 A. Theresa Schulz was copied.

 864 12 Q. Okay. And do you know if that Theresa

 864 13 Schulz statement of work regarding training ever

 864 14 actually moved forward and took effect?

 864 15 A. I don't know of any -- any action that

 864 16 took place beyond the e-mail that we reviewed today.

 864 17 Q. And that was an e-mail that you reviewed

 864 18 with Plaintiffs' counsel, Mr. Tracey?

 864 19 A. Yes, and it included a statement of work.

867:7 - 867:8 Myers, Brian 12-13-2019

 867 7 Q. Okay. Let's go to -- okay. Let's go to

 867 8 Exhibit 95. Provide copies to counsel.

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867:15 - 869:10 Myers, Brian 12-13-2019

 867 15 Q. Can you identify this document?

 867 16 A. It's a -- it's a forward from Elliott to

 867 17 Dick Knauer, Bob Falco and Brian Myers of an e-mail

 867 18 from a Lorraine.

 867 19 Q. And could you read the e-mail -- the

 867 20 portion of the e-mail that you received that begins

 867 21 with "Elliott, Below is a story"?

 867 22 A. Sure.

 867 23 "Elliott, below is a story that captures

 867 24 an experience with the CAE in Iraq. This is part of a

 867 25 larger information gathering process. This

 868 1 information is not to be shared or used for marketing

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 868 2 or anything remotely like that. This is an oppor" --

 868 3 "it is an opportunity to hear from the troops what

 868 4 they would like to see in the earplug. Lorraine."

 868 5 Q. Okay. And can you read the portion of the

 868 6 e-mail that begins with "A few months ago"?

 868 7 A. "A few months ago I met with Fort Drum's

 868 8 range/RID Safety Officer (Bob Boschok). Prior to our

 868 9 meeting he sent one Fort Drum, 2BCTs safety officer

 868 10 (William Delsolar) an e-mail asking if he has feedback

 868 11 on the CAE. I have a hard copy of the e-mails.

 868 12 Mr. Boschok's question on 14 December 2004: '... Do

 868 13 you have some specific experience with" --

 868 14 "experiences with these CAEs that you want me to

 868 15 share?...'

 868 16 "Mr. Delsolar's response (verbatim) on 14

 868 17 December 2004: 'They work period.'

 868 18 "Mandatory wear per Pegasus 6. Unless the

 868 19 IED is very close and very big, there are no

 868 20 detrimental effects of the blast to the ears.

 868 21 Occasionally, a soldier will suffer some recoverable

 868 22 damage. But without them the damage tends to be

 868 23 almost complete and permanent."

 868 24 Do you want me to go on?

 868 25 Q. Yes.

 869 1 A. "Getting enough of them in the system and

 869 2 getting soldiers to wear them always in the field is

 869 3 key. Hearing is reduced somewhat, but in this

 869 4 threat" -- "high threat environment it doesn't matter

 869 5 much. I had no trouble hearing the one shot over my

 869 6 head in Abu Gharib today. The earplugs also have the

 869 7 added benefit of protecting wearers from the sound

 869 8 pressure shock effects. Instead of being knocked

 869 9 unconscious or stunned they quickly recover in time to

 869 10 react."

879:20 - 882:11 Myers, Brian 12-13-2019

 879 20 Q. Okay. Mr. Myers, you have Exhibit 90 in

 879 21 front of you?

 879 22 A. I do.

 879 23 Q. If you flip over to the back, this is an

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 879 24 exhibit that you used in your direct examination.

 879 25 Do you see that Mary Binseel from the U.S.

 880 1 Army research laboratory and Elliott Berger are

 880 2 exchanging e-mails? And this --

 880 3 A. Yes, at the very start.

 880 4 Q. And this is July of 2006, right around the

 880 5 time you guys signed the contract, right?

 880 6 A. Yes. It's end of July 2006.

 880 7 Q. And she says, "Mary, we" -- she says,

 880 8 "Elliott, as I'm sure you heard, I received the

 880 9 improved Combat Arms late last week. I'm planning the

 880 10 studies to evaluate them. I didn't count the

 880 11 earplugs, but my understanding is you shipped 90,

 880 12 another ten pairs, when you have the opportunity, will

 880 13 complete the deliverable requirement of our contract.

 880 14 I'm not sure if you are waiting until then to invoice

 880 15 the government, but whenever you do submit invoices,

 880 16 please send a CC to me. Mary Binseel."

 880 17 Do you see that?

 880 18 A. I do see those words.

 880 19 Q. And then Elliott says: "We shipped ten

 880 20 more pair last Friday. UPS tracking number. Keep me

 880 21 posted."

 880 22 And if we come forward in time, here is

 880 23 Elliott Berger. Now he is looping in Doug Ohlin and

 880 24 you, isn't he?

 880 25 A. Doug -- Doug and Brian on the first page.

 881 1 Q. Yeah. That's Doug who works for the

 881 2 government, right?

 881 3 A. Dr. Ohlin was with CHPPM at that time,

 881 4 that's what his e-mail address indicates.

 881 5 Q. For a little while longer.

 881 6 And then we've got Elliott Berger and you

 881 7 who work for Aearo?

 881 8 A. Yes.

 881 9 Q. And then it says:

 881 10 "Doug and Brian, I read your e-mail train

 881 11 on NSN and cutting bait. Just wanted to copy you on

 881 12 correspondence I had with Mary in the past fee weeks.

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 881 13 Apparently she is pursuing a field study in Iraq with

 881 14 the 100 pairs we sent her and is not interested in any

 881 15 outside input on the protocol. Just wanted to keep

 881 16 you posted."

 881 17 And let's see what Doug says.

 881 18 Doug writes to you and to Elliott and

 881 19 says:

 881 20 "It's a fundamental military principle

 881 21 that the troops must first train with anything they

 881 22 use in combat to build confidence in their weapon

 881 23 systems and any other gear used in the field. The

 881 24 Combat Arms Earplug is no exception. In fact, this

 881 25 principle applies in spades for any hearing protector

 882 1 that will be used in combat. Soldiers are negatively

 882 2 disposed to using hearing protection in combat.

 882 3 Despite its apparent advantages, the plug is not going

 882 4 to be giving the most" -- "going to be given the most

 882 5 objective assessment in that kind of environment. I

 882 6 don't agree with their study (whose protocol we aren't

 882 7 even allowed to see) or her logic to conduct it in

 882 8 Iraq."

 882 9 Did I read that right?

 882 10 A. Yeah, it sounded like you read that

 882 11 correctly.

884:15 - 886:1 Myers, Brian 12-13-2019

 884 15 Q. Mr. Myers, I've got a few questions in

 884 16 response to that examination you did with counsel.

 884 17 I've got to keep my time short. I am under some time

 884 18 constraints by agreement or by the Court's order,

 884 19 either way, so I would ask you to be efficient with me

 884 20 in answering my questions.

 884 21 Will you try and do that, sir?

 884 22 A. I'll do my best.

 884 23 Q. Okay. Great.

 884 24 Pulling up Exhibit 65, it is one that you

 884 25 did with Mr. Tracey.

 885 1 MR. BUCHANAN: Can I have the Elmo.

 885 2 BY MR. BUCHANAN:

 885 3 Q. Okay. You were asked a lot of questions

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 885 4 by counsel concerning documents with a Dr. Ohlin.

 885 5 Do you recall that discussion with

 885 6 counsel?

 885 7 A. I'm sorry. One more time.

 885 8 Q. You were asked a lot of questions by

 885 9 Mr. Nomellini, counsel for 3M concerning Dr. Ohlin.

 885 10 Do you recall that?

 885 11 A. I recall, yes, some questions about

 885 12 Dr. Ohlin.

 885 13 Q. Okay. And his involvement back and forth

 885 14 at various points in time while he was in the military

 885 15 concerning the Combat Arms Version 2.

 885 16 Do you recall that?

 885 17 A. I recall some of those e-mails, yes.

 885 18 Q. Dr. Ohlin from your con -- from your

 885 19 perspective, sir, was he involved, is that your

 885 20 contention, in the development of the Combat Arms?

 885 21 A. He -- I read a couple of documents I think

 885 22 where he stated what the US military's contribution

 885 23 was to that and then there was another e-mail where he

 885 24 very specifically said he want -- a length that he

 885 25 wanted. I believe he claimed also that he specified

 886 1 the color and an over blast pressure study.

888:21 - 890:13 Myers, Brian 12-13-2019

 888 21 Q. Moving on to Exhibit 20, I think counsel

 888 22 showed you a portion of this document, the DOJ press

 888 23 release.

 888 24 Could you please go to the second page.

 888 25 This is that press release announcing the

 889 1 $900,000 fine relating to your failure to properly

 889 2 test and label your hearing protection devices in the

 889 3 early '90s.

 889 4 Do you remember that, sir?

 889 5 A. I remember discussing this.

 889 6 Q. Let's go to the second page. It says:

 889 7 "Acting assistant" --

 889 8 MR. BUCHANAN: Do you have the second page. I'm

 889 9 sorry. P1020.2.

 889 10 BY MR. BUCHANAN:

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 889 11 Q. It begins: "Acting Assistant General

 889 12 Attorney" -- I'm sorry -- "Acting Assistant Attorney

 889 13 General Myles Flint of the Environment and Natural

 889 14 Resources Division said, 'This is the largest civil

 889 15 penalty under the statute.'"

 889 16 Do you see that, sir?

 889 17 A. I do sees those words.

 889 18 Q. "Correct labeling and adequate testing are

 889 19 absolutely necessary for the safety of the public and

 889 20 we will continue to vigorously enforce these

 889 21 requirements."

 889 22 Did I read that correctly, sir?

 889 23 A. You did.

 889 24 Q. Do you agree that correct labeling and

 889 25 adequate testing are absolutely necessary for the

 890 1 safety of the public?

 890 2 A. That's his statement.

 890 3 Q. Do you agree with that statement, sir?

 890 4 A. Yeah, I don't have any concerns with that

 890 5 statement.

 890 6 Q. Okay. You'd agree correct labeling and

 890 7 adequate testing are absolutely necessary for the

 890 8 safety of the public, correct, sir?

 890 9 A. I don't take exception with the statement.

 890 10 Q. Okay. And so certainly adequate testing

 890 11 are absolutely necessary with your Combat Arms to

 890 12 ensure the safety of the service members that used

 890 13 them, right, sir?

890:17 - 890:18 Myers, Brian 12-13-2019

 890 17 A. I think adequate -- as he states, I do

 890 18 think adequate testing is important.

Re: [890:17-890:18]

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OVERRULED

894:20 - 895:1 Myers, Brian 12-13-2019

 894 20 Q. We know that from our time spent over the

 894 21 last two days, right?

 894 22 A. I'm just trying to recall when that --

 894 23 there was a memo that -- that Elliott wrote about the

 894 24 lack of data and testing, so if that's what you are

 894 25 speaking of.

 895 1 Q. Right. That was November 1999, wasn't it?

Re: [894:20-895:1]

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895:5 - 895:11 Myers, Brian 12-13-2019

 895 5 A. I don't recall the exact date.

 895 6 BY MR. BUCHANAN:

 895 7 Q. I'll represent that to you, sir, that was

 895 8 November of 1999.

 895 9 That's after your recollection, sir, of

 895 10 when the company had already started selling the

 895 11 Combat Arms, isn't that true?

Re: [895:5-895:11]

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SUSTAINED

895:14 - 895:15 Myers, Brian 12-13-2019

 895 14 A. My review of the records show that our

 895 15 first sale was in June of 1999.

Re: [895:14-895:15]

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SUSTAINED

897:6 - 897:10 Myers, Brian 12-13-2019

 897 6 Q. In all of those documents that you did

 897 7 with Mr. Nomellini, counsel for 3M, did you see any

 897 8 reference in any discussion where you were

 897 9 communicating to the Army about the imperceptible

 897 10 loosening that occurs with the Combat Arms?

Re: [897:6-897:10]

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OVERRULED

897:13 - 897:14 Myers, Brian 12-13-2019

 897 13 A. I don't recall seeing a memo that used

 897 14 those words.

Re: [897:13-897:14]

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OVERRULED

898:6 - 898:11 Myers, Brian 12-13-2019

 898 6 Q. And in that lightning rounds of documents

 898 7 that you did with Mr. Nomellini, did you see any

 898 8 transmittal of the flange report between your company

 898 9 and the U.S. military?

 898 10 A. Again, I don't recall seeing any document

 898 11 that indicated we had shared that with them.

Re: [898:6-898:11]

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OVERRULED

901:2 - 901:9 Myers, Brian 12-13-2019

 901 2 Q. And you recommended, sir, I think it was

 901 3 called out, a proposal of disclosure of test results.

 901 4 Do I have that right?

 901 5 A proposal where manufacturers would be

 901 6 required to submit all tests and the reasoning behind

 901 7 their rating selection to the EPA, do you recall that?

 901 8 A. I do recall that it was based on the

 901 9 Method B test that we spoke about earlier.

Re: [901:2-901:9]

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901:13 - 901:23 Myers, Brian 12-13-2019

 901 13 A. That we would -- that we would provide

 901 14 what we thought was better information to consumers.

 901 15 But based on our testing, we determined that the --

 901 16 I'll say in here one -- one sort of bad test subject

 901 17 could kind of wreck the whole thing, so the idea

 901 18 was -- at least what we proposed was that you could do

 901 19 as much testing that you -- as you wanted, then share

 901 20 that, all that testing with the EPA or some other body

 901 21 like that and utilize that and just -- and say, here

 901 22 is what we think we should label it and here is why we

 901 23 think we should label it that way.

Re: [901:13-901:23]

Plt Objection - improper counter 

per PTO 64 

Re: [901:13-901:23]

cumulative, 403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 153-1 Filed 06/06/21 Page 221 of 221