EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 1 of 116
Hamer, Jeffrey 10-7-2015 (Moldex)

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 2 of 116
Hamer, Jeffrey 10-7-2015 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

7:8 - 7:12 Hamer, Jeffrey 10-7-2015

 7 8 Q Sir, would you state your name for the record,

 7 9 please?

 7 10 A Jeffrey Lee Hamer.

 7 11 Q Good morning, Mr. Hamer.

 7 12 A Good morning.

Re: [7:8-7:12]

GENERAL OBJECTION to 

entire transcript -- Defendants 

object to all testimony from this 

witness regardless of the specific 

page and line on the basis that it 

is subject to Defendants motion 

in limine number 6 regarding 

prior litigation and is hearsay

OVERRULED

8:21 - 9:1 Hamer, Jeffrey 10-7-2015

 8 21 Q And can you summarize briefly for me, please, 

your

 8 22 educational background?

 8 23 A High school at Monroe Catholic Central in 

Michigan,

 8 24 BS in mechanical engineering with a minor in

 8 25 acoustics at Michigan Technological University,

 9 1 1983.

9:6 - 9:9 Hamer, Jeffrey 10-7-2015

 9 6 Q And you had a minor in acoustics or a 

subspecialty?

 9 7 A Specialty in acoustics.

 9 8 Q And you received that degree in 1983?

 9 9 A Correct.

9:14 - 9:25 Hamer, Jeffrey 10-7-2015

 9 14 Q Okay. And once you graduated from Michigan

 9 15 Technological in 1983, when -- did you go to work?

 9 16 A Yes.

 9 17 Q And can you summarize briefly for me your

 9 18 employment history?

 9 19 A Yes. Started at what was EAR division of Cabot

 9 20 Corporation in 1984, hired as applications

 9 21 engineer, worked my way up through that

 9 22 organization in noise control engineering,

 9 23 basically applying noise control to OEM products

 9 24 for manufacturers, worked my way up over the next

 9 25 13 years to the manager of the laboratory there.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 3 of 116
Hamer, Jeffrey 10-7-2015 3

10:1 - 10:22 Hamer, Jeffrey 10-7-2015

 10 1 In 1997, moved to a company in southern

 10 2 Indiana by the name of PRD, Incorporated, as the

 10 3 manager of engineering there. They're an injection

 10 4 molding firm primarily in automotive design and

 10 5 molding components. In 2007, moved back to what

 10 6 was at the time Aearo Corporation on the safety

 10 7 products side of the business rather than the noise

 10 8 control as the senior technical director and have

 10 9 worked there ever since 3M acquired Aearo in 2008.

 10 10 Q Thank you. So for 13 years while you were at

 10 11 Cabot, you worked your way up to various ranks as

 10 12 an engineer?

 10 13 A As an engineer and a manager and engineering

 10 14 manager.

 10 15 Q And that was in -- and you said that at the end of

 10 16 that period, you had -- you had become the lab

 10 17 manager, too?

 10 18 A Correct.

 10 19 Q And by lab, do you mean the E-A-RCAL Lab?

 10 20 A No. I mean the acoustics lab for what was the

 10 21 noise control products division at the time, not

 10 22 safety division.

Re: [10:1-10:22]

Improper counter-designation; 

improper bolstering; FRE 

402/403; Plaintiffs MIL #12, 13

OVERRULED. 

Door opened 

with affirmative 

designation.

10:25 - 11:8 Hamer, Jeffrey 10-7-2015

 10 25 be asking just for the record. What's the

 11 1 difference between noise control and noise

 11 2 protection or safety?

 11 3 A Noise control is the application of materials and

 11 4 designed to reduce noise in a -- in a device or

 11 5 machine.

 11 6 Q Uh-huh.

 11 7 A Hearing protection is protecting a user from

 11 8 excessive noise.

Re: [10:23-11:8]

Improper counter designation; 

FRE 402/403; 701/702.

OVERRULED. 

Door opened 

with affirmative 

designation.

13:14 - 13:21 Hamer, Jeffrey 10-7-2015

 13 14 Q Do you have any patents to your name?

 13 15 A Yes.

 13 16 Q How many?

 13 17 A I believe four currently issued and three or four

 13 18 that are still working their way through the

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 4 of 116
Hamer, Jeffrey 10-7-2015 4

 13 19 system.

 13 20 Q Do any of them have to do with hearing 

protection?

 13 21 A Yes.

13:22 - 14:2 Hamer, Jeffrey 10-7-2015

 13 22 Q How many of them?

 13 23 A All of them.

 13 24 Q Could you summarize very briefly for me, please,

 13 25 what your four issued patents are about?

 14 1 A Mainly about the design of earplug devices and 

how

 14 2 they would -- how they function.

17:1 - 17:21 Hamer, Jeffrey 10-7-2015

 17 1 Q So what have your responsibilities been at Aearo

 17 2 and 3M since you rejoined the company in 2007?

 17 3 A Manage the development laboratory as a whole 

with

 17 4 respect to new product development, new technology

 17 5 initiatives, and personnel associated with that.

 17 6 Q What else?

 17 7 A In general, that's --

 17 8 Q That's what you do?

 17 9 A Yeah.

 17 10 Q I didn't mean to suggest that wasn't a lot.

 17 11 And the development lab, that -- is that

 17 12 Mr. Berger's lab or a different lab or some

 17 13 combination?

 17 14 A The product development lab is under -- is under 

my

 17 15 responsibility. Mr. Berger manages the E-A-RCAL

 17 16 testing facility.

 17 17 Q And they're different?

 17 18 A They're within the same building, but they have

 17 19 different functions, yes.

 17 20 Q And -- but he reports to you; correct?

 17 21 A Yes, he does.

21:14 - 21:18 Hamer, Jeffrey 10-7-2015

 21 14 Q So you meet with -- and how often do you meet, 

say,

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 5 of 116
Hamer, Jeffrey 10-7-2015 5

 21 15 with Mr. Berger for your direct report meetings?

 21 16 A Monthly generally --

 21 17 Q Okay.

 21 18 A -- for that specific meeting.

22:5 - 22:9 Hamer, Jeffrey 10-7-2015

 22 5 Q Okay. Have you ever developed a hearing 

protection

 22 6 product?

 22 7 A Yes.

 22 8 Q Which ones?

 22 9 A I've been involved in several.

31:14 - 31:22 Hamer, Jeffrey 10-7-2015

 31 14 Q What about -- what role do you perform with 

respect

 31 15 to the E-A-RCAL Lab?

 31 16 A I manage Elliott Berger directly, who manages 

that

 31 17 laboratory.

 31 18 Q And do you review the lab policy manuals that 

they

 31 19 put out?

 31 20 A I am familiar with it.

 31 21 Q Don't you look at it when they do a new version?

 31 22 A Yes.

38:16 - 38:20 Hamer, Jeffrey 10-7-2015

 38 16 Q Yeah, let's look at that, if you don't mind. Now,

 38 17 the questions I'm going to be asking you are both

 38 18 in your role as an individual witness and also as a

 38 19 30(b)(6) witness because I'm going to be asking

 38 20 about the development of Combat Arms.

38:21 - 39:1 Hamer, Jeffrey 10-7-2015

 38 21 MR. BARZA: Counsel, I'll have a look at your

 38 22 notice. Topic 30 -- bear with me a second. Topic

 38 23 30 -- 41, forgive me, the structure and operation

 38 24 of all versions and models of the Combat Arms

 38 25 earplugs is a topic for which you've designated

 39 1 this witness; correct?

39:2 - 39:2 Hamer, Jeffrey 10-7-2015

 39 2 MS. HUNTER: That's correct.

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Hamer, Jeffrey 10-7-2015 6

40:16 - 40:17 Hamer, Jeffrey 10-7-2015

 40 16 Q Sir, noise reduction ratings are important for

 40 17 hearing protection devices; correct?

40:19 - 41:2 Hamer, Jeffrey 10-7-2015

 40 19 A Yes.

 40 20 Q And consumers, people who buy hearing 

protection

 40 21 devices, they do look at those ratings when they

 40 22 evaluate these products as far as you know?

 40 23 MS. HUNTER: Object to form.

 40 24 A You'd have to ask them.

 40 25 Q Well, it's important -- 3M cares what NRRs they 

put

 41 1 on their products; correct?

 41 2 A Yes.

41:4 - 41:19 Hamer, Jeffrey 10-7-2015

 41 4 And 3M believes that the NRR they put on their

 41 5 hearing protection devices is important; correct?

 41 6 A Yes.

 41 7 Q You try to be as accurate as you can?

 41 8 A Yes.

 41 9 Q You try to communicate information truthfully?

 41 10 A Yes.

 41 11 Q I'm sure you do.

 41 12 A noise reduction rating is the measure of

 41 13 attenu- -- it's a way of representing measurements

 41 14 done on a hearing protection device to see how much

 41 15 it attenuates or reduces the noise that would

 41 16 otherwise reach the wearer or user of the product;

 41 17 correct?

 41 18 A It's a single-number rating meant to indicate

 41 19 potential hearing damage.

41:20 - 42:6 Hamer, Jeffrey 10-7-2015

 41 20 Q Okay. And when you say it's a single-number

 41 21 rating, the point is sound is made up of different

 41 22 components with different frequencies and different

 41 23 amplitudes. And you could measure them all

 41 24 separately, but this rating pulls them all together

 41 25 under a certain standard; correct?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 7 of 116
Hamer, Jeffrey 10-7-2015 7

 42 1 A Correct.

 42 2 Q And that standard is an ANSI standard, right,

 42 3 A-N-S-I?

 42 4 A Correct.

 42 5 Q And it's often referred to as the 1974 standard?

 42 6 A Correct.

42:7 - 42:12 Hamer, Jeffrey 10-7-2015

 42 7 Q And what role do you have in making sure that the

 42 8 3M hearing protection device products that are sold

 42 9 have an accurate NRR on them?

 42 10 A Data produced by the E-A-RCAL Laboratory is

 42 11 reviewed by Elliott Berger and myself before it is

 42 12 submitted at -- or approved for publication.

48:14 - 49:17 Hamer, Jeffrey 10-7-2015

 48 14 In any event, the way the noise reduction

 48 15 rating is determined based on, I believe, some

 48 16 EPA -- first of all, the EPA passes regulations

 48 17 that control the noise reduction rating protocol,

 48 18 right, or the -- how you state it?

 48 19 A The -- yes. The EPA is the regulatory body for

 48 20 hearing protection.

 48 21 Q And they pass rules about how manufacturers of

 48 22 hearing protection devices should list the NRR for

 48 23 those products; correct?

 48 24 A Yes.

 48 25 Q And they require that all hearing protection

 49 1 devices carry an NRR?

 49 2 A They do.

 49 3 Q They require that it be measured using the ANSI

 49 4 1974 standard, if you would; correct?

 49 5 A Yes.

 49 6 Q And then they determine -- they instruct that

 49 7 the -- after the measurements are done under the

 49 8 ANSI standards, certain adjustments are to be made

 49 9 to arrive at the NRR calculation; correct?

 49 10 A Yes.

 49 11 Q And they do that by, among other things, 

reducing

 49 12 the mean or the average attenuation that's measured

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 8 of 116
Hamer, Jeffrey 10-7-2015 8

 49 13 with various people two standard deviations down in

 49 14 order to make sure that 98 percent of the

 49 15 population gets at least that level of protection

 49 16 from the device or more; correct?

 49 17 A That's the intent.

49:18 - 50:2 Hamer, Jeffrey 10-7-2015

 49 18 Q What -- why -- you say that's the intent. Is there

 49 19 a qualification, like it doesn't always work, or

 49 20 you're just saying that's the intent?

 49 21 A The -- that -- the NRR is an ideal reduction.

 49 22 Q Okay. I understand. It's not always attained?

 49 23 A Correct.

 49 24 Q And in fact, I think there's a disclaimer on some

 49 25 products that says cut it in half?

 50 1 A There's some OSHA guidance that deals with 

derating

 50 2 the NRR to obtain real world attenuation.

Re: [49:18-50:2]

Plt Objection - improper 

counter designation

Re: [49:18-

50:2]

Plt Objection -

improper 

clarification 

testimony, 

outside the 

scope of PTO 

64

OVERRULED 

as to 49:18-

49:23 

SUSTAINED 

as to 49:24-

50:2

Re: [49:18-50:2]

FRE 402/403; 701/702; 

conjecture; foundation.

OVERRULED

76:17 - 76:22 Hamer, Jeffrey 10-7-2015

 76 17 Q A REAT, R-E-A-T, means a real -- what does 

REAT

 76 18 stand for?

 76 19 A Real-ear attenuation at threshold.

 76 20 Q And that's measurements that are done, for 

example,

 76 21 by Mr. Berger in his sound lab; correct?

 76 22 A They are the subjective test method used for 

NRR.

77:7 - 77:13 Hamer, Jeffrey 10-7-2015

 77 7 Q The REAT test is when you put people in a room 

and

 77 8 you present them with sound stimuli and ask them

 77 9 when they can hear them. And depending on

 77 10 differences in those levels, you can figure out how

 77 11 much attenuation they're getting from a hearing

 77 12 protection device; correct?

 77 13 A Correct.

Re: [77:7-77:13]

Improper counter designation.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 9 of 116
Hamer, Jeffrey 10-7-2015 9

82:20 - 83:4 Hamer, Jeffrey 10-7-2015

 82 20 Q Okay. And they're also asterisked actually. They

 82 21 have asterisks beside them as you can see. So in

 82 22 January of 2000, Aearo did a labeling test on the

 82 23 Combat Arms Version 2 of the open; correct?

 82 24 A Yes.

 82 25 Q And the measurement it got as an NRR is minus 

2,

 83 1 which it is rounded out to zero; is that correct?

 83 2 A I don't know that I would call that rounded.

 83 3 Q Okay.

 83 4 A It's rated as zero.

85:22 - 86:2 Hamer, Jeffrey 10-7-2015

 85 22 Q Sir, you've seen this document before,

 85 23 Exhibit 5205?

 85 24 A Not this entire document, no.

 85 25 Q You've seen the top five pages, the test result?

 86 1 A Probably. I'm not -- I don't recollect it

 86 2 specifically.

Re: [85:22-86:2]

Improper counter designation; 

foundation.

SUSTAINED

87:5 - 87:21 Hamer, Jeffrey 10-7-2015

 87 5 Q But don't you also use your own judgment and

 87 6 sometimes decide there's something wrong with the

 87 7 test and we should redo the test?

 87 8 A No.

 87 9 Q You never do that?

 87 10 A Not for a label test.

 87 11 Q Huh. What does that mean? What do you mean? 

You

 87 12 never stop a label test?

 87 13 A We do not.

 87 14 Q Is it against the policy of 3M to stop a label test

 87 15 because --

 87 16 A Not -- so we have stopped a label test in the

 87 17 past --

 87 18 Q Uh-huh.

 87 19 A -- I think. I believe we have. And then modified

 87 20 the product. We never -- never started a new test

 87 21 on the same product.

Re: [87:5-87:21]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [87:5-

87:24]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 10 of 116
Hamer, Jeffrey 10-7-2015 10

88:6 - 89:9 Hamer, Jeffrey 10-7-2015

 88 6 If the experimenters or Mr. Kieper or someone

 88 7 is running a labeling test and they start seeing,

 88 8 say, highly variable results, do they ever stop the

 88 9 test and redo it?

 88 10 A No, they do not -- not redo the same product

 88 11 with -- that -- we would modify the product

 88 12 before --

 88 13 Q So -- I'm sorry. I didn't mean to stop you. You

 88 14 would modify the product -- were you done?

 88 15 A Yes.

 88 16 Q And -- I'm sorry. I didn't mean to cut you off. I

 88 17 apologize.

 88 18 And what I think you're also saying is the

 88 19 only time we would redo a labeling test is if we

 88 20 made a change to a product or some aspect of it; is

 88 21 that correct?

 88 22 A Yes.

 88 23 Q Okay. And is it your practice if you either change

 88 24 a product or change the way it's being, for

 88 25 example, fitted, then you would do a retest?

 89 1 A Fitted?

 89 2 Q Yeah.

 89 3 A Explain fitted to me.

 89 4 Q How -- how the person's being instructed to put it

 89 5 in or --

 89 6 A No.

 89 7 Q No what?

 89 8 A We would not redo a label test due to new fitting

 89 9 instructions.

Re: [88:23-89:9]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [88:23-

89:9]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

105:18 - 105:23 Hamer, Jeffrey 10-7-2015

 105 18 Q If you were going to proceed with the product in

 105 19 its current configuration, even though you might

 105 20 later approve it, you would complete the test, the

 105 21 labeling test?

 105 22 A If we intended to introduce the product into

 105 23 market, we would complete the test.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 11 of 116
Hamer, Jeffrey 10-7-2015 11

139:11 - 139:14 Hamer, Jeffrey 10-7-2015

 139 11 Q Do you know that about a time in the past in 

about

 139 12 1990 when 3M was fined by the EPA on an NRR 

rating?

 139 13 A I am aware of that.

 139 14 Q What do you know about that?

Re: [139:10-139:14]

401/402/403, MIL 8, Baker MIL 

1

OVERRULED

139:18 - 139:21 Hamer, Jeffrey 10-7-2015

 139 18 A I know that we had a situation where we had 

classic

 139 19 earplug -- we had multiple full label tests of the

 139 20 classic earplug, and we were labeling the product

 139 21 with one of the higher values --

Re: [139:18-139:21]

401/402/403, MIL 8, Baker MIL 

1

OVERRULED

147:3 - 147:6 Hamer, Jeffrey 10-7-2015

 147 3 Q And in fact, on the package, the Peltor package, it

 147 4 does list the closed NRR or the green end NRR as

 147 5 22; correct?

 147 6 A Yes.

Re: [147:3-147:6]

401-403, MIL 21, Baker MIL 1 

OVERRULED

148:9 - 148:23 Hamer, Jeffrey 10-7-2015

 148 9 Q Okay. Now, the test number that they say you

 148 10 provided the NRR, the test label -- I may have lost

 148 11 it. Let's now go to page 89360, the listing of the

 148 12 various tests, the various versions. And you'll

 148 13 see that the labeling test that's listed on the

 148 14 chart for Combat Arms in the closed is test number

 148 15 213017 dated January 2000; correct?

 148 16 A Closed Version 2?

 148 17 Q Yes. In other words, the test ID is 213017. It's

 148 18 designated a labeling test; correct?

 148 19 A Yes.

 148 20 Q And it's dated here as January 2000?

 148 21 A Yes.

 148 22 Q And it produced a closed NRR of 22; correct?

 148 23 A Yes.

149:10 - 149:24 Hamer, Jeffrey 10-7-2015

 149 10 Q I'll ask it again. Are you aware of any defects in

 149 11 the design of Combat Arms Version 2?

 149 12 A I -- not that I recollect.

 149 13 Q Okay. Let's mark as the next in order a 

Re: [149:10-149:24]

701, 702, 403 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 12 of 116
Hamer, Jeffrey 10-7-2015 12

document

 149 14 bearing Bates numbers 3M00116386.

 149 15 Sir, this document is -- oh. Forgive me. I

 149 16 was trying to talk while the reporter was going to

 149 17 mark the exhibit.

 149 18 (Exhibit 5211 was marked for identification.)

 149 19 Q Sir, this Exhibit 30- -- 5211, do you recognize it?

 149 20 A No.

 149 21 Q It's entitled, How Folding the Flanges Back 

Affects

 149 22 REAT Results of the Ultrafit Earplug of the Combat

 149 23 Arms Earplug. Have you ever seen this before?

 149 24 A Not that I recollect.

150:12 - 150:14 Hamer, Jeffrey 10-7-2015

 150 12 Q And it says, Berger and Kieper, 2000, how 

folding

 150 13 the flanges back affects REAT results of the

 150 14 Ultrafit earplug end of the Combat Arms plug.

Re: [150:12-150:14]

401/402/403 (this is an attorney 

testifying)

OVERRULED

151:5 - 151:10 Hamer, Jeffrey 10-7-2015

 151 5 Q And then it goes on, quote, The purpose of this

 151 6 report is to document that the current length of

 151 7 the Ultrafit earplug end of the Combat Arms is too

 151 8 short for proper insertion and how changing the

 151 9 fitting technique affected the results of the real

 151 10 ear test of this plug.

Re: [151:6-151:10]

401/402 (this is a question only 

w/ no answer)

OVERRULED

152:1 - 154:17 Hamer, Jeffrey 10-7-2015

 152 1 Do you agree that the length -- do you agree

 152 2 that the length of the Ultrafit earplug end of the

 152 3 Combat Arms in Version 2 is too short for proper

 152 4 insertion?

 152 5 A I have not read this document so I have no 

opinion.

 152 6 Q Well, let's look at the document some more and 

then

 152 7 we'll see what you know and what you remember 

and

 152 8 what you maybe didn't know. I don't know. Device

 152 9 tested -- the document continues, Device tested.

 152 10 The Combat Arms plug consists of two Ultrafit-type

Re: [152:1-155:15]

701, 702, 403

Re: [154:13-154:19]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 13 of 116
Hamer, Jeffrey 10-7-2015 13

 152 11 earplug tips joined together with a hard plastic

 152 12 stem. The two plugs were tested independently

 152 13 because they afford different levels of noise

 152 14 reduction. The level dependent plug is yellow and

 152 15 has a channel through the plug in which a filter

 152 16 has been placed. The solid plug end is green, and

 152 17 it was this plug which was evaluated in two

 152 18 separate REAT tests, 213015 and 213017. This 

plug

 152 19 is the linear earplug end of the Combat Arms plug.

 152 20 Do you see that?

 152 21 A Yes.

 152 22 Q And I'll continue. Both -- under test procedure,

 152 23 it says, Both tests followed the 19- -- the

 152 24 S3.19-1974 experimenter fit protocol. So the plugs

 152 25 were tested three times each on subjects from the

 153 1 E-A-RCAL Laboratory test panel. After each fitting

 153 2 by experimenter, prior to the experimenter leaving

 153 3 the test chamber, a fitting noise was presented and

 153 4 the subject was allowed to adjust the plugs for

 153 5 maximum noise reduction if she/he deemed it

 153 6 necessary. That's consistent with your

 153 7 understanding of the procedure at the lab; right?

 153 8 A Correct.

 153 9 Q And it goes on. And it talks now about test 

21305.

 153 10 And it states, quote, For test 213015, the plugs

 153 11 were fit according to the standard plugs fitting

 153 12 instructions with no modifications. Because the

 153 13 stem of the green solid end of the plug is so

 153 14 short, it was difficult for the experimenter to

 153 15 insert the plug deeply into some subjects' ear

 153 16 canal, especially those subjects with medium and

 153 17 larger ear canals. Additionally, the geometry of

 153 18 the ear canal opening sometimes prevented the deep

 153 19 plug insertion required for maximum attenuation

 153 20 values. Do you see that?

 153 21 A Yes.

 153 22 Q And then it continues, quote, When the solid 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 14 of 116
Hamer, Jeffrey 10-7-2015 14

plug

 153 23 was fitted during the first test, paren, -015

 153 24 closed paren, the basal edge of the third flange of

 153 25 the yellow level dependent plug sometimes pressed

 154 1 against the subject's ear canal opening and folded

 154 2 up. When the inward pressure of the plug was

 154 3 released, the yellow plug's flanges tended to

 154 4 return to their original shape, and this sometimes

 154 5 loosened the plug, often impermissibly to

 154 6 imperceptibly to the subject. Do you see that?

 154 7 A Yes.

 154 8 Q Do you understand what's being described there?

 154 9 A I think so.

 154 10 Q What they're saying is when you stick the yellow

 154 11 end of that plug in your ear, in some cases -- I'm

 154 12 sorry.

 154 13 What they're saying is when you stick the

 154 14 green end of the plug into your ear, in some cases

 154 15 the flange from the yellow end interacts with the

 154 16 ear canal and ends up pulling the plug out;

 154 17 correct?

154:19 - 155:15 Hamer, Jeffrey 10-7-2015

 154 19 A Yes.

 154 20 Q So would you hold up the plug for the camera? 

I'm

 154 21 going to ask you to just do something. And maybe

 154 22 the photographer can zoom in.

 154 23 MR. BARZA: Andy, can you do that?

 154 24 Q I'd just like -- now, so you would insert the green

 154 25 end in your ear. You understand that's what's

 155 1 being described; right?

 155 2 A Uh-huh.

 155 3 Q And then the yellow end, that base, it's getting

 155 4 pushed back. If you could, just use your fingers

 155 5 to show that by somebody's ear canal, the yellow

 155 6 being pulled back. No. Don't do it all the way.

 155 7 And then what happens is when the person

 155 8 releases it, that yellow end was going back to its

 155 9 original position and pulling the plug out at least

Re: [152:1-155:15]

701, 702, 403

Re: [154:13-154:19]

602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 15 of 116
Hamer, Jeffrey 10-7-2015 15

 155 10 in some cases; right?

 155 11 A I believe that's what this says, yes.

 155 12 Q Okay. Were you aware of this issue?

 155 13 A No.

 155 14 Q You never knew about this?

 155 15 A I did not.

155:16 - 155:20 Hamer, Jeffrey 10-7-2015

 155 16 Q Okay.

 155 17 A I was not involved in the design of this product.

 155 18 Q Okay. Would Mr. Myers have been in charge at 

the

 155 19 time?

 155 20 A I do not know. I wasn't with the company.

Re: [155:16-155:20]

Improper counter designation; 

FRE 402/403; speculation; 

foundation.

SUSTAINED

162:18 - 162:23 Hamer, Jeffrey 10-7-2015

 162 18 Q Well, and also the memorandum that 

accompanies it

 162 19 that was written by Kieper and Berger says, For

 162 20 test 203017, the yellow flanges, the

 162 21 level-dependent end of the plug, were folded back

 162 22 prior to the green solid plug being inserted in the

 162 23 subject's ears. Do you see that?

Re: [162:18-162:23]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [162:3-

163:3]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

164:5 - 164:12 Hamer, Jeffrey 10-7-2015

 164 5 Q So really, the labeling test that 3M's using for

 164 6 Combat Arms Version 2 for the green end is not the

 164 7 appropriate test; isn't that true?

 164 8 A It appears so.

 164 9 Q Do you know why there is no mention on Exhibit 

5201

 164 10 of -- on page Bates number 89360, the test

 164 11 summaries, of test 213015?

 164 12 A I do not.

Re: [164:5-164:8]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [163:19-

164:8]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

164:20 - 165:5 Hamer, Jeffrey 10-7-2015

 164 20 Q I'll ask it differently. If I was to insert the

 164 21 yellow end instead of the green end, wouldn't I

 164 22 still have the same possibility that the flange on

 164 23 the green end might interfere with the ear canal

 164 24 and pull the plug out a little bit?

Re: [164:20-165:5]

701, 702, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 16 of 116
Hamer, Jeffrey 10-7-2015 16

 164 25 A It's possible.

 165 1 Q And wouldn't that reduce the NRRs you're going 

to

 165 2 get when you test the open-ended version of Combat

 165 3 Arms 2 if the plug was pulled out imperceptibly

 165 4 like that?

 165 5 A Potentially.

165:6 - 165:11 Hamer, Jeffrey 10-7-2015

 165 6 Q And do you know why 3M redid the test on the 

closed

 165 7 end to fold back the flange and get a higher NRR,

 165 8 but it did not roll back the flange when it tested

 165 9 the same plug in the open mode?

 165 10 A I do not know that they didn't. And I wasn't 

there

 165 11 at the time.

Re: [165:6-165:11]

Plt Objection - improper 

counter designation

Re: [165:6-

165:11]

Plt Objection -

improper 

clarification 

testimony, 

outside the 

scope of PTO 

64

SUSTAINED

Re: [165:6-165:11]

FRE 402/403; 602/701/702; 

foundation; speculation.

OVERRULED

165:20 - 166:12 Hamer, Jeffrey 10-7-2015

 165 20 Q Okay. Would it be fair to say that if they did not

 165 21 test the open mode with the flange rolled back, but

 165 22 they did test the closed end with the flange rolled

 165 23 back, that that would be improper because the two

 165 24 tests were using the product in two different ways?

 165 25 A My opinion is that testing the product with the

 166 1 flange rolled back is improper.

 166 2 Q Now, I realize you -- is this the first time you

 166 3 knew about this whole flange thing?

 166 4 A Yes.

 166 5 Q Did 3M ever to your knowledge change the 

design of

 166 6 Combat Arms Version 2 because of this issue?

 166 7 A I don't have any knowledge of that.

 166 8 Q I understand. Do you -- would you agree with me

 166 9 that this is a potential defect in the design of

 166 10 the plug because a soldier may be using it, not

 166 11 being aware of this flange issue, and the plug

 166 12 comes out when they're using it in the green?

Re: [165:20-166:1]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [165:20-

166:1]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

Re: [166:2-166:25]

602, 701, 702, 403

OVERRULED

166:14 - 166:18 Hamer, Jeffrey 10-7-2015

 166 14 A I'm sorry. Once more.

Re: [166:2-166:25]

602, 701, 702, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 17 of 116
Hamer, Jeffrey 10-7-2015 17

 166 15 Q Do you realize that this design of the Combat

 166 16 Arms 2 to have two separate plugs is defective

 166 17 because the second end of the plug can pull the

 166 18 plug out when the first end is inserted?

166:20 - 166:23 Hamer, Jeffrey 10-7-2015

 166 20 A I'm not sure how to -- how I would characterize 

it

 166 21 as defective or not without doing more research.

 166 22 Q Do you agree it appears to raise an issue about a

 166 23 problem in the design of the plug?

Re: [166:2-166:25]

602, 701, 702, 403

OVERRULED

166:25 - 166:25 Hamer, Jeffrey 10-7-2015

 166 25 A It's certainly worth investigating further.

Re: [166:2-166:25]

602, 701, 702, 403

OVERRULED

167:3 - 167:17 Hamer, Jeffrey 10-7-2015

 167 3 The Combat Arms 2 has been widely used in the

 167 4 theater of war in Iraq and Afghanistan; true?

 167 5 A I do not know.

 167 6 Q Do you know anything about its -- is it being sold

 167 7 to the military today?

 167 8 A I don't think directly.

 167 9 Q Is it being sold through New Dynamics to the

 167 10 military today?

 167 11 A I don't know who our distributors are.

 167 12 Q You're not aware of that plug being discontinued;

 167 13 correct?

 167 14 A No. I think it's in -- it's being manufactured.

 167 15 Q Yeah. Don't you think that if, in fact, this

 167 16 problem occurred as reflected in Exhibit 2511, that

 167 17 somebody should tell the Army about it?

Re: [167:6-167:14]

MIL 16

Re: [167:15-168:3]

602, 701, 702

OVERRULED

167:19 - 168:3 Hamer, Jeffrey 10-7-2015

 167 19 A One more time.

 167 20 Q Don't you think that if 3M knew that its Combat

 167 21 Arms Version 2 had a structure such that the end of

 167 22 the Combat Arms Version 2 plug that was not being

 167 23 inserted in the ear caused the inserted end to come

 167 24 out, that they ought to mention that to the Army?

 167 25 A I don't know that that's the current design of the

 168 1 product so it's difficult. I don't -- I don't -- I

 168 2 don't have the information that I need to make that

 168 3 decision.

Re: [167:15-168:3]

602, 701, 702

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 18 of 116
Hamer, Jeffrey 10-7-2015 18

168:8 - 168:11 Hamer, Jeffrey 10-7-2015

 168 8 Q I'll ask you a different question. If you were

 168 9 aware of this in 2000 and you were in charge of the

 168 10 development of the product at the time, what would

 168 11 you have done?

Re: [168:8-168:19]

701, 702, 403

OVERRULED

168:13 - 169:3 Hamer, Jeffrey 10-7-2015

 168 13 A Done further investigation.

 168 14 Q Testing?

 168 15 A Yes.

 168 16 Q Would you --

 168 17 A Testing and product design considerations.

 168 18 Q You might have redesigned the product?

 168 19 A May have.

 168 20 Q Okay. My understanding is that hundreds of

 168 21 thousands of troops have worn the Combat Arms

 168 22 Version 2. I'm not asking you to agree or

 168 23 disagree. I'm giving you my -- do you realize that

 168 24 if that's the case and if the flange roll back --

 168 25 if the flange of the non-inserted end can pull the

 169 1 plug out, that the soldiers could have been exposed

 169 2 to more noise and the -- using the green end of the

 169 3 plug than they thought they were getting?

Re: [168:8-168:19]

701, 702, 403

Re: [168:20-169:5]

MIL 10, Baker MIL 1, 403

OVERRULED

169:5 - 169:5 Hamer, Jeffrey 10-7-2015

 169 5 A Potentially.

Re: [168:20-169:5]

MIL 10, Baker MIL 1, 403

OVERRULED

169:15 - 169:25 Hamer, Jeffrey 10-7-2015

 169 15 Q And if you had a design that caused it to 

sometimes

 169 16 not fit, that could also cause hearing damage;

 169 17 right?

 169 18 A Potentially.

 169 19 Q Yeah. Do you agree with me that -- well, I want 

to

 169 20 ask you, assuming this roll-back of the flange

 169 21 issue that we've looked at, that the flange or the

 169 22 uninserted end can possibly cause the plug to come

 169 23 loose. That would also affect the testing of the

 169 24 yellow end, right, the open end, or it could?

 169 25 A Potentially.

Re: [169:15-169:25]

701, 702, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 19 of 116
Hamer, Jeffrey 10-7-2015 19

172:1 - 172:6 Hamer, Jeffrey 10-7-2015

 172 1 Q So if 3M did a test on the Combat Arms Version 

2

 172 2 closed end intending it to be a labeling test on

 172 3 January 25, 2000, this test number 213015, and if

 172 4 it produced an NRR of 10.9, under the policies

 172 5 you've been stating here, shouldn't 3M have put

 172 6 that number on its packaging?

Re: [172:1-172:20]

602, 403

OVERRULED

172:10 - 172:20 Hamer, Jeffrey 10-7-2015

 172 10 A This is -- test number 213015 does not appear to 

be

 172 11 a complete label test.

 172 12 Q Well, why not?

 172 13 A It's only got eight subjects.

 172 14 Q Well, isn't that because they stopped it when they

 172 15 saw the results?

 172 16 A I can't answer that. I --

 172 17 Q And --

 172 18 A -- wasn't there.

 172 19 Q And doesn't that show that actually when 3M 

gets

 172 20 bad results on a test, they stop it?

Re: [172:1-172:20]

602, 403

Re: [172:19-172:20]

that is an attorney's question only 

w/o answer. 401-403

SUSTAINED

with respect to 

172:19-20. 

Otherwise 

OVERRULED.

173:8 - 173:16 Hamer, Jeffrey 10-7-2015

 173 8 Q There are only eight subjects in test number 

213015

 173 9 because they stopped the test; isn't that true?

 173 10 A Apparently. I wasn't there.

 173 11 Q And isn't it your testimony that you're not

 173 12 supposed to stop a labeling test in the middle just

 173 13 because you're getting low numbers or variability?

 173 14 A Yes.

 173 15 Q Was it improper of them to stop the test in your

 173 16 opinion?

Re: [173:8-173:14]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [173:8-

173:14]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

173:18 - 173:20 Hamer, Jeffrey 10-7-2015

 173 18 A I don't know why they did it, so -- there's reasons

 173 19 that they -- it could have been during design and

 173 20 they decided to change something in the product.

173:21 - 174:3 Hamer, Jeffrey 10-7-2015

 173 21 Q Well, it was during the same day that they were

Re: [173:25-174:3]

Improper counter designation; 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 20 of 116
Hamer, Jeffrey 10-7-2015 20

 173 22 testing the other end of the plug for labeling;

 173 23 right?

 173 24 A Yes.

 173 25 Q Okay.

 174 1 A Doesn't mean that they didn't change the design.

 174 2 Q Are you aware of any change in the design?

 174 3 A I wasn't there.

FRE 402/403; 701/702; 

nonresponsive answer; 

foundation; conjecture.

174:2 - 174:13 Hamer, Jeffrey 10-7-2015

 174 2 Q Are you aware of any change in the design?

 174 3 A I wasn't there.

 174 4 Q I didn't ask you that. Are you aware of any 

change

 174 5 in the design?

 174 6 A No.

 174 7 Q Okay. And again, if test number 213015 was a

 174 8 labeling test, then shouldn't they have completed

 174 9 the test and listed the NRR on the packaging?

 174 10 A I do not know.

 174 11 Q Wouldn't it be a big problem for 3M if it had to

 174 12 list the NRR on the closed end of its Combat Arms

 174 13 Version 2 as being 11 rather than 22?

Re: [174:7-174:13]

Def Objection - Relevance 

(401, 402); Prejudice (403)

Re: [174:7-

174:13]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

174:15 - 175:1 Hamer, Jeffrey 10-7-2015

 174 15 A I would think that would be insufficient.

 174 16 Q Based on what I've shown you today, are you 

going

 174 17 to go back and do anything about Combat Arms

 174 18 Version 2?

 174 19 A I'm sure I will consult with legal counsel and

 174 20 we'll talk about that, yes.

 174 21 Q Are you going to tell the Army about this?

 174 22 A Same answer.

 174 23 Q Do you think you should tell the Army about it?

 174 24 A Same answer.

 174 25 Q What's the answer?

 175 1 A I will consult with legal counsel and discuss.

Re: [174:16-175:1]

401-403, 407, Baker MIL 1

OVERRULED

175:2 - 175:8 Hamer, Jeffrey 10-7-2015

 175 2 Q Yeah, but I'm asking you sitting here now as the

 175 3 manager of the lab, do you think you ought to tell

 175 4 the Army about this information on this product

Re: [175:2-175:8]

Improper counter designation; 

FRE 402/403; 701/702; 802; 

foundation; conjecture.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 21 of 116
Hamer, Jeffrey 10-7-2015 21

 175 5 it's been using?

 175 6 A Not -- not without understanding specifically 

what

 175 7 all the circumstances were and which data is which

 175 8 and understanding what all the circumstances were.

175:9 - 175:12 Hamer, Jeffrey 10-7-2015

 175 9 Q You know that they were testing the plug and that

 175 10 because of its structure and design, in some cases

 175 11 the fit was being pulled out by the other end of

 175 12 the plug from the end being inserted; right?

175:15 - 175:18 Hamer, Jeffrey 10-7-2015

 175 15 A In this design, yes.

 175 16 Q And don't you think that you should stop selling 

it

 175 17 until you figure out whether or not this is a

 175 18 problem?

Re: [175:16-176:7]

401-403, 602, 407, Baker MIL 1

OVERRULED

175:16 - 175:18 Hamer, Jeffrey 10-7-2015

 175 16 Q And don't you think that you should stop selling 

it

 175 17 until you figure out whether or not this is a

 175 18 problem?

175:20 - 175:21 Hamer, Jeffrey 10-7-2015

 175 20 A I do not know that this is the design that we have

 175 21 on the market.

175:20 - 176:5 Hamer, Jeffrey 10-7-2015

 175 20 A I do not know that this is the design that we have

 175 21 on the market.

 175 22 Q I'll rep- -- I'm unaware of any changes. I can

 175 23 tell you that much. Assuming there have -- don't

 175 24 you think in 2000 when 3M found this problem with

 175 25 this plug pulling out, they should have stopped and

 176 1 figured out what it was and stopped selling it

 176 2 until they solved it?

 176 3 A I don't know that they didn't.

 176 4 Q If they didn't, don't you think that would have

 176 5 been wrong?

Re: [175:24-176:7]

Def Objection - Relevance 

(401, 402); Prejudice (403); 

foundation (602)

Re: [175:24-

176:7]

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

Re: [175:16-176:7]

401-403, 602, 407, Baker MIL 1

OVERRULED

176:7 - 176:7 Hamer, Jeffrey 10-7-2015

 176 7 A If they did not, yes.

Re: [175:24-176:7]

Def Objection - Relevance 

Re: [175:24-

176:7]

Re: [175:16-176:7]

401-403, 602, 407, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 22 of 116
Hamer, Jeffrey 10-7-2015 22

(401, 402); Prejudice (403); 

foundation (602)

Def Objection -

Relevance 

(401, 402); 

Prejudice 

(403); 

foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 23 of 116
McNamara, Timothy 3-11-2020 

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 24 of 116
McNamara, Timothy 3-11-2020 2

Designation Preserved 

Objections

Previous Rulings New Objections Rulings

8:20 - 8:23 McNamara, Timothy 3-11-2020

 8 20 Q. Can you please state your name, sir?

 8 21 A. Tim McNamara.

 8 22 Q. And, Mr. McNamara, where are you from?

 8 23 A. Indianapolis.

9:7 - 10:3 McNamara, Timothy 3-11-2020

 9 7 Q. Okay. Where do you work?

 9 8 A. Where do I work now?

 9 9 Q. Yes.

 9 10 A. I'm retired.

 9 11 Q. When did you retire?

 9 12 A. May -- in May, June timeframe.

 9 13 Q. Of 2019?

 9 14 A. Yes.

 9 15 Q. Okay. And where did you retire from?

 9 16 A. Safariland.

 9 17 Q. What is Safariland?

 9 18 A. They make personal protect -- or not --

 9 19 they make duty gear for bulletproof vests, duty gear

 9 20 for police officers, helmets, headsets. I was with

 9 21 the TCI division of -- we make electric -- electronic

 9 22 headsets.

 9 23 Q. Okay. Were you in sales?

 9 24 A. Yes.

 10 1 Q. Have you been in sales most of your adult

 10 2 life?

 10 3 A. Yes.

Re: [9:7-10:3]

improper counter; 

402

SUSTAINED

10:24 - 11:3 McNamara, Timothy 3-11-2020

 10 24 Q. Do you own stock in 3M?

 11 1 A. No.

 11 2 Q. Did you own any stock in Aearo?

 11 3 A. No.

Re: [10:24-11:3]

improper counter

SUSTAINED

11:10 - 11:13 McNamara, Timothy 3-11-2020

 11 10 Q. Okay. How did you get paid when you were

 11 11 with Aearo?

 11 12 A. It was salary plus a bonus at the end of

 11 13 the year.

Re: [11:10-11:13]

Relevance, Baker 

MIL No. 1, (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 25 of 116
McNamara, Timothy 3-11-2020 3

11:14 - 11:15 McNamara, Timothy 3-11-2020

 11 14 Q. And what was the bonus calculated on?

 11 15 A. EBITDA of the company.

11:24 - 12:1 McNamara, Timothy 3-11-2020

 11 24 Okay. So the better the company did, the

 12 1 better you did, is that right?

Re: [11:24-12:5]

Relevance, Baker 

MIL No. 1, (403)

OVERRULED

12:5 - 12:5 McNamara, Timothy 3-11-2020

 12 5 A. That's correct, yeah.

Re: [11:24-12:5]

Relevance, Baker 

MIL No. 1, (403)

OVERRULED

12:7 - 12:18 McNamara, Timothy 3-11-2020

 12 7 And -- and you were with Aearo for

 12 8 28 years, is that right?

 12 9 A. Yes.

 12 10 Q. And -- and for all 28 years, were you in

 12 11 sales in some form or fashion?

 12 12 A. Yes.

 12 13 Q. And is it -- is it accurate that you left

 12 14 Aearo around 2008?

 12 15 A. Yes.

 12 16 Q. Now, when you left, had Aearo been

 12 17 purchased by 3M?

 12 18 A. Yes.

18:16 - 18:20 McNamara, Timothy 3-11-2020

 18 16 Q. Okay. Are you being compensated for any

 18 17 of your time to -- to get ready for the deposition and

 18 18 testify?

 18 19 A. Yes.

 18 20 Q. Okay. How are you being paid?

18:23 - 18:23 McNamara, Timothy 3-11-2020

 18 23 A. By the -- by the hour.

26:13 - 26:16 McNamara, Timothy 3-11-2020

 26 13 Q. One of the products that you sold when you

 26 14 were with Aearo was the Combat Arms Earplug, wasn't

 26 15 it?

 26 16 A. Yes.

27:2 - 27:4 McNamara, Timothy 3-11-2020

 27 2 Who was your customer?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 26 of 116
McNamara, Timothy 3-11-2020 4

 27 3 A. The various units on -- on post and the

 27 4 Defense Supply Center.

27:9 - 27:15 McNamara, Timothy 3-11-2020

 27 9 Q. Okay. So you in -- in your job as a

 27 10 salesperson and a sales manager at one point for Aearo

 27 11 would go from base to base?

 27 12 A. That is correct.

 27 13 Q. And is -- was that just in the

 27 14 United States or worldwide?

 27 15 A. Just the United States.

27:16 - 28:8 McNamara, Timothy 3-11-2020

 27 16 Q. And you would contact base commanders or

 27 17 how did that work?

 27 18 A. I -- generally, it would be each, you

 27 19 know, battalions or brigades or, you know, structures

 27 20 like that.

 27 21 Q. Okay. And -- and when you went to -- is

 27 22 it fair to say that you visited -- that you visited in

 27 23 your course of your career most, if not all, of the

 27 24 bases in the US?

 28 1 A. A lot of them, yeah.

 28 2 Q. Okay. How many, just ballpark?

 28 3 A. 20 or 30.

 28 4 Q. Okay. And how often would you do that?

 28 5 A. Generally, every week.

 28 6 Q. Every week you'd be on the road to some

 28 7 base talking to some base commander or somebody else?

 28 8 A. Yes.

28:9 - 28:12 McNamara, Timothy 3-11-2020

 28 9 Q. And did you also talk to the soldiers

 28 10 sometimes at the bases?

 28 11 A. Not really.

 28 12 Q. What does "not really" mean?

28:13 - 28:22 McNamara, Timothy 3-11-2020

 28 13 A. My -- again, my customer was, you know,

 28 14 the various battalions, you know, the sergeant majors.

 28 15 I was with the sergeant majors, the majors, the

 28 16 colonels and -- and so forth, not -- not specifically

 28 17 the soldiers.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 27 of 116
McNamara, Timothy 3-11-2020 5

 28 18 Q. More of the management?

 28 19 A. Yes.

 28 20 Q. Okay. Would you sometimes make

 28 21 presentations to the management?

 28 22 A. Yes.

28:23 - 29:1 McNamara, Timothy 3-11-2020

 28 23 Q. Would you sometimes have PowerPoint

 28 24 presentations?

 29 1 A. Sometimes, but very rare.

29:2 - 29:12 McNamara, Timothy 3-11-2020

 29 2 Q. Okay. You certainly brought literature

 29 3 with you?

 29 4 A. Oh, yeah.

 29 5 Q. And the sales sheets?

 29 6 A. Yes.

 29 7 Q. Brochures?

 29 8 A. Yes.

 29 9 Q. Things like that?

 29 10 A. Yes.

 29 11 Q. Did you, yourself, ever do any training on

 29 12 the bases?

Re: [29:11-29:12]

Def Objection -

Vague (611, 403); 

3M MIL No. 15

Re: [29:11-29:12]

Def Objection -

Vague (611, 403); 

3M MIL No. 15

OVERRULED

29:15 - 29:15 McNamara, Timothy 3-11-2020

 29 15 A. Sometimes, yes.

Re: [29:15-29:15]

Def Objection -

Vague (611, 403); 

3M MIL No. 15

Re: [29:15-29:15]

Def Objection -

Vague (611, 403); 

3M MIL No. 15

OVERRULED

29:21 - 29:24 McNamara, Timothy 3-11-2020

 29 21 Q. That would just -- would it just be

 29 22 impromptu or ad hoc, you got there and somebody said,

 29 23 Hey, can you train us on this or that?

 29 24 A. Show the product, yeah.

Re: [29:17-30:17]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

Re: [29:17-30:17]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

30:2 - 30:10 McNamara, Timothy 3-11-2020

 30 2 And -- and was it -- is it true that when

 30 3 you were doing the training it would be to the

 30 4 management people or would sometimes -- sometimes

 30 5 the -- the soldiers be there?

 30 6 A. The management people, but sometimes the

Re: [29:17-30:17]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

Re: [29:17-30:17]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 28 of 116
McNamara, Timothy 3-11-2020 6

 30 7 soldiers would be in the room.

 30 8 Q. Okay. And -- and sometimes this training

 30 9 would involve the Combat Arms Version 2, correct?

 30 10 A. Sometimes.

(403)

OVERRULED

30:12 - 30:19 McNamara, Timothy 3-11-2020

 30 12 And this training, in looking at some of

 30 13 the documents, some of your documents both from the

 30 14 file that 3M gave us and the documents we subpoenaed,

 30 15 you -- you -- you did have materials you would use to

 30 16 train people on the bases?

 30 17 A. Correct, yeah.

 30 18 Q. Now, these materials that you got to train

 30 19 people on the bases, where did it come from?

Re: [29:17-30:17]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

Re: [30:18-30:19]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [29:17-30:17]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

Re: [30:18-30:19]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

30:22 - 30:22 McNamara, Timothy 3-11-2020

 30 22 A. It would come from the company.

Re: [30:22-30:22]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [30:22-30:22]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

31:11 - 31:12 McNamara, Timothy 3-11-2020

 31 11 Q. Okay. Okay. Did your literature come

 31 12 from the company's technical group?

Re: [31:11-31:12]

Def Objection -

Foundation (602)

Re: [31:11-31:12]

Def Objection -

Foundation (602)

OVERRULED

31:15 - 31:15 McNamara, Timothy 3-11-2020

 31 15 A. Sometimes.

Re: [31:15-31:15]

Def Objection -

Foundation (602)

Re: [31:15-31:15]

Def Objection -

Foundation (602)

OVERRULED

31:17 - 31:17 McNamara, Timothy 3-11-2020

 31 17 Q. Okay. Where else would it come from?

Re: [31:17-31:17]

Def Objection -

Foundation (602)

Re: [31:17-31:17]

Def Objection -

Foundation (602)

OVERRULED

31:20 - 31:20 McNamara, Timothy 3-11-2020

 31 20 A. Marketing department or the literature

Re: [31:20-31:21]

Def Objection -

Foundation (602)

Re: [31:20-31:21]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 29 of 116
McNamara, Timothy 3-11-2020 7

31:20 - 31:21 McNamara, Timothy 3-11-2020

 31 20 A. Marketing department or the literature

 31 21 department.

Re: [31:20-31:21]

Def Objection -

Foundation (602)

Re: [31:20-31:21]

Def Objection -

Foundation (602)

OVERRULED

31:23 - 32:3 McNamara, Timothy 3-11-2020

 31 23 Q. Okay. This is probably a good time to --

 31 24 to ask. You -- you -- as I understand it, your job

 32 1 for most of your career at Aearo was -- was that you

 32 2 were the -- you were the sales guy to the -- to the

 32 3 military, is that right?

Re: [31:23-32:3]

Def Objection -

Compound; 

Misstates (611, 

403)

Re: [31:23-32:3]

Def Objection -

Compound; 

Misstates (611, 

403)

OVERRULED

32:6 - 32:17 McNamara, Timothy 3-11-2020

 32 6 A. Yeah -- not necessarily all of those

 32 7 28 years, but, yeah, the last -- you know, since the

 32 8 last -- you know, 1998 and on, I guess.

 32 9 BY MR. TRACEY:

 32 10 Q. '98 to 2008, that last decade you were

 32 11 there?

 32 12 A. Yeah.

 32 13 Q. Your job duties included, among other

 32 14 things, this isn't exclusive, but certainly included

 32 15 in large part representing your company in their sales

 32 16 interactions with the military?

 32 17 A. Yes.

Re: [32:6-32:8]

Def Objection -

Compound; 

Misstates (611, 

403)

Re: [32:6-32:8]

Def Objection -

Compound; 

Misstates (611, 

403)

OVERRULED

33:7 - 33:10 McNamara, Timothy 3-11-2020

 33 7 Q. Yeah. And who did you report to?

 33 8 A. A variety of managers. There is Marty

 33 9 Salon, Mike Cimino, and towards the end there, it was

 33 10 Frank Gavin.

34:14 - 34:23 McNamara, Timothy 3-11-2020

 34 14 MR. TRACEY: Yeah, it's Exhibit 1.

 34 15 BY MR. TRACEY:

 34 16 Q. This is a press release from the

 34 17 Department of Justice, Mr. McNara -- Mc -- McNamara,

 34 18 dated July 26th, 2018, and the headline says:

 34 19 "3M Company Agrees to Pay 9.1 million to

 34 20 Resolve Allegations it Supplied the United States with

 34 21 Defective Dual-Ended Combat Arms Earplugs."

 34 22 Do you see that?

 34 23 A. Yes.

Re: [34:14-34:23]

Relevance, 

Violation of Prior 

MIL Order, Baker 

MIL No. 1 (403)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 30 of 116
McNamara, Timothy 3-11-2020 8

36:6 - 36:7 McNamara, Timothy 3-11-2020

 36 6 Q. Now, when you first heard about this, what

 36 7 went through your mind?

EXCLUDED

36:10 - 36:12 McNamara, Timothy 3-11-2020

 36 10 A. Nothing.

 36 11 BY MR. TRACEY:

 36 12 Q. Nothing?

EXCLUDED

36:13 - 36:13 McNamara, Timothy 3-11-2020

 36 13 A. I -- yeah. We made those earplugs.

EXCLUDED

39:11 - 39:13 McNamara, Timothy 3-11-2020

 39 11 Q. You were the primary person responsible

 39 12 for the sale of this product for about a decade,

 39 13 right?

39:16 - 39:23 McNamara, Timothy 3-11-2020

 39 16 A. Pretty much.

 39 17 Q. Who else would you have given primary

 39 18 responsibility to?

 39 19 A. We have other divisions. And one's a

 39 20 consumer channel -- consumer markets --

 39 21 Q. Sure.

 39 22 A. -- you know, and other -- but it mostly

 39 23 went through my division.

41:13 - 41:16 McNamara, Timothy 3-11-2020

 41 13 Q. Were you concerned that maybe you had

 41 14 spent a decade misrepresenting the characteristics of

 41 15 the Combat Arms Version 2?

 41 16 A. No.

Re: [41:13-41:16]

Relevance, 

Violation of Prior 

MIL Order, Baker 

MIL No. 1 (403)

OVERRULED

41:24 - 42:3 McNamara, Timothy 3-11-2020

 41 24 Q. As we sit here today, are you concerned

 42 1 that maybe your company wasn't honest in the

 42 2 information they gave you to furnish to the American

 42 3 military?

Re: [41:24-42:6]

Relevance, 

Violation of Prior 

MIL Order, Baker 

MIL No. 1 (403)

OVERRULED

42:6 - 42:6 McNamara, Timothy 3-11-2020

 42 6 A. Not really.

Re: [41:24-42:6]

Relevance, 

Violation of Prior 

MIL Order, Baker 

MIL No. 1 (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 31 of 116
McNamara, Timothy 3-11-2020 9

44:1 - 44:18 McNamara, Timothy 3-11-2020

 44 1 (WHEREUPON, a certain document was

 44 2 marked Timothy McNamara Deposition

 44 3 Exhibit No. 2, for identification, as

 44 4 of 03/11/2020.)

 44 5 BY MR. TRACEY:

 44 6 Q. I have a copy of -- it looks like a resume

 44 7 that was produced -- your resume that was produced

 44 8 pursuant to a subpoena.

 44 9 MR. OLIVO: Exhibit 2.

 44 10 THE WITNESS: Thank you.

 44 11 BY MR. TRACEY:

 44 12 Q. And do you see that? This is your resume,

 44 13 right?

 44 14 A. It is.

 44 15 Q. And under Aearo Technologies, it says that

 44 16 from '96 to 2009 you were the senior sales manager,

 44 17 military division?

 44 18 A. Correct.

44:19 - 45:7 McNamara, Timothy 3-11-2020

 44 19 Q. And it says that you drove sales of air --

 44 20 eyewear, hearing protection and tactical

 44 21 communications headsets to the US military as well as

 44 22 federal, state, and local enforcement agencies through

 44 23 distributors, and maintained direct contact with

 44 24 product line directors to identify and present new

 45 1 product opportunities to all branches of the military.

 45 2 Is that right?

 45 3 A. Yes.

 45 4 Q. Is it -- is it a fair assessment that

 45 5 you -- you have been exclusively in sales your entire

 45 6 professional life?

 45 7 A. Yes.

45:8 - 45:22 McNamara, Timothy 3-11-2020

 45 8 Q. You are not an engineer?

 45 9 A. I'm not.

 45 10 Q. You don't have any technical training?

 45 11 A. I don't.

 45 12 Q. Okay. You've never designed earplugs?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 32 of 116
McNamara, Timothy 3-11-2020 10

 45 13 A. I have not.

 45 14 Q. You've never designed communication

 45 15 headsets?

 45 16 A. No.

 45 17 Q. Never designed eyewear, protective

 45 18 eyewear?

 45 19 A. No.

 45 20 Q. Is it also a fair assessment that you've

 45 21 spent your entire adult life in what we would call

 45 22 safety products?

46:1 - 46:5 McNamara, Timothy 3-11-2020

 46 1 A. Yes.

 46 2 BY MR. TRACEY:

 46 3 Q. That is, products you sell, for example,

 46 4 to the military that is -- the purpose of which is to

 46 5 keep people safer in some form or fashion?

46:8 - 46:10 McNamara, Timothy 3-11-2020

 46 8 Q. To protect them.

 46 9 A. Yes, if used properly.

 46 10 Q. Yeah, if used properly.

47:1 - 47:15 McNamara, Timothy 3-11-2020

 47 1 On the second page of your resume, under

 47 2 "Distributor Account Manager, '85 to '95," there is a

 47 3 bullet that says: "Trained the trainer with constant

 47 4 training with not only our distributors, but the end

 47 5 users as well."

 47 6 What does "trained the trainer" mean?

 47 7 A. You just train the key person at the

 47 8 distributor level so that they can continue to train

 47 9 their salespeople.

 47 10 Q. And you are training them on the various

 47 11 products?

 47 12 A. Correct.

 47 13 Q. Okay. Using materials furnished to you by

 47 14 your company?

 47 15 A. Correct.

47:16 - 47:20 McNamara, Timothy 3-11-2020

 47 16 Q. Oh, yeah, my brother is pointing out, it

 47 17 also says you trained the end user as well?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 33 of 116
McNamara, Timothy 3-11-2020 11

 47 18 A. Yes.

 47 19 Q. Okay. That would be the person using the

 47 20 product, for example, the soldier?

47:23 - 48:2 McNamara, Timothy 3-11-2020

 47 23 A. That was pretty much for, if you take a

 47 24 look at those dates, that was pretty much the -- at

 48 1 the factory level. I was also in the industrial

 48 2 division at that time.

48:4 - 48:8 McNamara, Timothy 3-11-2020

 48 4 Q. Okay. But I was just giving an example,

 48 5 but the end user is the person who actually is using

 48 6 the product, the eyewear, the ear protection, the

 48 7 communication headset?

 48 8 A. Correct, correct.

48:12 - 48:17 McNamara, Timothy 3-11-2020

 48 12 Q. Okay. How many times in your career do

 48 13 you think you have -- you have trained people on how

 48 14 to use one of your company's products?

 48 15 A. I don't know. Thousands.

 48 16 Q. Thousands.

 48 17 Who trained you how to use the products?

Re: [48:12-48:17]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

Re: [48:12-48:16]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

OVERRULED

Re: [48:16-48:17]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

OVERRULED

48:20 - 49:5 McNamara, Timothy 3-11-2020

 48 20 A. Who trained me would be the product line

 48 21 directors.

 48 22 BY MR. TRACEY:

 48 23 Q. Okay. So, for example, with Combat Arms,

 48 24 who -- Version 2, who is the -- who was the product

 49 1 line director?

 49 2 A. Brian Myers.

 49 3 Q. So Brian Myers would train you, the sales

 49 4 director, so that you in turn could train others?

 49 5 A. Correct.

Re: [48:20-48:21]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

Re: [49:3-49:5]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

Re: [48:20-48:21]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

OVERRULED

Re: [49:3-49:5]

Def Objection -

3M MIL No. 15; 

Compound (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 34 of 116
McNamara, Timothy 3-11-2020 12

49:6 - 49:7 McNamara, Timothy 3-11-2020

 49 6 Q. Do you know who train -- who trained --

 49 7 Brian Myers was in marketing, correct?

Re: [49:6-49:12]

602

OVERRULED

49:10 - 49:12 McNamara, Timothy 3-11-2020

 49 10 A. Product line director. He is in

 49 11 product -- product development or product line

 49 12 director.

Re: [49:6-49:12]

602

OVERRULED

49:21 - 49:24 McNamara, Timothy 3-11-2020

 49 21 A. I would -- I would say that was part -- as

 49 22 a product line director, you encounter marketing, you

 49 23 encounter development of the product, you manage that

 49 24 whole division.

Re: [49:21-49:24]

602

OVERRULED

50:2 - 50:11 McNamara, Timothy 3-11-2020

 50 2 Q. Okay. So -- so it wouldn't be limited to

 50 3 marketing, but it -- Brian Myers' job duties wouldn't

 50 4 be limited to marketing, but they would include

 50 5 marketing?

 50 6 A. Yes.

 50 7 Q. Okay. Fair enough.

 50 8 Do you know who would train him on how to

 50 9 properly use, for example, the Combat Arms Version 2?

 50 10 A. I do not know.

 50 11 Q. Okay. Above your pay grade?

50:14 - 50:14 McNamara, Timothy 3-11-2020

 50 14 A. Above my pay -- my pay grade.

50:16 - 50:20 McNamara, Timothy 3-11-2020

 50 16 Q. Okay. When you first learned how to

 50 17 properly use the Combat Arms Version 2 earplug, do you

 50 18 remember, was it Brian Myers that trained you?

 50 19 A. I don't remember, but, yeah, I would -- I

 50 20 would think that would be the person.

52:3 - 52:6 McNamara, Timothy 3-11-2020

 52 3 Q. You recognize those as being the --

 52 4 A. Yes.

 52 5 Q. -- dual-ended Combat Arms Earplugs?

 52 6 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 35 of 116
McNamara, Timothy 3-11-2020 13

52:7 - 52:15 McNamara, Timothy 3-11-2020

 52 7 Q. Now, it is a fair -- it is a true

 52 8 statement, is it not, that prior -- that never before

 52 9 or since have you ever been involved with the sale of

 52 10 a dual-ended hearing protection device?

 52 11 A. Correct.

 52 12 Q. That is, this was the first and last time

 52 13 in the history of hearing protection devices, at least

 52 14 as far as you know, that any company marketed a

 52 15 dual-ended product?

Re: [52:12-52:15]

Def Objection -

Foundation (602)

Re: [52:12-52:15]

Def Objection -

Foundation (602)

OVERRULED

52:18 - 52:18 McNamara, Timothy 3-11-2020

 52 18 A. I would say so.

Re: [52:18-52:18]

Def Objection -

Foundation (602)

Re: [52:18-52:18]

Def Objection -

Foundation (602)

OVERRULED

52:20 - 52:23 McNamara, Timothy 3-11-2020

 52 20 Q. Yeah, you certainly are not aware of any

 52 21 other company ever in the history of hearing

 52 22 protection devices marketing a product that was

 52 23 dual-ended?

53:2 - 53:2 McNamara, Timothy 3-11-2020

 53 2 A. I'm not aware of that.

54:20 - 54:24 McNamara, Timothy 3-11-2020

 54 20 Q. When you were selling the Combat Arms

 54 21 Version 2 earplugs, did you have an understanding

 54 22 of -- of, you know, sort of how the general population

 54 23 broke down, small, medium, large, extra large?

 54 24 A. No. It varied.

Re: [54:20-55:2]

Def Objection -

Foundation (602)

Re: [54:20-55:2]

Def Objection -

Foundation (602)

OVERRULED

55:3 - 55:5 McNamara, Timothy 3-11-2020

 55 3 Q. Okay. And with the Combat Arms Version 2,

 55 4 it didn't matter because it only came in one size,

 55 5 right?

Re: [55:3-55:5]

Def Objection -

Argumentative; 

Vague (611, 403)

Re: [55:3-55:5]

Def Objection -

Argumentative; 

Vague (611, 403)

OVERRULED

55:8 - 55:8 McNamara, Timothy 3-11-2020

 55 8 A. It came in one size, universal.

Re: [55:8-55:8]

Def Objection -

Argumentative; 

Vague (611, 403)

Re: [55:8-55:8]

Def Objection -

Argumentative; 

Vague (611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 36 of 116
McNamara, Timothy 3-11-2020 14

55:10 - 55:10 McNamara, Timothy 3-11-2020

 55 10 Q. Yeah. One size fits all?

Re: [55:10-55:10]

Def Objection -

Argumentative; 

Misstates (611, 

403)

Re: [55:10-55:10]

Def Objection -

Argumentative; 

Misstates (611, 

403)

OVERRULED

55:13 - 55:13 McNamara, Timothy 3-11-2020

 55 13 A. Generally, yeah.

Re: [55:13-55:13]

Def Objection -

Argumentative; 

Misstates (611, 

403)

Re: [55:13-55:13]

Def Objection -

Argumentative; 

Misstates (611, 

403)

OVERRULED

55:15 - 55:16 McNamara, Timothy 3-11-2020

 55 15 Q. Yeah. That's at least the way it was

 55 16 marketed?

Re: [55:15-55:16]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Re: [55:15-55:16]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

OVERRULED

55:19 - 55:19 McNamara, Timothy 3-11-2020

 55 19 A. To the best of my knowledge, yes.

Re: [55:19-55:19]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Re: [55:19-55:19]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

OVERRULED

55:21 - 55:22 McNamara, Timothy 3-11-2020

 55 21 Q. Yeah. That's the way you -- you sold

 55 22 those?

Re: [55:21-55:22]

Def Objection -

Argumentative; 

Misstates (611, 

403)

Re: [55:21-55:22]

Def Objection -

Argumentative; 

Misstates (611, 

403)

OVERRULED

56:1 - 56:1 McNamara, Timothy 3-11-2020

 56 1 A. That's the way I understood it, yes.

Re: [56:1-56:1]

Def Objection -

Argumentative; 

Misstates (611, 

403)

Re: [56:1-56:1]

Def Objection -

Argumentative; 

Misstates (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 37 of 116
McNamara, Timothy 3-11-2020 15

56:9 - 56:10 McNamara, Timothy 3-11-2020

 56 9 MR. TRACEY: Okay. Can I have 1141. We are

 56 10 going to mark this as Exhibit 3.

56:19 - 56:24 McNamara, Timothy 3-11-2020

 56 19 This is an e-mail -- an e-mail chain, and

 56 20 if you look at down at the bottom, it's -- it's

 56 21 originated by a guy named Robert Bosanko, who looks --

 56 22 appears to be with the -- the Army.

 56 23 Do you remember him?

 56 24 A. I do not.

57:5 - 57:7 McNamara, Timothy 3-11-2020

 57 5 Q. And he's asking, you'll see, this is

 57 6 Brian, Brian Myers, who is your direct report at the

 57 7 time, right?

Re: [57:5-57:7]

improper counter

SUSTAINED

57:10 - 57:19 McNamara, Timothy 3-11-2020

 57 10 A. He was not my direct report.

 57 11 BY MR. TRACEY:

 57 12 Q. Oh, you didn't report to Brian Myers in

 57 13 1999?

 57 14 A. No.

 57 15 Q. Oh, did you ever report to him?

 57 16 A. No.

 57 17 Q. Oh, who did you report to? Oh, you told

 57 18 me, Marty Salon, Gavin, and Cimino?

 57 19 A. That's correct.

Re: [57:10-57:19]

improper counter

SUSTAINED

57:20 - 58:4 McNamara, Timothy 3-11-2020

 57 20 Q. Okay. So how would you interact with

 57 21 Brian Myers, other than the training that you said he

 57 22 would give you?

 57 23 A. I would pass information on to him as I --

 57 24 as I received it so that he had information from the

 58 1 field.

 58 2 Q. Got it. Okay.

 58 3 You certainly knew who Brian Myers was?

 58 4 A. Sure.

58:6 - 59:1 McNamara, Timothy 3-11-2020

 58 6 And Mr. Bosanco says: "Brian, I need to

 58 7 get all of the specs and data on the Combat Arms

 58 8 Earplug. I'm going to use one of our artillery units

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 38 of 116
McNamara, Timothy 3-11-2020 16

 58 9 on post to test/use the new earplug and get feedback

 58 10 from them. If you could help me with this I will keep

 58 11 you informed on how it go" -- "how it is going. Can

 58 12 you send us some of the earplugs, the unit will be

 58 13 approximately 100 soldiers." And then he gives his --

 58 14 his contact information.

 58 15 Do you see that?

 58 16 A. I do.

 58 17 Q. And if you -- if you go up, you'll see

 58 18 that Brian has, it looks like, forwarded this or sent

 58 19 it to Doug Ohlin with the -- the Army.

 58 20 You know Doug Ohlin, don't you?

 58 21 A. I do.

 58 22 Q. Did you consider Doug Ohlin a friend?

 58 23 A. No.

 58 24 Q. Okay. Just an acquaintance?

 59 1 A. Correct.

59:11 - 59:14 McNamara, Timothy 3-11-2020

 59 11 Q. Okay. In terms of your day-to-day job,

 59 12 you wouldn't have considered Doug Ohlin the client

 59 13 then?

 59 14 A. No.

60:18 - 61:3 McNamara, Timothy 3-11-2020

 60 18 Doug goes on to say: "I'm trying to get

 60 19 through to Rich McKinley to find out if he has done

 60 20 anything with the samples of the Sound Guard foam plug

 60 21 we forwarded to him. His lab appears to be the only

 60 22 one capable in DOD at this time. My colleagues in

 60 23 Army R&D have chosen not to staff this capability, but

 60 24 they don't seem to want to relinquish the

 61 1 responsibility to the Air Force either."

 61 2 Did I read that right?

 61 3 A. Yes.

62:3 - 62:6 McNamara, Timothy 3-11-2020

 62 3 Q. Okay. So -- so the Army asked your

 62 4 company for studies on the product that they

 62 5 manufacture and are selling, right?

 62 6 A. Yes.

Re: [62:3-62:6]

Def Objection -

Foundation (602); 

Hearsay (801, 802)

Re: [62:3-62:6]

Def Objection -

Foundation (602); 

Hearsay (801, 802)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 39 of 116
McNamara, Timothy 3-11-2020 17

62:7 - 62:9 McNamara, Timothy 3-11-2020

 62 7 Q. And then your company asks Doug Ohlin for

 62 8 studies, and Doug Ohlin says, essentially, What are

 62 9 you talking about, right?

Re: [62:7-62:9]

Def Objection -

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

Re: [62:7-62:9]

Def Objection -

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

62:12 - 62:12 McNamara, Timothy 3-11-2020

 62 12 A. That's what it appears.

Re: [62:12-62:12]

Def Objection -

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

Re: [62:12-62:12]

Def Objection -

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

63:13 - 63:23 McNamara, Timothy 3-11-2020

 63 13 Q. Exhibit 4. This is -- do you see this is

 63 14 on an Aearo letterhead or an Aearo -- this is an Aearo

 63 15 document?

 63 16 A. Yes.

 63 17 Q. It says: "E-A-R Research & Development,"

 63 18 to Brian Myers from Elliott Berger.

 63 19 Who was -- who was Elliott Berger?

 63 20 A. The scientist.

 63 21 Q. At -- at Aearo?

 63 22 A. At E-A-R division, yes.

 63 23 Q. Yeah.

Re: [63:13-63:18]

Def Objection -

Foundation (602)

Re: [63:13-63:18]

Def Objection -

Foundation (602)

OVERRULED

64:7 - 64:15 McNamara, Timothy 3-11-2020

 64 7 Q. Well, this is -- this is -- this is three

 64 8 months, two months after the e-mail string we just

 64 9 read, right, November of '99 and now we are in

 64 10 February of 2000, right?

 64 11 A. Yes.

 64 12 Q. And then about -- under the NRR Labeling/

 64 13 EPA-Type Testing down there, almost to the bottom, do

 64 14 you see where it mentions the Combat Arms Plug?

 64 15 A. Yes.

Re: [64:7-64:15]

Def Objection -

Foundation (602)

Re: [64:7-65:1]

Def Objection -

Foundation (602)

OVERRULED

64:16 - 64:20 McNamara, Timothy 3-11-2020

 64 16 Q. Now, have you ever seen this document

 64 17 before that you know of?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 40 of 116
McNamara, Timothy 3-11-2020 18

 64 18 A. I'm not -- I don't remember this.

 64 19 Q. Okay.

 64 20 A. No.

64:21 - 65:1 McNamara, Timothy 3-11-2020

 64 21 Q. Let's read it together then since you are

 64 22 seeing it for the first time.

 64 23 It says the: "UltraFit end of the Combat

 64 24 Arms Plug [2130155] - Stopped after eight subjects,

 65 1 NRR 11."

Re: [64:21-65:1]

Def Objection -

Foundation (602)

Re: [64:7-65:1]

Def Objection -

Foundation (602)

OVERRULED

65:5 - 65:9 McNamara, Timothy 3-11-2020

 65 5 Q. So you see right here: "UltraFit end of

 65 6 the Combat Arms Earplug [2130155] - Stopped after

 65 7 eight subjects, NRR 11."

 65 8 Did I read that right?

 65 9 A. You did.

Re: [65:8-65:11]

Def Objection -

Foundation (602)

Re: [65:8-65:11]

Def Objection -

Foundation (602)

OVERRULED

65:10 - 65:13 McNamara, Timothy 3-11-2020

 65 10 Q. What is an NRR?

 65 11 A. Noise reduction rating.

 65 12 Q. Now, is a noise reduction rating of 11

 65 13 good or poor?

Re: [65:8-65:11]

Def Objection -

Foundation (602)

Re: [65:12-65:13]

Def Objection -

Foundation (602); 

Compound (611, 

403)

Re: [65:8-65:11]

Def Objection -

Foundation (602)

OVERRULED

Re: [65:12-65:13]

Def Objection -

Foundation (602); 

Compound (611, 

403)

OVERRULED

65:16 - 65:16 McNamara, Timothy 3-11-2020

 65 16 A. It's low.

Re: [65:16-65:16]

Def Objection -

Foundation (602); 

Compound (611, 

403)

Re: [65:16-65:16]

Def Objection -

Foundation (602); 

Compound (611, 

403)

OVERRULED

65:19 - 65:22 McNamara, Timothy 3-11-2020

 65 19 Have you ever tried to sell a hearing

 65 20 protection device to protect hearing that had an NRR

 65 21 of 11?

 65 22 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 41 of 116
McNamara, Timothy 3-11-2020 19

66:2 - 66:3 McNamara, Timothy 3-11-2020

 66 2 Q. Okay. What about to the military?

 66 3 A. Not that I was aware.

68:8 - 68:11 McNamara, Timothy 3-11-2020

 68 8 Q. What was the application of the Combat

 68 9 Arms Earplug that you were -- what were you selling it

 68 10 for to the Army?

 68 11 A. Steady state noise and impulse noise.

69:19 - 69:20 McNamara, Timothy 3-11-2020

 69 19 Q. Would an NRR of 11 on the green end be

 69 20 protective from gunfire?

Re: [69:19-69:20]

Def Objection -

Foundation (602)

Re: [69:19-69:20]

Def Objection -

Foundation (602)

OVERRULED

69:23 - 69:23 McNamara, Timothy 3-11-2020

 69 23 A. No.

Re: [69:23-69:23]

Def Objection -

Foundation (602)

Re: [69:23-69:23]

Def Objection -

Foundation (602)

OVERRULED

70:16 - 70:23 McNamara, Timothy 3-11-2020

 70 16 BY MR. TRACEY:

 70 17 Q. Okay. In any event, when we look at

 70 18 Exhibit No. 4, we see that your company stopped this

 70 19 test, didn't they?

 70 20 A. It appears.

 70 21 Q. Now, are you aware of your company

 70 22 stopping NRR testing due to low results?

 70 23 A. No.

Re: [70:17-70:20]

Def Objection -

Foundation (602)

Re: [70:21-70:23]

Def Objection -

Foundation (602); 

Misstates (611, 

403); 3M MIL No. 

18

Re: [70:17-70:20]

Def Objection -

Foundation (602)

OVERRULED

Re: [70:21-70:23]

Def Objection -

Foundation (602); 

Misstates (611, 

403); 3M MIL No. 

18

OVERRULED

71:23 - 72:9 McNamara, Timothy 3-11-2020

 71 23 Q. Okay. They go on to say in -- in

 71 24 Exhibit 4 that: "A new test will begin because it

 72 1 appears there is a learning effect as the experimenter

 72 2 better understands how to insert this unusual

 72 3 earplug."

 72 4 Let me ask you a couple of questions about

 72 5 that. Do you know who Ron Kieper is?

 72 6 A. Yes.

 72 7 Q. Who is Ron Kieper?

 72 8 A. He was an assistant to Elliott Berger in

 72 9 the lab.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 42 of 116
McNamara, Timothy 3-11-2020 20

72:10 - 72:16 McNamara, Timothy 3-11-2020

 72 10 Q. Do you know if he was the primary

 72 11 experimenter or fitter of earplugs at your company?

 72 12 A. I do not.

 72 13 Q. Okay. Have you ever met him?

 72 14 A. Yes.

 72 15 Q. On -- on few or many occasions?

 72 16 A. Few.

72:17 - 72:18 McNamara, Timothy 3-11-2020

 72 17 Q. Okay. Do you agree that -- that this

 72 18 earplug, the Combat Arms Earplug was unusual?

72:21 - 72:21 McNamara, Timothy 3-11-2020

 72 21 A. It was unique, yes.

73:13 - 73:14 McNamara, Timothy 3-11-2020

 73 13 Q. Okay. Would you consider Ron Kieper to be

 73 14 an expert in fitting hearing protection devices?

Re: [73:13-73:14]

improper counter

SUSTAINED

73:17 - 73:22 McNamara, Timothy 3-11-2020

 73 17 A. I don't know.

 73 18 BY MR. TRACEY:

 73 19 Q. Who -- who would you consider at your

 73 20 company when you were there at Aearo, who would you

 73 21 consider to be an expert earplug fitter or hearing

 73 22 protection device fitter?

Re: [73:17-73:22]

improper counter

SUSTAINED

74:1 - 74:5 McNamara, Timothy 3-11-2020

 74 1 A. I don't know. Elliott Berger, maybe.

 74 2 BY MR. TRACEY:

 74 3 Q. Okay. Anyone else?

 74 4 A. There is probably many, but I'm not aware

 74 5 of them.

Re: [74:1-74:5]

improper counter

SUSTAINED

74:9 - 74:19 McNamara, Timothy 3-11-2020

 74 9 Q. Okay. So Elliott Berger and Ron Kieper.

 74 10 No other names that come to mind?

 74 11 A. No.

 74 12 Q. Okay. Neither one of those men were

 74 13 the -- were the men that trained you on how to fit the

 74 14 Combat Arms Earplug?

 74 15 A. Yes.

 74 16 Q. That's true, isn't it, they didn't do it?

Re: [74:9-74:19]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 43 of 116
McNamara, Timothy 3-11-2020 21

 74 17 A. I don't remember.

 74 18 Q. Well, you -- I thought you told me that

 74 19 Brian Myers was the one that -- that trained you?

74:23 - 74:24 McNamara, Timothy 3-11-2020

 74 23 A. He was one of probably many, but, I mean,

 74 24 he was not the sole person.

Re: [74:23-74:24]

improper counter

SUSTAINED

75:16 - 75:21 McNamara, Timothy 3-11-2020

 75 16 Q. Okay. For example, you don't remember Ron

 75 17 Kieper, Elliott Berger holding a seminar to the sales

 75 18 and marketing people about how to properly fit the

 75 19 Combat Arms Version 2 earplug because it was unusual

 75 20 or unique?

 75 21 A. It could have been at a meeting, yes.

Re: [75:16-75:21]

improper counter; 

nonresponsive

SUSTAINED

78:21 - 78:24 McNamara, Timothy 3-11-2020

 78 21 Q. Were -- were you ever aware that a NRR

 78 22 test had -- on the Combat Arms Earplug was stopped

 78 23 after eight subjects with an NRR of 11?

 78 24 A. I was not.

Re: [78:21-79:4]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402); 

Argumentative 

(611, 403)

Re: [78:21-79:4]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402); 

Argumentative 

(611, 403)

OVERRULED

79:1 - 79:4 McNamara, Timothy 3-11-2020

 79 1 Q. Okay. It is -- is right here and now

 79 2 today during your deposition the first time you're

 79 3 becoming aware of that fact?

 79 4 A. Yes.

Re: [78:21-79:4]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402); 

Argumentative 

(611, 403)

Re: [78:21-79:4]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402); 

Argumentative 

(611, 403)

OVERRULED

79:5 - 79:5 McNamara, Timothy 3-11-2020

 79 5 Q. Okay. Are you surprised --

Re: [79:5-79:18]

improper counter

OVERRULED

79:8 - 79:18 McNamara, Timothy 3-11-2020

 79 8 Q. -- about that fact?

 79 9 A. No.

 79 10 Q. How come?

 79 11 A. This is their responsibility. This is

Re: [79:5-79:18]

improper counter

SUSTAINED as 

to 79:13-18. 

Otherwise 

OVERRULED.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 44 of 116
McNamara, Timothy 3-11-2020 22

 79 12 what they do.

 79 13 Q. Okay. All right. Let's set that aside

 79 14 and let's go to the next Exhibit 5, which is an e-mail

 79 15 from Elliott Berger to --

 79 16 MS. ELIZABETH: I don't have it yet.

 79 17 BY MR. TRACEY:

 79 18 Q. -- to Ron Kieper.

80:21 - 81:9 McNamara, Timothy 3-11-2020

 80 21 BY MR. TRACEY:

 80 22 Q. Okay. So this is -- this is Exhibit 5 to

 80 23 your deposition, and if you flip over to the

 80 24 page where it says: "To Elliott Berger from Ron

 81 1 Kieper," the date of this is May the 11th, 2000, isn't

 81 2 it?

 81 3 A. Yes.

 81 4 Q. And the subject is: "Results of

 81 5 Short-Stemmed UltraFit Plug Test."

 81 6 Do you see that?

 81 7 A. Yes.

 81 8 Q. Now, have you ever seen this memo before?

 81 9 A. I don't remember this one now.

Re: [80:22-81:9]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [80:22-81:9]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

83:9 - 83:12 McNamara, Timothy 3-11-2020

 83 9 Q. Okay. Let -- let me ask you this: Do you

 83 10 believe that your customers are entitled to know the

 83 11 truth about the -- the products that you are selling

 83 12 them?

Re: [83:9-83:12]

Def Objection -

Prejudice (403); 

Relevance (401, 

402); Vague; 

Argumentative 

(611, 403)

Re: [83:9-83:12]

Def Objection -

Prejudice (403); 

Relevance (401, 

402); Vague; 

Argumentative 

(611, 403)

OVERRULED

83:15 - 83:15 McNamara, Timothy 3-11-2020

 83 15 A. Yes.

Re: [83:15-83:15]

Def Objection -

Prejudice (403); 

Relevance (401, 

402); Vague; 

Argumentative 

(611, 403)

Re: [83:15-83:15]

Def Objection -

Prejudice (403); 

Relevance (401, 

402); Vague; 

Argumentative 

(611, 403)

OVERRULED

83:17 - 83:19 McNamara, Timothy 3-11-2020

 83 17 Q. Do you believe that your role as a

Re: [83:17-83:19]

Def Objection -

Re: [83:17-83:19]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 45 of 116
McNamara, Timothy 3-11-2020 23

 83 18 salesperson is to tell them the truth about the

 83 19 product, the good, the bad and the ugly?

Vague; 

Compound; 

Argumentative 

(611, 403); 

Prejudice (403); 

Relevance (401, 

402)

Vague; 

Compound; 

Argumentative 

(611, 403); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

83:22 - 83:22 McNamara, Timothy 3-11-2020

 83 22 A. Yes.

Re: [83:22-83:22]

Def Objection -

Vague; 

Compound; 

Argumentative 

(611, 403); 

Prejudice (403); 

Relevance (401, 

402)

Re: [83:22-83:22]

Def Objection -

Vague; 

Compound; 

Argumentative 

(611, 403); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

83:23 - 84:2 McNamara, Timothy 3-11-2020

 83 23 BY MR. TRACEY:

 83 24 Q. Because if you don't deliver the truth

 84 1 to -- to your customers, they can't make fully

 84 2 informed decisions, can they?

Re: [83:24-84:2]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [83:24-84:2]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

84:5 - 84:5 McNamara, Timothy 3-11-2020

 84 5 A. I would say so.

Re: [84:5-84:5]

Def Objection -

Vague; 

Argumentative 

(611, 403) 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [84:5-84:5]

Def Objection -

Vague; 

Argumentative 

(611, 403) 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 46 of 116
McNamara, Timothy 3-11-2020 24

84:17 - 84:24 McNamara, Timothy 3-11-2020

 84 17 Q. Yeah. So that when -- when Tim McNamara

 84 18 shows up to talk to a commander on an Army base,

 84 19 hopefully the commander has learned to trust what you

 84 20 tell them, right?

 84 21 A. Yes.

 84 22 Q. Hopefully the commander believes that Tim

 84 23 McNamara is honest, right?

 84 24 A. Absolutely.

Re: [84:17-85:4]

Def Objection -

Foundation (602)

Re: [84:17-85:4]

Def Objection -

Foundation (602)

OVERRULED

85:1 - 85:5 McNamara, Timothy 3-11-2020

 85 1 Q. And that when you say something about a

 85 2 product, what you are telling him is true. That's

 85 3 what you hope for, right?

 85 4 A. Yes.

 85 5 Q. That's what you should do, isn't it?

Re: [84:17-85:4]

Def Objection -

Foundation (602)

Re: [85:5-85:5]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403)

Re: [84:17-85:4]

Def Objection -

Foundation (602)

OVERRULED

Re: [85:5-85:5]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403)

OVERRULED

85:8 - 85:8 McNamara, Timothy 3-11-2020

 85 8 A. That's the goal, yes.

Re: [85:8-85:8]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403)

Re: [85:8-85:8]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403)

OVERRULED

85:10 - 85:11 McNamara, Timothy 3-11-2020

 85 10 Q. And your company should do that, shouldn't

 85 11 they?

Re: [85:10-85:11]

Def Objection -

Vague; Misstates; 

Argumentative

(611, 403); 

Foundation (602)

Re: [85:10-85:11]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

85:14 - 85:14 McNamara, Timothy 3-11-2020

 85 14 A. Yes.

Re: [85:14-85:14]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [85:14-85:14]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 47 of 116
McNamara, Timothy 3-11-2020 25

85:16 - 85:18 McNamara, Timothy 3-11-2020

 85 16 Q. They should furnish the truth about their

 85 17 products to you so that you, in turn, can furnish the

 85 18 truth to the Army?

Re: [85:16-85:18]

Def Objection -

Vague; Misstates; 

Argumentative; 

Compound (611, 

403); Foundation 

(602)

Re: [85:16-85:18]

Def Objection -

Vague; Misstates; 

Argumentative; 

Compound (611, 

403); Foundation 

(602)

OVERRULED

85:21 - 85:21 McNamara, Timothy 3-11-2020

 85 21 A. I would say so.

Re: [85:21-85:21]

Def Objection -

Vague; Misstates; 

Argumentative; 

Compound (611, 

403); Foundation 

(602)

Re: [85:21-85:21]

Def Objection -

Vague; Misstates; 

Argumentative; 

Compound (611, 

403); Foundation 

(602)

OVERRULED

85:23 - 85:24 McNamara, Timothy 3-11-2020

 85 23 Q. It would be wrong to conceal the truth

 85 24 about their products from the Army, wouldn't it?

Re: [85:23-85:24]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [85:23-85:24]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

86:3 - 86:3 McNamara, Timothy 3-11-2020

 86 3 A. I would say so, yes.

Re: [86:3-86:3]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [86:3-86:3]

Def Objection -

Vague; Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

86:18 - 86:20 McNamara, Timothy 3-11-2020

 86 18 Q. Have you ever knowingly not told the truth

 86 19 about one of your company's products to the military?

 86 20 A. No.

Re: [86:18-86:20]

improper counter

OVERRULED

87:6 - 87:17 McNamara, Timothy 3-11-2020

 87 6 Q. Okay. Well, let's look at Exhibit 5. It

 87 7 says:

 87 8 "The short-stemmed UltraFit Plug evaluated

 87 9 in Tests 213015 and 213017 is the opposite end of the

Re: [87:6-87:17]

Def Objection -

Foundation (602); 

Prejudice (403); 

Re: [87:6-87:17]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 48 of 116
McNamara, Timothy 3-11-2020 26

 87 10 Combat Arms Earplug (see attached drawing). The

 87 11 attached graph is a comparison of the means and

 87 12 standard deviations obtained in these two tests. The

 87 13 initial Test 213015 was stopped after eight subjects

 87 14 because the results were variable and the NRR was

 87 15 quite low (11)."

 87 16 Do you see that?

 87 17 A. Yes.

Relevance (401, 

402)

402)

OVERRULED

87:18 - 87:19 McNamara, Timothy 3-11-2020

 87 18 Q. Do you agree with Ron Kieper that an NRR

 87 19 of 11 is quite low?

Re: [87:18-87:19]

improper counter

SUSTAINED

87:22 - 88:1 McNamara, Timothy 3-11-2020

 87 22 A. I don't know.

 87 23 BY MR. TRACEY:

 87 24 Q. You don't know?

 88 1 A. I don't know.

Re: [87:22-88:1]

improper counter

SUSTAINED

88:2 - 88:8 McNamara, Timothy 3-11-2020

 88 2 Q. You never marketed this product to the

 88 3 military with an NRR of 11, did you?

 88 4 A. No.

 88 5 Q. You've never seen any sales or marketing

 88 6 materials where your company tells the military that

 88 7 the NRR on the Combat Arms is 11?

 88 8 A. Not that I know.

Re: [88:2-88:8]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 

Relevance (401, 

402); Prejudice 

(403)

Re: [87:24-88:8]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

88:21 - 88:23 McNamara, Timothy 3-11-2020

 88 21 Q. And 22 is how you marketed the product to

 88 22 the military for a decade, isn't it?

 88 23 A. In a steady state noise.

89:1 - 89:7 McNamara, Timothy 3-11-2020

 89 1 Mr. Kieper goes on to say: "Because the

 89 2 UltraFit Plug's stem is so short, it was difficult to

 89 3 fit the plug deeply into some subjects' ear canals,

 89 4 especially those subjects with medium and larger ear

 89 5 canals."

 89 6 Do you see that?

 89 7 A. Yes.

Re: [89:1-89:7]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [89:1-89:7]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 49 of 116
McNamara, Timothy 3-11-2020 27

89:14 - 89:23 McNamara, Timothy 3-11-2020

 89 14 Q. Do you remember ever doing any training

 89 15 where you disclosed to the American military that

 89 16 because the plug stem was so short, it is difficult to

 89 17 plug the -- to fit the plug deeply into those with

 89 18 medium and larger ear canals?

 89 19 A. No.

 89 20 Q. You've never seen that on any materials

 89 21 that your company gave you to sell this product, have

 89 22 you?

 89 23 A. No.

Re: [89:14-89:23]

Def Objection -

Foundation (602)

Re: [89:14-89:23]

Def Objection -

Foundation (602)

OVERRULED

92:8 - 92:11 McNamara, Timothy 3-11-2020

 92 8 Q. You never did disseminate that information

 92 9 that we see on the page to the American military, did

 92 10 you?

 92 11 A. No.

Re: [92:8-92:11]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [92:8-93:3]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

92:12 - 92:13 McNamara, Timothy 3-11-2020

 92 12 Q. When --

 92 13 A. Because I don't remember having this.

Re: [92:12-92:13]

improper counter; 

nonresponsive

SUSTAINED

92:14 - 92:16 McNamara, Timothy 3-11-2020

 92 14 Q. Yes. And that's why you didn't do it in

 92 15 part, I guess, because you can't do it if you don't

 92 16 have it, right?

Re: [92:14-92:16]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [92:8-93:3]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

92:19 - 92:19 McNamara, Timothy 3-11-2020

 92 19 A. I -- yeah.

Re: [92:19-92:19]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [92:8-93:3]

Def Objection -

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

93:10 - 93:14 McNamara, Timothy 3-11-2020

 93 10 Q. I'm talking about the second sentence,

 93 11 second paragraph, that starts out:

 93 12 Additionally, the geometry of the ear

Re: [93:10-93:14]

Def Objection -

Foundation (602)

Re: [93:10-93:14]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 50 of 116
McNamara, Timothy 3-11-2020 28

 93 13 canal opening sometimes inhibited the deep plug

 93 14 insertion required for maximum attenuation values."

93:18 - 93:19 McNamara, Timothy 3-11-2020

 93 18 Q. Did you know that information?

 93 19 A. Not specifically.

Re: [93:18-93:19]

Def Objection -

Foundation (602)

Re: [93:18-93:19]

Def Objection -

Foundation (602)

OVERRULED

94:13 - 94:19 McNamara, Timothy 3-11-2020

 94 13 Q. He goes on to tell Mr. Berger:

 94 14 "When this plug was fitted, the third

 94 15 flange of the Combat Arms plug could press against the

 94 16 subject's concha" -- or, sorry -- "the subject's ear

 94 17 canal opening and fold up."

 94 18 Did you know that was true with the Combat

 94 19 Arms Earplug?

Re: [94:14-94:19]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [94:14-94:19]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

94:22 - 94:22 McNamara, Timothy 3-11-2020

 94 22 A. I was not -- I was not aware of that.

Re: [94:22-94:22]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

Re: [94:22-94:22]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

Prejudice (403); 

Relevance (401, 

402)

OVERRULED

95:9 - 95:15 McNamara, Timothy 3-11-2020

 95 9 Q. You didn't use that sentence when you were

 95 10 selling the product, did you?

 95 11 A. I don't believe so.

 95 12 Q. That wasn't part of your presentations you

 95 13 made when you were training people on how to use the

 95 14 Combat Arms Earplug, was it?

 95 15 A. No.

Re: [95:9-95:15]

Def Objection -

Foundation (602); 

Relevance (401, 

402); 

Argumentative 

(611, 403)

Re: [95:9-95:22]

Def Objection -

Foundation (602); 

Relevance (401, 

402); 

Argumentative 

(611, 403)

OVERRULED

95:20 - 95:22 McNamara, Timothy 3-11-2020

 95 20 Q. It's not in any of your sales materials,

 95 21 is it?

 95 22 A. I don't believe so.

Re: [95:20-95:22]

Def Objection -

Foundation (602); 

Relevance (401, 

402); 

Re: [95:9-95:22]

Def Objection -

Foundation (602); 

Relevance (401, 

402); 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 51 of 116
McNamara, Timothy 3-11-2020 29

Argumentative 

(611, 403)

Argumentative 

(611, 403)

OVERRULED

97:17 - 97:20 McNamara, Timothy 3-11-2020

 97 17 Q. You know, corporations are really just

 97 18 made up of people, aren't they?

 97 19 A. There's a lot of people in a corporation,

 97 20 yes.

Re: [97:17-97:20]

improper counter; 

nonresponsive

SUSTAINED

98:8 - 98:9 McNamara, Timothy 3-11-2020

 98 8 Q. People that make decisions every day,

 98 9 right? That's what corporations are.

Re: [98:8-98:9]

improper counter

SUSTAINED

98:12 - 98:12 McNamara, Timothy 3-11-2020

 98 12 A. That's what it appears.

Re: [98:12-98:12]

improper counter

SUSTAINED

98:14 - 98:16 McNamara, Timothy 3-11-2020

 98 14 Q. Yeah. So when we say a corporation made a

 98 15 decision, what we are really saying is people in a

 98 16 corporation made a decision, right?

98:19 - 98:19 McNamara, Timothy 3-11-2020

 98 19 A. I would assume so.

98:21 - 98:23 McNamara, Timothy 3-11-2020

 98 21 Q. And if people in corporations make

 98 22 decisions to not -- to not disclose the truth about a

 98 23 product, we have problems, don't we?

Re: [98:21-98:23]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [98:21-98:23]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602)

SUSTAINED

99:2 - 99:4 McNamara, Timothy 3-11-2020

 99 2 A. Not really.

 99 3 BY MR. TRACEY:

 99 4 Q. Really? That's fine with you?

99:7 - 99:7 McNamara, Timothy 3-11-2020

 99 7 A. That's -- I don't make those decisions.

99:9 - 99:11 McNamara, Timothy 3-11-2020

 99 9 Q. What if you did make the decisions? Would

 99 10 you -- would you err on the side of telling the truth

 99 11 or concealing the truth?

99:15 - 99:15 McNamara, Timothy 3-11-2020

 99 15 A. It depends on -- on the situation.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 52 of 116
McNamara, Timothy 3-11-2020 30

100:14 - 100:22 McNamara, Timothy 3-11-2020

 100 14 Q. Let's read the next sentence and see if

 100 15 the ambi- -- ambiguities continue.

 100 16 The next sentence says: "When the inward

 100 17 pressure on the UltraFit Plug was released, the Combat

 100 18 Arms' flanges tended to return to their original shape

 100 19 and this could loosen the plug, sometimes

 100 20 imperceptibly to the subject."

 100 21 Do you see that?

 100 22 A. I do.

Re: [100:14-

100:22]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

Re: [100:14-

100:24]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

OVERRULED

101:5 - 101:10 McNamara, Timothy 3-11-2020

 101 5 Q. Did you -- when you were selling the

 101 6 product to the military for a decade, did you tell

 101 7 them in your training that the flanges would return to

 101 8 their original shape, loosening the plug in a way

 101 9 that's imperceptible to the subject?

 101 10 A. No.

Re: [101:3-

101:10]

Def Objection -

Foundation (602)

Re: [101:5-

101:10]

Def Objection -

Foundation (602); 

Vague; 

Argumentative 

(611, 403)

Re: [101:3-

101:10]

Def Objection -

Foundation (602)

OVERRULED

101:24 - 102:11 McNamara, Timothy 3-11-2020

 101 24 Q. You don't think a soldier who is on the

 102 1 battlefield might want to know that this particular

 102 2 plug, the Combat Arms, would loosen imperceptibly?

 102 3 You know what "imperceptibly" means, right?

 102 4 A. Yes.

 102 5 Q. What does that mean?

 102 6 A. It -- it -- you know, it -- it can come

 102 7 out.

 102 8 Q. Without him knowing?

 102 9 A. Yes.

 102 10 Q. Or her? Without the user knowing --

 102 11 A. Yes.

Re: [101:24-

102:11]

Def Objection -

Foundation (602)

Re: [101:24-

102:11]

Def Objection -

Foundation (602)

SUSTAINED

102:12 - 102:14 McNamara, Timothy 3-11-2020

 102 12 Q. -- that it's loosening?

 102 13 You don't -- you don't find that fact to

 102 14 be particularly relevant to a soldier?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 53 of 116
McNamara, Timothy 3-11-2020 31

102:17 - 102:23 McNamara, Timothy 3-11-2020

 102 17 A. If it's fitted properly.

 102 18 BY MR. TRACEY:

 102 19 Q. Pardon me?

 102 20 A. If it's fitted properly.

 102 21 Q. What does that mean?

 102 22 A. You ins- -- you insert the plug and -- and

 102 23 make sure that the -- it's fitted correctly.

102:24 - 103:2 McNamara, Timothy 3-11-2020

 102 24 Q. And what does that mean? How do you fit

 103 1 it correctly so that it doesn't -- it doesn't press

 103 2 against the ear and return to its original shape?

Re: [102:24-

103:2]

Def Objection -

Foundation (602); 

Compound (611, 

403)

Re: [102:24-

103:2]

Def Objection -

Foundation (602); 

Compound (611, 

403)

OVERRULED

103:5 - 103:13 McNamara, Timothy 3-11-2020

 103 5 Q. How does that work? Tell me that.

 103 6 A. Well, when you insert the plug, then

 103 7 you -- you check it to make sure that it does not come

 103 8 out during the fitting of the plug.

 103 9 Q. And how -- how do you do that?

 103 10 A. When you put it in, you take it and make

 103 11 sure that it -- it does not come out.

 103 12 Q. How do you know whether the flanges are

 103 13 returning to their original shape?

Re: [103:5-

103:11]

Def Objection -

Foundation (602)

Re: [103:12-

103:13]

Def Objection -

Foundation (602); 

Vague (611, 403)

Re: [103:5-

103:11]

Def Objection -

Foundation (602)

OVERRULED

Re: [103:12-

103:13]

Def Objection -

Foundation (602); 

Vague (611, 403)

OVERRULED

103:16 - 103:16 McNamara, Timothy 3-11-2020

 103 16 A. I don't know.

Re: [103:16-

103:16]

Def Objection -

Foundation (602); 

Vague (611, 403)

Re: [103:16-

103:18]

Def Objection -

Foundation (602); 

Vague (611, 403)

OVERRULED

104:15 - 104:20 McNamara, Timothy 3-11-2020

 104 15 Q. Now, you sold this product and represented

 104 16 that the NRR was 22 for over a decade, didn't you, in

 104 17 the steady state position?

 104 18 A. Yes.

 104 19 Q. How did you tell the soldiers in your

 104 20 training materials how to put the plug in their ear?

Re: [104:15-

104:18]

Def Objection -

Foundation (602)

Re: [104:19-

104:20]

Def Objection -

Re: [104:15-

104:18]

Def Objection -

Foundation (602)

OVERRULED

Re: [104:19-

104:20]

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 54 of 116
McNamara, Timothy 3-11-2020 32

Vague (611, 403); 

3M MIL No. 15

Def Objection -

Vague (611, 403); 

3M MIL No. 15

OVERRULED

104:23 - 105:4 McNamara, Timothy 3-11-2020

 104 23 A. How did I or how was the literature

 104 24 produced?

 105 1 BY MR. TRACEY:

 105 2 Q. Are there -- is it a different answer

 105 3 whether it's you or the literature?

 105 4 A. I mean, I don't know.

105:5 - 105:7 McNamara, Timothy 3-11-2020

 105 5 Q. You don't know whether you -- you gave

 105 6 different instructions than the literature?

 105 7 A. No. I followed the literature.

107:11 - 107:20 McNamara, Timothy 3-11-2020

 107 11 Q. Have you ever -- have you ever seen any

 107 12 sales or training material where when you -- when you

 107 13 trained somebody on how to use the Combat Arms plug,

 107 14 those words are on the materials?

 107 15 A. I don't -- I don't remember these words

 107 16 being on the -- the material.

 107 17 Q. Did you tell, when you were selling the

 107 18 product, that the only way we got an NRR of 22 was by

 107 19 folding back the flanges so that we got a longer stem

 107 20 and got a deeper insertion?

Re: [107:11-

107:16]

Def Objection -

3M MIL No. 15; 

Foundation (602)

Re: [107:17-

107:20]

Def Objection -

Foundation (602); 

Argumentative; 

Misstates (611, 

403)

Re: [107:3-

107:16]

Def Objection -

3M MIL No. 15; 

Foundation (602)

OVERRULED

Re: [107:17-

107:20]

Def Objection -

Foundation (602); 

Argumentative; 

Misstates (611, 

403)

OVERRULED

108:1 - 108:1 McNamara, Timothy 3-11-2020

 108 1 A. No.

Re: [108:1-108:1]

Def Objection -

Foundation (602); 

Argumentative; 

Misstates (611, 

403)

Re: [108:1-108:1]

Def Objection -

Foundation (602); 

Argumentative; 

Misstates (611, 

403)

OVERRULED

108:3 - 108:3 McNamara, Timothy 3-11-2020

 108 3 Q. No. That's the truth, isn't it?

Re: [108:3-108:3]

nonresponsive; 

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 55 of 116
McNamara, Timothy 3-11-2020 33

108:6 - 108:7 McNamara, Timothy 3-11-2020

 108 6 A. I don't -- I don't -- that's not my area

 108 7 of responsibility.

Re: [108:6-108:7]

nonresponsive; 

improper counter

SUSTAINED

110:3 - 110:9 McNamara, Timothy 3-11-2020

 110 3 BY MR. TRACEY:

 110 4 Q. Have you ever seen a document in the

 110 5 history of marketing or selling the Combat Arms

 110 6 Earplug where your company told the world or the

 110 7 military that the only way we got an NRR of 22 is by

 110 8 folding back the flanges?

 110 9 A. I don't think so.

Re: [110:4-110:9]

Def Objection -

Foundation (602)

Re: [110:4-110:9]

Def Objection -

Foundation (602)

OVERRULED

111:11 - 111:17 McNamara, Timothy 3-11-2020

 111 11 Did you ever wear the Combat Arms

 111 12 Earplugs?

 111 13 A. Yes.

 111 14 Q. When?

 111 15 A. Various ranges and so forth.

 111 16 Q. Do you shoot?

 111 17 A. Yes, I do.

Re: [111:11-

111:17]

improper counter

SUSTAINED

112:16 - 112:20 McNamara, Timothy 3-11-2020

 112 16 Did you fold the flanges back?

 112 17 A. No.

 112 18 Q. You didn't know to fold the flanges back,

 112 19 did you?

 112 20 A. I didn't --

Re: [112:16-

112:20]

improper counter

SUSTAINED

112:23 - 113:2 McNamara, Timothy 3-11-2020

 112 23 Q. Pardon me?

 112 24 A. I didn't need to.

 113 1 Q. How come?

 113 2 A. They were -- they felt good and -- to me.

Re: [112:23-

113:2]

improper counter

SUSTAINED

117:21 - 118:16 McNamara, Timothy 3-11-2020

 117 21 Q. Okay. If you flip over, you've got a --

 117 22 by the way, is this a PowerPoint? Is this done on a

 117 23 screen or...?

 117 24 A. Yes --

 118 1 Q. Okay.

 118 2 A. -- a screen.

 118 3 Q. And when you would go to these

 118 4 distributors and you would -- you would put it on a

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 56 of 116
McNamara, Timothy 3-11-2020 34

 118 5 screen, did you also make hard copies for everybody to

 118 6 follow along?

 118 7 A. I believe so, yes. I -- I would leave --

 118 8 I would leave the hard copy in the PowerPoint

 118 9 format --

 118 10 Q. Yeah.

 118 11 A. -- document.

 118 12 Q. And -- and so -- so somebody had something

 118 13 with them when you left that they could refer to to

 118 14 remind them about what it was that Tim McNamara told

 118 15 us?

 118 16 A. Yes.

119:1 - 119:10 McNamara, Timothy 3-11-2020

 119 1 Q. Okay. We'll get to that in a minute.

 119 2 All right. In any event, so -- so this

 119 3 is -- this is a hard copy of -- of your information.

 119 4 It says "Aearo Company." You've got E-A-R, AO Safety

 119 5 and Peltor Communications. Those are the different

 119 6 divisions of Aearo?

 119 7 A. Correct.

 119 8 Q. And you -- as you have told us earlier,

 119 9 you are selling safety devices, right?

 119 10 A. Correct.

120:11 - 120:24 McNamara, Timothy 3-11-2020

 120 11 Q. All right. Flip over to the page ending

 120 12 in 008 that says "Product Training - EAR," and you'll

 120 13 see the Combat Arms Earplug.

 120 14 Do you see that?

 120 15 A. Yes.

 120 16 Q. Now, you point out to the -- to the

 120 17 audience that this is a double-sided product, which it

 120 18 is, right?

 120 19 A. Yes.

 120 20 Q. You have a picture of it there on the --

 120 21 on the camera or on the screen, right?

 120 22 A. Yes.

 120 23 Q. Flanges are not folded back, are they?

 120 24 A. They are not.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 57 of 116
McNamara, Timothy 3-11-2020 35

121:1 - 121:8 McNamara, Timothy 3-11-2020

 121 1 Q. If you flip over, you'll see the next

 121 2 page has a picture of the Combat Arms now in the ear,

 121 3 doesn't it?

 121 4 A. Yes.

 121 5 Q. And -- and this is a -- an illustration

 121 6 that you used to train people about how to insert the

 121 7 Combat Arms Earplug?

 121 8 A. Correct.

Re: [121:5-121:8]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

Re: [121:5-121:8]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

121:9 - 121:19 McNamara, Timothy 3-11-2020

 121 9 Q. And what you've got on this

 121 10 illustration -- this is -- this actually came out of

 121 11 the marketing department of your company, didn't it?

 121 12 MS. ELIZABETH: Objection; foundation.

 121 13 BY THE WITNESS:

 121 14 A. This was not. I believe, if I remember,

 121 15 yeah, the -- it was -- I believe it came from CHPPM.

 121 16 There is CHPPM's name on it, but I don't know who --

 121 17 Q. Look at the next page.

 121 18 A. I don't know who produced it.

 121 19 Q. That's all right.

Re: [121:9-

121:19]

improper counter

OVERRULED

121:20 - 121:22 McNamara, Timothy 3-11-2020

 121 20 Look at two pages later. Do you see where

 121 21 it says "Combat Arms Earplug," "E-A-R" at the top?

 121 22 A. Yes.

122:12 - 122:20 McNamara, Timothy 3-11-2020

 122 12 Q. And the words at the top next to the two

 122 13 ears with the "insert yellow" and "insert olive drab,"

 122 14 those words are identical on both slides, aren't they?

 122 15 A. Yes.

 122 16 Q. All right. So let's stay on the one that

 122 17 has CHPPM at the bottom for a second.

 122 18 What you're -- what you're doing when you

 122 19 are training the distributor is the proper way to

 122 20 insert the Combat Arms Earplug, correct?

Re: [122:18-

122:20]

Def Objection -

Misstates (611, 

403); 3M MIL No. 

15

Re: [122:18-

122:20]

Def Objection -

Misstates (611, 

403); 3M MIL No. 

15

OVERRULED

122:23 - 122:23 McNamara, Timothy 3-11-2020

 122 23 A. Yes.

Re: [122:23-

122:23]

Def Objection -

Misstates (611, 

Re: [122:23-

122:23]

Def Objection -

Misstates (611, 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 58 of 116
McNamara, Timothy 3-11-2020 36

403); 3M MIL No. 

15

403); 3M MIL No. 

15

OVERRULED

123:1 - 123:16 McNamara, Timothy 3-11-2020

 123 1 Q. And what you tell them when you train them

 123 2 is -- is you use the words on this page: "Insert

 123 3 yellow plugs for weapons fire in dismounted mode,"

 123 4 true?

 123 5 A. Correct.

 123 6 Q. And then you say: "Insert olive drab

 123 7 plugs for steady state noise in and around aircraft

 123 8 and noisy vehicles and watercraft," right?

 123 9 A. Correct.

 123 10 Q. There is not one word on this slide about

 123 11 folding back the flanges to get an NRR of 22, is

 123 12 there?

 123 13 A. No.

 123 14 Q. Not one word about folding back the

 123 15 flanges under any conditions, is there?

 123 16 A. No.

Re: [123:1-

123:16]

Def Objection -

3M MIL No. 15

Re: [123:1-

123:16]

Def Objection -

3M MIL No. 15

OVERRULED

123:24 - 124:2 McNamara, Timothy 3-11-2020

 123 24 Q. Okay. There is nothing on this slide

 124 1 about folding back the flanges so that you get the

 124 2 results that we got when we tested the product?

Re: [123:24-

124:5]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

Re: [123:24-

124:5]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

OVERRULED

124:5 - 124:5 McNamara, Timothy 3-11-2020

 124 5 A. Correct.

Re: [123:24-

124:5]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

Re: [123:24-

124:5]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

OVERRULED

124:7 - 124:15 McNamara, Timothy 3-11-2020

 124 7 Q. Now, you do tell them on this packet -- on

 124 8 this presentation, when you are training people about

 124 9 the proper use of the product, that the olive drab end

 124 10 gives an NRR of 22 decibels, don't you?

Re: [124:7-

124:15]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

Re: [124:7-

124:15]

Def Objection -

3M MIL No. 15; 

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 59 of 116
McNamara, Timothy 3-11-2020 37

 124 11 A. Yes.

 124 12 Q. What you don't tell them, what you don't

 124 13 reveal to them, is how your company got that NRR,

 124 14 right?

 124 15 A. Correct.

402); Prejudice 

(403)

402); Prejudice 

(403)

OVERRULED

124:16 - 124:16 McNamara, Timothy 3-11-2020

 124 16 Q. You find that to be honest?

Re: [124:16-

124:16]

improper counter

OVERRULED

124:19 - 124:19 McNamara, Timothy 3-11-2020

 124 19 A. Yes.

Re: [124:19-

124:19]

improper counter

OVERRULED

125:10 - 125:10 McNamara, Timothy 3-11-2020

 125 10 What is it about it that's honest?

Re: [125:10-

125:10]

improper counter

OVERRULED

125:13 - 125:13 McNamara, Timothy 3-11-2020

 125 13 A. It's a published noise reduction rating.

Re: [125:13-

125:13]

improper counter

OVERRULED

125:23 - 126:3 McNamara, Timothy 3-11-2020

 125 23 Q. Have you ever seen anywhere in anything in

 125 24 the world where Elliott Berger and Ron Kieper revealed

 126 1 that the way they got the 22 was by folding back the

 126 2 flanges?

 126 3 A. No.

Re: [125:23-

126:3]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [125:15-

126:3]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

129:15 - 129:17 McNamara, Timothy 3-11-2020

 129 15 Q. Sometimes you need to use greater

 129 16 punishment depending on the level of recalcitrance,

 129 17 don't you?

Re: [129:15-

129:20]

Relevance (403) 

Foundation, 

Argumenative, 

Baker MIL No. 1 

(701)

SUSTAINED

129:20 - 129:20 McNamara, Timothy 3-11-2020

 129 20 A. Yes.

Re: [129:15-

129:20]

Relevance (403) 

Foundation, 

Argumenative, 

Baker MIL No. 1 

(701)

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 60 of 116
McNamara, Timothy 3-11-2020 38

130:22 - 130:24 McNamara, Timothy 3-11-2020

 130 22 Q. That's why we have laws, Mr. McNamara,

 130 23 isn't it? We have laws with punishment to change

 130 24 behavior, don't we?

Re: [130:22-

131:9]

Relevance (403) 

Foundation, 

Argumenative, 

Baker MIL No. 1

(701)

SUSTAINED

131:3 - 131:6 McNamara, Timothy 3-11-2020

 131 3 A. It appears.

 131 4 BY MR. TRACEY:

 131 5 Q. Sometimes people won't be honest without

 131 6 punishment, right?

Re: [130:22-

131:9]

Relevance (403) 

Foundation, 

Argumenative, 

Baker MIL No. 1 

(701)

SUSTAINED

131:9 - 131:9 McNamara, Timothy 3-11-2020

 131 9 A. I would assume so.

Re: [130:22-

131:9]

Relevance (403) 

Foundation, 

Argumenative, 

Baker MIL No. 1 

(701)

SUSTAINED

132:7 - 132:17 McNamara, Timothy 3-11-2020

 132 7 Q. Okay. That's your company that you work

 132 8 for, that's EAR, right, E-A-R?

 132 9 A. Yes.

 132 10 Q. A division of Aearo?

 132 11 A. It is.

 132 12 Q. Right?

 132 13 A. Yes.

 132 14 Q. Okay. That -- that -- this package says:

 132 15 "Green end constant protection against constant noise,

 132 16 NRR of 22," doesn't it?

 132 17 A. Yes.

132:21 - 133:4 McNamara, Timothy 3-11-2020

 132 21 Q. At some point you-all started selling the

 132 22 product in these blister packs, right?

 132 23 A. Yes.

 132 24 Q. And on this document, this says -- it

 133 1 says: "The blister pack includes one pair of

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 61 of 116
McNamara, Timothy 3-11-2020 39

 133 2 dual-ended Combat Arms Earplugs, a carrying case and

 133 3 an instruction guide," right?

 133 4 A. It does.

133:9 - 133:15 McNamara, Timothy 3-11-2020

 133 9 Q. So let's flip over to the next page ending

 133 10 in 31 because then we are back to the Version 2,

 133 11 aren't we?

 133 12 A. We are.

 133 13 Q. And that soldier has the yellow end, which

 133 14 means he is being protected ostensibly against impulse

 133 15 noise, right?

Re: [133:13-

133:15]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [133:13-

133:15]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

133:18 - 133:18 McNamara, Timothy 3-11-2020

 133 18 A. It appears to be, yes.

Re: [133:18-

133:18]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [133:18-

133:18]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

133:20 - 133:21 McNamara, Timothy 3-11-2020

 133 20 Q. Is that soldier properly fitted with the

 133 21 Combat Arms Earplug in that picture?

Re: [133:20-

133:21]

Def Objection -

Foundation (602)

Re: [133:20-

133:21]

Def Objection -

Foundation (602)

OVERRULED

133:24 - 133:24 McNamara, Timothy 3-11-2020

 133 24 A. I believe so.

Re: [133:24-

134:4]

Def Objection -

Foundation (602)

Re: [133:24-

134:4]

Def Objection -

Foundation (602)

OVERRULED

134:2 - 134:4 McNamara, Timothy 3-11-2020

 134 2 Q. That's the way you would have told a

 134 3 soldier to insert the Combat Arms Earplug?

 134 4 A. Yes.

Re: [133:24-

134:4]

Def Objection -

Foundation (602)

Re: [133:24-

134:4]

Def Objection -

Foundation (602)

OVERRULED

134:5 - 134:6 McNamara, Timothy 3-11-2020

 134 5 Q. Okay. Is that -- is that largest green

 134 6 flange touching the soldier's ear?

Re: [134:5-134:6]

improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 62 of 116
McNamara, Timothy 3-11-2020 40

134:9 - 134:12 McNamara, Timothy 3-11-2020

 134 9 A. I don't believe so.

 134 10 BY MR. TRACEY:

 134 11 Q. Okay. Is that deep enough into the

 134 12 soldier's ear?

Re: [134:9-

134:12]

improper counter

OVERRULED

134:15 - 134:20 McNamara, Timothy 3-11-2020

 134 15 A. I don't know.

 134 16 BY MR. TRACEY:

 134 17 Q. Well, what would you need to know to

 134 18 answer that question?

 134 19 A. It depends on the individual and -- and

 134 20 the physical makeup of his ear.

Re: [134:15-

134:20]

improper counter

OVERRULED

135:15 - 136:11 McNamara, Timothy 3-11-2020

 135 15 Q. Okay. So -- so how would you know? If

 135 16 you were doing this and you were training and you were

 135 17 teaching, what would you be telling this soldier or

 135 18 his commander about the proper way to fit this plug?

 135 19 A. Well, I mean, you -- you bring the ear --

 135 20 ear up to open the pinna, and then you insert the plug

 135 21 as -- as -- as -- as deep as you can. But you don't

 135 22 want to hurt them.

 135 23 Q. Okay.

 135 24 A. And then check the seal to make sure that

 136 1 it does not come out.

 136 2 Q. Okay.

 136 3 A. Just tug -- you know, tug it just very

 136 4 little, and -- and that should be the -- the -- it

 136 5 should be seated properly.

 136 6 Q. Okay. You didn't mention folding back the

 136 7 flanges, right?

 136 8 A. No.

 136 9 Q. Because that -- you weren't taught to

 136 10 mention that, right?

 136 11 A. No.

Re: [135:15-

137:4]

Def Objection -

Foundation (602); 

Misstates (611, 

403); Prejudice 

(403); 701; 3M 

MIL No. 15

Re: [135:15-

137:4]

Def Objection -

Foundation (602); 

Misstates (611, 

403); Prejudice 

(403); 701; 3M 

MIL No. 15

OVERRULED

136:12 - 136:24 McNamara, Timothy 3-11-2020

 136 12 Q. Okay. And so when you were doing the

 136 13 training, there would be no discussion, as you've told

 136 14 us earlier, about folding back the flanges to get a

 136 15 proper seal, right?

Re: [135:15-

137:4]

Def Objection -

Foundation (602); 

Misstates (611, 

Re: [135:15-

137:4]

Def Objection -

Foundation (602); 

Misstates (611, 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 63 of 116
McNamara, Timothy 3-11-2020 41

 136 16 A. Correct.

 136 17 Q. Yeah.

 136 18 And so since you weren't told that you --

 136 19 you weren't taught it, you didn't teach it yourself?

 136 20 A. Correct.

 136 21 Q. And so when you were teaching it, you

 136 22 would have told this soldier in this picture to do it

 136 23 exactly the way you just described it?

 136 24 A. Yes.

403); Prejudice 

(403); 701; 3M 

MIL No. 15

403); Prejudice 

(403); 701; 3M 

MIL No. 15

OVERRULED

137:1 - 137:6 McNamara, Timothy 3-11-2020

 137 1 Q. Yes. And tell me again how we know if

 137 2 it's seated properly?

 137 3 A. You insert it as -- as far as you can

 137 4 until there is discomfort.

 137 5 Q. Okay. And that should work, right, it

 137 6 should protect them?

Re: [135:15-

137:4]

Def Objection -

Foundation (602); 

Misstates (611, 

403); Prejudice 

(403); 701; 3M 

MIL No. 15

Re: [137:5-137:6]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [135:15-

137:4]

Def Objection -

Foundation (602); 

Misstates (611, 

403); Prejudice 

(403); 701; 3M 

MIL No. 15

OVERRULED

Re: [137:5-137:6]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

137:9 - 137:9 McNamara, Timothy 3-11-2020

 137 9 A. Yes.

Re: [137:9-137:9]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [137:9-137:9]

Def Objection -

Vague; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

137:23 - 138:9 McNamara, Timothy 3-11-2020

 137 23 Q. There is nothing on this page that talks

 137 24 about folding back the flanges, is there?

 138 1 A. No.

 138 2 Q. And there is no illustration of the plug

Re: [138:9-138:9]

Def Objection -

Foundation (602); 

Argumentative 

Re: [138:9-138:9]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403); No 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 64 of 116
McNamara, Timothy 3-11-2020 42

 138 3 with the flanges folded back?

 138 4 A. No.

 138 5 Q. Have you yourself ever seen your company

 138 6 in the history of making this product print up an

 138 7 illustration for marketing and sales purposes with the

 138 8 flanges folded back?

 138 9 A. I don't remember seeing it.

(611, 403); No 

question

question

OVERRULED

138:5 - 138:8 McNamara, Timothy 3-11-2020

 138 5 Q. Have you yourself ever seen your company

 138 6 in the history of making this product print up an

 138 7 illustration for marketing and sales purposes with the

 138 8 flanges folded back?

Re: [138:5-138:8]

improper counter

SUSTAINED

138:22 - 139:4 McNamara, Timothy 3-11-2020

 138 22 You yourself have never seen a company

 138 23 document or -- or brochure, sales sheet, where they

 138 24 illustrated the Combat Arms Version 2 with the flanges

 139 1 folded back?

 139 2 A. Not that I can remember.

 139 3 Q. No. And that would be consistent with how

 139 4 you were trained, which was not to fold them back?

Re: [138:22-

139:2]

Def Objection -

Foundation (602)

Re: [139:3-139:4]

Def Objection -

Misstates (611, 

403); 3M MIL No. 

15

Re: [138:22-

139:2]

Def Objection -

Foundation (602)

OVERRULED

Re: [139:3-139:4]

Def Objection -

Misstates (611, 

403); 3M MIL No. 

15

OVERRULED

139:7 - 139:7 McNamara, Timothy 3-11-2020

 139 7 A. I believe so.

Re: [139:7-139:7]

Def Objection -

Misstates (611, 

403); 3M MIL No. 

15

Re: [139:7-139:7]

Def Objection -

Misstates (611, 

403); 3M MIL No. 

15

OVERRULED

140:2 - 140:11 McNamara, Timothy 3-11-2020

 140 2 Q. Well, you used illustrations, didn't you?

 140 3 A. Yes.

 140 4 Q. We've looked at them?

 140 5 A. Yes.

 140 6 Q. Your company used them to sell the

 140 7 product, didn't they?

 140 8 A. It was an aid, yes.

 140 9 Q. Yeah. What is better in teaching somebody

Re: [140:9-

140:14]

(701, 602, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 65 of 116
McNamara, Timothy 3-11-2020 43

 140 10 the proper use of a product, what is better than an

 140 11 illustration?

140:14 - 140:14 McNamara, Timothy 3-11-2020

 140 14 A. I don't know.

Re: [140:9-

140:14]

(701, 602, 403)

OVERRULED

140:16 - 140:23 McNamara, Timothy 3-11-2020

 140 16 Q. Can you think of anything better?

 140 17 A. No.

 140 18 Q. No. I mean, your entire PowerPoint was on

 140 19 a screen for everybody to see, right?

 140 20 A. Correct.

 140 21 Q. You wanted them to see what you were

 140 22 talking about, right?

 140 23 A. Yes.

141:11 - 141:12 McNamara, Timothy 3-11-2020

 141 11 Q. Are you trying to help 3M in this case

 141 12 today?

141:11 - 141:19 McNamara, Timothy 3-11-2020

 141 11 Q. Are you trying to help 3M in this case

 141 12 today?

 141 13 MS. ELIZABETH: Objection; form.

 141 14 BY THE WITNESS:

 141 15 A. I have -- I have no -- no.

 141 16 BY MR. TRACEY:

 141 17 Q. It feels like you are trying to help them

 141 18 to me. You're not?

 141 19 A. No.

Re: [141:11-

141:19]

Plt Objection -

improper counter

Re: [141:11-

141:19]

Plt Objection -

improper counter 

designation per 

PTO 64

SUSTAINED

141:22 - 141:24 McNamara, Timothy 3-11-2020

 141 22 A. I'm telling the truth and it doesn't

 141 23 matter if it's -- you know, if I'm hurting 3M or

 141 24 anybody else. I'm telling the truth.

144:1 - 144:3 McNamara, Timothy 3-11-2020

 144 1 Q. You don't work for 3M or Aearo and haven't

 144 2 in over a decade, have you?

 144 3 A. I have not.

Re: [144:1-144:3]

Plt Objection -

improper counter

Re: [144:1-144:3]

Plt Objection -

improper counter 

designation per 

PTO 64

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 66 of 116
McNamara, Timothy 3-11-2020 44

144:22 - 145:8 McNamara, Timothy 3-11-2020

 144 22 Q. Okay. Flip over to Page 34, please, sir.

 144 23 What is this document? Is this a sell

 144 24 sheet?

 145 1 A. Yes. It's a piece of literature, yes.

 145 2 Q. So -- but is this -- is there a technical

 145 3 term for this, like a sell sheet?

 145 4 A. I believe so.

 145 5 Q. Yeah, okay.

 145 6 So I've seen this called a sell sheet, so

 145 7 if I use that term, you are familiar with it?

 145 8 A. Yes.

145:9 - 145:12 McNamara, Timothy 3-11-2020

 145 9 Q. And -- and in big bold letters at the top,

 145 10 all boxed, it says: "Reading this could save your

 145 11 life," doesn't it?

 145 12 A. Yes.

145:13 - 145:15 McNamara, Timothy 3-11-2020

 145 13 Q. And this was given to the base commanders

 145 14 and end users, wasn't it?

 145 15 A. I don't remember.

145:16 - 145:18 McNamara, Timothy 3-11-2020

 145 16 Q. Well, what did you use sell sheets for?

 145 17 A. To support the product -- the sales

 145 18 process.

146:16 - 146:22 McNamara, Timothy 3-11-2020

 146 16 Q. And we've got a picture of a soldier up

 146 17 top. It says "Combat Arms Earplugs," right?

 146 18 A. Correct.

 146 19 Q. And what you're explaining is that this is

 146 20 a very serious document that needs -- that could have

 146 21 lifesaving implications, that's what you tell the end

 146 22 user, don't you?

Re: [146:19-

146:22]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [146:19-

146:22]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

OVERRULED

147:1 - 147:1 McNamara, Timothy 3-11-2020

 147 1 A. Yes.

Re: [147:1-147:1]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [147:1-147:1]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 67 of 116
McNamara, Timothy 3-11-2020 45

(611, 403)

OVERRULED

147:3 - 147:4 McNamara, Timothy 3-11-2020

 147 3 Q. And that is designed to get the attention

 147 4 of the combat soldier, isn't it?

Re: [147:3-147:4]

Def Objection -

Foundation (602)

Re: [147:3-147:4]

Def Objection -

Foundation (602)

OVERRULED

147:7 - 147:23 McNamara, Timothy 3-11-2020

 147 7 A. I believe so.

 147 8 BY MR. TRACEY:

 147 9 Q. Yeah.

 147 10 After you tell them, whoever is looking at

 147 11 this, that "Reading this could save your life," there

 147 12 is then a couple of paragraphs, isn't there?

 147 13 A. Yes.

 147 14 Q. You tell them this is: "More than a

 147 15 hearing protector. The Combat Arms Earplugs not only

 147 16 provide hearing protection, they help provide

 147 17 situational awareness by protecting against concussive

 147 18 disorientation effects with impulse noise (weapons

 147 19 fire, improvised explosive devices, et cetera)."

 147 20 Those are the claims that you make after

 147 21 you tell them that reading this could save their life.

 147 22 True?

 147 23 A. Yes.

Re: [147:7-147:7]

Def Objection -

Foundation (602)

Re: [147:9-148:9]

Def Objection -

Foundation (602)

Re: [147:7-147:7]

Def Objection -

Foundation (602)

OVERRULED

Re: [147:9-148:9]

Def Objection -

Foundation (602)

OVERRULED

147:24 - 148:9 McNamara, Timothy 3-11-2020

 147 24 Q. You go on to say that:

 148 1 "The patented Hear-Through design allows

 148 2 wearers to hear low-level sounds critical to mission

 148 3 safety - conversation, footsteps, rifle bolts,

 148 4 approaching enemies. When needed, the plug-in filter

 148 5 reacts to provide instant protection from high-level

 148 6 noises. It's that easy. It's that quick."

 148 7 That's what you tell them after you tell

 148 8 them that reading this could save their lives?

 148 9 A. That's what it says, yes.

Re: [147:9-148:9]

Def Objection -

Foundation (602)

Re: [147:9-148:9]

Def Objection -

Foundation (602)

OVERRULED

148:1 - 148:12 McNamara, Timothy 3-11-2020

 148 1 "The patented Hear-Through design allows

 148 2 wearers to hear low-level sounds critical to mission

 148 3 safety - conversation, footsteps, rifle bolts,

Re: [147:9-148:9]

Def Objection -

Foundation (602)

Re: [147:9-148:9]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 68 of 116
McNamara, Timothy 3-11-2020 46

 148 4 approaching enemies. When needed, the plug-in filter

 148 5 reacts to provide instant protection from high-level

 148 6 noises. It's that easy. It's that quick."

 148 7 That's what you tell them after you tell

 148 8 them that reading this could save their lives?

 148 9 A. That's what it says, yes.

 148 10 Q. The implication, Mr. McNamara, is this is

 148 11 a serious device, a serious protective device that

 148 12 could have lifesaving implications?

Re: [148:10-

148:12]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [148:10-

148:12]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

OVERRULED

148:10 - 148:12 McNamara, Timothy 3-11-2020

 148 10 Q. The implication, Mr. McNamara, is this is

 148 11 a serious device, a serious protective device that

 148 12 could have lifesaving implications?

Re: [148:10-

148:12]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [148:10-

148:12]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

OVERRULED

148:14 - 148:16 McNamara, Timothy 3-11-2020

 148 14 BY MR. TRACEY:

 148 15 Q. Right?

 148 16 A. It is.

Re: [148:15-

148:16]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [148:15-

148:16]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

OVERRULED

148:17 - 148:24 McNamara, Timothy 3-11-2020

 148 17 Q. And then -- and then you have another

 148 18 illustration at the bottom, don't you: "Dual-ended

 148 19 design meets critical protection needs." And we have

 148 20 another illustration of the plug in the ear, right?

 148 21 A. Yes.

 148 22 Q. And is this the proper insertion technique

 148 23 for the Combat Arms Earplug or insertion that we see

 148 24 on the screen?

Re: [148:17-

148:24]

Def Objection -

Foundation (602)

Re: [148:17-

148:24]

Def Objection -

Foundation (602)

OVERRULED

149:3 - 149:6 McNamara, Timothy 3-11-2020

 149 3 A. It appears so.

 149 4 BY MR. TRACEY:

 149 5 Q. Okay. It's got the green end and the

 149 6 yellow end both inserted the exact same way, right?

Re: [149:3-149:6]

Def Objection -

Foundation (602)

Re: [149:3-149:6]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 69 of 116
McNamara, Timothy 3-11-2020 47

149:9 - 149:14 McNamara, Timothy 3-11-2020

 149 9 A. Yes.

 149 10 BY MR. TRACEY:

 149 11 Q. That is what you are disclosing to the

 149 12 world, to the combat soldier whose life may depend on

 149 13 this, is the proper way to insert this plug when they

 149 14 are using the yellow or the green end?

Re: [149:9-149:9]

Def Objection -

Foundation (602)

Re: [149:11-

149:14]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403)

Re: [149:9-149:9]

Def Objection -

Foundation (602)

OVERRULED

Re: [149:11-

149:14]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403)

OVERRULED

149:17 - 149:17 McNamara, Timothy 3-11-2020

 149 17 A. Yes.

Re: [149:17-

149:17]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403)

Re: [149:17-

149:17]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403)

OVERRULED

149:19 - 149:22 McNamara, Timothy 3-11-2020

 149 19 Q. There is no disclosure on this document

 149 20 that in truth and in fact your company tested the

 149 21 green end and the yellow end in different ways, is

 149 22 there?

Re: [149:19-

149:22]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403)

Re: [149:19-

149:22]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403)

SUSTAINED as 

to “in truth and in 

fact.” 

OVERRULED in 

all other respects.

150:1 - 150:1 McNamara, Timothy 3-11-2020

 150 1 A. No.

Re: [150:1-150:1]

Def Objection -

Foundation (602); 

Misstates; 

Re: [150:1-150:1]

Def Objection -

Foundation (602); 

Misstates; 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 70 of 116
McNamara, Timothy 3-11-2020 48

Compound; 

Argumentative 

(611, 403)

Compound; 

Argumentative 

(611, 403)

OVERRULED

152:17 - 152:23 McNamara, Timothy 3-11-2020

 152 17 Q. Do you understand how noise reduction

 152 18 ratings work?

 152 19 A. Basically.

 152 20 Q. Do you understand it to be a scientific

 152 21 fact that an NRR of 11 is actually protective -- that

 152 22 has 90 percent less protection than when you have a

 152 23 NRR of 22?

Re: [152:17-

152:23]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

Re: [152:17-

152:23]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

OVERRULED

153:2 - 153:6 McNamara, Timothy 3-11-2020

 153 2 A. Based on 11 and 22, yes.

 153 3 BY MR. TRACEY:

 153 4 Q. Yeah. So if you're claiming that the

 153 5 product has an NRR of 22 and it actually has an NRR of

 153 6 11, that's 10 percent of the actual protection?

Re: [153:2-153:6]

Def Objection -

Foundation (602)

Re: [153:2-153:6]

Def Objection -

Foundation (602)

OVERRULED

153:9 - 153:9 McNamara, Timothy 3-11-2020

 153 9 A. That is in a steady state noise, yes.

Re: [153:9-153:9]

Def Objection -

Foundation (602); 

Argumentative; 

Misstates (611, 

403)

Re: [153:9-

153:21]

Def Objection -

Foundation (602); 

Argumentative; 

Misstates (611, 

403)

OVERRULED

155:22 - 156:1 McNamara, Timothy 3-11-2020

 155 22 Q. What if in truth and in fact your product

 155 23 when it was used as we see on the screen preside --

 155 24 provided no protection, zero, is the combat soldier

 156 1 entitled to know that?

Re: [155:22-

156:5]

701

OVERRULED

156:5 - 156:5 McNamara, Timothy 3-11-2020

 156 5 A. Yes.

Re: [155:22-

156:5]

701

OVERRULED

157:10 - 157:13 McNamara, Timothy 3-11-2020

 157 10 And you told the jury, you looked the jury

 157 11 in the eye, you are on the camera, you looked the jury

Re: [157:10-

157:13]

Def Objection -

Foundation (602); 

Re: [157:9-

157:13]

Def Objection -

Foundation (602); 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 71 of 116
McNamara, Timothy 3-11-2020 49

 157 12 in the eye, and you said, Combat soldier is not

 157 13 entitled to know those facts, right?

Asked; 

Argumentative 

(611, 403)

Asked; 

Argumentative 

(611, 403)

SUSTAINED as 

to “you looked the 

jury in the eye, 

you are on the 

camera, you 

looked the jury in 

the eye, and you 

said” 

OVERRULED in 

all other respects.

157:17 - 157:18 McNamara, Timothy 3-11-2020

 157 17 A. They're -- I mean, they're entitled to

 157 18 know the effectiveness of the product.

Re: [157:17-

157:18]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

Re: [157:17-

157:18]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

OVERRULED

158:1 - 158:9 McNamara, Timothy 3-11-2020

 158 1 Q. Well, you do know, Mr. McNamara. We've

 158 2 been talking about it all morning. You never

 158 3 disclosed to anyone in the history of selling this

 158 4 product, in the history of going out to the -- to the

 158 5 military bases, which you did weekly, and you were

 158 6 pedaling this product, not one time did you tell

 158 7 anybody that the only way to get to 22 is to fold the

 158 8 flanges back, right?

 158 9 A. That I can remember, yes.

159:3 - 159:9 McNamara, Timothy 3-11-2020

 159 3 Q. Well, you agreed with me that if it was

 159 4 100 percent -- if it was no protection, that if it was

 159 5 100 percent ineffective, they are entitled to know

 159 6 that. You told me that, right?

 159 7 A. Yes.

 159 8 Q. So if -- are they entitled to know if it's

 159 9 95 percent ineffective?

Re: [159:3-159:9]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 72 of 116
McNamara, Timothy 3-11-2020 50

159:13 - 159:19 McNamara, Timothy 3-11-2020

 159 13 A. The noise reduction rating was 22 and that

 159 14 was -- that was how we, to the best of my knowledge,

 159 15 got that -- got that noise reduction rating.

 159 16 BY MR. TRACEY:

 159 17 Q. Understood. That was to the best of your

 159 18 knowledge, right?

 159 19 A. Yes, yes.

Re: [159:13-

159:19]

nonresponsive; 

improper counter

SUSTAINED

161:4 - 161:5 McNamara, Timothy 3-11-2020

 161 4 Q. But it wasn't -- you weren't training

 161 5 anybody to use the product as it was tested, were you?

Re: [161:4-161:8]

Vague (403, 602)

OVERRULED

161:8 - 161:8 McNamara, Timothy 3-11-2020

 161 8 A. No.

Re: [161:4-161:8]

Vague (403, 602)

OVERRULED

163:2 - 163:4 McNamara, Timothy 3-11-2020

 163 2 Q. You don't feel like they should have

 163 3 disclosed to you how they in truth and fact got the

 163 4 NRR of 22?

163:7 - 163:7 McNamara, Timothy 3-11-2020

 163 7 A. No.

163:9 - 163:10 McNamara, Timothy 3-11-2020

 163 9 Q. You wouldn't have disclosed it, or would

 163 10 you?

Re: [163:9-

163:13]

(701, 602, 403)

OVERRULED

163:13 - 163:13 McNamara, Timothy 3-11-2020

 163 13 A. I don't know.

Re: [163:9-

163:13]

(701, 602, 403)

OVERRULED

169:21 - 170:2 McNamara, Timothy 3-11-2020

 169 21 Q. Can you think of anything that just sort

 169 22 of pops into your mind -- as somebody who sold hearing

 169 23 protection products for 38 years, can you think of

 169 24 anything that is a negative on the product that you

 170 1 believe it would be unethical to conceal from the end

 170 2 user?

Re: [169:21-

170:2]

Def Objection -

Foundation (602); 

Compound; 

Misstates; 

Argumentative 

(611, 403)

Re: [169:21-

170:2]

Def Objection -

Foundation (602); 

Compound; 

Misstates; 

Argumentative 

(611, 403)

SUSTAINED

170:5 - 170:5 McNamara, Timothy 3-11-2020

 170 5 A. No.

Re: [170:5-170:5]

Def Objection -

Foundation (602); 

Compound: 

Re: [170:5-170:5]

Def Objection -

Foundation (602); 

Compound: 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 73 of 116
McNamara, Timothy 3-11-2020 51

Misstates; 

Argumentative 

(611, 403)

Misstates; 

Argumentative 

(611, 403)

SUSTAINED

191:4 - 191:6 McNamara, Timothy 3-11-2020

 191 4 MR. TRACEY: I'm going to do this one, 925.

 191 5 It's Exhibit 6?

 191 6 MR. OLIVO: Yes. Exhibit 6.

191:9 - 191:24 McNamara, Timothy 3-11-2020

 191 9 Q. Mr. McNamara, this is an e-mail from

 191 10 Elliott Berger to Brian Myers, dated May the 12th,

 191 11 2000, and the subject is, "REAT on the Combat Arms."

 191 12 Do you see that?

 191 13 A. Yes.

 191 14 Q. Have you seen this document before today?

 191 15 A. No.

 191 16 Q. It says: "Here are the data on the

 191 17 UltraFit end of the Combat Arms. Note the original

 191 18 study was stopped with eight subjects. The second

 191 19 study was with folded-back flanges on the end sticking

 191 20 out of the ear. Should I share this with Ohlin? It

 191 21 looks like the existing product has problems unless

 191 22 the user instructions are revised."

 191 23 Did I read that correctly?

 191 24 A. You did.

Re: [191:9-

191:24]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [191:9-

191:24]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

192:1 - 192:2 McNamara, Timothy 3-11-2020

 192 1 Q. Do you know, did you share the information

 192 2 in this e-mail about the REAT testing with Doug Ohlin?

Re: [192:1-192:2]

Def Objection -

Foundation (602); 

Compound (611, 

403); Relevance 

(401, 402)

Re: [192:1-192:2]

Def Objection -

Foundation (602); 

Compound (611, 

403); Relevance 

(401, 402)

OVERRULED

192:5 - 192:5 McNamara, Timothy 3-11-2020

 192 5 A. No.

Re: [192:5-192:5]

Def Objection -

Foundation (602); 

Compound (611, 

403); Relevance 

(401, 402)

Re: [192:5-192:5]

Def Objection -

Foundation (602); 

Compound (611, 

403); Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 74 of 116
McNamara, Timothy 3-11-2020 52

192:7 - 192:9 McNamara, Timothy 3-11-2020

 192 7 Q. Did you know in May of 2000 that Elliott

 192 8 Berger believed that the Combat Arms Earplug had

 192 9 problems unless the user instructions were revised?

Re: [192:7-192:9]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [192:7-192:9]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

SUSTAINED

192:12 - 192:12 McNamara, Timothy 3-11-2020

 192 12 A. No.

Re: [192:12-

193:1]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [192:11-

193:1]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

192:13 - 193:1 McNamara, Timothy 3-11-2020

 192 13 BY MR. TRACEY:

 192 14 Q. Did anybody ever bring this to your

 192 15 attention in the ten years you were selling this

 192 16 product?

 192 17 A. No.

 192 18 Q. So as we sit here, this is the first time

 192 19 today that you're seeing this document?

 192 20 A. Yes.

 192 21 Q. This is the first time you're seeing

 192 22 Elliott Berger asking the question to Brian Myers

 192 23 about sharing the content of the flange report with

 192 24 Doug Ohlin?

 193 1 A. Yes.

Re: [192:12-

193:1]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [192:11-

193:1]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

192:14 - 193:1 McNamara, Timothy 3-11-2020

 192 14 Q. Did anybody ever bring this to your

 192 15 attention in the ten years you were selling this

 192 16 product?

 192 17 A. No.

 192 18 Q. So as we sit here, this is the first time

 192 19 today that you're seeing this document?

 192 20 A. Yes.

 192 21 Q. This is the first time you're seeing

 192 22 Elliott Berger asking the question to Brian Myers

 192 23 about sharing the content of the flange report with

Re: [192:12-

193:1]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [192:11-

193:1]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 75 of 116
McNamara, Timothy 3-11-2020 53

 192 24 Doug Ohlin?

 193 1 A. Yes.

193:11 - 193:16 McNamara, Timothy 3-11-2020

 193 11 Q. Okay. Were you asked to share any

 193 12 problems with the American military about this

 193 13 existing product?

 193 14 A. No.

 193 15 Q. Were you consulted about revising

 193 16 instructions to try to cure the existing problems?

193:19 - 193:19 McNamara, Timothy 3-11-2020

 193 19 A. No.

194:2 - 194:8 McNamara, Timothy 3-11-2020

 194 2 Q. Have you ever been consulted by the

 194 3 technical people at Aearo about the content of user

 194 4 instructions?

 194 5 A. No.

 194 6 Q. Have you ever had any input at all into

 194 7 what user instructions go into a product?

 194 8 A. No.

Re: [194:2-194:8]

improper counter

OVERRULED

195:1 - 195:9 McNamara, Timothy 3-11-2020

 195 1 (WHEREUPON, a certain document was

 195 2 marked Timothy McNamara Deposition

 195 3 Exhibit No. 7, for identification, as

 195 4 of 03/11/2020.)

 195 5 BY MR. TRACEY:

 195 6 Q. Mr. McNamara, this next exhibit is

 195 7 something called "Tim's Military Installation

 195 8 Priorities." It's Exhibit No. --

 195 9 MR. OLIVO: Seven?

196:8 - 196:10 McNamara, Timothy 3-11-2020

 196 8 Q. And we say -- on the left we see the

 196 9 installation that you intend to visit?

 196 10 A. Yes.

196:20 - 197:9 McNamara, Timothy 3-11-2020

 196 20 Q. And then we see the -- the installations,

 196 21 we see Fort Bragg, Fort Benning, Fort Hood, Fort

 196 22 Stewart, Fort Jackson, Fort Campbell, Fort Riley, Fort

 196 23 Carson, Camp Lejeune, Fort Bragg, Fort Drum, Fort

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 76 of 116
McNamara, Timothy 3-11-2020 54

 196 24 Lewis, Camp Pendleton again, Twentynine Palms,

 197 1 Schofield Barracks, Fort Irwin, Fort Belvoir, Langley

 197 2 Air Force Base, Scott Air Force Base, Fort Leonard

 197 3 Wood, Norfolk naval installations, and Fort Lee.

 197 4 Did I read all of that right?

 197 5 A. Yes, you did.

 197 6 Q. And those are all installations that

 197 7 according to this document you were going to hopefully

 197 8 visit; is that right?

 197 9 A. Correct.

198:6 - 199:5 McNamara, Timothy 3-11-2020

 198 6 Q. Tell me what the target market is.

 198 7 A. Those are the divisions, like the 82nd

 198 8 Airborne, you know, 1st Cav. They are the -- they are

 198 9 the installation -- each installation or base has a

 198 10 number of different groups to it.

 198 11 Q. Okay.

 198 12 A. So those were specific in those visits.

 198 13 Q. So, for example, if we take the first

 198 14 entry, you were going to go to Fort Bragg on or around

 198 15 July 8th through the 10th, you were going to -- the

 198 16 target market was the 82nd Airborne, and then what's

 198 17 SOF?

 198 18 A. Special --

 198 19 Q. Special Ops Forces?

 198 20 A. No. I don't know. I don't recall right

 198 21 now.

 198 22 Q. Okay. In any event, your target market

 198 23 when you went to Fort Bragg, would it be the 82nd

 198 24 Airborne and whatever SOF is?

 199 1 A. Yes, sir. Yeah.

 199 2 Q. So those are the -- would those be the

 199 3 management people or the commanders that you would

 199 4 want to see?

 199 5 A. Yes.

200:19 - 200:22 McNamara, Timothy 3-11-2020

 200 19 Q. Okay. So every week we see you traveling

 200 20 to different installations. Now, I'm assuming, did

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 77 of 116
McNamara, Timothy 3-11-2020 55

 200 21 you -- did you fly or drive or did it depend?

 200 22 A. Flew.

201:9 - 202:8 McNamara, Timothy 3-11-2020

 201 9 Q. Okay. And then you would drive to the

 201 10 barracks?

 201 11 A. Yes.

 201 12 Q. And did you have, like, a suitcase or a

 201 13 bag full of materials that you would typically carry

 201 14 with you?

 201 15 A. Yes.

 201 16 Q. Tell me what would be in the suitcase or

 201 17 the bag? What do we call what you carried them in?

 201 18 A. Sample bag.

 201 19 Q. A sample bag. And that was provided by

 201 20 Aearo?

 201 21 A. Yes.

 201 22 Q. And what did it look like? Was it a

 201 23 suitcase? Was it a briefcase? What did it look like?

 201 24 A. It was roll -- a rollaway duffel bag.

 202 1 Q. Okay.

 202 2 A. What the military uses.

 202 3 Q. Okay. A military bag?

 202 4 A. Yes.

 202 5 Q. And -- and -- and what would be inside

 202 6 this rollaway duffel bag? Give me an example.

 202 7 A. Literature, catalogs, samples, and that's

 202 8 it.

Re: [201:9-

201:11]

Def Objection -

Relevance (401, 

402)

Re: [201:9-

201:11]

Def Objection -

Relevance (401, 

402)

OVERRULED

202:9 - 202:20 McNamara, Timothy 3-11-2020

 202 9 Q. Did you bring a laptop with you?

 202 10 A. Yes.

 202 11 Q. And did you bring, like, a screen to do

 202 12 presentations?

 202 13 A. No.

 202 14 Q. Well, how did -- when you did

 202 15 presentations, how did you do them? Did they -- did

 202 16 they have classrooms there you could use?

 202 17 A. No.

 202 18 Q. What did you do?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 78 of 116
McNamara, Timothy 3-11-2020 56

 202 19 A. They were one-on-one visits with the

 202 20 commanders.

202:21 - 203:5 McNamara, Timothy 3-11-2020

 202 21 Q. Okay. So, like, you remember you told me

 202 22 earlier you did a presentation with a PowerPoint at a

 202 23 distributor?

 202 24 A. Yes.

 203 1 Q. How did you -- what screen did you use for

 203 2 that at the distributor?

 203 3 A. Theirs.

 203 4 Q. So they had a screen?

 203 5 A. Yes.

204:14 - 204:17 McNamara, Timothy 3-11-2020

 204 14 Q. Okay. If you flip over to the next page,

 204 15 it's called, "Tim's Weekly Business Development

 204 16 Report."

 204 17 Do you know what that is?

Re: [204:14-

204:17]

Def Objection -

Foundation (602)

Re: [204:14-

204:17]

Def Objection -

Foundation (602)

OVERRULED

204:20 - 205:1 McNamara, Timothy 3-11-2020

 204 20 A. No, but, I mean, it's -- it's probably a

 204 21 conglomeration of what I discussed and any follow-ups

 204 22 and so forth.

 204 23 BY MR. TRACEY:

 204 24 Q. And are those your notes there on the

 205 1 right-hand side of that, "Follow-up Actions"?

Re: [204:20-

205:1]

Def Objection -

Foundation (602)

Re: [204:20-

205:1]

Def Objection -

Foundation (602)

OVERRULED

205:4 - 205:4 McNamara, Timothy 3-11-2020

 205 4 A. They appear to be.

Re: [205:4-205:4]

Def Objection -

Foundation (602)

Re: [205:3-205:4]

Def Objection -

Foundation (602)

OVERRULED

205:23 - 207:22 McNamara, Timothy 3-11-2020

 205 23 Q. So, for example, on the week of July 7th,

 205 24 it looks like you went to Fort Bragg; is that

 206 1 accurate?

 206 2 A. That's accurate.

 206 3 Q. And while you were at Fort Bragg, you

 206 4 talked to the 7th group, two different people at the

 206 5 7th group, right?

 206 6 A. Yes.

 206 7 Q. You talked to somebody, Mike Coleman, at

 206 8 the 3rd group, right?

Re: [205:23-

207:22]

Relevance (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 79 of 116
McNamara, Timothy 3-11-2020 57

 206 9 A. Yes.

 206 10 Q. And then somebody, SFC Hector Michaud, at

 206 11 the 3rd group also?

 206 12 A. Yes.

 206 13 Q. Those are all Army groups, aren't they?

 206 14 A. Yes.

 206 15 Q. And then we see you talked to Lieutenant

 206 16 Darwin at the 82nd Division. Is that the Airborne,

 206 17 82nd Airborne?

 206 18 A. Airborne, yes.

 206 19 Q. They are stationed at Fort Bragg, aren't

 206 20 they?

 206 21 A. They sure are.

 206 22 Q. Okay. And then we -- so you took -- and

 206 23 then you -- you talked to somebody at the 82nd

 206 24 Airborne in the 1st Brigade, somebody at the 82nd

 207 1 Airborne in the 3rd Brigade, and then the 4th Brigade,

 207 2 right?

 207 3 A. Yes.

 207 4 Q. And then it looks like you talked to

 207 5 somebody in -- is that Delta Force?

 207 6 A. At Delta Force, yes.

 207 7 Q. And then do you know what J-S-O-C is?

 207 8 A. JSOC, it's Joint Special Operations

 207 9 Command.

 207 10 Q. Okay. And you did all of that the week of

 207 11 July the 7th at Fort Bragg?

 207 12 A. Yes.

 207 13 Q. So you met with one, two, three, four,

 207 14 five, six, seven, eight, nine -- about ten different

 207 15 people?

 207 16 A. Yes.

 207 17 Q. And -- and when you had these meetings

 207 18 with these ten different people all at Fort Bragg,

 207 19 would you use your -- your rollaway duffel bag? Is

 207 20 that where you would access the information that you

 207 21 wanted to communicate to them?

 207 22 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 80 of 116
McNamara, Timothy 3-11-2020 58

210:2 - 210:4 McNamara, Timothy 3-11-2020

 210 2 Q. So you see Range Control on the screen,

 210 3 Dan Benford, and then it says Combat Arms Earplug? Do

 210 4 you see it's CAE?

210:7 - 210:7 McNamara, Timothy 3-11-2020

 210 7 THE WITNESS: Yeah.

212:12 - 212:24 McNamara, Timothy 3-11-2020

 212 12 Q. Okay. All right. And then just as we

 212 13 thumb through this and look through this, we just see

 212 14 all of the various places that you visited, what you

 212 15 discussed and the notes about, you know, your visits,

 212 16 correct?

 212 17 A. Yes.

 212 18 Q. Okay. What are RFI products?

 212 19 A. A Rapid Field Initiative.

 212 20 Q. What does that mean?

 212 21 A. They can -- if my memory serves me right,

 212 22 that they can get it quicker.

 212 23 Q. Okay. They can procure the items quicker?

 212 24 A. Yes.

216:9 - 217:4 McNamara, Timothy 3-11-2020

 216 9 Q. Okay. Were -- did you tell me earlier --

 216 10 I think you did, but I want to make sure I'm

 216 11 remembering this correctly. You were the sole person

 216 12 in sales that was tasked with going out to the various

 216 13 bases?

 216 14 A. Yeah.

 216 15 Q. Did you ever bring along Marty Salon or

 216 16 anybody else?

 216 17 A. They would come with me on occasion, like,

 216 18 not necessarily Marty Salon, but Mike Cimino and --

 216 19 Q. Okay.

 216 20 A. -- just to get exposure on the market.

 216 21 Q. Okay. What about Brian Myers? Did he

 216 22 ever go with you?

 216 23 A. Yes.

 216 24 Q. Okay. Anyone else you can think of

 217 1 besides Mike Cimino and Brian Myers who might go with

 217 2 you to the bases?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 81 of 116
McNamara, Timothy 3-11-2020 59

 217 3 A. I don't know if Frank Gavin -- Frank Gavin

 217 4 did go with me on occasion.

223:16 - 223:19 McNamara, Timothy 3-11-2020

 223 16 Q. This is Exhibit 9. This is a -- an e-mail

 223 17 from Brian Myers to Doug Ohlin, and you're copied on

 223 18 it along with Elliott Berger and is it Glenn Williams?

 223 19 A. Glenn Williams, yeah.

Re: [223:16-

223:19]

improper counter

SUSTAINED

240:9 - 240:12 McNamara, Timothy 3-11-2020

 240 9 Q. Okay. Certainly your company, as we can

 240 10 see here, your company, you would agree with me, is in

 240 11 the best position on how to educate users on the

 240 12 product they designed and created?

Re: [240:9-

240:12]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [240:9-

240:12]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

240:15 - 240:15 McNamara, Timothy 3-11-2020

 240 15 A. I would think so.

Re: [240:15-

240:15]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [240:14-

240:15]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

241:14 - 242:1 McNamara, Timothy 3-11-2020

 241 14 Q. Okay. Your company tested the product,

 241 15 right?

 241 16 A. I would assume so.

 241 17 Q. Your company marketed the product?

 241 18 A. Yes.

 241 19 Q. Your company sold the product?

 241 20 A. Yes.

 241 21 Q. Your company profited from the product?

 241 22 A. Yes.

 241 23 Q. Your company created sales sheets and

 241 24 brochures to profit -- to sell and profit from the

 242 1 product?

Re: [241:14-

241:22]

Def Objection -

Foundation (602)

Re: [241:23-

242:1]

Def Objection -

Foundation (602); 

Compound; 

Misstates (611, 

403)

Re: [241:14-

241:22]

Def Objection -

Foundation (602)

OVERRULED

Re: [241:23-

242:1]

Def Objection -

Foundation (602); 

Compound; 

Misstates (611, 

403)

OVERRULED

242:4 - 242:4 McNamara, Timothy 3-11-2020

 242 4 Q. Right?

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 82 of 116
McNamara, Timothy 3-11-2020 60

242:5 - 242:5 McNamara, Timothy 3-11-2020

 242 5 A. Yes.

Re: [242:5-242:8]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

Re: [242:4-242:8]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

OVERRULED

242:6 - 242:8 McNamara, Timothy 3-11-2020

 242 6 Q. Your company was in the best position to

 242 7 properly educate and train end users on the proper

 242 8 usage of your product, right?

Re: [242:5-242:8]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

Re: [242:4-242:8]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

OVERRULED

242:12 - 242:12 McNamara, Timothy 3-11-2020

 242 12 A. I believe so, yes.

Re: [242:12-

242:12]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

Re: [242:11-

242:12]

Def Objection -

Foundation (602); 

Asked; 

Argumentative 

(611, 403)

OVERRULED

243:2 - 243:16 McNamara, Timothy 3-11-2020

 243 2 Q. Well, I mean, I'm not talking about any

 243 3 particular one, but you certainly had fact sheets for

 243 4 your products that you sold?

 243 5 A. Yes.

 243 6 Q. Okay. And you had them on the Combat

 243 7 Arms?

 243 8 A. That I remember, yes. Yeah.

 243 9 Q. Would a fact sheet and a sell sheet be the

 243 10 same thing in your vernacular?

 243 11 A. I would -- I would think so.

 243 12 Q. Okay.

 243 13 A. We would use the fact sheet with sales --

 243 14 with sales sheets.

 243 15 Q. You'd use it together?

 243 16 A. Sometimes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 83 of 116
McNamara, Timothy 3-11-2020 61

243:24 - 244:19 McNamara, Timothy 3-11-2020

 243 24 Q. Do you know who Theresa Schulz is?

 244 1 A. Yes.

 244 2 Q. How do you know her?

 244 3 MR. OLIVO: Exhibit 12.

 244 4 (WHEREUPON, a certain document was

 244 5 marked Timothy McNamara Deposition

 244 6 Exhibit No. 12, for identification,

 244 7 as of 03/11/2020.)

 244 8 BY THE WITNESS:

 244 9 A. She is an audiologist. She is an

 244 10 audiologist, yeah.

 244 11 BY MR. TRACEY:

 244 12 Q. And she was with the military, the

 244 13 government at one point?

 244 14 A. If I remember, yes.

 244 15 Q. And do you remember your company hiring

 244 16 her to do contract work when she left the military and

 244 17 she was with -- at East -- East Tennessee State

 244 18 University?

 244 19 A. As I remember.

244:20 - 245:2 McNamara, Timothy 3-11-2020

 244 20 Q. Yeah. And at the top of this we see this

 244 21 is an e-mail from Theresa Schulz. 

https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fETSU.edu&c=E,1,rRuzhxEmn4iC6Wt4FcHNxJNZoTN8ClletgZRzPP5k9AqlQt0z_FurD9EVJzuKkOnhqzdMSf

7MVk4-atJp_HAaYsrSEcYeXrLbzk2T2xdBtqoi6S8uvgKaaLTxOa&typo=1, I will

 244 22 represent to you, means East Tennessee State

 244 23 University. The date of this is Sunday, October 30th,

 244 24 2005. This is sent to Brian Myers, Marc Santoro, and

 245 1 Gary Warren. Gary Warren was the president of Aearo

 245 2 North America; is that right?

245:5 - 245:5 McNamara, Timothy 3-11-2020

 245 5 A. Vice president, as I knew it.

245:7 - 245:19 McNamara, Timothy 3-11-2020

 245 7 Q. Okay. The subject is "Statement of Work,"

 245 8 and then she says there's some attachments. The last

 245 9 thing says -- on the attachment, it says: "Combat

 245 10 Arms Earplug Training SOW.doc."

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 84 of 116
McNamara, Timothy 3-11-2020 62

 245 11 Do you see that? Do you see it says

 245 12 "Combat Arms Earplug Training SOW.doc"?

 245 13 A. Yes, yes.

 245 14 Q. Okay. Do you know what a statement of

 245 15 work is?

 245 16 A. Yes.

 245 17 Q. What's a statement of work?

 245 18 A. Just what you're proposing as quotation on

 245 19 what you're going to do.

246:11 - 246:14 McNamara, Timothy 3-11-2020

 246 11 Q. So you see it's an agreement between Aearo

 246 12 Corporation, U.S. Army Center for Health Promotion and

 246 13 Preventive Medicine.

 246 14 That's CHPPM, isn't it?

247:4 - 247:5 McNamara, Timothy 3-11-2020

 247 4 This is an agreement between Aearo

 247 5 Corporation and CHPPM, isn't it?

Re: [247:4-247:9]

Foundation

OVERRULED

247:8 - 247:15 McNamara, Timothy 3-11-2020

 247 8 Q. That's what it's entitled?

 247 9 A. Yes.

 247 10 Q. And it is dated October the 31st, 2005,

 247 11 and next to that, it says, "Update with each change"?

 247 12 A. Yes.

 247 13 Q. And the Task Order Title is the Combat

 247 14 Arms Earplug Training, isn't it?

 247 15 A. Yes.

Re: [247:4-247:9]

Foundation

OVERRULED

248:2 - 248:10 McNamara, Timothy 3-11-2020

 248 2 Q. Okay. So -- okay.

 248 3 If we look at this document, the third

 248 4 paragraph under "Background," it says, "Since the

 248 5 Combat Arms Earplug is a new technology and is

 248 6 perceptually different from other hearing protective

 248 7 devices, customized training is needed to ensure that

 248 8 soldiers use the devices appropriately."

 248 9 Did I read that right?

 248 10 A. Yes.

248:18 - 248:22 McNamara, Timothy 3-11-2020

 248 18 Q. Do you know if your company -- in 2005 you

 248 19 were still hitting the bricks and showing up at the

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 85 of 116
McNamara, Timothy 3-11-2020 63

 248 20 different barracks and forts all over the country

 248 21 selling the Combat Arms, weren't you?

 248 22 A. Yes.

251:4 - 251:7 McNamara, Timothy 3-11-2020

 251 4 Q. Are you aware of anybody at your company

 251 5 other than you that went out to the bases to train the

 251 6 battalion commanders or the management on the proper

 251 7 use of the Combat Arms Earplug?

Re: [251:4-

251:10]

(602, 403)

OVERRULED

251:10 - 251:10 McNamara, Timothy 3-11-2020

 251 10 A. No.

Re: [251:4-

251:10]

(602, 403)

OVERRULED

252:8 - 252:16 McNamara, Timothy 3-11-2020

 252 8 Q. -- did your company, that you know of, go

 252 9 to Theresa Schulz and say, "Theresa, I'm going to show

 252 10 you everything we know about the Combat Arms Earplug.

 252 11 I'm going to show you Test 20 -- 213017 and 015, and

 252 12 I'm going to show you how we got the NRR of 22 so you,

 252 13 in turn, can go teach the soldiers how to get this

 252 14 NRR"?

 252 15 Do you remember something like that ever

 252 16 happening?

Re: [252:8-

252:19]

(403, 602)

OVERRULED

252:19 - 252:19 McNamara, Timothy 3-11-2020

 252 19 A. No.

Re: [252:8-

252:19]

(403, 602)

OVERRULED

253:17 - 253:22 McNamara, Timothy 3-11-2020

 253 17 Q. On the next page under Phase 2, it says:

 253 18 "Description: Aearo Corporations will create and test

 253 19 strategies to train deploying soldiers on the correct

 253 20 use of the Combat Arms Earplug."

 253 21 Did I read that right?

 253 22 A. You did.

253:23 - 253:24 McNamara, Timothy 3-11-2020

 253 23 Q. Do you -- does that look like a good idea

 253 24 to you?

254:2 - 254:2 McNamara, Timothy 3-11-2020

 254 2 BY THE WITNESS:

255:14 - 255:21 McNamara, Timothy 3-11-2020

 255 14 Q. And under Phase 3, let's look at that and

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 86 of 116
McNamara, Timothy 3-11-2020 64

 255 15 see if that looks reasonable. It says: "Aearo

 255 16 Corporation will develop training materials and tools

 255 17 to train soldiers and commanders in all settings

 255 18 (garrison, pre-deployment, and deployed) in the

 255 19 appropriate use of Combat Arms earplugs."

 255 20 That's a perfectly reasonable response,

 255 21 isn't it?

255:24 - 255:24 McNamara, Timothy 3-11-2020

 255 24 A. I believe so.

256:12 - 256:21 McNamara, Timothy 3-11-2020

 256 12 Q. And then in Phase 3 under "Deliverable,"

 256 13 it says: "Training materials and tools to train

 256 14 soldiers in the appropriate use of the Combat Arms

 256 15 Earplugs."

 256 16 What does "deliverable" mean?

 256 17 A. That they would be able to deliver them.

 256 18 Q. Okay. That's what you're going to --

 256 19 you're going to furnish or deliver or complete; is

 256 20 that right?

 256 21 A. I believe so.

261:3 - 261:14 McNamara, Timothy 3-11-2020

 261 3 Q. Okay. So you -- you all had a literature

 261 4 department at the distribution center here in

 261 5 Indianapolis?

 261 6 A. Correct.

 261 7 Q. And if you needed more literature, that's

 261 8 who you would contact?

 261 9 A. Yes.

 261 10 Q. And it had stuff like posters and

 261 11 brochures and sales sheets and things like that?

 261 12 A. Yes.

 261 13 Q. All of the wares that you would use to

 261 14 pedal the products that you were selling?

261:17 - 261:17 McNamara, Timothy 3-11-2020

 261 17 A. Yes.

270:23 - 271:7 McNamara, Timothy 3-11-2020

 270 23 Q. Maybe that's the same thing.

 270 24 So as we sit here today, you don't know

 271 1 one way or the other whether that contract for the

Re: [270:23-

271:7]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 87 of 116
McNamara, Timothy 3-11-2020 65

 271 2 statement of work was ever executed and completed?

 271 3 A. I do not.

 271 4 Q. Okay. In any event, as we sit here today,

 271 5 do you remember ever seeing any materials that came

 271 6 about as a result of that contract?

 271 7 A. No, I do not.

277:18 - 278:7 McNamara, Timothy 3-11-2020

 277 18 Do -- do you -- when -- I want to ask you

 277 19 about a couple of other barracks or forts to see if

 277 20 you -- when you were -- when you were selling the

 277 21 Combat Arms if you went there.

 277 22 A. Okay.

 277 23 Q. You've already identified most of these,

 277 24 but there are a couple, I think, I didn't ask you

 278 1 about.

 278 2 Did you go to the Lewis-McChord Base?

 278 3 A. Yes.

 278 4 Q. Okay. Is Fort Lewis and Lewis-McChord the

 278 5 same base or are those two different bases?

 278 6 A. They were two different bases. It is my

 278 7 understanding they are one base now.

Re: [277:18-

278:3]

Def Objection -

Relevance (401, 

402)

Re: [277:18-

278:3]

Def Objection -

Relevance (401, 

402)

OVERRULED

279:1 - 279:3 McNamara, Timothy 3-11-2020

 279 1 Q. Fort Benning I think we talked about.

 279 2 You've been there?

 279 3 A. Yes.

Re: [279:1-279:3]

Def Objection -

Cumulative (403); 

Asked (611, 403)

Re: [278:20-

279:6]

Def Objection -

Cumulative (403); 

Asked (611, 403)

OVERRULED

279:16 - 279:17 McNamara, Timothy 3-11-2020

 279 16 Q. Okay. Fort Jackson in South Carolina?

 279 17 A. Yes.

Re: [279:16-

279:17]

Def Objection -

Cumulative (403); 

Asked (611, 403)

Re: [279:16-

279:22]

Def Objection -

Cumulative (403); 

Asked (611, 403)

OVERRULED

281:13 - 281:15 McNamara, Timothy 3-11-2020

 281 13 Q. Okay. I can't -- so do you remember that

 281 14 there were four bases, I'm going to call them, that --

 281 15 where basic combat training was done?

281:20 - 282:2 McNamara, Timothy 3-11-2020

 281 20 Q. Do you remember the -- can you think of

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 88 of 116
McNamara, Timothy 3-11-2020 66

 281 21 four? Let me ask it that way.

 281 22 A. Fort Stewart, Fort Benning, Fort Jackson.

 281 23 They did -- they all did a lot of -- a lot of

 281 24 training, but basic training --

 282 1 Q. Was Fort Sill the other one?

 282 2 A. I believe so.

287:14 - 287:23 McNamara, Timothy 3-11-2020

 287 14 Q. So let me look at your CV here about Aearo

 287 15 Technologies, and specifically it says your role from

 287 16 '96 to 2009 drove sales of eyewear and hearing

 287 17 protection.

 287 18 Do you see that?

 287 19 A. Yes, I do.

 287 20 Q. In the US military.

 287 21 And in order to do that, you forged and

 287 22 nurtured strategic relationships, correct?

 287 23 A. Yes.

287:24 - 288:10 McNamara, Timothy 3-11-2020

 287 24 Q. And that included strategic relationships

 288 1 with members of the military, correct?

 288 2 A. Correct.

 288 3 Q. In fact, if we go to the next page, it

 288 4 looks like you got an award for your sales to the

 288 5 military, right?

 288 6 A. Yes.

 288 7 Q. It is called the Top Gun award. In 2003

 288 8 and then again in 2004, you were the Aearo sales

 288 9 representative of the year, right?

 288 10 A. Correct.

288:11 - 288:14 McNamara, Timothy 3-11-2020

 288 11 Q. And at that time you were -- your role was

 288 12 to go in day in/day out to military bases and sell

 288 13 products for Aearo, right?

 288 14 A. Correct.

289:15 - 289:19 McNamara, Timothy 3-11-2020

 289 15 Q. And we talked a little bit about

 289 16 distributors earlier. But distributors -- you were

 289 17 out there selling to the military day in/day out, but

Re: [289:15-

289:19]

Def Objection -

Compound (611, 

Re: [289:15-

289:19]

Def Objection -

Compound (611, 

403); Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 89 of 116
McNamara, Timothy 3-11-2020 67

 289 18 the distributors were also selling these earplugs to

 289 19 the military, correct?

403); Foundation 

(602)

(602)

OVERRULED

289:22 - 290:7 McNamara, Timothy 3-11-2020

 289 22 A. Correct.

 289 23 BY MR. AYLSTOCK:

 289 24 Q. And the distributors, as evidenced by this

 290 1 presentation you gave, received information about the

 290 2 Aearo products from Aearo, right?

 290 3 A. Correct.

 290 4 Q. I mean, Aearo would be in a better

 290 5 position to know about Aearo's products than a

 290 6 distributor that was just a middleman, right?

 290 7 A. Yes.

Re: [289:22-

289:22]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Re: [289:24-

290:7]

Def Objection -

Relevance (401, 

402)

Re: [289:22-

289:22]

Def Objection -

Compound (611, 

403); Foundation 

(602)

OVERRULED

Re: [289:24-

290:12]

Def Objection -

Relevance (401, 

402)

OVERRULED

290:16 - 290:20 McNamara, Timothy 3-11-2020

 290 16 Q. Okay. And so what you, on behalf of

 290 17 Aearo, is telling this distributor about the earplugs

 290 18 that the distributor is then going to go sell to the

 290 19 military is contained in this -- in this presentation,

 290 20 correct?

Re: [290:16-

290:20]

Def Objection -

Misstates (611, 

403); Foundation 

(602)

Re: [290:16-

290:20]

Def Objection -

Misstates (611, 

403); Foundation 

(602)

OVERRULED

290:23 - 290:23 McNamara, Timothy 3-11-2020

 290 23 A. I believe so, yes.

Re: [290:23-

290:23]

Def Objection -

Misstates (611, 

403); Foundation 

(602)

Re: [290:23-

290:23]

Def Objection -

Misstates (611, 

403); Foundation 

(602)

OVERRULED

291:1 - 291:9 McNamara, Timothy 3-11-2020

 291 1 Q. And specifically when it comes to the

 291 2 Combat Arms Earplug, the Version 2 dual-ended earplug,

 291 3 we -- it talks about the yellow end and the olive drab

 291 4 green end, correct?

 291 5 A. Yes.

 291 6 Q. And it talks about the fact that you

 291 7 insert the yellow plugs for weapons fire in a

 291 8 dismounted mode, correct?

 291 9 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 90 of 116
McNamara, Timothy 3-11-2020 68

291:14 - 291:19 McNamara, Timothy 3-11-2020

 291 14 Q. And you use them on the range firing

 291 15 weapons, right?

 291 16 A. Yes.

 291 17 Q. Both indoor and outdoor, I take it, I

 291 18 think you testified?

 291 19 A. Yes.

292:13 - 292:17 McNamara, Timothy 3-11-2020

 292 13 Q. Okay. Well, in this presentation piece,

 292 14 this sell sheet, what is being communicated to ADS,

 292 15 the distributor, is that the yellow end is perfectly

 292 16 fine for weapons fire in the dismounted mode, correct?

 292 17 A. Correct.

Re: [292:13-

292:17]

Def Objection -

Misstates, 

Compound (611, 

403); Foundation 

(602)

Re: [292:13-

292:17]

Def Objection -

Misstates, 

Compound (611, 

403); Foundation 

(602)

OVERRULED

292:20 - 292:21 McNamara, Timothy 3-11-2020

 292 20 Q. And it would be perfectly fine for weapons

 292 21 fire at the range, correct?

Re: [292:20-

292:21]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [292:20-

292:21]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

293:1 - 293:4 McNamara, Timothy 3-11-2020

 293 1 A. I believe so.

 293 2 BY MR. AYLSTOCK:

 293 3 Q. And that includes the indoor range,

 293 4 correct?

Re: [293:1-293:4]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [293:1-293:4]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

293:8 - 293:14 McNamara, Timothy 3-11-2020

 293 8 A. It doesn't state that, but yes.

 293 9 BY MR. AYLSTOCK:

 293 10 Q. And that's consistent with when you were

 293 11 visiting these bases, that's consistent with what you

 293 12 would communicate to the people you would speak with,

 293 13 the men and women in uniform, about the Combat Arms

 293 14 Earplug, correct?

Re: [293:8-293:8]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [293:10-

293:14]

Def Objection -

Vague; 

Compound: 

Misstates; 

Re: [293:7-293:8]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

Re: [293:10-

293:14]

Def Objection -

Vague; 

Compound: 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 91 of 116
McNamara, Timothy 3-11-2020 69

Argumentative 

(611, 403); 3M 

MIL No. 15

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15

OVERRULED

293:17 - 293:17 McNamara, Timothy 3-11-2020

 293 17 A. I believe so.

Re: [293:17-

293:17]

Def Objection -

Vague; 

Compound; 

Argumentative; 

Misstates (611, 

403); 3M MIL No. 

15;

Re: [293:17-

293:17]

Def Objection -

Vague; 

Compound; 

Argumentative; 

Misstates (611, 

403); 3M MIL No. 

15;

OVERRULED

297:19 - 297:23 McNamara, Timothy 3-11-2020

 297 19 Q. Did you ever have any conversation with

 297 20 Mr. Berger that, in fact, the CAE Version 2 yellow end

 297 21 is not to be recommended -- is not to be used or not

 297 22 recommended for indoor range use?

 297 23 A. I don't recall.

298:8 - 298:9 McNamara, Timothy 3-11-2020

 298 8 MR. AYLSTOCK: Yes. I believe it is Exhibit 17.

 298 9 Exhibit 17.

299:8 - 299:10 McNamara, Timothy 3-11-2020

 299 8 Q. The date of this document is 2/25/14.

 299 9 Do you see that?

 299 10 A. Yes.

Re: [299:8-

299:10]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [299:8-

300:24]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

299:19 - 300:15 McNamara, Timothy 3-11-2020

 299 19 Q. And what Mr. Berger is doing is he is

 299 20 having an e-mail conversation with a Michael Stewart

 299 21 and Doug Moses.

 299 22 You know who Doug Moses is, right?

 299 23 A. I do.

 299 24 Q. You worked with Doug Moses, in fact, when

 300 1 you were at Aearo, correct?

Re: [299:19-

300:15]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

Re: [299:8-

300:24]

Def Objection -

Foundation (602); 

Relevance (401, 

402)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 92 of 116
McNamara, Timothy 3-11-2020 70

 300 2 A. Yes.

 300 3 Q. And one of the things Mr. Berger says is:

 300 4 "Mike, I too had a discussion after we spoke. As I

 300 5 mentioned, we don't typically like to recommend CAE

 300 6 for indoor ranges because I question its adequacy with

 300 7 high-peak levels and high-reverberant levels too, but

 300 8 I agreed in your case because of the low-level impulse

 300 9 from .22s."

 300 10 Do you see that?

 300 11 A. Yes.

 300 12 Q. That's -- a .22, that's a very small gun?

 300 13 A. Yes.

 300 14 Q. You would agree with that?

 300 15 A. Yes.

301:1 - 301:4 McNamara, Timothy 3-11-2020

 301 1 Q. You have no recollection of ever hearing

 301 2 that because you were telling people out on the bases

 301 3 the opposite, that you could use that for the yellow

 301 4 end, correct?

Re: [301:1-301:4]

Def Objection -

Compound; Asked; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [301:1-301:4]

Def Objection -

Compound; Asked; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

301:7 - 301:7 McNamara, Timothy 3-11-2020

 301 7 A. Yes, for gunfire.

Re: [301:7-301:7]

Def Objection -

Compound; Asked; 

Argumentantive 

(611, 403); 

Foundation (602)

Re: [301:7-301:7]

Def Objection -

Compound; Asked; 

Argumentantive 

(611, 403); 

Foundation (602)

OVERRULED

301:9 - 301:12 McNamara, Timothy 3-11-2020

 301 9 Q. Right. And we are talking about an indoor

 301 10 range is a gunfire, that's what you do in an indoor

 301 11 range, right?

 301 12 A. You're right.

Re: [301:9-

301:12]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

Re: [301:9-

301:12]

Def Objection -

Foundation (602); 

Argumentative 

(611, 403)

OVERRULED

301:18 - 301:22 McNamara, Timothy 3-11-2020

 301 18 Q. Okay. Let me show you Exhibit 18 now. It

 301 19 is another document that is after your time, so I want

 301 20 to make that clear, it is a 3M document, and you left

Re: [301:18-

301:22]

Def Objection -

Foundation (602)

Re: [301:18-

301:24]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 93 of 116
McNamara, Timothy 3-11-2020 71

 301 21 when 3M purchased Aearo, right?

 301 22 A. Yes.

Foundation (602)

OVERRULED

303:1 - 303:11 McNamara, Timothy 3-11-2020

 303 1 Q. Okay. And the jury will have this as an

 303 2 exhibit, but, again, I'm -- this is after your time,

 303 3 but there is a statement here that says: "I would not

 303 4 recommend CAE in open mode" -- that's the yellow end,

 303 5 right?

 303 6 A. Yes.

 303 7 Q. -- "in training if the training is

 303 8 shooting at the gun range."

 303 9 Do you see that?

 303 10 A. Yes.

 303 11 Q. That's news to you, isn't it?

Re: [303:1-

303:10]

Def Objection -

Foundation (602)

Re: [303:11-

303:11]

Def Objection -

Foundation (602); 

Argumentative; 

Vague (611, 403)

Re: [303:1-

303:10]

Def Objection -

Foundation (602)

OVERRULED

Re: [303:11-

303:11]

Def Objection -

Foundation (602); 

Argumentative; 

Vague (611, 403)

OVERRULED

303:14 - 303:15 McNamara, Timothy 3-11-2020

 303 14 A. I don't remember this. I don't remember

 303 15 that information.

Re: [303:14-

303:15]

Def Objection -

Foundation (602); 

Argumentative; 

Vague (611, 403)

Re: [303:13-

303:15]

Def Objection -

Foundation (602); 

Argumentative; 

Vague (611, 403)

OVERRULED

303:24 - 304:3 McNamara, Timothy 3-11-2020

 303 24 Q. Well, I think we've established that --

 304 1 and we've seen your presentation to the distributor,

 304 2 but you were training folks in the US military that it

 304 3 was fine to use the yellow end at the range, correct?

Re: [303:24-

304:3]

Def Objection -

3M MIL No. 15; 

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [303:22-

304:3]

Def Objection -

3M MIL No. 15; 

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

304:6 - 304:6 McNamara, Timothy 3-11-2020

 304 6 A. Correct.

Re: [304:6-304:6]

Def Objection -

3M MIL No. 15; 

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

Relevance (401, 

402)

Re: [304:6-304:6]

Def Objection -

3M MIL No. 15; 

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 94 of 116
McNamara, Timothy 3-11-2020 72

402)

OVERRULED

304:8 - 304:16 McNamara, Timothy 3-11-2020

 304 8 Q. And that's the exact opposite of what's

 304 9 being stated here, that is: "I would not recommend

 304 10 the CAE in open mode in training if the training is

 304 11 shooting at the gun range."

 304 12 Do you see that?

 304 13 A. Yes.

 304 14 Q. Okay. So you were telling people the

 304 15 exact opposite of what 3M is saying in this document,

 304 16 correct?

Re: [304:8-

304:13]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [304:14-

304:16]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15

Re: [304:8-

304:13]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

Re: [304:14-

304:16]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15

OVERRULED

304:20 - 304:20 McNamara, Timothy 3-11-2020

 304 20 A. I believe so.

Re: [304:20-

304:20]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15;

Re: [304:20-

304:20]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15;

OVERRULED

305:4 - 305:17 McNamara, Timothy 3-11-2020

 305 4 Q. Right -- right below in the comment, right

 305 5 after it says: "I would not recommend it in the open

 305 6 mode for training on the gun range."

 305 7 A. Yes.

 305 8 Q. And then the comment says: "This makes it

 305 9 sound," although there is a typo, so I'll just read it

 305 10 the way it is. "This makes si sound like the open

 305 11 mode can be used for any gunfire. If the gunfire is

 305 12 frequent, you want closed mode."

 305 13 Do you see that?

 305 14 A. Yes.

 305 15 Q. And, again, that's the exact opposite of

Re: [305:4-

305:14]

Def Objection -

Foundation (602)

Re: [305:15-

305:17]

Def Objection -

Foundation (602); 

Asked; 

Argumentative; 

Misstates (611, 

403); 3M MIL No. 

15

Re: [304:22-

305:14]

Def Objection -

Foundation (602)

OVERRULED

Re: [305:15-

305:17]

Def Objection -

Foundation (602); 

Asked; 

Argumentative; 

Misstates (611, 

403); 3M MIL No. 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 95 of 116
McNamara, Timothy 3-11-2020 73

 305 16 what you were telling people on military bases when

 305 17 you were training them, correct?

15

OVERRULED

305:21 - 305:21 McNamara, Timothy 3-11-2020

 305 21 A. I believe so.

Re: [305:21-

305:21]

Def Objection -

Foundation (602); 

Asked; 

Argumentative; 

Misstates (611, 

403); 3M MIL No. 

15

Re: [305:21-

305:21]

Def Objection -

Foundation (602); 

Asked; 

Argumentative; 

Misstates (611, 

403); 3M MIL No. 

15

OVERRULED

306:3 - 306:8 McNamara, Timothy 3-11-2020

 306 3 (WHEREUPON, a certain document was

 306 4 marked Timothy McNamara Deposition

 306 5 Exhibit No. 19, for identification,

 306 6 as of 03/11/2020.)

 306 7 BY MR. AYLSTOCK:

 306 8 Q. And I'm going to show you Plaintiffs'

306:10 - 306:17 McNamara, Timothy 3-11-2020

 306 10 MR. BATTLE: 19.

 306 11 BY MR. AYLSTOCK:

 306 12 Q. 19, yes. Thank you.

 306 13 It has your name on it, so this is now

 306 14 back -- back with what you were dealing with in 2003.

 306 15 Do you see at the top it's an e-mail

 306 16 between you and Mr. Myers dated May 7th, 2003,

 306 17 importance high?

307:9 - 307:18 McNamara, Timothy 3-11-2020

 307 9 Do you know who Mike is?

 307 10 A. Yes, I do.

 307 11 Q. And who is Mike?

 307 12 A. He was our sales rep on the West Coast.

 307 13 Q. Okay. So you interacted with him, you

 307 14 knew -- you -- you know him personally, right?

 307 15 A. Yes.

 307 16 Q. And Mike is e-mailing Brian Myers asking

 307 17 for sell sheets, right, for the Combat Arms?

 307 18 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 96 of 116
McNamara, Timothy 3-11-2020 74

308:3 - 308:9 McNamara, Timothy 3-11-2020

 308 3 Q. And it looks like you attach the sell

 308 4 sheet that's being requested here, right, on the

 308 5 second page?

 308 6 A. Yes.

 308 7 Q. And if we compare the sell sheet that you

 308 8 send to Brian Myers at his request -- Brian is way up

 308 9 in the company, right?

Re: [308:7-308:9]

Def Objection -

Compound; Vague 

(611, 403)

Re: [308:7-308:9]

Def Objection -

Compound; Vague 

(611, 403)

SUSTAINED

308:12 - 308:12 McNamara, Timothy 3-11-2020

 308 12 A. He was the product line director, yes.

Re: [308:12-

308:12]

Def Objection -

Compound; Vague 

(611, 403)

Re: [308:12-

308:12]

Def Objection -

Compound; Vague 

(611, 403)

SUSTAINED

311:3 - 311:13 McNamara, Timothy 3-11-2020

 311 3 So this is the blister pack for the Combat

 311 4 Arms Version 2, correct?

 311 5 A. It is.

 311 6 Q. And it says on here: "Yellow end lets

 311 7 wearers hear clearly with instant protection against

 311 8 weapon noise."

 311 9 Do you see that?

 311 10 A. Yes.

 311 11 Q. And according to your knowledge, that

 311 12 would have included firing range, correct, indoor or

 311 13 outdoor?

Re: [311:11-

311:13]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [311:11-

311:13]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

311:16 - 311:16 McNamara, Timothy 3-11-2020

 311 16 A. I believe so.

Re: [311:16-

311:16]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

Re: [311:16-

311:16]

Def Objection -

Foundation (602); 

Misstates (611, 

403)

OVERRULED

311:18 - 311:21 McNamara, Timothy 3-11-2020

 311 18 Q. And that's how you trained folks, both

 311 19 distributors that you knew were going to communicate

 311 20 between military personnel, but also military

 311 21 personnel that you trained on this, correct?

Re: [311:18-

311:21]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative; 

Re: [311:18-

311:21]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative; 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 97 of 116
McNamara, Timothy 3-11-2020 75

Vague (611, 403); 

3M MIL No. 15;

Vague (611, 403); 

3M MIL No. 15;

OVERRULED

311:24 - 311:24 McNamara, Timothy 3-11-2020

 311 24 A. As I remember, yes.

Re: [311:24-

311:24]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15

Re: [311:24-

311:24]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 15

OVERRULED

312:1 - 312:4 McNamara, Timothy 3-11-2020

 312 1 BY MR. AYLSTOCK:

 312 2 Q. And you made that representation with the

 312 3 intent that they be able to rely on that and actually

 312 4 use it at a firing range, correct?

Re: [312:2-312:4]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [312:2-312:4]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

312:7 - 312:11 McNamara, Timothy 3-11-2020

 312 7 A. As information, yes.

 312 8 BY MR. AYLSTOCK:

 312 9 Q. Okay. And you expected that they should

 312 10 be able to rely on what you tell them and what the

 312 11 company tells them in the sell sheets, correct?

Re: [312:7-312:7]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [312:9-

312:11]

Def Objection -

Misstates; 

Compound; 

Argumentative; 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [312:7-312:7]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

Re: [312:9-

312:11]

Def Objection -

Misstates; 

Compound; 

Argumentative; 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 98 of 116
McNamara, Timothy 3-11-2020 76

312:14 - 313:14 McNamara, Timothy 3-11-2020

 312 14 A. I believe so.

 312 15 BY MR. AYLSTOCK:

 312 16 Q. Okay. Now, go over a few pages to No. 31

 312 17 at the bottom. It is the image of the -- the

 312 18 servicemen in combat, or at least he is firing --

 312 19 preparing to fire his weapon.

 312 20 Do you see that?

 312 21 A. Yes.

 312 22 Q. And what it says here on this piece is

 312 23 that -- if we look at the bottom of that paragraph, it

 312 24 talks about a patented design, lets wearers hear

 313 1 clearly, protects instantly.

 313 2 Do you see that part?

 313 3 A. Yes.

 313 4 Q. And when it comes to the green end, what's

 313 5 being told to anyone reading this is that the plug

 313 6 will provide a constant NRR of 22 dB.

 313 7 Do you see that?

 313 8 A. Yes.

 313 9 Q. It is not saying may provide, is it?

 313 10 A. No.

 313 11 Q. It's saying -- it is making a

 313 12 representation there that this plug will provide a

 313 13 constant NRR of 22 dB in the green end, fair?

 313 14 A. Yes.

Re: [312:14-

312:14]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [312:16-

313:14]

Def Objection -

Foundation (602)

Re: [312:14-

312:14]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

Re: [312:16-

313:14]

Def Objection -

Foundation (602)

OVERRULED

313:20 - 314:6 McNamara, Timothy 3-11-2020

 313 20 Q. And this is something you could go to that

 313 21 headquarters at Aearo that we looked at and say, I'm

 313 22 going to go out to some military bases, I need some

 313 23 sell pieces, give me some stuff, and this would be one

 313 24 of the things that you could take with you and did

 314 1 take with you when you visited military bases, fair?

 314 2 A. As I remember, yes.

 314 3 Q. Okay. And when you did that and you

 314 4 handed these out, one of the things that you told the

 314 5 men and women in uniform is that the plug will provide

 314 6 a constant NRR of 22 dB, fair?

Re: [313:20-

314:6]

Def Objection -

3M MIL No. 15; 

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [313:17-

314:6]

Def Objection -

3M MIL No. 15; 

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 99 of 116
McNamara, Timothy 3-11-2020 77

314:9 - 314:9 McNamara, Timothy 3-11-2020

 314 9 A. As it says in the literature, yes.

Re: [314:9-

314:13]

Def Objection -

3M MIL No. 15; 

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [314:9-

314:16]

Def Objection -

3M MIL No. 15; 

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

314:11 - 314:13 McNamara, Timothy 3-11-2020

 314 11 Q. Well, and by "literature," you're talking

 314 12 about this sell sheet, correct?

 314 13 A. Correct.

Re: [314:9-

314:13]

Def Objection -

3M MIL No. 15; 

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

Re: [314:9-

314:16]

Def Objection -

3M MIL No. 15; 

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602)

OVERRULED

315:1 - 315:6 McNamara, Timothy 3-11-2020

 315 1 Q. Okay. And when you told them that the

 315 2 plug will provide this protection, constant -- a

 315 3 constant NRR of 22 dB, you did that with the intent

 315 4 that they could rely on that as gospel because in --

 315 5 it's important to protect our men and women in uniform

 315 6 from noise pollution, correct?

Re: [315:1-315:6]

Def Objection -

Foundation (602); 

Argumentative; 

Compound; 

Misstates (611, 

403); 3M MIL No. 

15

Re: [315:1-315:6]

Def Objection -

Foundation (602); 

Argumentative; 

Compound; 

Misstates (611, 

403); 3M MIL No. 

15

SUSTAINED

315:9 - 315:12 McNamara, Timothy 3-11-2020

 315 9 A. As a noise reduction rate of 22, yes.

 315 10 BY MR. AYLSTOCK:

 315 11 Q. And you did that with the intent that they

 315 12 be able to rely on it, fair?

Re: [315:9-

315:12]

Def Objection -

Foundation (602); 

Argumentative; 

Compound; 

Misstates (611, 

403); 3M MIL No. 

15

Re: [315:9-

315:12]

Def Objection -

Foundation (602); 

Argumentative; 

Compound; 

Misstates (611, 

403); 3M MIL No. 

15

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 100 of 116
McNamara, Timothy 3-11-2020 78

315:15 - 315:15 McNamara, Timothy 3-11-2020

 315 15 A. As I can remember, yes.

Re: [315:15-

315:15]

Def Objection -

Foundation (602); 

Argumentative; 

Compound; 

Misstates (611, 

403); 3M MIL No. 

15

Re: [315:15-

315:15]

Def Objection -

Foundation (602); 

Argumentative; 

Compound; 

Misstates (611, 

403); 3M MIL No. 

15

OVERRULED

315:17 - 315:20 McNamara, Timothy 3-11-2020

 315 17 Q. Okay. Now let's go to McNamara 36, a

 315 18 few -- few more pages. It's another one of our men in

 315 19 uniform with a helmet on wearing -- wearing the Combat

 315 20 Arms Earplug.

316:5 - 316:16 McNamara, Timothy 3-11-2020

 316 5 Q. This is another sell sheet that you would

 316 6 use in your visits to the military bases and

 316 7 installations over the years, fair?

 316 8 A. As I remember, yes.

 316 9 Q. And this is a -- obviously in your -- this

 316 10 is also something you would provide to distributors to

 316 11 provide to -- who might be selling to the military so

 316 12 they could also rely on this information, fair?

 316 13 A. It would be a support piece, yes.

 316 14 Q. Okay. And, again, this is something --

 316 15 the representations in here are something that you

 316 16 intended the military to be able to rely upon, fair?

Re: [316:5-

316:13]

Def Objection -

3M MIL No. 15; 

Foundation (602)

Re: [316:14-

316:16]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [316:5-

316:13]

Def Objection -

3M MIL No. 15; 

Foundation (602)

OVERRULED

Re: [316:14-

316:16]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

316:19 - 317:14 McNamara, Timothy 3-11-2020

 316 19 A. As part of a support piece.

 316 20 BY MR. AYLSTOCK:

 316 21 Q. Is that a yes?

 316 22 A. That's a yes.

 316 23 Q. Okay. Thank you.

 316 24 So if we look at the picture of the man

 317 1 here with his helmet, this has the yellow end

 317 2 completely in his ear, fair?

Re: [316:19-

316:19]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [316:19-

316:19]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 101 of 116
McNamara, Timothy 3-11-2020 79

 317 3 A. Yes.

 317 4 Q. And so this is the open -- what we would

 317 5 call the open end is in, the yellow end is in and the

 317 6 olive end is out, fair?

 317 7 A. Yes.

 317 8 Q. And the olive end is actually the third

 317 9 flange that's actually up against the -- I guess they

 317 10 call that the tragus.

 317 11 Do you know what a tragus is?

 317 12 A. Yes.

 317 13 Q. This is up against his tragus, correct?

 317 14 A. It appears, yes.

Re: [316:21-

316:22]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [316:23-

317:14]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [316:21-

316:22]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

Re: [316:23-

317:14]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

318:12 - 318:13 McNamara, Timothy 3-11-2020

 318 12 Q. Is that -- is that how you trained people

 318 13 to put it in --

Re: [318:12-

318:13]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [318:12-

318:13]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

318:16 - 318:23 McNamara, Timothy 3-11-2020

 318 16 Q. -- the same in both way, whether it is a

 318 17 yellow or a green?

 318 18 A. Yes.

 318 19 Q. So if the green end was in, it would

 318 20 also -- you would train people to do it as represented

 318 21 in this photograph, except for the yellow end being

 318 22 out instead of the green end, is that right?

 318 23 A. Yes.

Re: [318:16-

318:23]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [318:16-

318:23]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

319:12 - 319:16 McNamara, Timothy 3-11-2020

 319 12 Q. Oh, okay. Well, in any event, again,

 319 13 these are materials that you intended the men and

 319 14 women in uniform to be able to rely upon in learning

 319 15 about the Combat Arms Version 2, correct?

 319 16 A. Yes.

Re: [319:12-

320:10]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [319:5-

320:10]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 102 of 116
McNamara, Timothy 3-11-2020 80

319:17 - 320:10 McNamara, Timothy 3-11-2020

 319 17 Q. And, again, it talks about this green end

 319 18 of the Combat Arms Earplugs, provides steady

 319 19 protection with an NRR of 22 dB.

 319 20 Do you see that?

 319 21 A. Yes.

 319 22 Q. And this is the ideal wearing position

 319 23 when exposed to constant high-level sound of 85 dB and

 319 24 above.

 320 1 Do you see that? Right below the dB of

 320 2 22. It might be helpful on the screen.

 320 3 A. Okay. There it is.

 320 4 Okay. Yes.

 320 5 Q. Okay. And so, again, these -- this is

 320 6 consistent with representations you were making when

 320 7 you were visiting these military installations and

 320 8 educating the military about the Combat Arms Earplug,

 320 9 fair?

 320 10 A. Yes.

Re: [319:12-

320:10]

Def Objection -

Foundation (602); 

3M MIL No. 15

Re: [319:5-

320:10]

Def Objection -

Foundation (602); 

3M MIL No. 15

OVERRULED

320:23 - 321:2 McNamara, Timothy 3-11-2020

 320 23 You know that this Combat Arms Version 2

 320 24 earplug was manufactured by your company that you were

 321 1 working for at the time, Aearo, correct?

 321 2 A. Correct.

321:15 - 321:19 McNamara, Timothy 3-11-2020

 321 15 Q. Okay. Well, when it comes to what you

 321 16 were doing when you were out there communicating with

 321 17 the men and women in uniform about these earplugs, it

 321 18 is fair to say your job was to educate them on the

 321 19 characteristics and proper use of this earplug, fair?

Re: [321:15-

321:19]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403); 3M 

MIL No. 15

Re: [321:15-

321:19]

Def Objection -

Foundation (602); 

Misstates; 

Compound; 

Argumentative 

(611, 403); 3M 

MIL No. 15

OVERRULED

321:22 - 322:2 McNamara, Timothy 3-11-2020

 321 22 A. Yes.

 321 23 BY MR. AYLSTOCK:

 321 24 Q. And you did that because you wanted to

Re: [321:22-

321:22]

Def Objection -

Foundation (602); 

Misstates; 

Re: [321:22-

321:22]

Def Objection -

Foundation (602); 

Misstates; 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 103 of 116
McNamara, Timothy 3-11-2020 81

 322 1 sell more Combat Arms earplugs, that was your job,

 322 2 right?

Compound; 

Argumentative 

(611, 403); 3M 

MIL No. 15

Re: [321:24-

322:2]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Compound; 

Argumentative 

(611, 403); 3M 

MIL No. 15

OVERRULED

Re: [321:24-

322:2]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

322:5 - 322:10 McNamara, Timothy 3-11-2020

 322 5 A. Yes.

 322 6 BY MR. AYLSTOCK:

 322 7 Q. And over the years, it's fair to say that

 322 8 you handed out thousands of these type sell sheets

 322 9 across military bases, correct?

 322 10 A. Yes.

Re: [322:5-322:5]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

Re: [322:7-

322:10]

Def Objection -

3M MIL No. 15; 

Foundation (602); 

Argumentative 

(611, 403)

Re: [322:5-322:5]

Def Objection -

Misstates; 

Compound; 

Argumentative 

(611, 403); 

Foundation (602); 

3M MIL No. 15

OVERRULED

Re: [322:7-

322:13]

Def Objection -

3M MIL No. 15; 

Foundation (602); 

Argumentative 

(611, 403)

OVERRULED

324:16 - 324:18 McNamara, Timothy 3-11-2020

 324 16 Does this jog your memory as to Operation

 324 17 Cobra around this timeframe?

 324 18 A. I -- I don't -- I don't recall.

Re: [324:16-

324:18]

improper counter

SUSTAINED

341:4 - 341:4 McNamara, Timothy 3-11-2020

 341 4 A. 22 is higher, yes.

Re: [341:4-341:4]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 104 of 116
McNamara, Timothy 3-11-2020 82

341:11 - 341:14 McNamara, Timothy 3-11-2020

 341 11 Q. And, in fact, as Mr. Warren testified, if

 341 12 the NRR on the steady state end, the green end, was

 341 13 only 11, it would have made it almost impossible to

 341 14 sell --

Re: [341:11-

341:14]

improper counter

SUSTAINED

341:17 - 341:17 McNamara, Timothy 3-11-2020

 341 17 Q. -- to the military --

Re: [341:17-

341:17]

improper counter

SUSTAINED

341:20 - 341:20 McNamara, Timothy 3-11-2020

 341 20 Q. -- for a military application?

Re: [341:20-

341:20]

improper counter

SUSTAINED

341:24 - 342:5 McNamara, Timothy 3-11-2020

 341 24 A. I don't believe so.

 342 1 BY MR. AYLSTOCK:

 342 2 Q. Okay. Do you think you would have made

 342 3 Top Gun in sales two years running if it had an NRR of

 342 4 11? Is that what you're going to look and tell this

 342 5 jury?

Re: [341:24-

341:24]

improper counter

Re: [342:1-

342:16]

improper counter

SUSTAINED

342:8 - 342:16 McNamara, Timothy 3-11-2020

 342 8 A. Yes.

 342 9 BY MR. AYLSTOCK:

 342 10 Q. Really? Why is that?

 342 11 A. Because Combat Arms Earplugs was -- was

 342 12 lower in sales than all of my others.

 342 13 Q. Okay.

 342 14 A. Electronic communications headsets --

 342 15 Q. Okay.

 342 16 A. -- was very popular at that time.

Re: [342:1-

342:16]

improper counter

SUSTAINED

350:9 - 350:11 McNamara, Timothy 3-11-2020

 350 9 Q. Okay. Let me show you this document, sir.

 350 10 It's another document you are copied on from Brian

 350 11 Myers to you --

Re: [350:9-

350:11]

improper counter

SUSTAINED

350:14 - 350:15 McNamara, Timothy 3-11-2020

 350 14 Q. -- and others.

 350 15 MR. AYLSTOCK: Yes, Exhibit 26 for the record.

Re: [350:14-

350:15]

improper counter

SUSTAINED

350:18 - 350:20 McNamara, Timothy 3-11-2020

 350 18 Q. And it's -- the subject is, "Follow-up on

Re: [350:18-

350:20]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 105 of 116
McNamara, Timothy 3-11-2020 83

 350 19 Combat Arms."

 350 20 Do you see that?

351:1 - 351:5 McNamara, Timothy 3-11-2020

 351 1 Q. And it looks like Brian is e-mailing you

 351 2 and others about a follow-up call with Tom Sidor at

 351 3 DSCP.

 351 4 Do you see that?

 351 5 A. I do.

Re: [351:1-351:5]

improper counter

SUSTAINED

352:1 - 352:6 McNamara, Timothy 3-11-2020

 352 1 Q. So do you recall, sir, that there was a

 352 2 point in time that many, many of the sales of the

 352 3 Combat Arms Version 2 were only through distributors

 352 4 to the military and not direct?

 352 5 A. At one time, yes.

 352 6 Q. Right.

Re: [352:1-352:6]

improper counter

SUSTAINED

378:9 - 378:13 McNamara, Timothy 3-11-2020

 378 9 Q. Now, in fact, you -- you were involved in

 378 10 a situation where the combat -- the case for the

 378 11 Combat Arms Earplug was changed, it was expanded,

 378 12 true?

 378 13 Do you remember that?

378:17 - 378:17 McNamara, Timothy 3-11-2020

 378 17 A. I believe so.

380:5 - 380:9 McNamara, Timothy 3-11-2020

 380 5 So in your experience dealing with the

 380 6 military in selling this product, the carrying case

 380 7 can be changed, there is nothing preventing the

 380 8 military from changing the carrying case in your

 380 9 experience?

Re: [380:5-

380:12]

(403, 602, 701)

OVERRULED

380:12 - 380:12 McNamara, Timothy 3-11-2020

 380 12 A. Yes.

Re: [380:5-

380:12]

(403, 602, 701)

OVERRULED

410:11 - 410:14 McNamara, Timothy 3-11-2020

 410 11 Q. About the imperceptible loosening of the

 410 12 Combat Arms Version 2 earplugs. Today is the first

 410 13 time you ever heard that statement, correct?

 410 14 A. Yes. To the best of my knowledge, yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 106 of 116
McNamara, Timothy 3-11-2020 84

415:23 - 416:6 McNamara, Timothy 3-11-2020

 415 23 Q. Good evening, Mr. McNamara. My name is

 415 24 Sierra Elizabeth and I represent 3M in this action.

 416 1 You understand that you are still under

 416 2 oath?

 416 3 A. I do.

 416 4 Q. You remember you were asked several

 416 5 questions about your communications with Lieutenant

 416 6 Colonel Stevens?

Re: [415:23-

416:6]

Plt Objection -

improper counter; 

incomplete

Re: [415:22-

416:3]

Plt Objection -

improper counter 

designation per 

PTO 64

OVERRULED

416:14 - 416:19 McNamara, Timothy 3-11-2020

 416 14 Q. Did anyone from 3M ever tell you to

 416 15 contact Colonel Stevens?

 416 16 A. No.

 416 17 Q. So did you ever contact Colonel Stevens,

 416 18 quote, on behalf of 3M, end quote?

 416 19 A. No.

Re: [416:14-

416:19]

improper counter; 

402

SUSTAINED

417:1 - 417:14 McNamara, Timothy 3-11-2020

 417 1 Q. Do you have any knowledge about whether

 417 2 Aearo concealed anything from the government about

 417 3 CAE v2?

 417 4 A. No.

 417 5 Q. I want to direct your attention to

 417 6 Exhibit 2 in your stack there.

 417 7 A. Is that my resume?

 417 8 Q. It's a stack including the documents that

 417 9 were produced in response to the subpoena that was

 417 10 issued to you, including your resume, yes. It should

 417 11 be at the beginning of your pile.

 417 12 A. There it is right there.

 417 13 Q. Do you have Exhibit 2 there?

 417 14 A. Yes.

Re: [417:1-

417:14]

Plt Objection -

improper counter; 

Re: [417:1-

417:14]

Plt Objection -

improper counter 

designation per 

PTO 64

OVERRULED

417:21 - 420:9 McNamara, Timothy 3-11-2020

 417 21 Q. I want to direct your attention to Bates

 417 22 stamp McNamara Subpoena 0035.

 417 23 A. Okay.

 417 24 Q. This document was in your files, correct?

 418 1 A. Yes.

 418 2 Q. Do you recognize this document?

 418 3 A. Yes.

Re: [417:21-

418:14]

Plt Objection -

improper counter; 

802

Re: [417:21-

420:9]

Plt Objection -

improper counter 

designation per 

PTO 64

OVERRULED

Re: [419:1-

419:21]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 107 of 116
McNamara, Timothy 3-11-2020 85

 418 4 Q. What is it?

 418 5 A. It's a support piece for the Com -- Combat

 418 6 Arms Earplug.

 418 7 Q. And is this a support piece that you had

 418 8 provided to your military contacts when you were

 418 9 selling CAE v2?

 418 10 A. Yes.

 418 11 Q. Do you remember you were asked some

 418 12 questions about gun ranges, indoor and outdoor gun

 418 13 ranges during your deposition today?

 418 14 A. Yes.

 418 15 Q. What do you specifically remember telling

 418 16 anyone from the military about how to use CAE v2 in an

 418 17 indoor gun range?

 418 18 A. I -- I did not. I -- I -- I said it was

 418 19 an impulse noise for gunfire.

 418 20 Q. What info -- information did you share

 418 21 about the yellow end of the CAE v2 to your military

 418 22 contacts that you can specifically recall?

 418 23 A. That it is a impulse -- impulse plug.

 418 24 It's designed to protect you against gunfire.

 419 1 Q. Okay. Do you have any specific

 419 2 recollection of any other statements that you made

 419 3 about the yellow end of the CAE v2?

 419 4 A. No.

 419 5 Q. Throughout your deposition testimony

 419 6 today, you were asked questions about selling to,

 419 7 quote, end users, end quote.

 419 8 Do you remember that, those questions?

 419 9 A. Yes.

 419 10 Q. Who are the end users that you were

 419 11 selling to when you worked for Aearo selling CAE v2?

 419 12 A. The command staff of the various branches.

 419 13 Q. Okay. And who are the command staff?

 419 14 A. That would be the S4s and the S6. One is

 419 15 a forced modern -- modernization. One is the -- the

 419 16 money guy, and the sergeant major, the -- the command

 419 17 sergeant major, the colonel, the lieutenant colonel

 419 18 and so forth, yes.

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 108 of 116
McNamara, Timothy 3-11-2020 86

 419 19 Q. Do you consider command staff to be

 419 20 soldiers?

 419 21 A. No.

 419 22 Q. Did you ever sell any CAE v2 directly to

 419 23 soldiers?

 419 24 A. Yes.

 420 1 Can I qualify that last statement?

 420 2 Q. Sure.

 420 3 A. They are soldiers, but they are not

 420 4 individual soldiers on -- on the firing line. They

 420 5 are the -- the -- the management staff.

 420 6 Q. Okay. Did you ever sell to, quote,

 420 7 soldiers that were individual soldiers on the firing

 420 8 line for -- with respect to CAE v2?

 420 9 A. No.

418:15 - 418:24 McNamara, Timothy 3-11-2020

 418 15 Q. What do you specifically remember telling

 418 16 anyone from the military about how to use CAE v2 in an

 418 17 indoor gun range?

 418 18 A. I -- I did not. I -- I -- I said it was

 418 19 an impulse noise for gunfire.

 418 20 Q. What info -- information did you share

 418 21 about the yellow end of the CAE v2 to your military

 418 22 contacts that you can specifically recall?

 418 23 A. That it is a impulse -- impulse plug.

 418 24 It's designed to protect you against gunfire.

419:22 - 419:24 McNamara, Timothy 3-11-2020

 419 22 Q. Did you ever sell any CAE v2 directly to

 419 23 soldiers?

 419 24 A. Yes.

420:15 - 421:23 McNamara, Timothy 3-11-2020

 420 15 Q. Okay. I want to hand you what has been

 420 16 marked as Exhibit 34 to your deposition. I only have

 420 17 one copy here, and it has my notes on it, but that's

 420 18 okay.

 420 19 Okay. I want to direct your attention to

 420 20 the middle e-mail of Exhibit 34, and that's an e-mail

 420 21 from Brian Myers on April 17th, 2002 to Doug Ohlin and

 420 22 others, including yourself, is that right?

Re: [420:15-

421:23]

Plt Objection -

improper counter; 

802; 602

Re: [420:15-

421:23]

Plt Objection -

improper counter 

designation per 

PTO 64; 

Foundation 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 109 of 116
McNamara, Timothy 3-11-2020 87

 420 23 A. Yes.

 420 24 Q. Okay. And the first line of that middle

 421 1 part of Exhibit 34 says, quote, thanks for copying me

 421 2 on this memo, end quote.

 421 3 Do you see that?

 421 4 A. Yes.

 421 5 Q. Okay. And if you look at the e-mail that

 421 6 came before the Brian Myers e-mail of April 17th,

 421 7 2002, there is an e-mail of April 16th, 2002.

 421 8 Do you see that?

 421 9 A. Yes.

 421 10 Q. And who was the author of that e-mail?

 421 11 A. That was Doug -- that was Doug Ohlin.

 421 12 Q. Okay. And I want to direct your attention

 421 13 to the second paragraph of that e-mail, about four

 421 14 lines down, which says: "The dual-ended plug will fit

 421 15 a majority of the male population. For those with

 421 16 excessively large ear canals, we recommend that the

 421 17 opposing plug be folded back before attempting

 421 18 insertion."

 421 19 Do you see that?

 421 20 A. Yes.

 421 21 Q. What is your -- who, to your -- to the

 421 22 best of your knowledge wrote that language that I just

 421 23 read?

422:2 - 422:9 McNamara, Timothy 3-11-2020

 422 2 A. I do not -- I don't know.

 422 3 BY MS. ELIZABETH:

 422 4 Q. Do you see Doug Ohlin's name there?

 422 5 A. Yes, Doug O --

 422 6 BY MS. ELIZABETH:

 422 7 Q. Do you have any re --

 422 8 BY THE WITNESS:

 422 9 A. Doug -- Doug Ohlin.

Re: [422:2-422:9]

Plt Objection -

improper counter

Re: [422:2-422:9]

Plt Objection -

improper counter 

designation per 

PTO 64; 

Foundation 

OVERRULED

Re: [422:2-422:9]

406, 406

422:12 - 424:20 McNamara, Timothy 3-11-2020

 422 12 Q. Do you have any reason to believe that

 422 13 Doug Ohlin did not send this e-mail?

 422 14 A. No, I do not.

 422 15 Q. Do you have any reason to believe that you

Re: [422:12-

422:18]

Plt Objection -

improper counter; 

foundation

Re: [422:12-

422:18]

Plt Objection -

improper counter 

designation per 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 110 of 116
McNamara, Timothy 3-11-2020 88

 422 16 did not receive the e-mail above it that's been

 422 17 forwarded to you from Brian Myers on April 17, 2002?

 422 18 A. No.

 422 19 (WHEREUPON, a certain document was

 422 20 marked Timothy McNamara Deposition

 422 21 Exhibit No. 35, for identification,

 422 22 as of 03/11/2020.)

 422 23 BY MS. ELIZABETH:

 422 24 Q. Okay. I want to direct your attention to

 423 1 Exhibit 35 to your deposition.

 423 2 Exhibit 35 is an e-mail chain from Doug

 423 3 Ohlin to various people, including you, on

 423 4 October 4th, 2004.

 423 5 Do you see that?

 423 6 A. Yes.

 423 7 Q. Okay. And it reads: "These will be

 423 8 wallet-sized laminated cards to be issued with the

 423 9 earplugs. Any comments other than the need to correct

 423 10 the NSN for the double-ended plug to

 423 11 6515-01-466-2710?"

 423 12 Do you see that?

 423 13 A. I do.

 423 14 Q. Do you have any reason to believe you did

 423 15 not receive this e-mail?

 423 16 A. No.

 423 17 Q. Okay. I want to direct your attention to

 423 18 the attachment of this e-mail, which is on Bates 3M

 423 19 MDL 13299 and 13300, and I'll specifically point you

 423 20 to the Bates stamp Page 13300.

 423 21 Are you there?

 423 22 A. I am.

 423 23 Q. Okay. Do you recognize what's depicted on

 423 24 this page?

 424 1 A. Yes.

 424 2 Q. What is it?

 424 3 A. It is a wallet-size card instruction

 424 4 manual.

 424 5 Q. Okay. Have you seen this before?

 424 6 A. Yes.

Re: [423:1-

423:13]

Plt Objection -

improper counter

PTO 64; 

Foundation 

OVERRULED

Re: [422:19-

424:20]

Plt Objection -

improper counter 

designation per 

PTO 64

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 111 of 116
McNamara, Timothy 3-11-2020 89

 424 7 Q. And there are various pictures on the

 424 8 wallet card, right?

 424 9 A. Yes.

 424 10 Q. Okay. Can you please tell the jury what

 424 11 is depicted on the right-hand side of this wallet

 424 12 card, the right-hand corner of this wallet card?

 424 13 A. It is the Combat Arms Earplug with the

 424 14 impulse noise out and the steady state plug in with

 424 15 the end folded out.

 424 16 Q. And when you say "the end folded out,"

 424 17 what do you mean?

 424 18 A. The flap folded up.

 424 19 MS. ELIZABETH: I don't think I have any further

 424 20 questions.

422:24 - 423:6 McNamara, Timothy 3-11-2020

 422 24 Q. Okay. I want to direct your attention to

 423 1 Exhibit 35 to your deposition.

 423 2 Exhibit 35 is an e-mail chain from Doug

 423 3 Ohlin to various people, including you, on

 423 4 October 4th, 2004.

 423 5 Do you see that?

 423 6 A. Yes.

423:7 - 423:13 McNamara, Timothy 3-11-2020

 423 7 Q. Okay. And it reads: "These will be

 423 8 wallet-sized laminated cards to be issued with the

 423 9 earplugs. Any comments other than the need to correct

 423 10 the NSN for the double-ended plug to

 423 11 6515-01-466-2710?"

 423 12 Do you see that?

 423 13 A. I do.

424:2 - 424:6 McNamara, Timothy 3-11-2020

 424 2 Q. What is it?

 424 3 A. It is a wallet-size card instruction

 424 4 manual.

 424 5 Q. Okay. Have you seen this before?

 424 6 A. Yes.

430:16 - 431:10 McNamara, Timothy 3-11-2020

 430 16 Q. Exhibit 34. "The dual end will fit a

 430 17 majority of the adult male population. For those with

Re: [431:3-431:6]

Def Objection -

Foundation (602)

Re: [431:3-431:6]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 112 of 116
McNamara, Timothy 3-11-2020 90

 430 18 excessively large ear canals, we recommend the

 430 19 opposing plug be folded back before attempting

 430 20 insertion."

 430 21 And then others at your company were

 430 22 copied for comment on the next e-mail -- the next

 430 23 exhibit you-all looked at, and you looked at the

 430 24 wallet card.

 431 1 Do you remember that?

 431 2 A. Yes.

 431 3 Q. Now, are you aware, Mr. McNamara, that in

 431 4 this very case Elliott Berger has testified under

 431 5 oath?

 431 6 A. I'm not aware specifically.

 431 7 Q. Okay. Has anybody told you that Elliott

 431 8 Berger testified under oath that what Doug Ohlin put

 431 9 in this e-mail that you-all read into the record was

 431 10 wrong?

Re: [431:7-

431:10]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Foundation (602)

SUSTAINED

Re: [431:7-

431:10]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

SUSTAINED

431:14 - 431:19 McNamara, Timothy 3-11-2020

 431 14 A. I'm not aware of that.

 431 15 BY MR. TRACEY:

 431 16 Q. Okay. Are you aware that Elliott Berger

 431 17 testified that their testing did not disclose that

 431 18 only those with very large ear canals should fold back

 431 19 the flanges?

Re: [431:14-

431:14]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [431:16-

431:19]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [431:14-

431:14]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

SUSTAINED

Re: [431:16-

431:19]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

SUSTAINED

431:22 - 432:3 McNamara, Timothy 3-11-2020

 431 22 A. No.

 431 23 BY MR. TRACEY:

 431 24 Q. Are you aware of whether anybody from your

 432 1 company corrected Doug Ohlin's misinterpretation or

Re: [431:22-

432:3]

Def Objection -

Foundation (602); 

Misstates; 

Re: [431:21-

432:3]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 113 of 116
McNamara, Timothy 3-11-2020 91

 432 2 misstatement of fact that you read into the record

 432 3 with your lawyer?

Argumentative 

(611, 403)

(611, 403)

SUSTAINED

432:6 - 432:6 McNamara, Timothy 3-11-2020

 432 6 A. I'm not aware of.

Re: [432:6-432:6]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

Re: [432:5-432:6]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative 

(611, 403)

SUSTAINED

433:14 - 433:17 McNamara, Timothy 3-11-2020

 433 14 Q. Do you think it would have been okay to

 433 15 let Dr. Ohlin continue on with this misstatement of

 433 16 fact about folding back the flanges only with very

 433 17 large ear canals?

Re: [433:14-

433:21]

(602, 701, 403)

OVERRULED

433:21 - 433:21 McNamara, Timothy 3-11-2020

 433 21 A. I don't know.

Re: [433:14-

433:21]

(602, 701, 403)

OVERRULED

434:2 - 434:5 McNamara, Timothy 3-11-2020

 434 2 Q. Okay. Before your lawyer read that

 434 3 statement into the record, had you ever heard in your

 434 4 38-year career with the company that only those with

 434 5 very large ear canals should fold back the flanges?

Re: [434:2-434:8]

403

OVERRULED

434:8 - 434:8 McNamara, Timothy 3-11-2020

 434 8 A. No.

Re: [434:2-434:8]

403

OVERRULED

434:17 - 434:23 McNamara, Timothy 3-11-2020

 434 17 Q. Okay. In all of your time going from base

 434 18 to base, to commander to commander with your

 434 19 PowerPoints and going to distributors and doing what

 434 20 you do with your duffel bag full of stuff, had you

 434 21 ever instructed anybody when you were -- when you were

 434 22 doing your training to fold back the flanges in very

 434 23 large ear canals?

Re: [434:17-

434:23]

Def Objection -

Foundation (602); 

3M MIL No. 15; 

Argumentative; 

Compound (611, 

403)

Re: [434:17-

434:23]

Def Objection -

Foundation (602); 

3M MIL No. 15; 

Argumentative; 

Compound (611, 

403)

OVERRULED

435:5 - 435:5 McNamara, Timothy 3-11-2020

 435 5 A. I -- I don't remember.

Re: [435:5-435:5]

Def Objection -

Foundation (602); 

3M MIL No. 15; 

Argumentative; 

Re: [435:4-435:5]

Def Objection -

Foundation (602); 

3M MIL No. 15; 

Argumentative; 

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 114 of 116
McNamara, Timothy 3-11-2020 92

Compound (611, 

403)

Compound (611, 

403)

OVERRULED

435:11 - 435:19 McNamara, Timothy 3-11-2020

 435 11 Q. You never one time can remember

 435 12 instructing people to fold back the flanges when you

 435 13 were doing your training with Combat Arms Version 2?

 435 14 A. Not that I recall.

 435 15 Q. No.

 435 16 And -- and you certainly have never seen

 435 17 any literature from your company that purports to

 435 18 claim that those with the very large ear canals should

 435 19 fold back the flanges, have you?

Re: [435:11-

435:15]

Def Objection -

3M MIL No. 15; 

Foundation (602)

Re: [435:16-

435:19]

Def Objection -

Foundation (602); 

Argumentative; 

Mistates (611, 403)

Re: [435:11-

435:15]

Def Objection -

3M MIL No. 15; 

Foundation (602)

OVERRULED

Re: [435:16-

435:19]

Def Objection -

Foundation (602); 

Argumentative; 

Mistates (611, 403)

OVERRULED

435:22 - 435:22 McNamara, Timothy 3-11-2020

 435 22 A. Not that I can recall.

Re: [435:22-

435:22]

Def Objection -

Foundation (602); 

Argumentative; 

Mistates (611, 403)

Re: [435:22-

435:22]

Def Objection -

Foundation (602); 

Argumentative; 

Mistates (611, 403)

OVERRULED

435:24 - 436:5 McNamara, Timothy 3-11-2020

 435 24 Q. Okay. Do you -- do you know the genesis

 436 1 of this wallet card, how it came to be?

 436 2 A. I don't know the exact genesis, but we

 436 3 provided it as a support piece.

 436 4 Q. "We" meaning Aearo?

 436 5 A. "We" meaning Aearo, yes.

Re: [435:24-

436:5]

Def Objection -

Foundation (602)

Re: [435:24-

436:7]

Def Objection -

Foundation (602)

OVERRULED

439:7 - 439:23 McNamara, Timothy 3-11-2020

 439 7 Q. Oh, here we go, Exhibit 30. If you go to

 439 8 the paragraph that begins: "For Test 213015, the

 439 9 plugs were fit according to the standard plug's

 439 10 fitting instructions with no modifications."

 439 11 Do you see that?

 439 12 A. I do.

 439 13 Q. And it says: "Because the stem of the

 439 14 green, solid end of the plug is so short, it was

Re: [439:7-

439:19]

Def Objection -

Foundation (602); 

Relevance (401, 

402); Prejudice 

(403); Asked (611, 

403)

Re: [439:1-

439:19]

Def Objection -

Foundation (602); 

Relevance (401, 

402); Prejudice 

(403); Asked (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 115 of 116
McNamara, Timothy 3-11-2020 93

 439 15 difficult for the experimenter to insert the plug into

 439 16 some subjects' ear canals, especially those with" --

 439 17 "subjects with medium and larger ear canals."

 439 18 Did I read that reasonably correctly?

 439 19 A. That was exactly what it says.

 439 20 Q. Now, you would agree with me that this

 439 21 says something very different than what Dr. Ohlin is

 439 22 asking for review and comment on with the wallet card

 439 23 where it says "very large ear canals," correct?

Re: [439:20-

439:23]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative; 

Asked (611, 403)

Re: [439:20-

439:23]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative; 

Asked (611, 403)

OVERRULED

440:3 - 440:11 McNamara, Timothy 3-11-2020

 440 3 Q. Well, it says "medium and larger ear

 440 4 canals" here, doesn't it?

 440 5 A. Yes.

 440 6 Q. That's not what Dr. Ohlin said when he

 440 7 asked you and Mr. Berger and Mr. Myers to review the

 440 8 proof of the Aearo wallet card that was going to be

 440 9 sent to men and women in service all across this

 440 10 country and around the world, those words are

 440 11 different, aren't they, sir?

Re: [440:6-

440:11]

Def Objection - 

Foundation (602); 

Misstates; 

Argumentative; 

Compound (611, 

403)

Re: [440:6-

440:11]

Def Objection - 

Foundation (602); 

Misstates; 

Argumentative; 

Compound (611, 

403)

OVERRULED

440:15 - 440:15 McNamara, Timothy 3-11-2020

 440 15 A. Yes.

Re: [440:15-

440:15]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative; 

Compound (611, 

403)

Re: [440:15-

440:15]

Def Objection -

Foundation (602); 

Misstates; 

Argumentative; 

Compound (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 142-1 Filed 06/02/21 Page 116 of 116