EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 1 of 198
Kieper, Ronald - 12/20/2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 2 of 198
Kieper, Ronald - 12/20/2019 Objection Report 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

475:17 - 475:18 Kieper, Ronald 12-20-2019

 475 17 Sir, we spent some time yesterday with a

 475 18 document I understand you had some involvement 

with.

No new 

objections 

for ruling

475:24 - 476:8 Kieper, Ronald 12-20-2019

 475 24 Q. It is Exhibit No. 26 in your stack. It's

 475 25 The Development of the Combat Arms Earplug, 

Version 1

 476 1 through Version 4. I'd like to spend a moment with

 476 2 you on that document, sir.

 476 3 First of all, what prompted the creation

 476 4 of this document?

 476 5 A. This technical report was requested by my

 476 6 boss, Mr. Berger, to document, as the title indicates,

 476 7 the development of the Combat Arms through four

 476 8 versions.

476:20 - 476:22 Kieper, Ronald 12-20-2019

 476 20 Q. And so as I understand it, sir, you played

 476 21 a primary role in the creation of this document, is

 476 22 that fair?

476:24 - 477:5 Kieper, Ronald 12-20-2019

 476 24 BY THE WITNESS:

 476 25 A. We worked together on it, but, yes, I was

 477 1 the primary author.

 477 2 BY MR. BUCHANAN:

 477 3 Q. Okay. And Mr. Berger also worked on it,

 477 4 correct?

 477 5 A. Yes, that's right.

477:19 - 478:2 Kieper, Ronald 12-20-2019

 477 19 Q. Are you at .42, sir?

 477 20 A. Yes, I am.

 477 21 Q. And what is that?

 477 22 A. It is a table listing the real-ear tests

 477 23 of the four versions of the Combat Arms Earplug.

 477 24 Q. Okay. We spent some time yesterday

 477 25 talking about a few of these studies.

 478 1 Do you recall that?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 3 of 198
Kieper, Ronald - 12/20/2019 Objection Report 3

 478 2 A. Yes, I do.

478:3 - 478:5 Kieper, Ronald 12-20-2019

 478 3 Q. Okay. We talked about study 213016. That

 478 4 would have been the test that was done in early 

2000

 478 5 with the open end of the plug, right?

478:8 - 478:8 Kieper, Ronald 12-20-2019

 478 8 A. Yes, sir.

478:10 - 478:16 Kieper, Ronald 12-20-2019

 478 10 Q. Okay. And we talked yesterday about the

 478 11 reported NRR for the open end as being a 0.

 478 12 Do you recall our discussion on that

 478 13 yesterday?

 478 14 A. Yes.

 478 15 Q. In actuality, the NRR that was computed

 478 16 from that study was a negative 2, right?

Re: [478:15-478:18]

Def Objection - misstates; 

argumentative (611, 403); 

relevance (401, 402)

Re: [478:15-478:19]

Def Objection - relevance (401, 

402)

Re: [478:15-

478:18]

Def Objection -

misstates; 

argumentative 

(611, 403); 

relevance (401, 

402)

OVERRULED

Re: [478:15-

478:19]

Def Objection -

relevance (401, 

402)

OVERRULED

478:19 - 478:19 Kieper, Ronald 12-20-2019

 478 19 A. Yes, sir.

Re: [478:15-478:19]

Def Objection - relevance (401, 

402)

Re: [478:15-

478:18]

Def Objection -

misstates; 

argumentative 

(611, 403); 

relevance (401, 

402)

OVERRULED

Re: [478:15-

478:19]

Def Objection -

relevance (401, 

402)

OVERRULED

478:21 - 478:22 Kieper, Ronald 12-20-2019 Re: [478:21-478:25] Re: [478:21-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 4 of 198
Kieper, Ronald - 12/20/2019 Objection Report 4

 478 21 Q. Who made the decision, sir, to report the

 478 22 NRR as a 0 rather than a negative 2?

Def Objection - foundation 

(602)

478:25]

Def Objection -

foundation 

(602)

OVERRULED

478:25 - 479:3 Kieper, Ronald 12-20-2019

 478 25 A. I don't know who made that decision.

 479 1 BY MR. BUCHANAN:

 479 2 Q. It wasn't you?

 479 3 A. It was not me.

Re: [478:21-478:25]

Def Objection - foundation 

(602)

Re: [478:21-

478:25]

Def Objection -

foundation 

(602)

OVERRULED

479:18 - 480:4 Kieper, Ronald 12-20-2019

 479 18 Q. So there is a double asterisk here at the

 479 19 bottom. It says: "Note that when the real-ear test

 479 20 results compute to a negative number for the NRR, 

we

 479 21 chose to label the device with a 0."

 479 22 Do you see that?

 479 23 A. Yes, I see that.

 479 24 Q. And the "we" in that instance was not you,

 479 25 right?

 480 1 A. I -- I didn't make any determination, so,

 480 2 yes, that would not include me.

 480 3 Q. That would have been others?

 480 4 A. That would have been others, yes, sir.

Re: [479:18-480:4]

Def Objection - foundation 

(602); relevance (401, 402)

Re: [479:18-

480:4]

Def Objection -

foundation 

(602); 

relevance (401, 

402)

OVERRULED

480:6 - 480:8 Kieper, Ronald 12-20-2019

 480 6 And then we see the study 213017, you

 480 7 documented that as January 2000, but that's not 

when

 480 8 the study finished, right?

480:11 - 480:15 Kieper, Ronald 12-20-2019

 480 11 A. That's correct. That's an erroneous date.

 480 12 BY MR. BUCHANAN:

 480 13 Q. Yeah. The study actually finished five

 480 14 months later, right?

 480 15 A. I believe it finished in May, yes.

480:16 - 480:17 Kieper, Ronald 12-20-2019

 480 16 Q. There was a study that could have been

 480 17 finished in January of 2000, right?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 5 of 198
Kieper, Ronald - 12/20/2019 Objection Report 5

480:20 - 481:5 Kieper, Ronald 12-20-2019

 480 20 A. We tested the closed end of the Combat

 480 21 Arms in an earlier test, yes.

 480 22 BY MR. BUCHANAN:

 480 23 Q. Right.

 480 24 And that's the one that was going in

 480 25 parallel with study 016, right?

 481 1 A. Yes.

 481 2 Q. Study 015?

 481 3 A. Yes.

 481 4 Q. Okay. Study 015 is the one that in

 481 5 January of 2000 you had an NRR of 11, right?

481:8 - 481:13 Kieper, Ronald 12-20-2019

 481 8 A. Yes. After eight subjects the NRR

 481 9 computed to an 11.

 481 10 BY MR. BUCHANAN:

 481 11 Q. Okay. So that's actually the study that

 481 12 was done as far as it was going to go in January

 481 13 of 2000, right?

481:16 - 481:21 Kieper, Ronald 12-20-2019

 481 16 A. That test was stopped, yes, in January.

 481 17 BY MR. BUCHANAN:

 481 18 Q. So if we are looking at the January

 481 19 of 2000 study for the Combat Arms in the closed

 481 20 position, that would be study 213015, right?

 481 21 A. Yes.

482:5 - 482:11 Kieper, Ronald 12-20-2019

 482 5 It looks like you ran some other tests on

 482 6 the closed end of the Combat Arms, right?

 482 7 A. Yes.

 482 8 Q. And that's what you were doing here is you

 482 9 were collecting that data on the different versions

 482 10 and presenting it in what was to be a 

comprehensive

 482 11 report in the Combat Arms, right?

Re: [482:8-482:15]

Def Objection - argumentative; 

misstates (611, 403); 

foundation (602); 3M MIL No. 

18; relevance (401, 402)

Re: [482:8-

482:15]

Def Objection -

argumentative; 

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 18; 

relevance (401, 

402)

OVERRULED

482:14 - 482:21 Kieper, Ronald 12-20-2019 Re: [482:8-482:15] Re: [482:8-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 6 of 198
Kieper, Ronald - 12/20/2019 Objection Report 6

 482 14 A. Yes, we -- we listed all of the testing

 482 15 that was done on all four versions of the plug.

 482 16 BY MR. BUCHANAN:

 482 17 Q. Okay. The next time you tested the Combat

 482 18 Arms in the closed position, it looks like it was

 482 19 June 2005?

 482 20 A. Yes, that's true.

 482 21 Q. And what NRR did you get on that one, sir?

Def Objection - argumentative; 

misstates (611, 403); 

foundation (602); 3M MIL No. 

18; relevance (401, 402)

Re: [482:17-482:25]

Def Objection - misstates; 

vague; (611, 403); relevance 

(401, 402)

482:15]

Def Objection -

argumentative; 

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 18; 

relevance (401, 

402)

OVERRULED

Re: [482:17-

482:25]

Def Objection -

misstates; 

vague; (611, 

403); relevance 

(401, 402)

OVERRULED

482:24 - 483:9 Kieper, Ronald 12-20-2019

 482 24 A. We tested -- I tested five subjects and

 482 25 the NRR computed was 15.

 483 1 BY MR. BUCHANAN:

 483 2 Q. What study number is that?

 483 3 A. 215508.

 483 4 Q. And then the next time you tested the

 483 5 closed end you got what, sir?

 483 6 A. Again, in June 2005 there was another test

 483 7 with five subjects and the NRR from those five

 483 8 subjects' data was 21.

 483 9 Q. But that wasn't right, right?

Re: [482:17-482:25]

Def Objection - misstates; 

vague; (611, 403); relevance 

(401, 402)

Re: [483:1-483:8]

Def Objection - vague; 

argumentative (611, 403); 

foundation (602); relevance 

(401, 402)

Re: [483:9-483:12]

Def Objection - vague; 

argumentative (611, 403); 

foundation (602); relevance 

(401, 402)

Re: [482:17-

482:25]

Def Objection -

misstates; 

vague; (611, 

403); relevance 

(401, 402)

OVERRULED

Re: [483:1-

483:8]

Def Objection -

vague; 

argumentative 

(611, 403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

Re: [483:9-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 7 of 198
Kieper, Ronald - 12/20/2019 Objection Report 7

483:12]

Def Objection -

vague; 

argumentative 

(611, 403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

483:12 - 483:14 Kieper, Ronald 12-20-2019

 483 12 A. I'm sorry. What do you mean?

 483 13 BY MR. BUCHANAN:

 483 14 Q. The actual NRR was 15, right?

Re: [483:9-483:12]

Def Objection - vague; 

argumentative (611, 403); 

foundation (602); relevance 

(401, 402)

Re: [483:14-483:18]

Def Objection - foundation 

(602)

Re: [483:9-

483:12]

Def Objection -

vague; 

argumentative 

(611, 403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

Re: [483:14-

483:18]

Def Objection -

foundation 

(602)

OVERRULED

483:16 - 483:23 Kieper, Ronald 12-20-2019

 483 16 BY THE WITNESS:

 483 17 A. On this sheet for the second June 2005

 483 18 five-subject test, it says that the NRR was 21.

 483 19 BY MR. BUCHANAN:

 483 20 Q. That is what it says, right?

 483 21 A. Yes, sir.

 483 22 Q. But that's not what the data showed,

 483 23 right?

Re: [483:14-483:18]

Def Objection - foundation 

(602)

Re: [483:22-484:2]

Def Objection - foundation 

(602); argumentative (611, 403)

Re: [483:14-

483:18]

Def Objection -

foundation 

(602)

OVERRULED

Re: [483:22-

484:2]

Def Objection -

foundation 

(602); 

argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 8 of 198
Kieper, Ronald - 12/20/2019 Objection Report 8

(611, 403)

OVERRULED

484:1 - 484:2 Kieper, Ronald 12-20-2019

 484 1 A. I haven't seen the data recently, so I

 484 2 don't know.

Re: [483:22-484:2]

Def Objection - foundation 

(602); argumentative (611, 403)

Re: [483:22-

484:2]

Def Objection -

foundation 

(602);

argumentative 

(611, 403)

OVERRULED

484:10 - 484:25 Kieper, Ronald 12-20-2019

 484 10 (WHEREUPON, a certain document was

 484 11 marked Ron Kieper Deposition Exhibit

 484 12 No. 44, for identification, as of

 484 13 12/20/2019.)

 484 14 BY MR. BUCHANAN:

 484 15 Q. I'm passing you, sir, what we're marking

 484 16 as Exhibit 44 to your deposition.

 484 17 Exhibit 44 is a memo from yourself to

 484 18 Mr. Berger dated February 14, 2017. The internal

 484 19 numbering on it is P2069.

 484 20 Do you see that, sir?

 484 21 A. Yes, I do.

 484 22 Q. It's a memo that says, from you to

 484 23 Mr. Berger, "Re: E-A-R 7-25 CAE Update."

 484 24 Do you see that?

 484 25 A. Yes.

Re: [484:10-484:25]

Def Objection - Relevance 

(401, 402)

Re: [484:10-

484:25]

Def Objection -

Relevance 

(401, 402)

OVERRULED

485:20 - 485:23 Kieper, Ronald 12-20-2019

 485 20 So the history of the Combat Arms has a

 485 21 chart. Do you see that? That was on .42 that we 

were

 485 22 on before.

 485 23 A. Yes.

Re: [485:20-486:20]

Def Objection - Relevance 

(401, 402)

Re: [485:20-

486:20]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [486:19-

486:23]

Def Objection -

foundation 

(602); 

relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 9 of 198
Kieper, Ronald - 12/20/2019 Objection Report 9

402); 

prejudicial 

(403)

OVERRULED

486:2 - 486:20 Kieper, Ronald 12-20-2019

 486 2 Q. And then on the exhibit I just passed you,

 486 3 sir, this memo you did in 2017, I'd like you to go to

 486 4 .9.

 486 5 And .9 reflects from the test data from

 486 6 study 215512.

 486 7 Do you see that?

 486 8 A. Yes.

 486 9 Q. Okay. And when you look at the data from

 486 10 study 215512, which I think you told us was a

 486 11 five-subject test, is that right, sir?

 486 12 A. Yes.

 486 13 Q. Okay. The NRR that you get is 15.9,

 486 14 right?

 486 15 A. Yes.

 486 16 Q. Okay. So your chart reflected for that

 486 17 particular study an NRR of what?

 486 18 A. The table shows 21.

 486 19 Q. Okay. And the -- the five-subject data

 486 20 for this particular study shows 15.9, right, sir?

Re: [485:20-486:20]

Def Objection - Relevance 

(401, 402)

Re: [486:19-486:23]

Def Objection - foundation 

(602); relevance (401, 402); 

prejudicial (403)

Re: [485:20-

486:20]

Def Objection -

Relevance 

(401, 402)

OVERRULED

Re: [486:19-

486:23]

Def Objection -

foundation 

(602); 

relevance (401, 

402); 

prejudicial 

(403)

OVERRULED

486:23 - 486:23 Kieper, Ronald 12-20-2019

 486 23 A. Yes, sir.

Re: [486:19-486:23]

Def Objection - foundation 

(602); relevance (401, 402); 

prejudicial (403)

Re: [486:19-

486:23]

Def Objection -

foundation 

(602); 

relevance (401, 

402); 

prejudicial 

(403)

OVERRULED

487:13 - 488:9 Kieper, Ronald 12-20-2019

 487 13 Q. Can you see it on the Elmo too, sir? I'm

 487 14 sorry. On your screen?

 487 15 A. I can see the table, yes.

 487 16 Q. And that's the chart you were looking at

Re: [488:1-488:4]

Def Objection - foundation 

(602); relevance (401, 402); 

prejudicial (403)

Re: [488:5-488:13]

Re: [488:1-

488:4]

Def Objection -

foundation 

(602); 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 10 of 198
Kieper, Ronald - 12/20/2019 Objection Report 10

 487 17 in the history of the Combat Arms, correct?

 487 18 A. Yes.

 487 19 Q. To satisfy yourself, at dot -- .42? Yeah?

 487 20 A. Yes, sir.

 487 21 Q. Okay. So this is your collection of test

 487 22 data in the history of the Combat Arms. I'm going 

to

 487 23 highlight here, and just for our convenience, the

 487 24 studies that you collected on the closed end, okay.

 487 25 And here.

 488 1 So we know from the document we just

 488 2 looked at on study 215512, that five-subject test, 

the

 488 3 NRR from the study itself was, what was it, 15.9?

 488 4 A. Yes.

 488 5 Q. Okay. All right.

 488 6 We know the study 215508 -- actually,

 488 7 there is full data in there as well, right, we can see

 488 8 that? That was 14.8. So you are closer on that one,

 488 9 right?

Def Objection - foundation 

(602)

relevance (401, 

402); 

prejudicial 

(403)

OVERRULED

Re: [488:5-

488:13]

Def Objection -

foundation 

(602)

OVERRULED

488:13 - 489:7 Kieper, Ronald 12-20-2019

 488 13 A. It is 14.8, yes.

 488 14 BY MR. BUCHANAN:

 488 15 Q. Okay. We spent a lot of time talking

 488 16 about study 213017, right, the one that carried the

 488 17 22?

 488 18 A. Yes.

 488 19 Q. Okay. And it looks like you got another

 488 20 study with only three folks that came in at a 14,

 488 21 right?

 488 22 A. Yes, sir.

 488 23 Q. Okay. And I guess if we are going to be

 488 24 complete, if you are listing three-person studies 

and

 488 25 five-person studies, there is -- there is also an

 489 1 eight-person study, right?

 489 2 A. The 015 test was stopped after eight

 489 3 subjects, yes.

 489 4 Q. Okay. So why don't we slip that one in

Re: [488:5-488:13]

Def Objection - foundation 

(602)

Re: [488:13-488:22]

Def Objection - relevance (401, 

402)

Re: [488:23-489:3]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [489:4-489:10]

Def Objection - compound; 

vague (611, 403)

Re: [488:5-

488:13]

Def Objection -

foundation 

(602)

OVERRULED

Re: [488:13-

488:22]

Def Objection -

relevance (401, 

402)

OVERRULED

Re: [488:23-

489:3]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 11 of 198
Kieper, Ronald - 12/20/2019 Objection Report 11

 489 5 here because that was January of 2000 -- that's

 489 6 actually the one that did happen in January of 2000,

 489 7 right?

OVERRULED

Re: [489:4-

489:10]

Def Objection -

compound; 

vague (611, 

403)

OVERRULED

Re: [489:10-

489:16]

Def Objection -

cumulative 

(403)

OVERRULED

489:10 - 489:13 Kieper, Ronald 12-20-2019

 489 10 A. That's when the test was stopped, yes.

 489 11 BY MR. BUCHANAN:

 489 12 Q. Yeah. So if we put 213015, you had an NRR

 489 13 of 11, right?

Re: [489:4-489:10]

Def Objection - compound; 

vague (611, 403)

Re: [489:10-489:16]

Def Objection - cumulative 

(403)

Re: [489:12-489:16]

Def Objection - misstates (611, 

403)

Re: [489:12-490:10]

Def Objection - cumulative 

(403)

Re: [489:4-

489:10]

Def Objection -

compound; 

vague (611, 

403)

OVERRULED

Re: [489:10-

489:16]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:12-

489:16]

Def Objection -

misstates (611, 

403)

OVERRULED

Re: [489:12-

490:10]

Def Objection -

cumulative 

(403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 12 of 198
Kieper, Ronald - 12/20/2019 Objection Report 12

Re: [489:18-

490:20]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

Re: [490:6-

490:10]

Def Objection -

misstates; 

vague (611, 

403); 

foundation 

(602)

OVERRULED

489:16 - 489:23 Kieper, Ronald 12-20-2019

 489 16 A. Yes, an eight-subject NRR of 11, yes.

 489 17 BY MR. BUCHANAN:

 489 18 Q. Right.

 489 19 And you had eight subjects in that one,

 489 20 right?

 489 21 A. Correct.

 489 22 Q. Is that right?

 489 23 A. That's correct.

Re: [489:10-489:16]

Def Objection - cumulative 

(403)

Re: [489:12-489:16]

Def Objection - misstates (611, 

403)

Re: [489:12-490:10]

Def Objection - cumulative 

(403)

Re: [489:18-490:20]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [489:4-

489:10]

Def Objection -

compound; 

vague (611, 

403)

OVERRULED

Re: [489:10-

489:16]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:12-

489:16]

Def Objection -

misstates (611, 

403)

OVERRULED

Re: [489:12-

490:10]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 13 of 198
Kieper, Ronald - 12/20/2019 Objection Report 13

cumulative 

(403)

OVERRULED

Re: [489:18-

490:20]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

489:24 - 490:7 Kieper, Ronald 12-20-2019

 489 24 Q. Okay. So if we look at this data -- and

 489 25 you do report studies for -- that only had three

 490 1 people in them, right, on the closed end?

 490 2 A. Yes.

 490 3 Q. And you report two studies that only have

 490 4 five people in them for the closed end, right?

 490 5 A. Yes.

 490 6 Q. You didn't report the data for 215 --

 490 7 213015 that had eight subjects in it, right?

Re: [489:12-490:10]

Def Objection - cumulative 

(403)

Re: [489:18-490:20]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [490:6-490:10]

Def Objection - misstates; 

vague (611, 403); foundation 

(602)

Re: [489:10-

489:16]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:12-

489:16]

Def Objection -

misstates (611, 

403)

OVERRULED

Re: [489:12-

490:10]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:18-

490:20]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

Re: [490:6-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 14 of 198
Kieper, Ronald - 12/20/2019 Objection Report 14

490:10]

Def Objection -

misstates; 

vague (611, 

403); 

foundation 

(602)

OVERRULED

490:10 - 490:13 Kieper, Ronald 12-20-2019

 490 10 A. That's right.

 490 11 BY MR. BUCHANAN:

 490 12 Q. Okay. And please tell the jury, sir, what

 490 13 NRR this product carried for its entire marketed 

life?

Re: [489:12-490:10]

Def Objection - cumulative 

(403)

Re: [489:18-490:20]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [490:6-490:10]

Def Objection - misstates; 

vague (611, 403); foundation 

(602)

Re: [490:12-490:16]

Def Objection - foundation 

(602)

Re: [489:10-

489:16]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:12-

489:16]

Def Objection -

misstates (611, 

403)

OVERRULED

Re: [489:12-

490:10]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:18-

490:20]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

Re: [490:6-

490:10]

Def Objection -

misstates; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 15 of 198
Kieper, Ronald - 12/20/2019 Objection Report 15

vague (611, 

403); 

foundation 

(602)

OVERRULED

Re: [490:12-

490:16]

Def Objection -

foundation 

(602)

OVERRULED

490:15 - 490:21 Kieper, Ronald 12-20-2019

 490 15 BY THE WITNESS:

 490 16 A. I believe the NRR was a 22.

 490 17 BY MR. BUCHANAN:

 490 18 Q. And so you had one study that reported a

 490 19 22, right?

 490 20 A. Yes.

 490 21 Q. You had one that reported a 14.8, right?

Re: [489:18-490:20]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [490:12-490:16]

Def Objection - foundation 

(602)

Re: [490:21-490:24]

Def Objection - misstates; 

asked (611, 403)

Re: [489:12-

490:10]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [489:18-

490:20]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

Re: [490:6-

490:10]

Def Objection -

misstates; 

vague (611, 

403); 

foundation 

(602)

OVERRULED

Re: [490:12-

490:16]

Def Objection -

foundation 

(602)

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 16 of 198
Kieper, Ronald - 12/20/2019 Objection Report 16

OVERRULED

Re: [490:21-

490:24]

Def Objection -

misstates; 

asked (611, 

403)

OVERRULED

490:24 - 491:2 Kieper, Ronald 12-20-2019

 490 24 A. Yes, a five-subject study.

 490 25 BY MR. BUCHANAN:

 491 1 Q. You had one that reported a 15.9.

 491 2 Do you see that, sir?

Re: [490:21-490:24]

Def Objection - misstates; 

asked (611, 403)

Re: [491:1-491:5]

Def Objection - misstates; 

asked (611, 403); cumulative 

(403); relevance (401, 402)

Re: [490:21-

490:24]

Def Objection -

misstates; 

asked (611, 

403)

OVERRULED

Re: [491:1-

491:5]

Def Objection -

misstates; 

asked (611, 

403); 

cumulative 

(403); 

relevance (401, 

402)

OVERRULED

491:4 - 491:7 Kieper, Ronald 12-20-2019

 491 4 BY THE WITNESS:

 491 5 A. Yes, I do.

 491 6 BY MR. BUCHANAN:

 491 7 Q. You had one that reported a 14, right?

Re: [491:1-491:5]

Def Objection - misstates; 

asked (611, 403); cumulative 

(403); relevance (401, 402)

Re: [491:7-491:10]

Def Objection - asked; 

misstates (611, 403)

Re: [491:7-491:10]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [491:1-

491:5]

Def Objection -

misstates; 

asked (611, 

403); 

cumulative 

(403); 

relevance (401, 

402)

OVERRULED

Re: [491:7-

491:10]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 17 of 198
Kieper, Ronald - 12/20/2019 Objection Report 17

Def Objection -

asked; 

misstates (611, 

403)

OVERRULED

Re: [491:7-

491:10]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

491:9 - 491:12 Kieper, Ronald 12-20-2019

 491 9 BY THE WITNESS:

 491 10 A. Yes, sir.

 491 11 BY MR. BUCHANAN:

 491 12 Q. You had one that reported an 11?

Re: [491:7-491:10]

Def Objection - asked; 

misstates (611, 403)

Re: [491:7-491:10]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [491:12-491:16]

Def Objection - asked; 

misstates (611, 403)

Re: [491:7-

491:10]

Def Objection -

asked; 

misstates (611, 

403)

OVERRULED

Re: [491:7-

491:10]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

OVERRULED

Re: [491:12-

491:16]

Def Objection -

asked; 

misstates (611, 

403)

OVERRULED

491:14 - 491:18 Kieper, Ronald 12-20-2019

 491 14 BY MR. BUCHANAN:

 491 15 Q. Right?

 491 16 A. An eight-subject study, yes.

Re: [491:12-491:16]

Def Objection - asked; 

misstates (611, 403)

Re: [491:17-491:21]

Re: [491:12-

491:16]

Def Objection -

asked; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 18 of 198
Kieper, Ronald - 12/20/2019 Objection Report 18

 491 17 Q. The one you all stopped before it could be

 491 18 completed, right?

Def Objection - cumulative 

(403); misstates; argumentative; 

vague; asked (611, 403)

misstates (611, 

403)

OVERRULED

Re: [491:17-

491:21]

Def Objection -

cumulative 

(403); 

misstates; 

argumentative; 

vague; asked 

(611, 403)

OVERRULED

491:21 - 492:1 Kieper, Ronald 12-20-2019

 491 21 A. Yes, that plug -- that test was stopped.

 491 22 BY MR. BUCHANAN:

 491 23 Q. And yet, as I understand your testimony,

 491 24 sir, this product carried an NRR of 22 until it was

 491 25 determined that the product could not be marketed 

with

 492 1 that NR -- NRR any longer, correct, sir?

Re: [491:17-491:21]

Def Objection - cumulative 

(403); misstates; argumentative; 

vague; asked (611, 403)

Re: [491:23-492:4]

Def Objection - foundation 

(602); misstates; asked; 

argumentative (611, 403)

Re: [491:17-

491:21]

Def Objection -

cumulative 

(403); 

misstates; 

argumentative; 

vague; asked 

(611, 403)

OVERRULED

Re: [491:23-

492:4]

Def Objection -

foundation 

(602); 

misstates; 

asked; 

argumentative 

(611, 403)

OVERRULED

492:3 - 492:12 Kieper, Ronald 12-20-2019

 492 3 BY THE WITNESS:

 492 4 A. I'm not aware of that.

 492 5 BY MR. BUCHANAN:

 492 6 Q. You saw those documents yesterday, right?

 492 7 A. I saw a number of documents, yes.

Re: [491:23-492:4]

Def Objection - foundation 

(602); misstates; asked; 

argumentative (611, 403)

Re: [492:9-492:15]

Def Objection - foundation 

Re: [491:23-

492:4]

Def Objection -

foundation 

(602); 

misstates; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 19 of 198
Kieper, Ronald - 12/20/2019 Objection Report 19

 492 8 Q. Right.

 492 9 Do you recall the documents, sir, where

 492 10 Mr. Myers, the person who was -- to whom Mr. 

Berger

 492 11 was reporting in 2000, saying that the product 

could

 492 12 no longer be marketed with that NRR of 22?

(602); misstates (611, 403) asked; 

argumentative 

(611, 403)

OVERRULED

Re: [492:9-

492:15]

Def Objection -

foundation 

(602); misstates 

(611, 403)

OVERRULED

492:15 - 492:15 Kieper, Ronald 12-20-2019

 492 15 A. I do recall that.

Re: [492:9-492:15]

Def Objection - foundation 

(602); misstates (611, 403)

Re: [492:9-

492:15]

Def Objection -

foundation 

(602); misstates 

(611, 403)

OVERRULED

492:17 - 492:19 Kieper, Ronald 12-20-2019

 492 17 Q. As we saw from that DOJ interaction in the

 492 18 early '90s, sir, overstating NRRs can be a pretty big

 492 19 deal, right?

492:22 - 492:22 Kieper, Ronald 12-20-2019

 492 22 A. Yes.

533:1 - 533:2 Kieper, Ronald 12-20-2019

 533 1 Sir, this is Table 1 in the history of the

 533 2 Combat Arms.

533:5 - 533:13 Kieper, Ronald 12-20-2019

 533 5 Q. It is Exhibit 26 to your deposition, sir?

 533 6 It lists a bunch of studies that were

 533 7 done. I think we can agree that it didn't include the

 533 8 eight-person testing you did in 213015, correct?

 533 9 A. That -- that -- those results were not

 533 10 included in this table, yes.

 533 11 Q. Okay. It doesn't include some other

 533 12 testing you did on the Version 2 of the Combat 

Arms,

 533 13 right?

Re: [533:5-533:10]

Def Objection - relevance (401, 

403); prejudice (403)

Re: [533:11-533:16]

Def Objection - foundation 

(602); prejudice (403)

Re: [533:5-

533:10]

Def Objection -

relevance (401, 

403); prejudice 

(403)

OVERRULED

Re: [533:11-

533:16]

Def Objection -

foundation 

(602); 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 20 of 198
Kieper, Ronald - 12/20/2019 Objection Report 20

prejudice (403)

OVERRULED

533:16 - 533:24 Kieper, Ronald 12-20-2019

 533 16 A. I'm not sure.

 533 17 BY MR. BUCHANAN:

 533 18 Q. And what about your Method B testing?

 533 19 A. Okay. I'm -- I don't -- no, the -- these

 533 20 were only best 3.19 tests. I believe that states that

 533 21 down at the bottom.

 533 22 Q. Because you all had done some Method B

 533 23 testing on the Combat Arms, right?

 533 24 A. I believe we did.

Re: [533:11-533:16]

Def Objection - foundation 

(602); prejudice (403)

Re: [533:18-533:24]

Def Objection - 3M MIL No. 

22; relevance (401, 402)

Re: [533:11-

533:16]

Def Objection -

foundation 

(602); 

prejudice (403)

OVERRULED

Re: [533:18-

533:24]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402)

OVERRULED

534:7 - 534:25 Kieper, Ronald 12-20-2019

 534 7 Q. Please tell the jury the difference

 534 8 between an ANSI '74 study and a so-called Method 

B

 534 9 study?

 534 10 A. A Method B study is described in the ANSI

 534 11 Standard 12.6-1997 and it uses inexperienced test

 534 12 subjects and the subjects --

 534 13 Q. Sorry. Before you continue, did you say

 534 14 inexperienced or an experienced?

 534 15 A. Inexperienced.

 534 16 Q. Thank you. Sorry.

 534 17 A. People with very little, if any,

 534 18 experience wearing hearing protection, and that's

 534 19 specified in the standard. And the test subjects are

 534 20 given the instructions that come with the plug and

 534 21 they fit the plug in the test chamber without the

 534 22 experimenter, myself, being in the room. And then 

the

 534 23 test is conducted at seven frequencies, which is

 534 24 different than the '74 standard requires of the nine

 534 25 frequencies.

Re: [534:7-534:25]

Def Objection - relvance (401, 

402); 3M MIL No. 22

Re: [534:7-

534:25]

Def Objection -

relvance (401, 

402); 3M MIL 

No. 22

OVERRULED

535:9 - 535:11 Kieper, Ronald 12-20-2019 Re: [535:9-535:14] Re: [535:9-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 21 of 198
Kieper, Ronald - 12/20/2019 Objection Report 21

 535 9 Q. Designed to take a lot of the tricks that

 535 10 Mr. Berger told you to use out of the testing 

process,

 535 11 right?

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); 702

535:14]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); 702

SUSTAINED

535:14 - 535:14 Kieper, Ronald 12-20-2019

 535 14 A. I don't agree with the terminology.

Re: [535:9-535:14]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); 702

Re: [535:9-

535:14]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); 702

SUSTAINED

535:16 - 535:18 Kieper, Ronald 12-20-2019

 535 16 Q. Okay. Well, we could agree that you

 535 17 weren't allowed to only test the A students with

 535 18 Method B testing, right?

Re: [535:16-535:22]

Def Objection - 3M MIL No. 

22; 3M MIL No. 23; 

argumentative; asked; misstates 

(611, 403)

Re: [535:16-

535:22]

Def Objection -

3M MIL No. 

22; 3M MIL 

No. 23; 

argumentative; 

asked; 

misstates (611, 

403)

OVERRULED

535:20 - 536:4 Kieper, Ronald 12-20-2019

 535 20 BY THE WITNESS:

 535 21 A. The test subjects were inexperienced test

 535 22 subjects.

 535 23 BY MR. BUCHANAN:

 535 24 Q. Right.

 535 25 Not people that you had gone through and

 536 1 sifted to see how well they had tested in other

 536 2 products and prior tests and determined that they 

were

 536 3 excellent candidates to get the highest NRRs, that's

Re: [535:16-535:22]

Def Objection - 3M MIL No. 

22; 3M MIL No. 23; 

argumentative; asked; misstates 

(611, 403)

Re: [535:25-536:10]

Def Objection - argumentative; 

misstates (611, 403); 3M MIL 

No. 22; 3M MIL No. 23

Re: [535:16-

535:22]

Def Objection -

3M MIL No. 

22; 3M MIL 

No. 23; 

argumentative; 

asked; 

misstates (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 22 of 198
Kieper, Ronald - 12/20/2019 Objection Report 22

 536 4 not how you do Method B testing, right? Re: [535:25-

536:10]

Def Objection -

argumentative; 

misstates (611, 

403); 3M MIL 

No. 22; 3M 

MIL No. 23

OVERRULED

536:6 - 536:20 Kieper, Ronald 12-20-2019

 536 6 BY THE WITNESS:

 536 7 A. Method B testing is done with

 536 8 inexperienced subjects and no instructions from the

 536 9 experimenter other than the fitting instructions that

 536 10 come with the plug.

 536 11 BY MR. BUCHANAN:

 536 12 Q. Right.

 536 13 And, in fact, you are not even allowed to

 536 14 touch the test subject or insert the plugs, right?

 536 15 A. That's correct.

 536 16 Q. So the experimenter doesn't get to fiddle

 536 17 and put them in or out or, you know, inspect 

around

 536 18 and make sure they are all deep up in there the way

 536 19 you go with the ANSI '74 test, the way you did 

them at

 536 20 least, sir, right?

Re: [535:25-536:10]

Def Objection - argumentative; 

misstates (611, 403); 3M MIL 

No. 22; 3M MIL No. 23

Re: [536:16-536:24]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); 702

Re: [535:25-

536:10]

Def Objection -

argumentative; 

misstates (611, 

403); 3M MIL 

No. 22; 3M 

MIL No. 23

OVERRULED

Re: [536:16-

536:24]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); 702

OVERRULED

536:22 - 536:25 Kieper, Ronald 12-20-2019

 536 22 BY THE WITNESS:

 536 23 A. It is subject fit, not the -- not

 536 24 Experimenter-Fit.

 536 25 BY MR. BUCHANAN:

Re: [536:16-536:24]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); 702

Re: [536:16-

536:24]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); 702

OVERRULED

537:1 - 537:3 Kieper, Ronald 12-20-2019

 537 1 Q. Okay. And you are not allowed to go

 537 2 through and scrub data out, some kind of outlier 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 23 of 198
Kieper, Ronald - 12/20/2019 Objection Report 23

test,

 537 3 right?

537:6 - 537:11 Kieper, Ronald 12-20-2019

 537 6 A. We didn't use outlier tests in Method B

 537 7 testing, no.

 537 8 BY MR. BUCHANAN:

 537 9 Q. Designed to close up all of these little

 537 10 loopholes you all were using in your non-Method 

B

 537 11 tests, right?

537:14 - 537:14 Kieper, Ronald 12-20-2019

 537 14 A. I don't think that's accurate.

537:16 - 537:17 Kieper, Ronald 12-20-2019

 537 16 Q. Well, we know what the outcome is of

 537 17 Method B testing, right?

Re: [537:16-538:2]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); relevance (401, 

402)

Re: [537:16-

538:2]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); relevance 

(401, 402)

OVERRULED

537:19 - 537:20 Kieper, Ronald 12-20-2019

 537 19 BY MR. BUCHANAN:

 537 20 Q. More real-world results, right?

Re: [537:16-538:2]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); relevance (401, 

402)

Re: [537:16-

538:2]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); relevance 

(401, 402)

OVERRULED

537:23 - 538:5 Kieper, Ronald 12-20-2019

 537 23 A. My understanding of the standard is the --

 537 24 by following the Method B protocol, the results 

would

 537 25 be -- reflect the amount of protection that a

 538 1 person -- an inexperienced person would obtain 

with a

Re: [537:16-538:2]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); relevance (401, 

402)

Re: [538:4-538:8]

Def Objection - foundation 

Re: [537:16-

538:2]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 24 of 198
Kieper, Ronald - 12/20/2019 Objection Report 24

 538 2 given hearing protector.

 538 3 BY MR. BUCHANAN:

 538 4 Q. Did you know, sir, that the Army required

 538 5 Method -- Method B testing?

(602); misstates (611, 403); 3M 

MIL No. 22

403); relevance 

(401, 402)

OVERRULED

Re: [538:4-

538:8]

Def Objection -

foundation 

(602); misstates 

(611, 403); 3M 

MIL No. 22

SUSTAINED

538:7 - 538:8 Kieper, Ronald 12-20-2019

 538 7 BY THE WITNESS:

 538 8 A. No.

Re: [538:4-538:8]

Def Objection - foundation 

(602); misstates (611, 403); 3M 

MIL No. 22

Re: [538:4-

538:8]

Def Objection -

foundation 

(602); misstates 

(611, 403); 3M 

MIL No. 22

SUSTAINED

538:21 - 539:19 Kieper, Ronald 12-20-2019

 538 21 Sir, Exhibit 51 is a -- I guess a document

 538 22 from the Department of the Army Medical 

Services. It

 538 23 says: "Hearing Conservation Program."

 538 24 Do you see that, on .2?

 538 25 A. Yes.

 539 1 Q. Okay. Medical Services, Hearing

 539 2 Conservation Program, Headquarters, Department 

of the

 539 3 Army, Washington, D.C., right?

 539 4 A. Yes.

 539 5 Q. If we go to .3, sir, the next page, it is

 539 6 five bullets up from the bottom with its summary of

 539 7 changes, and it says: "This revision" what, sir, 

what

 539 8 does it say, the fifth bullet from the bottom?

 539 9 A. The fifth bullet from the bottom.

 539 10 "Mandates the use of hearing protection

 539 11 attenuation data based on Method B (subject fit) of

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 25 of 198
Kieper, Ronald - 12/20/2019 Objection Report 25

 539 12 American National Standards Institute Standard

 539 13 S12.6-1997 (Paragraph 6-2)."

 539 14 Q. All right. So we are in 1998, sir, and

 539 15 that ANSI standard came out in 1997, is that right?

 539 16 A. Yes, the first version did.

 539 17 Q. So in the first year out, the Army is

 539 18 requiring or mandating the use of the Method B 

subject

 539 19 fit standard for its attenuation data, isn't it?

539:22 - 539:23 Kieper, Ronald 12-20-2019

 539 22 Q. As you read this?

 539 23 A. That's what it says in this document, yes.

540:21 - 540:23 Kieper, Ronald 12-20-2019

 540 21 BY MR. BUCHANAN:

 540 22 Q. All right. Please look at Exhibit 52

 540 23 which we just passed over to you, sir.

541:1 - 541:7 Kieper, Ronald 12-20-2019

 541 1 Q. It is an article by Mr. Berger, and what's

 541 2 the title?

 541 3 A. Occupational Hearing Conservation. "So,

 541 4 How Do You Want Your NRRs: Realistic or

 541 5 Sunny-Side-Up?"

 541 6 Q. Okay. Realistic, we could agree that's a

 541 7 good thing for an NRR, right --

Re: [541:6-541:13]

Def Objection - foundation 

(602); vague; argumentative 

(611, 403)

Re: [541:6-

541:13]

Def Objection -

foundation 

(602); vague; 

argumentative 

(611, 403)

OVERRULED

541:9 - 541:10 Kieper, Ronald 12-20-2019

 541 9 BY MR. BUCHANAN:

 541 10 Q. -- for it to be realistic?

Re: [541:6-541:13]

Def Objection - foundation 

(602); vague; argumentative 

(611, 403)

Re: [541:6-

541:13]

Def Objection -

foundation 

(602); vague; 

argumentative 

(611, 403)

OVERRULED

541:12 - 541:13 Kieper, Ronald 12-20-2019

 541 12 BY THE WITNESS:

 541 13 A. Yes.

Re: [541:6-541:13]

Def Objection - foundation 

(602); vague; argumentative 

(611, 403)

Re: [541:6-

541:13]

Def Objection -

foundation 

(602); vague; 

argumentative 

(611, 403)

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 26 of 198
Kieper, Ronald - 12/20/2019 Objection Report 26

OVERRULED

542:5 - 542:15 Kieper, Ronald 12-20-2019

 542 5 Let's talk here about -- actually, let's

 542 6 go to .4. There is a discussion -- this is an article

 542 7 by Mr. Berger, right?

 542 8 A. Yes, that's correct.

 542 9 Q. In the Discussion section here, it's about

 542 10 halfway down, it's talking about NRR(SF).

 542 11 When we see NRR(SF), sir, is that the way

 542 12 you denote an NRR determined for subject fit?

 542 13 A. That's correct.

 542 14 Q. So an NRR determined by virtue of that

 542 15 ANSI 1997 standard, right?

Re: [542:14-542:18]

Def Objection - relevance (401, 

402); 3M MIL No. 22

Re: [542:14-

542:18]

Def Objection -

relevance (401, 

402); 3M MIL 

No. 22

OVERRULED

542:18 - 543:1 Kieper, Ronald 12-20-2019

 542 18 A. Yes, Method B test yields an NRR(SF).

 542 19 BY MR. BUCHANAN:

 542 20 Q. Right.

 542 21 And those N -- those Method B tests aren't

 542 22 limited to ten people either, are they, on earplugs?

 542 23 A. My recollection is that they require 20

 542 24 people.

 542 25 Q. So you've got to test twice as many people

 543 1 in a Method B test, right?

Re: [542:14-542:18]

Def Objection - relevance (401, 

402); 3M MIL No. 22

Re: [542:21-542:24]

Def Objection - 3M MIL No. 

22; relevance (401, 402)

Re: [542:25-543:4]

Def Objection - 3M MIL No. 

22; misstates (611, 403)

Re: [542:14-

542:18]

Def Objection -

relevance (401, 

402); 3M MIL 

No. 22

OVERRULED

Re: [542:21-

542:24]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402)

OVERRULED

Re: [542:25-

543:4]

Def Objection -

3M MIL No. 

22; misstates 

(611, 403)

OVERRULED

543:3 - 543:11 Kieper, Ronald 12-20-2019

 543 3 BY THE WITNESS:

 543 4 A. Yes.

 543 5 BY MR. BUCHANAN:

 543 6 Q. The experimenter doesn't get to put the

Re: [542:25-543:4]

Def Objection - 3M MIL No. 

22; misstates (611, 403)

Re: [543:5-543:8]

Def Objection - 3M MIL No. 

Re: [542:25-

543:4]

Def Objection -

3M MIL No. 

22; misstates 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 27 of 198
Kieper, Ronald - 12/20/2019 Objection Report 27

 543 7 plugs in, right?

 543 8 A. Yes.

 543 9 Q. You don't get to dump data from the study

 543 10 through some statistical test that you call an outlier

 543 11 test, right?

22; misstates (611, 403) (611, 403)

OVERRULED

Re: [543:5-

543:8]

Def Objection -

3M MIL No. 

22; misstates 

(611, 403)

OVERRULED

543:14 - 543:18 Kieper, Ronald 12-20-2019

 543 14 A. There are no outlier tests performed on

 543 15 S -- on subject fit data.

 543 16 BY MR. BUCHANAN:

 543 17 Q. I'm sorry, sir. Do you get to dump data

 543 18 in a subject fit test through any technique?

543:21 - 543:25 Kieper, Ronald 12-20-2019

 543 21 A. The data are -- are kept in -- in the

 543 22 report.

 543 23 BY MR. BUCHANAN:

 543 24 Q. And they are all used in computing the

 543 25 subject fit NRR, right?

544:3 - 544:21 Kieper, Ronald 12-20-2019

 544 3 A. All 20 people's data are used to compute

 544 4 the NRR(SF).

 544 5 BY MR. BUCHANAN:

 544 6 Q. Okay. So in the middle of this paragraph,

 544 7 it says, talking about this subject B or Method B --

 544 8 withdrawn.

 544 9 It begins: "Regardless, Method B data and

 544 10 to some extent NRR(SF) values are starting to 

appear."

 544 11 Did I read that correctly, sir?

 544 12 A. Yes.

 544 13 Q. "In addition to the unanimous support of

 544 14 the professional community, the US military now

 544 15 requires testing to the new Method B."

 544 16 Did I read that correctly, sir?

 544 17 A. Yes.

 544 18 Q. And so you don't doubt, sir, that at this

Re: [544:6-544:17]

Def Objection - 3M MIL No. 

22; relevance (401, 402)

Re: [544:18-544:21]

Def Objection - misstates (611, 

403); foundation (602); 3M 

MIL No. 22

Re: [544:6-

544:17]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402)

OVERRULED

Re: [544:18-

544:21]

Def Objection -

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 22

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 28 of 198
Kieper, Ronald - 12/20/2019 Objection Report 28

 544 19 point in time in 1999, September of 1999, Mr. 

Berger

 544 20 clearly knew that the military was requiring 

Method B

 544 21 testing, do you, sir?

545:3 - 545:10 Kieper, Ronald 12-20-2019

 545 3 A. From what it says here, Elliott knew that

 545 4 Method B was required for US military.

 545 5 Q. Right.

 545 6 And so I under -- as I understand it, sir,

 545 7 this was a product, this Combat Arms Version 2, 

that

 545 8 the company at least had some hope and plan of 

selling

 545 9 to the US military.

 545 10 Would that be fair?

Re: [545:3-545:4]

Def Objection - misstates (611, 

403); foundation (602); 3M 

MIL No. 22

Re: [545:3-

545:4]

Def Objection -

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 22

OVERRULED

545:13 - 545:18 Kieper, Ronald 12-20-2019

 545 13 A. I was not involved in the marketing of it.

 545 14 BY MR. BUCHANAN:

 545 15 Q. September '99, the date of this article,

 545 16 do you remember looking at documents with me

 545 17 yesterday, sir, from November of 1999 where Mr. 

Berger

 545 18 wrote: "We have no REAT testing on the Combat 

Arms"?

545:21 - 545:22 Kieper, Ronald 12-20-2019

 545 21 A. I remember -- could I see that document

 545 22 again?

546:10 - 546:19 Kieper, Ronald 12-20-2019

 546 10 Q. What's that sentence say, sir, about

 546 11 whether the company had or did not have data on 

the

 546 12 actual version of the nonlinear earplug that we are

 546 13 now selling in the US?

 546 14 A. Yes. "We have no data on the actual

 546 15 version of the nonlinear earplug."

 546 16 Q. And just for clarity, sir, in the subject

 546 17 line in that e-mail from Mr. Berger to Mr. Myers, 

what

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 29 of 198
Kieper, Ronald - 12/20/2019 Objection Report 29

 546 18 was the earplug that was being talked about?

 546 19 A. Combat Arms plug.

546:20 - 546:24 Kieper, Ronald 12-20-2019

 546 20 Q. Okay. So when Mr. Berger gave you that

 546 21 call in December of 1999 after he had written this

 546 22 article, talking about how the military requires

 546 23 Method B testing, did he ask you to conduct 

Method B

 546 24 testing?

Re: [546:20-547:2]

Def Objection - argumentative; 

misstates; asked (611, 403); 

foundation (602); relevance 

(401, 402)

Re: [546:20-

547:2]

Def Objection -

argumentative; 

misstates; 

asked (611, 

403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

547:1 - 547:2 Kieper, Ronald 12-20-2019

 547 1 BY THE WITNESS:

 547 2 A. I don't recall.

Re: [546:20-547:2]

Def Objection - argumentative; 

misstates; asked (611, 403); 

foundation (602); relevance 

(401, 402)

Re: [546:20-

547:2]

Def Objection -

argumentative; 

misstates; 

asked (611, 

403); 

foundation 

(602); 

relevance (401, 

402)

OVERRULED

547:4 - 547:12 Kieper, Ronald 12-20-2019

 547 4 Q. And there should be no mistake, sir, that

 547 5 you know how to do Method B testing, right, you, 

sir,

 547 6 Mr. Kieper?

 547 7 A. Yes.

 547 8 Q. I mean, you had been doing Method B

 547 9 testing since 1997, isn't that true?

 547 10 A. I did -- I don't remember when I started

 547 11 doing Method B testing, but it was probably in the

 547 12 1997 timeframe.

Re: [547:4-547:12]

Def Objection - 3M MIL No. 

22; relevance (401, 402)

Re: [547:4-

547:12]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402)

OVERRULED

547:24 - 548:11 Kieper, Ronald 12-20-2019

 547 24 (WHEREUPON, a certain document was

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 30 of 198
Kieper, Ronald - 12/20/2019 Objection Report 30

 547 25 marked Ron Kieper Deposition Exhibit

 548 1 No. 53, for identification, as of

 548 2 12/20/2019.)

 548 3 BY MR. BUCHANAN:

 548 4 Q. Okay. You have Exhibit 53 before you, is

 548 5 that right?

 548 6 A. Yes, I do.

 548 7 MS. ELIZABETH: Is it -- okay.

 548 8 BY MR. BUCHANAN:

 548 9 Q. This is that memo between Mr. Berger and

 548 10 Mr. Myers, September 30, 1997, right?

 548 11 A. Yes.

552:5 - 553:2 Kieper, Ronald 12-20-2019

 552 5 We are talking about Method B testing,

 552 6 sir. We see ANSI S12.6-1997 Method B testing.

 552 7 Do you see that?

 552 8 A. Yes.

 552 9 Q. It says you got a new report cover

 552 10 sheet -- excuse me, everybody.

 552 11 It says you have a new report cover sheet

 552 12 created for your Method B reports as of this point 

in

 552 13 time in 1997, right?

 552 14 A. That's what it says, yes.

 552 15 Q. And then it talks about how you are going

 552 16 to start testing under this standard at the end of the

 552 17 month, right, or how you did start testing under 

this

 552 18 method at the end of the month, right?

 552 19 A. I don't see where it says that.

 552 20 Q. Well, under the heading ANSI S12.6-1997

 552 21 Method B Testing, it talks about creating the new

 552 22 cover sheet. And at the end it says: "Testing for

 552 23 the new list of devices started on the 29th."

 552 24 Did I read that correctly?

 552 25 A. Oh, in the second paragraph.

 553 1 "Testing for the new list of devices

 553 2 started on the 29th."

553:3 - 553:8 Kieper, Ronald 12-20-2019

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 31 of 198
Kieper, Ronald - 12/20/2019 Objection Report 31

 553 3 Q. Okay. And, in fact, you, sir, were

 553 4 experienced doing Method B testing as of the time 

the

 553 5 Combat Arms was tested, right?

 553 6 A. I was doing Method B tests at that time,

 553 7 yes.

 553 8 Q. And my question was: You were experienced

553:15 - 553:17 Kieper, Ronald 12-20-2019

 553 15 BY THE WITNESS:

 553 16 A. We started doing testing in -- apparently

 553 17 in September of '97.

553:19 - 553:21 Kieper, Ronald 12-20-2019

 553 19 Q. Sir, I'm looking now at Exhibit 27. That

 553 20 should be in your stack. This is the performance

 553 21 assessment addendum for you by Mr. Berger.

554:9 - 554:12 Kieper, Ronald 12-20-2019

 554 9 Q. My question to you, sir, was: Do you

 554 10 remember there where you were getting praised for 

your

 554 11 ability to get the high NRRs? We looked at that

 554 12 yesterday.

554:15 - 555:8 Kieper, Ronald 12-20-2019

 554 15 A. Yes.

 554 16 BY MR. BUCHANAN:

 554 17 Q. Okay.

 554 18 A. It says --

 554 19 Q. Up top it says "Major accomplishments."

 554 20 It is highlighting your major accomplishments as 

of

 554 21 11/30/2000.

 554 22 That would be the end of the year 2000, I

 554 23 guess, right?

 554 24 A. Yes.

 554 25 Q. It says under II A, little letter b:

 555 1 "Independent conduct of nine Method B

 555 2 tests with 19 others in process, seamlessly

 555 3 integrating the prior work of Don Peyton on this 

same

 555 4 product."

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 32 of 198
Kieper, Ronald - 12/20/2019 Objection Report 32

 555 5 Do you see that, sir?

 555 6 A. Yes.

 555 7 Q. Okay. And it is praising you for your

 555 8 ability to independently run Method B tests, right?

555:11 - 555:17 Kieper, Ronald 12-20-2019

 555 11 A. Yes.

 555 12 BY MR. BUCHANAN:

 555 13 Q. Major accomplishments that you did in that

 555 14 last year, right?

 555 15 A. Yes.

 555 16 Q. It looks like you all were running a whole

 555 17 lot of Method B tests, right?

555:20 - 555:21 Kieper, Ronald 12-20-2019

 555 20 A. We did a number, yes, quite a few tests

 555 21 under Method B.

556:1 - 556:4 Kieper, Ronald 12-20-2019

 556 1 Q. Okay. Is it fair to say if Mr. Berger

 556 2 approached you and say, Hey, Mr. Kieper, I'd like 

you

 556 3 to run a Method B test on the Combat Arms, you 

could

 556 4 have done that, right?

Re: [556:1-556:7]

Def Objection - 3M MIL No. 

22; argumentative (611, 403); 

relevance (401, 402)

Re: [556:1-

556:7]

Def Objection -

3M MIL No. 

22; 

argumentative 

(611, 403); 

relevance (401, 

402)

OVERRULED

556:6 - 556:12 Kieper, Ronald 12-20-2019

 556 6 BY THE WITNESS:

 556 7 A. I could have.

 556 8 BY MR. BUCHANAN:

 556 9 Q. It certainly indicates from the fall

 556 10 of 1999, sir, that the head of your lab understood

 556 11 that Method B was required by the military.

 556 12 Do you remember seeing that?

Re: [556:1-556:7]

Def Objection - 3M MIL No. 

22; argumentative (611, 403); 

relevance (401, 402)

Re: [556:9-556:15]

Def Objection - foundation 

(602); argumentative (611, 403)

Re: [556:1-

556:7]

Def Objection -

3M MIL No. 

22; 

argumentative 

(611, 403); 

relevance (401, 

402)

OVERRULED

Re: [556:9-

556:15]

Def Objection -

foundation 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 33 of 198
Kieper, Ronald - 12/20/2019 Objection Report 33

(602); 

argumentative 

(611, 403)

OVERRULED

556:14 - 556:15 Kieper, Ronald 12-20-2019

 556 14 BY THE WITNESS:

 556 15 A. Mr. Berger was aware of that.

Re: [556:9-556:15]

Def Objection - foundation 

(602); argumentative (611, 403)

Re: [556:9-

556:15]

Def Objection -

foundation 

(602); 

argumentative 

(611, 403)

OVERRULED

556:18 - 556:25 Kieper, Ronald 12-20-2019

 556 18 And yet after that November 1999 e-mail

 556 19 saying you've got no REAT tests, Mr. Berger didn't

 556 20 call you up and say, Hey, we should do a Method 

B on

 556 21 this, that's what the military needs, more 

reasonable,

 556 22 more real world, we don't get to dump data on it,

 556 23 better approximate real-world experience?

 556 24 He never called you and had a conversation

 556 25 like that, sir?

557:3 - 557:4 Kieper, Ronald 12-20-2019

 557 3 A. I don't recall any conversation like that,

 557 4 no.

558:2 - 558:5 Kieper, Ronald 12-20-2019

 558 2 Q. If Mr. Berger had asked you in the fall

 558 3 of 1999 to run a Method B, you would have run a 

Method

 558 4 B, right?

 558 5 A. Yes.

558:13 - 558:19 Kieper, Ronald 12-20-2019

 558 13 Q. I mean, your company could run Method B

 558 14 tests when it wanted to run Method B tests, right?

 558 15 A. Our lab could conduct Method B tests when

 558 16 we -- when Elliott designated that, yes.

 558 17 Q. We could see by .6 your lab had been

 558 18 designated to run Method B tests on a whole bunch 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 34 of 198
Kieper, Ronald - 12/20/2019 Objection Report 34

of

 558 19 stuff, right?

558:22 - 558:24 Kieper, Ronald 12-20-2019

 558 22 A. In this -- in my performance assessment

 558 23 there were approximately 20 tests going on under

 558 24 Method B.

559:13 - 559:18 Kieper, Ronald 12-20-2019

 559 13 Q. Okay. We spent some time talking about

 559 14 this kind of nate -- late '90s window of time, the

 559 15 evolution of Method B testing and your role and

 559 16 involvement in Method B testing.

 559 17 Do you recall our discussion on that?

 559 18 A. Yes.

559:24 - 560:4 Kieper, Ronald 12-20-2019

 559 24 Q. Okay. And so at some point in time

 559 25 Mr. Berger came to you and said, Mr. Kieper, 

would you

 560 1 run a Method B test on the Combat Arms, right?

 560 2 A. Yes, we did a Method B test.

 560 3 Q. And you did that, right?

 560 4 A. Yes.

Re: [559:24-560:4]

Def Objection - 3M MIL No. 

22; cumulative (403); relevance 

(401, 402)

Re: [559:24-

560:4]

Def Objection -

3M MIL No. 

22; cumulative 

(403); 

relevance (401, 

402)

OVERRULED

560:6 - 560:12 Kieper, Ronald 12-20-2019

 560 6 (WHEREUPON, a certain document was

 560 7 marked Ron Kieper Deposition Exhibit

 560 8 No. 54, for identification, as of

 560 9 12/20/2019.)

 560 10 BY MR. BUCHANAN:

 560 11 Q. I'm passing you sir, what we are marking

 560 12 at P 105.

560:16 - 560:18 Kieper, Ronald 12-20-2019

 560 16 Q. We have two number systems, sir. I

 560 17 apologize. Exhibit 54 to your deposition internally

 560 18 is P 105 for my tech.

560:21 - 560:24 Kieper, Ronald 12-20-2019

 560 21 Q. Sir, is this the report of your Method B

 560 22 test on the Combat Arms?

 560 23 A. This is a Method B test of the solid end

Re: [560:21-561:3]

Def Objection - 3M MIL No. 

22; relevance (401, 402)

Re: [560:21-

561:3]

Def Objection -

3M MIL No. 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 35 of 198
Kieper, Ronald - 12/20/2019 Objection Report 35

 560 24 of the Combat Arms Earplug. 22; relevance 

(401, 402)

OVERRULED

561:17 - 562:8 Kieper, Ronald 12-20-2019

 561 17 Q. And so what you were testing in this

 561 18 particular study -- was this study 21 -- study 

213030,

 561 19 sir?

 561 20 A. That's -- yes, that's the test ID of this

 561 21 report.

 561 22 Q. It is off to the right under the NRR.

 561 23 Do you see that?

 561 24 A. It is above the NRR. It's below the

 561 25 NRR(SF).

 562 1 Q. Thank you for the clarification, sir.

 562 2 The NRR(SF) would be the NRR you got when

 562 3 you used the subject fit NRR calculation for 

Method B

 562 4 testing, right?

 562 5 A. Yes.

 562 6 Q. And please tell the jury what you found

 562 7 when you actually ran a test using Method B on the

 562 8 Combat Arms with the standard the military 

required?

Re: [561:17-562:12]

Def Objection - 3M MIL No. 

22; relevance (401, 402); 

foundation (602)

Re: [562:6-562:12]

Def Objection - argumentative; 

misstates (611, 403); 3M MIL 

No. 22; relevance (401, 402)

Re: [561:17-

562:12]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402); 

foundation 

(602)

OVERRULED

Re: [562:6-

562:12]

Def Objection -

argumentative; 

misstates (611, 

403); 3M MIL 

No. 22; 

relevance (401, 

402)

OVERRULED

562:11 - 562:18 Kieper, Ronald 12-20-2019

 562 11 A. The results of this test was an NRR(SF) of

 562 12 4.4.

 562 13 BY MR. BUCHANAN:

 562 14 Q. Thank you, sir.

 562 15 And this is the same Method B framework

 562 16 that you understand, from looking at documents 

with me

 562 17 today, Mr. Berger recognized was required by the 

US

 562 18 military, right?

Re: [561:17-562:12]

Def Objection - 3M MIL No. 

22; relevance (401, 402); 

foundation (602)

Re: [562:6-562:12]

Def Objection - argumentative; 

misstates (611, 403); 3M MIL 

No. 22; relevance (401, 402)

Re: [562:15-562:21]

Def Objection - foundation 

(602); misstates; asked (611, 

403); 3M MIL No. 22; 

relevance (401, 402)

Re: [561:17-

562:12]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402); 

foundation 

(602)

OVERRULED

Re: [562:6-

562:12]

Def Objection -

argumentative; 

misstates (611, 

403); 3M MIL 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 36 of 198
Kieper, Ronald - 12/20/2019 Objection Report 36

No. 22; 

relevance (401, 

402)

OVERRULED

Re: [562:15-

562:21]

Def Objection -

foundation 

(602); 

misstates; 

asked (611, 

403); 3M MIL 

No. 22; 

relevance (401, 

402)

OVERRULED

562:21 - 562:21 Kieper, Ronald 12-20-2019

 562 21 A. This was a Method B test.

Re: [562:15-562:21]

Def Objection - foundation 

(602); misstates; asked (611, 

403); 3M MIL No. 22; 

relevance (401, 402)

Re: [562:15-

562:21]

Def Objection -

foundation 

(602); 

misstates; 

asked (611, 

403); 3M MIL 

No. 22; 

relevance (401, 

402)

OVERRULED

562:23 - 562:25 Kieper, Ronald 12-20-2019

 562 23 Q. Okay. And we looked at that document

 562 24 earlier today from 1998 where the military was

 562 25 mandating the use of Method B, right?

563:3 - 563:3 Kieper, Ronald 12-20-2019

 563 3 A. Yes.

563:9 - 563:13 Kieper, Ronald 12-20-2019

 563 9 Q. I believe your testimony, sir, was that

 563 10 you were not aware of that document before you 

came

 563 11 here today, is that correct?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 37 of 198
Kieper, Ronald - 12/20/2019 Objection Report 37

 563 12 A. I believe that was the first time I had

 563 13 seen that.

563:14 - 563:22 Kieper, Ronald 12-20-2019

 563 14 Q. Okay. So the result of the Method B

 563 15 testing on the Combat Arms yielded an NRR 

subject fit

 563 16 of 4.4, right?

 563 17 A. Yes.

 563 18 Q. And if you had used the older ANSI '74

 563 19 type calculation, EPA calculation, you got a 

negative

 563 20 4.7, right?

 563 21 A. The NRR per EPA 1979 is a minus 4.7.

 563 22 Q. That doesn't sound very protective?

Re: [563:18-563:21]

Def Objection - 3M MIL No. 

22; relevance (401, 402); 

prejudicial (403)

Re: [563:22-564:5]

Def Objection - argumentative; 

vague; misstates (611, 403); 3M 

MIL No. 22; prejudicial (403)

Re: [563:18-

563:21]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402); 

prejudicial 

(403)

OVERRULED

Re: [563:22-

564:5]

Def Objection -

argumentative; 

vague; 

misstates (611, 

403); 3M MIL 

No. 22; 

prejudicial 

(403)

OVERRULED

563:25 - 563:25 Kieper, Ronald 12-20-2019

 563 25 Q. You'd agree?

Re: [563:22-564:5]

Def Objection - argumentative; 

vague; misstates (611, 403); 3M 

MIL No. 22; prejudicial (403)

Re: [563:22-

564:5]

Def Objection -

argumentative; 

vague; 

misstates (611, 

403); 3M MIL 

No. 22; 

prejudicial 

(403)

OVERRULED

564:3 - 564:6 Kieper, Ronald 12-20-2019

 564 3 A. That's the -- that's the result of the --

 564 4 the number calculated from the attenuation data and

 564 5 standard deviations in this test.

 564 6 BY MR. BUCHANAN:

Re: [563:22-564:5]

Def Objection - argumentative; 

vague; misstates (611, 403); 3M 

MIL No. 22; prejudicial (403)

Re: [563:22-

564:5]

Def Objection -

argumentative; 

vague; 

misstates (611, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 38 of 198
Kieper, Ronald - 12/20/2019 Objection Report 38

403); 3M MIL 

No. 22; 

prejudicial 

(403)

OVERRULED

564:7 - 564:10 Kieper, Ronald 12-20-2019

 564 7 Q. Right.

 564 8 You'd agree with me, sir, that a negative

 564 9 4.7 NRR doesn't sound very protective if someone 

is

 564 10 looking for hearing protection?

Re: [564:8-564:14]

Def Objection - vague; 

argumentative; misstates (611, 

403); 3M MIL No. 22; 

foundation (602); prejudicial 

(403)

Re: [564:8-

564:14]

Def Objection -

vague; 

argumentative; 

misstates (611, 

403); 3M MIL 

No. 22; 

foundation 

(602); 

prejudicial 

(403)

OVERRULED

564:12 - 564:14 Kieper, Ronald 12-20-2019

 564 12 BY THE WITNESS:

 564 13 A. That's -- that's a negative value is a low

 564 14 number for an NRR.

Re: [564:8-564:14]

Def Objection - vague; 

argumentative; misstates (611, 

403); 3M MIL No. 22; 

foundation (602); prejudicial 

(403)

Re: [564:8-

564:14]

Def Objection -

vague; 

argumentative; 

misstates (611, 

403); 3M MIL 

No. 22; 

foundation 

(602); 

prejudicial 

(403)

OVERRULED

565:14 - 565:16 Kieper, Ronald 12-20-2019

 565 14 Q. Okay. Well, using the calculation

 565 15 specified by ANSI 1997, please tell the jury what 

you

 565 16 found in terms of the reported NRR for this 

product?

565:19 - 565:20 Kieper, Ronald 12-20-2019

 565 19 A. You are asking about the NRR or the

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 39 of 198
Kieper, Ronald - 12/20/2019 Objection Report 39

 565 20 NRR(SF)?

565:19 - 566:1 Kieper, Ronald 12-20-2019

 565 19 A. You are asking about the NRR or the

 565 20 NRR(SF)?

 565 21 BY MR. BUCHANAN:

 565 22 Q. Let's start with the NRR(SF).

 565 23 That's -- to be clear, sir, the NRR(SF) is

 565 24 what ANSI '97 directs an ANSI '97 Method B 

study to

 565 25 generate, correct?

 566 1 A. Yes.

566:2 - 566:6 Kieper, Ronald 12-20-2019

 566 2 Q. Okay. So what is the NRR generated using

 566 3 Method B in this test?

 566 4 A. 4.4.

 566 5 Q. Okay. Lower than the 22 you carried on

 566 6 this product for 15 years?

Re: [566:2-566:4]

Def Objection - 3M MIL No. 

22; relevance (401, 402); 

prejudice (403)

Re: [566:5-566:9]

Def Objection - cumulative 

(403); argumentative; misstates 

(611, 403); foundation (602); 

3M MIL No. 22; relevance 

(401, 402)

Re: [566:2-

566:4]

Def Objection -

3M MIL No. 

22; relevance 

(401, 402); 

prejudice (403)

OVERRULED

Re: [566:5-

566:9]

Def Objection -

cumulative 

(403); 

argumentative; 

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 22; 

relevance (401, 

402)

OVERRULED

566:8 - 566:12 Kieper, Ronald 12-20-2019

 566 8 BY THE WITNESS:

 566 9 A. Yes, that's lower than 22.

 566 10 BY MR. BUCHANAN:

 566 11 Q. Lower than the 11 in the study Mr. Berger

 566 12 killed?

Re: [566:5-566:9]

Def Objection - cumulative 

(403); argumentative; misstates 

(611, 403); foundation (602); 

3M MIL No. 22; relevance 

(401, 402)

Re: [566:5-

566:9]

Def Objection -

cumulative 

(403); 

argumentative; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 40 of 198
Kieper, Ronald - 12/20/2019 Objection Report 40

Re: [566:11-566:16]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); prejudicial (403)

misstates (611, 

403); 

foundation 

(602); 3M MIL 

No. 22; 

relevance (401, 

402)

OVERRULED

Re: [566:11-

566:16]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); 

prejudicial 

(403)

OVERRULED

566:14 - 566:16 Kieper, Ronald 12-20-2019

 566 14 BY THE WITNESS:

 566 15 A. Lower than the eight-subject estimated NRR

 566 16 from test 2150 -- 213015.

Re: [566:11-566:16]

Def Objection - 3M MIL No. 

22; argumentative; misstates 

(611, 403); prejudicial (403)

Re: [566:11-

566:16]

Def Objection -

3M MIL No. 

22; 

argumentative; 

misstates (611, 

403); 

prejudicial 

(403)

OVERRULED

566:22 - 566:22 Kieper, Ronald 12-20-2019

 566 22 A. From the ANSI S3.19 test.

Re: [566:22-566:22]

Plt Objection - improper 

counter

Re: [566:22-

566:22]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

567:3 - 567:10 Kieper, Ronald 12-20-2019

 567 3 Was this a test that we are looking at

Re: [567:3-567:6]

Def Objection - 3M MIL No. 

Re: [567:3-

567:6]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 41 of 198
Kieper, Ronald - 12/20/2019 Objection Report 41

 567 4 here, this Method B test, of the closed end or the

 567 5 open end?

 567 6 A. It's the solid end, the closed end.

 567 7 Q. The one that's supposed to provide

 567 8 protection from helicopter noise and plane noise 

and

 567 9 tracked vehicles, as we saw in the marketing

 567 10 yesterday, right?

22; relevance (401, 402)

Re: [567:7-567:15]

Def Objection - argumentative 

(611, 403); relevance (401, 

402); foundation (602)

Def Objection -

3M MIL No. 

22; relevance 

(401, 402)

OVERRULED

Re: [567:7-

567:15]

Def Objection -

argumentative 

(611, 403); 

relevance (401, 

402); 

foundation 

(602)

OVERRULED

567:12 - 567:15 Kieper, Ronald 12-20-2019

 567 12 BY THE WITNESS:

 567 13 A. It was designed -- it was a solid ended

 567 14 plug that was designed to provide protection from 

the

 567 15 effects of loud noise.

Re: [567:7-567:15]

Def Objection - argumentative 

(611, 403); relevance (401, 

402); foundation (602)

Re: [567:7-

567:15]

Def Objection -

argumentative 

(611, 403); 

relevance (401, 

402); 

foundation 

(602)

OVERRULED

571:22 - 571:25 Kieper, Ronald 12-20-2019

 571 22 You'd agree based on our discussion today,

 571 23 sir, that Mr. Berger was aware of the requirement 

for

 571 24 testing under Method B by the military as of the 

fall

 571 25 of '99, correct?

572:3 - 572:16 Kieper, Ronald 12-20-2019

 572 3 A. His article reflects that.

 572 4 BY MR. BUCHANAN:

 572 5 Q. Okay. And when the test was ultimately

 572 6 done under Method B on the solid end of the 

Combat

 572 7 Arms in 2006 you got an NRR(SF) of 4.4, right?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 42 of 198
Kieper, Ronald - 12/20/2019 Objection Report 42

 572 8 A. Yes.

 572 9 Q. Do you have -- oh, in your history of the

 572 10 Combat Arms, sir, could you share with us where 

test

 572 11 213030 is reported?

 572 12 A. I don't believe that report is listed in

 572 13 this document.

 572 14 Q. Was that Mr. Berger's decision not to

 572 15 include the NRR subject fit data from 213030 in 

the

 572 16 history of the Combat Arms?

572:19 - 572:19 Kieper, Ronald 12-20-2019

 572 19 A. I don't recall specifically.

577:2 - 577:5 Kieper, Ronald 12-20-2019

 577 2 BY MR. BUCHANAN:

 577 3 Q. We could agree, sir, in January of 2000

 577 4 you ran a test, 215015 and 215016, 215 on the 

closed

 577 5 end of the Combat Arms, 016 on the open end, 

right?

Re: [577:2-578:7]

Def Objection - cumulative 

(403)

Re: [577:2-

578:7]

Def Objection -

cumulative 

(403)

OVERRULED

577:7 - 577:19 Kieper, Ronald 12-20-2019

 577 7 BY THE WITNESS:

 577 8 A. Yes.

 577 9 BY MR. BUCHANAN:

 577 10 Q. You got data for eight subjects, you went

 577 11 and talked to your boss, terminated the first 

attempt

 577 12 when you were testing the closed end 015, right?

 577 13 A. That test was stopped.

 577 14 Q. Allowed 016 to continue as we talked about

 577 15 earlier, right?

 577 16 A. And 016 was completed.

 577 17 Q. And after terminating the first test

 577 18 attempt on the closed end, you all made another 

test

 577 19 attempt, right?

Re: [577:2-578:7]

Def Objection - cumulative 

(403)

Re: [577:2-

578:7]

Def Objection -

cumulative 

(403)

OVERRULED

577:21 - 578:4 Kieper, Ronald 12-20-2019

 577 21 BY THE WITNESS:

 577 22 A. We tested the closed end in a subsequent

Re: [577:2-578:7]

Def Objection - cumulative 

(403)

Re: [577:2-

578:7]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 43 of 198
Kieper, Ronald - 12/20/2019 Objection Report 43

 577 23 test.

 577 24 BY MR. BUCHANAN:

 577 25 Q. That would be the 017 study, right?

 578 1 A. That's the one I'm referring to, yes.

 578 2 Q. Mr. Berger didn't share with you that

 578 3 multiple test attempts, sir, violated or was

 578 4 prohibited by the EPA?

Re: [578:2-578:7]

Def Objection - foundation 

(602); argumentative (611, 

403); hearsay (801, 802)

cumulative 

(403)

OVERRULED

Re: [578:2-

578:7]

Def Objection -

foundation 

(602); 

argumentative 

(611, 403); 

hearsay (801, 

802)

OVERRULED

578:6 - 578:7 Kieper, Ronald 12-20-2019

 578 6 BY THE WITNESS:

 578 7 A. Not that I recall.

Re: [577:2-578:7]

Def Objection - cumulative 

(403)

Re: [578:2-578:7]

Def Objection - foundation 

(602); argumentative (611, 

403); hearsay (801, 802)

Re: [577:2-

578:7]

Def Objection -

cumulative 

(403)

OVERRULED

Re: [578:2-

578:7]

Def Objection -

foundation 

(602); 

argumentative 

(611, 403); 

hearsay (801, 

802)

OVERRULED

581:12 - 581:15 Kieper, Ronald 12-20-2019

 581 12 BY MR. BUCHANAN:

 581 13 Q. Okay. I'm just wondering, sir, what kind

 581 14 of test did you run on Combat Arms Earplugs after 

they

 581 15 had been folded over for a while?

Re: [581:13-581:22]

Def Objection - foundation 

(602); misstates (611, 403); 

prejudice (403)

Re: [581:13-

581:22]

Def Objection -

foundation 

(602); misstates 

(611, 403); 

prejudice (403)

OVERRULED

581:17 - 581:18 Kieper, Ronald 12-20-2019

 581 17 BY MR. BUCHANAN:

Re: [581:13-581:22]

Def Objection - foundation 

Re: [581:13-

581:22]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 44 of 198
Kieper, Ronald - 12/20/2019 Objection Report 44

 581 18 Q. A month, two months, three months? (602); misstates (611, 403); 

prejudice (403)

Def Objection -

foundation 

(602); misstates 

(611, 403); 

prejudice (403)

OVERRULED

581:20 - 581:24 Kieper, Ronald 12-20-2019

 581 20 BY MR. BUCHANAN:

 581 21 Q. Did you run any studies like that?

 581 22 A. I don't recall doing that.

 581 23 Q. What impact do the distorted flanges that

 581 24 follow folding them over have on attenuation 

values?

Re: [581:13-581:22]

Def Objection - foundation 

(602); misstates (611, 403); 

prejudice (403)

Re: [581:23-582:2]

Def Objection - foundation 

(602); prejudice (403)

Re: [581:13-

581:22]

Def Objection -

foundation 

(602); misstates 

(611, 403); 

prejudice (403)

OVERRULED

Re: [581:23-

582:2]

Def Objection -

foundation 

(602); 

prejudice (403)

OVERRULED

582:1 - 582:7 Kieper, Ronald 12-20-2019

 582 1 BY THE WITNESS:

 582 2 A. I don't know.

 582 3 BY MR. BUCHANAN:

 582 4 Q. Did you ever test the impact, sir, of the

 582 5 distortion that follows folding these flanges over

 582 6 over time on the real-ear attenuation at threshold

 582 7 test you ran, sir?

Re: [581:23-582:2]

Def Objection - foundation 

(602); prejudice (403)

Re: [582:4-582:11]

Def Objection - asked (611, 

403); foundation (602); 

prejudicial (403)

Re: [581:23-

582:2]

Def Objection -

foundation 

(602); 

prejudice (403)

OVERRULED

Re: [582:4-

582:11]

Def Objection -

asked (611, 

403); 

foundation 

(602); 

prejudicial 

(403)

OVERRULED

582:10 - 582:15 Kieper, Ronald 12-20-2019 Re: [582:4-582:11] Re: [582:4-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 45 of 198
Kieper, Ronald - 12/20/2019 Objection Report 45

 582 10 BY THE WITNESS:

 582 11 A. Not that I recall.

 582 12 BY MR. BUCHANAN:

 582 13 Q. Don't you think that would be a pretty

 582 14 important test if folding over the flanges distorts

 582 15 them as to what the impact is on real-ear 

attenuation?

Def Objection - asked (611, 

403); foundation (602); 

prejudicial (403)

Re: [582:13-582:18]

Def Objection - vague (611, 

403); foundation (602); 

prejudicial (403)

582:11]

Def Objection -

asked (611, 

403); 

foundation 

(602); 

prejudicial 

(403)

OVERRULED

Re: [582:13-

582:18]

Def Objection -

vague (611, 

403); 

foundation 

(602); 

prejudicial 

(403)

OVERRULED

582:17 - 582:23 Kieper, Ronald 12-20-2019

 582 17 BY THE WITNESS:

 582 18 A. I -- I don't know.

 582 19 BY MR. BUCHANAN:

 582 20 Q. Did Mr. Berger ever tell you to run a test

 582 21 on the impact of those distorted flanges on real-ear

 582 22 attenuation?

 582 23 A. Not that I recall.

Re: [582:13-582:18]

Def Objection - vague (611, 

403); foundation (602); 

prejudicial (403)

Re: [582:13-

582:18]

Def Objection -

vague (611, 

403); 

foundation 

(602); 

prejudicial 

(403)

OVERRULED

623:9 - 623:11 Kieper, Ronald 12-20-2019

 623 9 Q. And does doing ARC and acoustic resistance

 623 10 testing allow you to verify that the product will

 623 11 function properly when it's provided to the end 

user?

Re: [623:9-623:14]

Plt Objection - improper 

counter

Re: [623:9-

623:14]

Plt Objection -

beyond the 

scope of 

clarification 

OVERRULED

623:13 - 623:14 Kieper, Ronald 12-20-2019

 623 13 BY THE WITNESS:

 623 14 A. Not in general.

Re: [623:9-623:14]

Plt Objection - improper 

counter

Re: [623:9-

623:14]

Plt Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 46 of 198
Kieper, Ronald - 12/20/2019 Objection Report 46

beyond the 

scope of 

clarification 

OVERRULED

625:1 - 625:3 Kieper, Ronald 12-20-2019

 625 1 Q. Okay. Do you do the ARC testing to verify

 625 2 that the plug -- the plugs can give a user the

 625 3 protection that was claimed?

Re: [625:1-625:13]

Plt Objection - improper 

counter

Re: [625:1-

625:13]

Plt Objection -

beyond the 

scope of 

clarification 

OVERRULED

625:7 - 625:7 Kieper, Ronald 12-20-2019

 625 7 A. No, that's not what this test does.

Re: [625:1-625:13]

Plt Objection - improper 

counter

Re: [625:1-

625:13]

Plt Objection -

beyond the 

scope of 

clarification 

OVERRULED

625:9 - 625:13 Kieper, Ronald 12-20-2019

 625 9 Q. Okay. RWK disagrees that ARC testing

 625 10 allows you to verify the plug can give user the

amount

 625 11 of protection that was claimed.

 625 12 Is that right?

 625 13 A. Yes.

Re: [625:1-625:13]

Plt Objection - improper 

counter

Re: [625:1-

625:13]

Plt Objection -

beyond the 

scope of 

clarification 

OVERRULED

673:1 - 673:7 Kieper, Ronald 12-20-2019

 673 1 Q. Did they send the plugs to Indy for

 673 2 testing back in '03?

 673 3 MS. ELIZABETH: Objection; foundation.

 673 4 BY THE WITNESS:

 673 5 A. I don't recall the specifics of what

 673 6 happened. I believe I described what we ended up

 673 7 doing with me visiting Mexico.

Re: [673:1-673:7]

Plt Objection - improper 

counter

Re: [673:1-

673:7]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

761:13 - 762:1 Kieper, Ronald 12-20-2019

 761 13 Q. You previously testified that there are

 761 14 different standards or methods for testing hearing

 761 15 protection devices.

 761 16 Do you remember that testimony?

 761 17 A. Yes.

Re: [761:13-762:1]

Plt Objection - beyond the 

scope of clarification 

Re: [761:13-

762:1]

Plt Objection -

beyond the 

scope of 

clarification 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 47 of 198
Kieper, Ronald - 12/20/2019 Objection Report 47

 761 18 Q. And specifically you mentioned being

 761 19 familiar with two ANSI standards.

 761 20 Do you remember what those two ANSI

 761 21 standards were?

 761 22 A. Yes. The first is ANSI S3.19-1974 and the

 761 23 second standard is S -- ANSI S12.6-1997.

 761 24 Q. When conduct -- when conducting a REAT

 761 25 labeling test, which of those ANSI standards is

 762 1 applicable?

SUSTAINED

762:4 - 762:5 Kieper, Ronald 12-20-2019

 762 4 A. For labeling tests, the ANSI S3.19-1974

 762 5 standard is used.

Re: [762:4-762:5]

Plt Objection - beyond the 

scope of clarification 

Re: [762:4-

762:5]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

762:7 - 762:13 Kieper, Ronald 12-20-2019

 762 7 Q. Can you just remind us what REAT stands

 762 8 for?

 762 9 A. REAT stands for real-ear attenuation at

 762 10 threshold.

 762 11 Q. Do you have an understanding as to why the

 762 12 ANSI S3.19 standard is applicable to REAT 

labeling

 762 13 tests?

Re: [762:7-762:13]

Plt Objection - beyond the 

scope of clarification 

Re: [762:7-

762:13]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

762:16 - 762:20 Kieper, Ronald 12-20-2019

 762 16 A. It is applicable because it describes the

 762 17 method by which hearing protectors are tested on

 762 18 people to obtain a best fit to -- to estimate the

 762 19 amount of protection that a person who fit the 

hearing

 762 20 protectors well could obtain.

Re: [762:16-762:20]

Plt Objection - beyond the 

scope of clarification 

Re: [762:16-

762:20]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

762:23 - 762:24 Kieper, Ronald 12-20-2019

 762 23 Q. Is it your understanding that ANSI S3.19

 762 24 is required under the REAT to do a REAT labeling 

test?

Re: [762:23-762:24]

Plt Objection - beyond the 

scope of clarification 

Re: [762:23-

762:24]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 48 of 198
Kieper, Ronald - 12/20/2019 Objection Report 48

763:2 - 763:2 Kieper, Ronald 12-20-2019

 763 2 A. Yes, that's my understanding.

Re: [763:2-763:2]

Plt Objection - beyond the 

scope of clarification 

Re: [763:2-

763:2]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

763:4 - 764:24 Kieper, Ronald 12-20-2019

 763 4 Q. I want to direct your attention to

 763 5 Exhibit 36 that's been previously marked, if you 

can

 763 6 find that in your stack, please.

 763 7 MR. BUCHANAN: We just may need a second. 

My

 763 8 right arm just walked out of the room.

 763 9 MS. ELIZABETH: Sure.

 763 10 MR. BUCHANAN: Did you say 37?

 763 11 MS. ELIZABETH: 36.

 763 12 MR. BUCHANAN: All good. Thank you.

 763 13 BY MS. ELIZABETH:

 763 14 Q. Do you recognize Exhibit 36, Mr. Kieper?

 763 15 A. Yes. It's a copy of the ANSI S3.19-1974

 763 16 standard.

 763 17 Q. You were asked about Section 3.2.3 of

 763 18 Exhibit 36. If you could turn there, please.

 763 19 A. Yes.

 763 20 Q. And that's at Bates MDL 187996.

 763 21 Do you remember generally being asked

 763 22 about this by Plaintiffs' counsel?

 763 23 A. Yes, I do.

 763 24 Q. Can you give us a brief explanation as to

 763 25 what Section 3.2.3 is of the ANSI S3.19 standard?

 764 1 MR. BUCHANAN: Same objection you raised

 764 2 yesterday, foundation.

 764 3 BY THE WITNESS:

 764 4 A. It states that: "Listeners who satisfy

 764 5 the other requirements of this standard and who do

 764 6 obtain an adequate fit with the test item may not be

 764 7 dismissed for reporting small amounts of 

Re: [763:4-764:24]

Plt Objection - beyond the 

scope of clarification 

Re: [763:4-

764:24]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 49 of 198
Kieper, Ronald - 12/20/2019 Objection Report 49

protection.

 764 8 In reporting the results, listeners for whom an

 764 9 adequate fit cannot be obtained should be noted, but

 764 10 should not be included in the evaluation."

 764 11 BY MS. ELIZABETH:

 764 12 Q. And you might recall in your testimony

 764 13 that Plaintiffs' counsel allowed you to read the first

 764 14 sentence but not the second sentence.

 764 15 Do you remember that?

 764 16 MR. BUCHANAN: Objection; form.

 764 17 BY THE WITNESS:

 764 18 A. Yes.

 764 19 THE WITNESS: Sorry.

 764 20 BY MS. ELIZABETH:

 764 21 Q. You talked a little bit about the Dixon

 764 22 Outlier Test.

 764 23 Do you remember that testimony?

 764 24 A. Yes, I do.

765:2 - 768:17 Kieper, Ronald 12-20-2019

 765 2 Does the Dixon Outlier Test allow you to

 765 3 dismiss someone simply for reporting small 

amounts of

 765 4 protection?

 765 5 MR. BUCHANAN: Objection to form.

 765 6 BY THE WITNESS:

 765 7 A. No, it does not.

 765 8 BY MS. ELIZABETH:

 765 9 Q. What does it do?

 765 10 A. The Dixon Outlier Test looks at the data

 765 11 from the ten subjects tested in a labeling test and it

 765 12 assesses if one person's data is markedly different

 765 13 from the rest of the -- the other nine subjects.

 765 14 Q. And when you say "markedly different,"

 765 15 what do you mean?

 765 16 A. The Dixon test is a statistical test and

 765 17 it is implemented by sorting the data from the test,

 765 18 both the -- the range of the individual subjects'

 765 19 responses at each frequency and also the average

 765 20 amount of protection or attenuation that each 

Re: [765:2-768:17]

Plt Objection - beyond the 

scope of clarification 

Re: [765:2-

768:17]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 50 of 198
Kieper, Ronald - 12/20/2019 Objection Report 50

subject

 765 21 gets.

 765 22 Q. For the REAT test that you conducted while

 765 23 at the E-A-RCAL Lab, was it your normal practice 

to

 765 24 note whether a subject had been retested or 

replaced

 765 25 under the Dixon Outlier Test?

 766 1 MR. BUCHANAN: Objection to form.

 766 2 BY THE WITNESS:

 766 3 A. Yes, for -- for the S3.19 tests, any

 766 4 retesting or replacement was -- was noted on the 

final

 766 5 report.

 766 6 MS. ELIZABETH: Would you mark that, please.

 766 7 (WHEREUPON, a certain document was

 766 8 marked Ron Kieper Deposition Exhibit

 766 9 No. 83, for identification, as of

 766 10 12/20/2019.)

 766 11 BY THE WITNESS:

 766 12 A. Thank you.

 766 13 BY MS. ELIZABETH:

 766 14 Q. The Court Reporter has just handed you a

 766 15 document that's been marked Exhibit 83.

 766 16 Do you recognize this document?

 766 17 A. Yes.

 766 18 Q. What is it?

 766 19 A. It is a test report of a test of the

 766 20 UltraFit end of the Combat Arms Earplug.

 766 21 Q. And if you turn to Bates MDL 195519.

 766 22 A. Yes.

 766 23 Q. It says in the Comment section: "GWG

 766 24 failed the Extreme Range Test. He was retested."

 766 25 Do you see that?

 767 1 A. Yes.

 767 2 Q. Who made that note on test 017?

 767 3 A. I don't recall specifically, but typically

 767 4 I would put the comments in this -- on this form.

 767 5 Q. And what was the purpose of that comment?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 51 of 198
Kieper, Ronald - 12/20/2019 Objection Report 51

 767 6 A. The comment was to document that subject

 767 7 GWG's data when he first tested this plug failed the

 767 8 Dixon Outlier Test that looks at the extreme ranges

 767 9 obtained in the -- in the test.

 767 10 Q. And referring back to exhibit --

 767 11 MR. BUCHANAN: Excuse me, counsel. You 

actually

 767 12 gave me one that has your notes on it.

 767 13 MS. ELIZABETH: Oh, that is my notes.

 767 14 MR. BUCHANAN: I thought I was going to have 

one

 767 15 that was clean. I don't want to work with yours.

 767 16 MS. ELIZABETH: Thank you.

 767 17 BY MS. ELIZABETH:

 767 18 Q. So referring back to Exhibit 36, the

 767 19 second sentence of 3.2.3:

 767 20 "In reporting the results, listeners for

 767 21 whom an adequate fit cannot be obtained should be

 767 22 noted but should not be included in the 

evaluation."

 767 23 Do you see that?

 767 24 A. Yes.

 767 25 Q. What is your understanding of the purpose

 768 1 for commenting on test 213017 that GWG failed 

the

 768 2 Extreme Range Test and was retested?

 768 3 MR. BUCHANAN: Objection; foundation.

 768 4 BY THE WITNESS:

 768 5 A. That procedure was outlined in our

 768 6 laboratory's Policies and Procedures Manual so that

 768 7 after ten subjects were tested, these -- the Dixon

 768 8 test was applied, and if a person failed at more than

 768 9 one frequency in one of those two tests, then the

 768 10 person could be retested and the retest data would 

be

 768 11 used assuming that those new data did not fail the

 768 12 Dixon test.

 768 13 Q. Was it your understanding that you were

 768 14 complying with ANSI S3.19?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 52 of 198
Kieper, Ronald - 12/20/2019 Objection Report 52

 768 15 MR. BUCHANAN: Objection to form, leading.

 768 16 BY THE WITNESS:

 768 17 A. Yes.

770:3 - 770:19 Kieper, Ronald 12-20-2019

 770 3 Q. Can you describe to the jury what

 770 4 Experimenter-Fit is under Section 3.3.3?

 770 5 A. Yes.

 770 6 Experimenter-Fit says that the

 770 7 experimenter, and in cases that we are talking about 

I

 770 8 was the experimenter, the experimenter shall fit and

 770 9 personally check the -- each hearing protector

 770 10 installation on the subject. And the -- once the

 770 11 hearing protector is fit to the -- fit is assessed by

 770 12 turning on a fitting noise for the subject to use to

 770 13 assess that they have a good fit of the hearing

 770 14 protector. After that is done, the fitting noise is

 770 15 turned off, the experimenter leaves the test 

chamber

 770 16 and the test is begun.

 770 17 Q. Under Experimenter-Fit in the ANSI S3.19

 770 18 standard, it describes "best fit."

 770 19 What does best fit mean to you?

Re: [770:3-770:19]

Plt Objection - beyond the 

scope of clarification 

Re: [770:3-

770:19]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

770:22 - 771:15 Kieper, Ronald 12-20-2019

 770 22 A. To me a best fit is the fitting the

 770 23 hearing protector such that the noise -- the fitting

 770 24 noise level is reduced as much as possible in the

 770 25 listener's ear, and hence when the attenuation test 

is

 771 1 done, the subject, the test subject, the listener, is

 771 2 achieving as much protection as he or she can 

achieve

 771 3 with that particular hearing protector.

 771 4 BY MS. ELIZABETH:

 771 5 Q. And when you say "as much protection,"

 771 6 what do you mean?

 771 7 A. I mean each person is unique and in the

 771 8 fitting and testing of hearing protectors, different

 771 9 people can get different results even when the 

Re: [770:22-771:15]

Plt Objection - beyond the 

scope of clarification 

Re: [770:22-

771:15]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 53 of 198
Kieper, Ronald - 12/20/2019 Objection Report 53

subject

 771 10 and the experimenter agree that the hearing 

protector

 771 11 is fit as well as it could be on this person. Some

 771 12 people get higher levels of protection than other

 771 13 people do.

 771 14 Q. So what is your goal in getting a best fit

 771 15 under Experimenter-Fit?

771:19 - 771:22 Kieper, Ronald 12-20-2019

 771 19 A. My goal is to fit the hearing protector

 771 20 such that the subject gets as high a level of

 771 21 protection as -- as is possible with -- with that

 771 22 hearing protector.

Re: [771:19-771:22]

Plt Objection - beyond the 

scope of clarification 

Re: [771:19-

771:22]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

771:24 - 772:1 Kieper, Ronald 12-20-2019

 771 24 Q. In your experience, what is the main

 771 25 difference or differences between subject fit and

 772 1 Experimenter-Fit under the ANSI S3.19 standard?

Re: [771:24-772:1]

Plt Objection - beyond the 

scope of clarification 

Re: [771:24-

772:1]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

772:4 - 772:9 Kieper, Ronald 12-20-2019

 772 4 A. The -- the main difference is that the --

 772 5 in the subject fit the experimenter does not assist

 772 6 the listener or test subject other than giving them

 772 7 the fitting instructions that come with the device,

 772 8 whereas an Experimenter-Fit, the experimenter 

actually

 772 9 fits the device on the person.

Re: [772:4-772:9]

Plt Objection - beyond the 

scope of clarification 

Re: [772:4-

772:9]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

772:16 - 774:20 Kieper, Ronald 12-20-2019

 772 16 Q. We've heard a little bit about Method B

 772 17 testing.

 772 18 Do you remember that testimony?

 772 19 A. Yes.

 772 20 Q. Is Method B testing required under ANSI

 772 21 S3.19?

 772 22 A. No, it is not.

 772 23 Q. What is Method B testing?

Re: [772:16-774:20]

Plt Objection - beyond the 

scope of clarification 

Re: [772:16-

774:20]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 54 of 198
Kieper, Ronald - 12/20/2019 Objection Report 54

 772 24 A. Method B is a subset of the ANSI

 772 25 S12.6-1997 standard. There are two fitting 

techniques

 773 1 described in the standard. Method A is titled

 773 2 "Informed User Fit" wherein the listener may have

 773 3 experience using hearing protectors and the -- the

 773 4 listener has been trained how to fit the hearing

 773 5 protectors well. In --

 773 6 Q. And what about Method B fit?

 773 7 A. Method B --

 773 8 MR. BUCHANAN: Objection to form.

 773 9 BY THE WITNESS:

 773 10 A. Method B -- the Method B protocol is

 773 11 called "subject fit," and in that case, first of all,

 773 12 the listener must be relatively inexperienced. 

There

 773 13 are limits to the number of times -- excuse me. 

There

 773 14 are limits to the number of times the listener can

 773 15 have worn the hearing protector and still be

 773 16 considered inexperienced. So these inexperienced

 773 17 people come to the lab and with minimal training 

on

 773 18 how to actually do the test, when they actually test

 773 19 the hearing protector, we start outside the test

 773 20 chamber, and, again, I would give them the

 773 21 instructions that came with the hearing protector 

and

 773 22 allow them to read the instructions and fit the

 773 23 hearing protector until they were satisfied with the

 773 24 fit that they were able to achieve.

 773 25 When they notify me that they are

 774 1 satisfied and they are ready to do the test, they

 774 2 would remove the hearing protectors, we would 

both go

 774 3 into the test chamber, I would supply them with the

 774 4 hearing protectors that were needed for the test, and

 774 5 then I would leave the chamber and they would fit 

the

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 55 of 198
Kieper, Ronald - 12/20/2019 Objection Report 55

 774 6 hearing protectors when it came time to do a 

protected

 774 7 condition.

 774 8 MR. BUCHANAN: Objection to the overbroad

 774 9 narrative. I'm just saying that for your benefit if

 774 10 you want to try and fix things.

 774 11 MS. ELIZABETH: No, I understand.

 774 12 MR. BUCHANAN: You are asking for them and 

he is

 774 13 giving them to you.

 774 14 BY MS. ELIZABETH:

 774 15 Q. So if I understand your testimony

 774 16 correctly, Method B is one of two fitting -- fitting

 774 17 techniques outlined in ANSI S12 -- S12.6?

 774 18 MR. BUCHANAN: Objection to form.

 774 19 BY THE WITNESS:

 774 20 A. Yes.

775:6 - 775:22 Kieper, Ronald 12-20-2019

 775 6 Q. You previously testified that the Aearo

 775 7 lab was accredited by an organization called 

NVLAP in

 775 8 approximately 1992.

 775 9 Do you remember that testimony?

 775 10 A. Yes.

 775 11 Q. And can you remind us what NVLAP stands

 775 12 for?

 775 13 A. The acronym stands for National Voluntary

 775 14 Laboratory Accreditation Program.

 775 15 Q. To the best of your knowledge, for what

 775 16 time period was the E-A-RCAL Lab accredited by 

NVLAP?

 775 17 A. We were first accredited I believe in 1991

 775 18 or '92, and as far as I know, they've -- they've

 775 19 maintained that accreditation up to this date.

 775 20 Q. In connection with that accreditation, do

 775 21 you have an understanding as to whether NVLAP 

audited

 775 22 Aearo's laboratory?

Re: [775:6-775:22]

Plt Objection - beyond the 

scope of clarification 

Re: [775:6-

775:22]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

775:25 - 776:18 Kieper, Ronald 12-20-2019 Re: [775:25-775:25] Re: [775:25-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 56 of 198
Kieper, Ronald - 12/20/2019 Objection Report 56

 775 25 A. Yes. Our lab was audited for the initial

 776 1 accreditation and every two years after that we had 

an

 776 2 onsite auditor, a person come in as an auditor onsite

 776 3 and perform -- look at all of our documents, look at

 776 4 our calibration records, look at our procedures

 776 5 manual, and numerous other documents that we 

would

 776 6 supply them. The auditor would also observe 

myself

 776 7 and later any other acoustic technicians that did

 776 8 real-ear testing, they would observe us do a test.

 776 9 BY MS. ELIZABETH:

 776 10 Q. So I think what I have here is that after

 776 11 the initial audit by NVLAP, NVLAP in its audit 

every

 776 12 two years of the E-A-RCAL Lab would look at the

 776 13 E-A-RCAL Lab's documents, its calibration 

records, its

 776 14 Policies and Procedures Manual, and numerous 

other

 776 15 documents that you would supply them, and that 

the

 776 16 auditor would also observe yourself and other 

acoustic

 776 17 technicians conduct real-ear testing.

 776 18 Do I have that right?

Plt Objection - beyond the 

scope of clarification 

Re: [776:2-776:18]

Plt Objection - beyond the 

scope of clarification 

775:25]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Re: [776:2-

776:18]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

777:4 - 777:4 Kieper, Ronald 12-20-2019

 777 4 A. Yes.

Re: [777:4-777:4]

Plt Objection - beyond the 

scope of clarification 

Re: [777:4-

777:4]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

777:6 - 777:16 Kieper, Ronald 12-20-2019

 777 6 Q. How so? What would you have done?

 777 7 A. We would have done the same thing we would

 777 8 have done without the auditor there. If it was a

 777 9 research and development test, we would have 

Re: [777:6-777:16]

Plt Objection - beyond the 

scope of clarification 

Re: [777:6-

777:16]

Plt Objection -

beyond the 

scope of 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 57 of 198
Kieper, Ronald - 12/20/2019 Objection Report 57

conducted

 777 10 that. If it was a -- if we were doing a labeling

 777 11 test, then we would have conducted -- we would 

have

 777 12 tested one person on the hearing protector that we

 777 13 were testing for a label value.

 777 14 Q. Is it your understanding that NVLAP had

 777 15 the opportunity to determine whether you were 

testing

 777 16 in compliance with their accreditation standards?

clarification 

SUSTAINED

777:22 - 778:9 Kieper, Ronald 12-20-2019

 777 22 Q. I want to direct your attention to

 777 23 Exhibit 19 that's been previously marked.

 777 24 A. Yes, I have that.

 777 25 Q. Do you recognize this document?

 778 1 A. Yes, I do.

 778 2 Q. What is it?

 778 3 A. It is a copy of the E-A-RCAL Lab's

 778 4 Policies and Procedures Manual, dated February

 778 5 of 1999.

 778 6 Q. Do you know whether NVLAP would have

 778 7 reviewed Aearo Company's Policies and 

Procedures

 778 8 Manual that has been marked as Exhibit 19 as a 

part of

 778 9 their accreditation process?

Re: [777:22-778:9]

Plt Objection - beyond the 

scope of clarification 

Re: [777:22-

778:9]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

778:12 - 778:17 Kieper, Ronald 12-20-2019

 778 12 A. Yes, they would have.

 778 13 BY MS. ELIZABETH:

 778 14 Q. Do you know whether NVLAP would have

 778 15 determined that Aearo's policies and procedures as 

of

 778 16 1999 met the requirements for NVLAP's 

accreditation as

 778 17 of that time?

Re: [778:12-778:17]

Plt Objection - beyond the 

scope of clarification 

Re: [778:12-

778:17]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

778:20 - 778:24 Kieper, Ronald 12-20-2019

 778 20 A. Yes, they -- they accredited us, they --

 778 21 our accreditation continued, and my understanding 

was

Re: [778:20-778:24]

Plt Objection - beyond the 

scope of clarification 

Re: [778:20-

778:24]

Plt Objection -

beyond the 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 58 of 198
Kieper, Ronald - 12/20/2019 Objection Report 58

 778 22 that was confirmation that we were following the

 778 23 procedures that we -- were outlined in this manual 

and

 778 24 were following the test standard that we were 

using.

scope of 

clarification 

SUSTAINED

779:14 - 780:1 Kieper, Ronald 12-20-2019

 779 14 Q. When did you first begin your REAT

 779 15 labeling tests under ANSI S3.19 on the Combat 

Arms

 779 16 Earplug Version 2?

 779 17 A. I believe we started the testing in

 779 18 December of 1999.

 779 19 Q. And would the Exhibit 19 Policies and

 779 20 Procedures Manual that is dated February 4th, 

1999,

 779 21 been in effect at that time?

 779 22 A. Yes, it would have been.

 779 23 Q. Do you know whether the NVLAP auditors

 779 24 that accredited the E-A-RCAL Lab since 1992, do 

you

 779 25 know whether those auditors were employees or

 780 1 otherwise associated with Aearo or 3M?

Re: [779:14-779:25]

Plt Objection - beyond the 

scope of clarification 

Re: [779:14-

779:25]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

780:4 - 792:7 Kieper, Ronald 12-20-2019

 780 4 A. They were not.

 780 5 BY MS. ELIZABETH:

 780 6 Q. Okay. I'd like to direct your attention

 780 7 to Bates 14629 in Exhibit 19.

 780 8 A. Yes.

 780 9 Q. Are you familiar with this section of the

 780 10 Policies and Procedures Manual?

 780 11 A. Yes, I am.

 780 12 Q. What is it?

 780 13 A. This is Appendix 5. It's titled

 780 14 "Statistical Procedures for Rejecting Outlier Data."

 780 15 Q. Is this section otherwise referred to as

 780 16 the Dixon Outlier Test?

 780 17 A. Yes, it is.

 780 18 Q. Is it your understanding that just like

 780 19 this section is in the February 1990 manual --

Re: [780:4-792:7]

Plt Objection - beyond the 

scope of clarification 

Re: [780:4-

792:7]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 59 of 198
Kieper, Ronald - 12/20/2019 Objection Report 59

 780 20 February 1999 manual that you are looking at 

today,

 780 21 that would -- that it would have also been a part of

 780 22 the manual that the NVLAP group reviewed as a 

part of

 780 23 their accreditation process?

 780 24 A. Yes.

 780 25 MR. BUCHANAN: Objection to form, 

foundation.

 781 1 BY THE WITNESS:

 781 2 A. Yes, they would have reviewed this

 781 3 document in all its versions.

 781 4 BY MS. ELIZABETH:

 781 5 Q. On Bates 14630, which is the next page,

 781 6 we've also put this up on the slide -- nope, go back.

 781 7 There.

 781 8 It talks about "the purpose and overview"

 781 9 of the Dixon Outlier Test.

 781 10 Do you see that?

 781 11 A. Yes.

 781 12 Q. Can you briefly tell the jury what the

 781 13 purpose of the Dixon Outlier Test was?

 781 14 A. The purpose is as it's written there, to

 781 15 exclude aberrant results due to either as it describes

 781 16 an unusual inability of a subject to consistently fit

 781 17 a hearing protector as measured by the range of 

their

 781 18 attenuation values across the usually three fittings

 781 19 of the device or the dissimilarity of his or her mean

 781 20 attenuation values with respect to the other nine

 781 21 subjects tested.

 781 22 Q. Why would the E-A-RCAL Lab want to 

exclude

 781 23 aberrant results?

 781 24 MR. BUCHANAN: Objection; foundation.

 781 25 BY THE WITNESS:

 782 1 A. My understanding was so that we could more

 782 2 easily compare test results of the same hearing

 782 3 protector across different years and different tests.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 60 of 198
Kieper, Ronald - 12/20/2019 Objection Report 60

 782 4 BY MS. ELIZABETH:

 782 5 Q. Does that have to do with consistency?

 782 6 MR. BUCHANAN: Objection; form.

 782 7 BY THE WITNESS:

 782 8 A. Yes, consistency is -- is a major

 782 9 component of that.

 782 10 BY MS. ELIZABETH:

 782 11 Q. And why is consistency important?

 782 12 MR. BUCHANAN: Objection; form, foundation.

 782 13 BY THE WITNESS:

 782 14 A. To me consistency implies that both the

 782 15 experimenter and the test subjects are doing the 

test

 782 16 procedure the same way every time it's -- the test is

 782 17 done.

 782 18 BY MS. ELIZABETH:

 782 19 Q. And just so that the record is clear, you

 782 20 are a coauthor of Exhibit 19, the Policies and

 782 21 Procedures Manual, as of February 4th, 1999, 

correct?

 782 22 MR. BUCHANAN: Objection; form.

 782 23 BY THE WITNESS:

 782 24 A. Yes, Mr. Berger and I coauthored this.

 782 25 BY MS. ELIZABETH:

 783 1 Q. I want to direct your attention to the

 783 2 next page, Bates 14631 of the Dixon Outlier Test.

 783 3 Can you briefly tell the jury how you

 783 4 implemented the Dixon Outlier Test pursuant to 

your

 783 5 Policy and Procedures Manual?

 783 6 A. Yes. After the ten subjects have been

 783 7 tested, we first looked at the range of the

 783 8 attenuation values that the test subjects obtained.

 783 9 We would sort those values by each frequency, we 

would

 783 10 sort the ten ranges, and then do a calculation to

 783 11 obtain an R value which would indicate either that 

all

 783 12 of the data were consistent or if one person's data

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 61 of 198
Kieper, Ronald - 12/20/2019 Objection Report 61

 783 13 were aberrant, that that value -- the value of the R

 783 14 would be above 477.

 783 15 Q. Okay. So let's kind of take that one at a

 783 16 time.

 783 17 A. Sure.

 783 18 Q. So you look at the range of the

 783 19 attenuation values that the test subjects obtain

 783 20 during the real-ear test.

 783 21 Do I have that right?

 783 22 A. That's right.

 783 23 MR. BUCHANAN: Objection to form, leading.

 783 24 BY THE WITNESS:

 783 25 A. Yes, that's correct.

 784 1 BY MS. ELIZABETH:

 784 2 Q. And then you determine whether there are

 784 3 subjects that are aberrant, I think you said, right?

 784 4 MR. BUCHANAN: Objection to form.

 784 5 BY THE WITNESS:

 784 6 A. Yes, that's the --

 784 7 BY MS. ELIZABETH:

 784 8 Q. What does aberrant mean?

 784 9 A. To me aberrant means significant --

 784 10 significantly different.

 784 11 Q. And is another word for that an outlier?

 784 12 MR. BUCHANAN: Objection to form.

 784 13 BY THE WITNESS:

 784 14 A. That's the term that Dixon often uses.

 784 15 BY MS. ELIZABETH:

 784 16 Q. So it says here on this page: "A

 784 17 one-sided Dixon test is used to determine if any

 784 18 subject's value is aberrantly large," and it has a

 784 19 calculation there.

 784 20 Is that the calculation you were

 784 21 describing?

 784 22 MR. BUCHANAN: Objection to form.

 784 23 BY THE WITNESS:

 784 24 A. Yes, it is.

 784 25 BY MS. ELIZABETH:

 785 1 Q. So after this calculation run, what

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 62 of 198
Kieper, Ronald - 12/20/2019 Objection Report 62

 785 2 happen -- is run, what happens next?

 785 3 A. If one subject fails, and by failing I

 785 4 mean the range of their response is -- the range of

 785 5 their responses results in the R value being above

 785 6 477, they would fail at that particular frequency. If

 785 7 that subject fails at more than one frequency, our

 785 8 policy would be to retest that person initially.

 785 9 Q. If the person does not fail at more than

 785 10 one frequency, what happens then?

 785 11 A. I would do -- I would do the mean value

 785 12 test.

 785 13 Q. Okay. And that's the next step in the

 785 14 Dixon Outlier Test, is that right?

 785 15 A. That's the next -- that's correct, the

 785 16 next step.

 785 17 Q. Okay. So before we get to the next

 785 18 step --

 785 19 A. Okay.

 785 20 Q. -- if a subject fails according to this

 785 21 calculation at two or more frequencies, then what

 785 22 happens?

 785 23 A. Initially the person who fails is

 785 24 retested.

 785 25 Q. And when you say "retested," what do you

 786 1 mean?

 786 2 A. The person would come back to the lab and

 786 3 we -- we would repeat the test of the hearing

 786 4 protector, full test, three repetitions, and the data

 786 5 achieved on that date would be considered their 

retest

 786 6 data. Those data would replace their original data.

 786 7 Q. What happens if the subject fails a second

 786 8 time?

 786 9 MR. BUCHANAN: Objection to form.

 786 10 BY THE WITNESS:

 786 11 A. If the same subject fails a second time,

 786 12 he or she is replaced with another subject.

 786 13 BY MS. ELIZABETH:

 786 14 Q. And this is all under the range portion of

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 63 of 198
Kieper, Ronald - 12/20/2019 Objection Report 63

 786 15 the Dixon Outlier Test?

 786 16 A. Yes.

 786 17 Q. All right. Let's move to the mean value

 786 18 test under the Dixon Outlier Test.

 786 19 Can you briefly describe how that works?

 786 20 A. Yes. Again, after all ten --

 786 21 MR. BUCHANAN: Objection; form, foundation.

 786 22 THE WITNESS: Sorry.

 786 23 BY THE WITNESS:

 786 24 A. Again, after all ten people are tested,

 786 25 the -- the mean values, the average values of their

 787 1 attenuation or protection are sorted by frequency.

 787 2 And in this case a two-sided test is done to look at

 787 3 aberrant values either lower than everyone else or

 787 4 higher than everyone else. The -- once the --

 787 5 BY MS. ELIZABETH:

 787 6 Q. One second.

 787 7 A. I'm sorry.

 787 8 Q. So -- so when you say "a two-sided Dixon

 787 9 test," is this the calculation that's set forth under

 787 10 the mean value test of the Dixon Outlier Test on

 787 11 Bates 14631?

 787 12 MR. BUCHANAN: Objection; form.

 787 13 BY THE WITNESS:

 787 14 A. Yes, it's detailed under the heading B2.

 787 15 BY MS. ELIZABETH:

 787 16 Q. And if a subject fails this test, what

 787 17 happens?

 787 18 MR. BUCHANAN: Objection to form, 

foundation.

 787 19 BY THE WITNESS:

 787 20 A. Again, if -- if a subject fails this test

 787 21 at two or more frequencies, that person is retested.

 787 22 BY MS. ELIZABETH:

 787 23 Q. What happens if the person does not fail

 787 24 at two or more frequencies?

 787 25 A. Then the -- their original data are kept.

 788 1 Q. And I believe you said if the person fails

 788 2 at two or more frequencies, they are retested. Is

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 64 of 198
Kieper, Ronald - 12/20/2019 Objection Report 64

 788 3 that what you said?

 788 4 A. Yes, they are retested.

 788 5 Q. And if they fail another time after being

 788 6 retest -- tested, what happens?

 788 7 A. If they fail the mean value test a second

 788 8 time, they can be replaced in this test unless a

 788 9 subject has already been replaced. In -- in the case

 788 10 that one subject has been replaced, then no further

 788 11 testing is conducted.

 788 12 Q. Mr. Kieper, are you permitted to

 788 13 independently determine whether to retest or 

replace a

 788 14 test subject after a REAT labeling test is 

conducted?

 788 15 MR. BUCHANAN: Objection to form.

 788 16 BY THE WITNESS:

 788 17 A. No, I'm not.

 788 18 BY MS. ELIZABETH:

 788 19 Q. Can you explain to the jury how using an

 788 20 objective test like the Dixon Outlier Test helps

 788 21 remove subjectivity from the E-A-RCAL Lab's 

testing

 788 22 process?

 788 23 MR. BUCHANAN: Objection to the leading.

 788 24 BY THE WITNESS:

 788 25 A. Because it's a statistical test and the

 789 1 experimenter has no effect on the calculations, the -

-

 789 2 it is a -- to me it seems like a good tool to use to

 789 3 identify the subject -- a subject who is aberrant in a

 789 4 given test.

 789 5 BY MS. ELIZABETH:

 789 6 Q. Did you replace any subjects using the

 789 7 Dixon Outlier Test on the 213016 REAT labeling 

test

 789 8 that you performed on the Combat Arms Version 2 

plug?

 789 9 A. No, I don't believe we did.

 789 10 Q. Did you replace any subjects using the

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 65 of 198
Kieper, Ronald - 12/20/2019 Objection Report 65

 789 11 Dixon Outlier Test on the 213017 REAT labeling 

test

 789 12 that you performed on the Combat Arms Version 2 

plug?

 789 13 A. Yes, we had one replacement.

 789 14 Q. Well, let's look at 213017.

 789 15 A. Excuse me. I misspoke.

 789 16 Q. Okay.

 789 17 A. We didn't have a replacement. One subject

 789 18 failed the Extreme Range Test. He was retested.

 789 19 Q. Okay. So let me ask that again.

 789 20 A. Okay.

 789 21 Q. Did you replace any subjects using the

 789 22 Dixon Outlier Test on the 213017 REAT labeling 

test

 789 23 that you performed on the Combat Arms Version 2 

plug?

 789 24 A. No, we did not.

 789 25 Q. You were asked previously about 3M's

 790 1 change of reporting structure between Elliott 

Berger

 790 2 and Brian Myers because of a potential conflict of

 790 3 interest noted by NVLAP.

 790 4 Do you remember that discussion with

 790 5 Plaintiffs' counsel?

 790 6 A. Yes, I remember the discussion.

 790 7 Q. I want to direct your attention to

 790 8 Exhibit 20, which has been previously marked.

 790 9 A. I have Exhibit 20.

 790 10 Q. And it's titled: "Annotations from E-A-R

 790 11 checklist with assessment annotations.pdf."

 790 12 Do you see that?

 790 13 A. Yes, I see that.

 790 14 Q. Were you familiar -- or had you seen this

 790 15 document before your deposition today or 

yesterday?

 790 16 A. I don't recall seeing this document before

 790 17 that.

 790 18 Q. Okay. Do you know whether you authored

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 66 of 198
Kieper, Ronald - 12/20/2019 Objection Report 66

 790 19 this document?

 790 20 A. I did not author this document.

 790 21 Q. Okay. And do you even recognize what this

 790 22 document is?

 790 23 A. As the title indicates, it's the checklist

 790 24 by the auditor Mr. Jeff G. Schmitt who audited the 

lab

 790 25 in it looks like June of 2001.

 791 1 Q. Okay. You were asked to read the first

 791 2 sentence of the first paragraph on this document:

 791 3 "Annotation 1: Label: Jeff G. Schmitt; Date:

 791 4 6/13/2001 6:20:29 a.m."

 791 5 Do you remember that?

 791 6 A. Yes.

 791 7 MR. BUCHANAN: Objection. Objection; form.

 791 8 BY THE WITNESS:

 791 9 A. Yes, I remember.

 791 10 BY MS. ELIZABETH:

 791 11 Q. Okay. And that says: "The org chart of

 791 12 12/01/2000 shows the lab director reporting 

through a

 791 13 marketing manager. While this is acceptable on a

 791 14 business management basis, this creates a potential

 791 15 for a conflict of interest at the laboratory testing

 791 16 level."

 791 17 Do you see that?

 791 18 A. I see that.

 791 19 Q. Could you please read for the jury the

 791 20 remaining sentences in that paragraph?

 791 21 A. "Laboratory management indicates that no

 791 22 such conflicts have been experiences," I believe 

that

 791 23 should be experienced, "in the past and that it has

 791 24 access to upper management levels should such

 791 25 conflicts arise in the future. It is recommended 

that

 792 1 this be clarified in the quality manual."

 792 2 Q. Do you have any knowledge of a conflict of

 792 3 interest in the E-A-RCAL Lab at the time you 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 67 of 198
Kieper, Ronald - 12/20/2019 Objection Report 67

worked

 792 4 there?

 792 5 MR. BUCHANAN: Objection to form.

 792 6 BY THE WITNESS:

 792 7 A. I'm not aware of any, no.

807:14 - 807:17 Kieper, Ronald 12-20-2019

 807 14 Q. In the 1999 to 2000 time -- timeframe, how

 807 15 would you go about selecting a particular subject 

on

 807 16 your test panel to participate in an ANSI S3.19 

REAT

 807 17 test?

Re: [807:14-807:17]

Plt Objection - beyond the 

scope of clarification 

Re: [807:14-

807:17]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

807:20 - 807:22 Kieper, Ronald 12-20-2019

 807 20 A. I would use -- I would randomly call

 807 21 people who were qualified test subjects and ask 

them

 807 22 if they were available to come in and do a test.

Re: [807:20-807:22]

Plt Objection - beyond the 

scope of clarification 

Re: [807:20-

807:22]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

807:24 - 808:1 Kieper, Ronald 12-20-2019

 807 24 Q. Would you call certain people on the test

 807 25 panel to test certain hearing protection products in

 808 1 the 1999 to 2000 timeframe?

Re: [807:24-808:1]

Plt Objection - beyond the 

scope of clarification 

Re: [807:24-

808:1]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

808:4 - 808:7 Kieper, Ronald 12-20-2019

 808 4 A. No. The -- the -- the people that I would

 808 5 call would be random. I would -- I would just call

 808 6 anyone on the test panel list who had been qualified

 808 7 to the S3.19 standard.

Re: [808:4-808:7]

Plt Objection - beyond the 

scope of clarification 

Re: [808:4-

808:7]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

809:9 - 810:22 Kieper, Ronald 12-20-2019

 809 9 "testing people with your products who are A

 809 10 students."

 809 11 Do you remember that?

 809 12 A. Yes, I do.

 809 13 Q. How would you, Mr. Kieper, characterize

Re: [809:9-810:22]

Plt Objection - beyond the 

scope of clarification 

Re: [809:9-

810:22]

Plt Objection -

beyond the 

scope of 

clarification 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 68 of 198
Kieper, Ronald - 12/20/2019 Objection Report 68

 809 14 Aearo's product specific panels?

 809 15 A. The product -- the people on the product

 809 16 specific panels showed by their test results that 

they

 809 17 were able to be consistent in the protection levels

 809 18 that they would achieve wearing that designated 

type

 809 19 of hearing protector.

 809 20 Q. And, again, why is consistency important?

 809 21 MR. BUCHANAN: Objection to form.

 809 22 BY THE WITNESS:

 809 23 A. Consistency is important in my mind for

 809 24 being able to reproduce similar results over a 

period

 809 25 of time.

 810 1 BY MS. ELIZABETH:

 810 2 Q. And just so that we're clear, at the time

 810 3 that you were testing the Combat Arms Earplug

 810 4 Version 2, the REAT labeling test under ANSI 

S3.19,

 810 5 did Aearo or the E-A-RCAL Lab organize its test

 810 6 subjects into those four product specific panels that

 810 7 we were discussing?

 810 8 A. No. That was done --

 810 9 MR. BUCHANAN: Objection to form.

 810 10 THE WITNESS: Sorry.

 810 11 BY THE WITNESS:

 810 12 A. No. The four panels were organized at

 810 13 some point in the 2000s, but it was after the testing

 810 14 that was done on the Combat Arms Earplug.

 810 15 BY MS. ELIZABETH:

 810 16 Q. And as you've testified, at the time that

 810 17 you were testing the Combat Arms Earplug 

Version 2,

 810 18 Aearo selected its test subjects randomly from its

 810 19 test panel, isn't that right?

 810 20 MR. BUCHANAN: Objection to form and 

leading.

 810 21 BY THE WITNESS:

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 69 of 198
Kieper, Ronald - 12/20/2019 Objection Report 69

 810 22 A. That's correct.

811:12 - 813:19 Kieper, Ronald 12-20-2019

 811 12 Q. In your view is whether Aearo or the

 811 13 E-A-RCAL Lab, whether their organization of its 

test

 811 14 subjects into product specific panels at all relevant

 811 15 to your testing of the Combat Arms Earplug 

Version 2?

 811 16 MR. BUCHANAN: Objection to form.

 811 17 BY THE WITNESS:

 811 18 A. No.

 811 19 BY MS. ELIZABETH:

 811 20 Q. Why not?

 811 21 A. Because we used -- we randomly selected

 811 22 subjects -- or I randomly called subjects to ask 

when

 811 23 they were available. I didn't target any one or 

group

 811 24 of people for these labeling tests.

 811 25 Q. Plaintiffs' counsel have also suggested

 812 1 that because some of the members of your test 

panel

 812 2 were employees of the company or affiliated with

 812 3 employees of the company that that somehow 

would bias

 812 4 your results.

 812 5 Do you remember those discussions?

 812 6 MR. BUCHANAN: Objection to form.

 812 7 BY THE WITNESS:

 812 8 A. Yes, I do.

 812 9 BY MS. ELIZABETH:

 812 10 Q. Do you believe that using employees or

 812 11 people affiliated with employees as test subjects

 812 12 biased the results of the testing that you conducted

 812 13 in the E-A-RCAL Lab?

 812 14 MR. BUCHANAN: Objection to form, 

foundation.

 812 15 BY THE WITNESS:

 812 16 A. No, I don't believe that.

Re: [811:12-813:19]

Plt Objection - beyond the 

scope of clarification 

Re: [811:12-

813:19]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 70 of 198
Kieper, Ronald - 12/20/2019 Objection Report 70

 812 17 BY MS. ELIZABETH:

 812 18 Q. Why not?

 812 19 A. Because I don't know how a person would

 812 20 cheat the test, if you will. First of all, they are

 812 21 trained -- they are all trained the same way to

 812 22 respond to the test tones at the earliest time that

 812 23 they can detect the tones, and they would do that 

both

 812 24 in the open condition and in the protected 

condition,

 812 25 and I don't -- like I said, I don't know how a person

 813 1 would cheat the test to try to make the results

 813 2 different.

 813 3 Q. Did you ever have any concern that any of

 813 4 your test subjects in your REAT testing at the

 813 5 E-A-RCAL Lab were purposefully trying to 

manipulate

 813 6 the test to increase NRR results?

 813 7 A. No, I have no i- -- no reason to believe

 813 8 that.

 813 9 MR. BUCHANAN: Objection to form.

 813 10 BY MS. ELIZABETH:

 813 11 Q. Other than employees or people affiliated

 813 12 with employees, did the E-A-RCAL Lab ever draw 

test

 813 13 subjects from any other source?

 813 14 A. We obtained test subjects through

 813 15 newspaper ads and -- and putting fliers up at 

schools

 813 16 and universities, and we always asked current test

 813 17 subjects if they knew friends or relatives that 

would

 813 18 be interested in earning a little extra money as a

 813 19 test subject.

817:2 - 833:9 Kieper, Ronald 12-20-2019

 817 2 Q. Do you know what testing the military

 817 3 required Aearo to provide with respect to Combat 

Arms

 817 4 Earplug Version 2?

Re: [817:2-833:9]

Plt Objection - beyond the 

scope of clarification 

Re: [817:2-

833:9]

Plt Objection -

beyond the 

scope of 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 71 of 198
Kieper, Ronald - 12/20/2019 Objection Report 71

 817 5 A. No.

 817 6 Q. I want to direct your attention to

 817 7 Exhibit 54, which has been previously marked.

 817 8 A. Yes, I have that.

 817 9 Q. So Plaintiffs' counsel asked you multiple

 817 10 questions about this test.

 817 11 Can you tell the jury what this test is,

 817 12 again, just to refamiliarize yourself?

 817 13 A. Yes. This is an S12.6-1997 test of Method

 817 14 B subject fit test of the so-called ARC plug solid --

 817 15 the solid end of the Combat Arms Earplug.

 817 16 Q. What was the purpose of conducted --

 817 17 conducting this Method B test under the ANSI 

Standard

 817 18 S12.6?

 817 19 MR. BUCHANAN: Objection to form and 

foundation.

 817 20 BY THE WITNESS:

 817 21 A. The purpose is to evaluate or understand

 817 22 how much protection an inexperienced test subject

 817 23 would obtain wearing this hearing protector.

 817 24 BY MS. ELIZABETH:

 817 25 Q. Was this test conducted for the purposes

 818 1 of labeling the Combat Arms Version 2 plug?

 818 2 MR. BUCHANAN: Objection to form, foundation.

 818 3 BY THE WITNESS:

 818 4 A. No. No, it was not.

 818 5 BY MS. ELIZABETH:

 818 6 Q. Plaintiffs' counsel asked you about this

 818 7 NRR(SF) of 4.4. Do you see that there?

 818 8 A. Yes.

 818 9 Q. Okay. Can you explain why you might see a

 818 10 difference in NRR(S -- between NRR(SF) ratings 

in

 818 11 Method B tests when you compare them with NRR 

ratings

 818 12 from tests conducted under ANSI S3.19

 818 13 Experimenter-Fit?

 818 14 MR. BUCHANAN: Objection; form, foundation, 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 72 of 198
Kieper, Ronald - 12/20/2019 Objection Report 72

and

 818 15 calling for undisclosed expert testimony.

 818 16 BY THE WITNESS:

 818 17 A. Yes. The Method B subject fit protocol

 818 18 utilizes inex- -- relatively inexperienced, and by

 818 19 that I mean the people can only have worn hearing

 818 20 protectors a limited number of times, and so they 

are

 818 21 inexperienced in wearing hearing protectors, and 

from

 818 22 my experience they do not fit the plugs as deeply 

in

 818 23 their ears as I as an experimenter would testing 

under

 818 24 S3.19. And this would give them -- tend to give 

them

 818 25 both lower values and possibly more variation 

between

 819 1 and among subjects than is typically seen in an 

S3.19

 819 2 test.

 819 3 MS. ELIZABETH: Would you mark that, please.

 819 4 (WHEREUPON, a certain document was

 819 5 marked Ron Kieper Deposition Exhibit

 819 6 No. 84, for identification, as of

 819 7 12/20/2019.)

 819 8 MS. ELIZABETH: Is this Exhibit 84?

 819 9 THE COURT REPORTER: Yes, it is.

 819 10 BY MS. ELIZABETH:

 819 11 Q. The Court Reporter has just handed you a

 819 12 document that's been marked Exhibit 84.

 819 13 Do you have that?

 819 14 A. Yes, I do.

 819 15 Q. Do you recognize this document?

 819 16 A. Yes.

 819 17 Q. What is it?

 819 18 A. It is -- excuse me.

 819 19 This is the results of my testing eight

 819 20 people on the UltraFit end or the green end of the

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 73 of 198
Kieper, Ronald - 12/20/2019 Objection Report 73

 819 21 Combat Arms Earplug.

 819 22 Q. Do you have a specific recollection of

 819 23 conducting this REAT test labeled Test ID 

213015?

 819 24 MR. BUCHANAN: Objection to form.

 819 25 BY THE WITNESS:

 820 1 A. No, I don't.

 820 2 BY MS. ELIZABETH:

 820 3 Q. You were previously asked several times

 820 4 about the NRR rating for test 213015.

 820 5 Do you remember generally that discussion

 820 6 from Plaintiffs' counsel?

 820 7 A. Yes.

 820 8 Q. Okay. And in the -- on the first page of

 820 9 this document, below the chart it has an NRR 2 SD 

of

 820 10 10.9.

 820 11 Do you see that?

 820 12 A. Yes.

 820 13 Q. And that was referred to as an NRR of 11

 820 14 in your previous discussions with Plaintiffs' 

counsel.

 820 15 Do you remember that?

 820 16 A. Yes.

 820 17 Q. Can there be an NRR for a test that does

 820 18 not include at least ten subjects?

 820 19 MR. BUCHANAN: Objection to the leading.

 820 20 BY THE WITNESS:

 820 21 A. No. The S3.19 standard which we use for

 820 22 labeling testing requires at least ten subjects.

 820 23 BY MS. ELIZABETH:

 820 24 Q. So what is this NRR 2 SD equals 10.9

 820 25 that's found on Test ID 213015?

 821 1 A. I would characterize it as an estimate of

 821 2 what the NRR could be.

 821 3 MR. BUCHANAN: Belated objection to form and

 821 4 foundation.

 821 5 BY MS. ELIZABETH:

 821 6 Q. And just remind us what NRR stands for

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 74 of 198
Kieper, Ronald - 12/20/2019 Objection Report 74

 821 7 again?

 821 8 A. Noise reduction rating.

 821 9 Q. So when Plaintiffs' counsel asked you

 821 10 whether the NRR on test 017, which has been 

marked as

 821 11 Exhibit 83 and is an NRR of 22, was twice as high 

as

 821 12 the NRR -- the estimated NRR that's on Test ID 

213015,

 821 13 is that a true statement, that the NRR on test 17 is

 821 14 twice as high as the NRR on test 15?

 821 15 MR. BUCHANAN: Objection to the prefatory

 821 16 comment, foundation and form.

 821 17 BY THE WITNESS:

 821 18 A. No, again, because the noise reduction

 821 19 rating shown in test 213015 after eight subjects 

were

 821 20 tested is an estimate of what the NRR could be if 

ten

 821 21 subjects were tested.

 821 22 BY MS. ELIZABETH:

 821 23 Q. And when Plaintiffs' counsel asked you

 821 24 whether the NRR on test 15 was half of the NRR 

of --

 821 25 on test 017, is that true?

 822 1 MR. BUCHANAN: Objection to form.

 822 2 BY THE WITNESS:

 822 3 A. I don't feel it's true.

 822 4 BY MS. ELIZABETH:

 822 5 Q. Why not?

 822 6 A. Again, because it's -- it's an estimate.

 822 7 It's not a final noise reduction rating because only

 822 8 eight people were tested.

 822 9 Q. Okay. I want to direct your attention to

 822 10 Plaintiffs' Demonstrative Exhibit 45 in your stack.

 822 11 MS. ELIZABETH: Can I have the Elmo, please.

 822 12 MR. BUCHANAN: Thank you.

 822 13 BY THE WITNESS:

 822 14 A. I have that.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 75 of 198
Kieper, Ronald - 12/20/2019 Objection Report 75

 822 15 BY MS. ELIZABETH:

 822 16 Q. Okay. Do you remember that Plaintiffs'

 822 17 counsel showed you Demonstrative Exhibit 45 and 

made

 822 18 some markings on it?

 822 19 A. Yes.

 822 20 Q. Okay. So let's take a look at the closed

 822 21 end tests that are listed here on Exhibit 45.

 822 22 So we have the 213017 test.

 822 23 Do you see that?

 822 24 A. Yes.

 822 25 Q. And what was the NRR for that test?

 823 1 A. It calculated to a 22.

 823 2 Q. If you look at Test ID 215508, do you see

 823 3 that?

 823 4 A. Yes.

 823 5 Q. Is that an open or closed end test?

 823 6 A. That's a closed end test.

 823 7 Q. Under ANSI S3.19, was this test a REAT

 823 8 labeling test with a completed NRR?

 823 9 MR. BUCHANAN: Objection to form.

 823 10 BY THE WITNESS:

 823 11 A. No, it was not.

 823 12 BY MS. ELIZABETH:

 823 13 Q. So we have test 215508 that is not a REAT

 823 14 test with an NRR. If you go down to --

 823 15 MR. BUCHANAN: Objection to the leading or 

the

 823 16 comment. That's not a question.

 823 17 BY MS. ELIZABETH:

 823 18 Q. If you go down to Test ID 215512, do you

 823 19 see that?

 823 20 A. Yes.

 823 21 Q. Is that an open or closed end test?

 823 22 A. It's a closed end test.

 823 23 Q. Okay. And is Test ID 215512 an ANSI S3.19

 823 24 REAT labeling test with a completed NRR?

 823 25 A. No, it is not.

 824 1 Q. So test 215512 is not a REAT test with an

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 76 of 198
Kieper, Ronald - 12/20/2019 Objection Report 76

 824 2 NRR, correct, with a --

 824 3 MR. BUCHANAN: Objection.

 824 4 BY MS. ELIZABETH:

 824 5 Q. -- completed NRR, correct?

 824 6 MR. BUCHANAN: Objection to form.

 824 7 BY THE WITNESS:

 824 8 A. That's correct.

 824 9 BY MS. ELIZABETH:

 824 10 Q. If you scroll down to Test ID 215516, do

 824 11 you see that?

 824 12 A. Yes.

 824 13 Q. And is that an open or closed end test of

 824 14 the Combat Arms Version 2?

 824 15 A. That's a closed end test.

 824 16 Q. Is Test ID 215516 an ANSI S3.19 REAT

 824 17 labeling test with a completed NRR?

 824 18 A. It is not.

 824 19 Q. So is it your testimony, Mr. Kieper, that

 824 20 Test ID 215516 is not a REAT test with a 

completed

 824 21 NRR?

 824 22 MR. BUCHANAN: Objection to the leading, 

form.

 824 23 BY THE WITNESS:

 824 24 A. Yes.

 824 25 BY MS. ELIZABETH:

 825 1 Q. Do you know what these tests without

 825 2 completed NRRs would have been conducted for?

 825 3 MR. BUCHANAN: Objection to form.

 825 4 BY THE WITNESS:

 825 5 A. They could have been conducted for a

 825 6 number of reasons. Research and development. 

They

 825 7 may have been coupled with other devices that 

were

 825 8 tested at the same time for comparison purposes.

 825 9 There may be other reasons that don't come to my 

mind

 825 10 at this time.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 77 of 198
Kieper, Ronald - 12/20/2019 Objection Report 77

 825 11 BY MS. ELIZABETH:

 825 12 Q. Even though this column here on Exhibit 45

 825 13 says NRR at the top, do you consider this 14.8 that

 825 14 Plaintiffs' counsel wrote on test 215508 an NRR?

 825 15 MR. BUCHANAN: Objection to form and 

leading.

 825 16 BY THE WITNESS:

 825 17 A. No, I don't.

 825 18 BY MS. ELIZABETH:

 825 19 Q. Do you consider this 15.9 on the Test ID

 825 20 215512 an NRR?

 825 21 MR. BUCHANAN: Objection to form.

 825 22 BY THE WITNESS:

 825 23 A. I do not.

 825 24 BY MS. ELIZABETH:

 825 25 Q. Do you consider the 14 here under test

 826 1 215516 an NRR?

 826 2 MR. BUCHANAN: Objection to form.

 826 3 BY THE WITNESS:

 826 4 A. No.

 826 5 MS. ELIZABETH: I'll mark this as Defendant's

 826 6 Demonstrative Exhibit 1.

 826 7 (WHEREUPON, a certain document was

 826 8 marked Defendant's Demonstrative

 826 9 Deposition Exhibit No. 1, for

 826 10 identification, as of 12/20/2019.)

 826 11 BY MS. ELIZABETH:

 826 12 Q. I want to refer you back to Exhibit 26, if

 826 13 you can find it.

 826 14 A. I have that.

 826 15 Q. Okay. Do you recognize Exhibit 26 that's

 826 16 been previously marked?

 826 17 A. Yes, I do.

 826 18 Q. And what is it?

 826 19 A. This is a technical report that Mr. Berger

 826 20 and I coauthored as the title indicates on the

 826 21 development of the Combat Ear -- Combat Arms 

Earplug

 826 22 Version 1 through Version 4.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 78 of 198
Kieper, Ronald - 12/20/2019 Objection Report 78

 826 23 Q. Okay. I want to direct your attention to

 826 24 the chart, the listing of REAT tests of Combat 

Arms

 826 25 Versions 1 through 4, if you could find that. I

 827 1 believe it is on Bates MDL 259907.

 827 2 Do you see that?

 827 3 A. Yes, I see that.

 827 4 Q. Okay. So I'm going to use this version

 827 5 now. Plaintiffs' counsel asked you about the open

 827 6 tests that were conducted and listed in this

 827 7 exhibit as well.

 827 8 Do you remember that?

 827 9 A. Yes.

 827 10 Q. Okay. And the first open test that you

 827 11 discussed is 213016 which is the -- well, what is 

that

 827 12 test?

 827 13 A. That was the labeling test of the open

 827 14 end, the yellow end of the Combat Arms Earplug.

 827 15 Q. So I'm going to skip down and there is an

 827 16 open test that's labeled test 215507.

 827 17 Do you see that?

 827 18 A. Yes.

 827 19 Q. Do you consider the 4 that's listed under

 827 20 the Test ID 215507 to be an ANSI S3.19 NRR?

 827 21 MR. BUCHANAN: Objection to form.

 827 22 BY THE WITNESS:

 827 23 A. No, I don't.

 827 24 BY MS. ELIZABETH:

 827 25 Q. Why not?

 828 1 A. Well, because there were only five

 828 2 subjects tested, so that would preclude it being

 828 3 considered a labeling test because the S3.19 

standard

 828 4 requires at least ten subjects to be tested.

 828 5 Q. Skipping down to Test ID 215511, do you

 828 6 see that?

 828 7 A. Yes.

 828 8 Q. Is that an open or a closed end test?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 79 of 198
Kieper, Ronald - 12/20/2019 Objection Report 79

 828 9 A. It's an open end test.

 828 10 Q. Do you consider the -- do you consider the

 828 11 6 listed here to be an ANSI S3.19 NRR?

 828 12 A. No, I don't.

 828 13 Q. Why not?

 828 14 A. For the same reason. There were only five

 828 15 people tested.

 828 16 Q. And then skipping down to Test ID 215515,

 828 17 do you see that?

 828 18 A. Yes.

 828 19 Q. Is that an open or closed test?

 828 20 A. That's an open end test.

 828 21 Q. Okay. Do you consider the 5 listed here

 828 22 to be an ANSI S3.19 NRR?

 828 23 MR. BUCHANAN: Objection to form.

 828 24 BY THE WITNESS:

 828 25 A. No, I don't.

 829 1 BY MS. ELIZABETH:

 829 2 Q. Why not?

 829 3 A. Because only five people were tested.

 829 4 Q. Plaintiffs' counsel also talked to you

 829 5 about the open tests in this chart that did have ten

 829 6 subjects tested.

 829 7 Do you remember that?

 829 8 A. Yes.

 829 9 Q. So the first test that had ten subjects

 829 10 was the REAT labeling test that we've discussed

 829 11 213016.

 829 12 Is that your understanding?

 829 13 A. Yes.

 829 14 Q. So the second test that has ten subjects

 829 15 in the open condition is which test?

 829 16 A. The ID is 215009.

 829 17 Q. And how would you -- strike that.

 829 18 How would you compare test two -- the NRR

 829 19 result from test 215009 to that of test 213016?

 829 20 MR. BUCHANAN: Objection to form.

 829 21 BY THE WITNESS:

 829 22 A. The NRRs computed are -- are very close.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 80 of 198
Kieper, Ronald - 12/20/2019 Objection Report 80

 829 23 They are within one dB of each other.

 829 24 BY MS. ELIZABETH:

 829 25 Q. And how many years after 21301 -- the

 830 1 213016 test was conducted was the 215009 test

 830 2 conducted?

 830 3 A. It was completed about approximately

 830 4 four-and-a-half years later.

 830 5 Q. And then there is a third ten-subject open

 830 6 test.

 830 7 Do you see that?

 830 8 A. Yes, I do.

 830 9 Q. What's the Test ID for that test?

 830 10 A. That was 215012.

 830 11 Q. And that had an NRR of 5.

 830 12 Do you see that?

 830 13 A. Yes.

 830 14 Q. Okay. When was that test completed?

 830 15 A. It was completed in April of 2006.

 830 16 Q. Okay. I want to direct your attention to

 830 17 same document but to Bates MDL 259910.

 830 18 A. I see that.

 830 19 Q. Can you -- can you tell the jury what this

 830 20 page generally describes?

 830 21 MR. BUCHANAN: Objection to form and 

foundation.

 830 22 BY THE WITNESS:

 830 23 A. This document appears to discuss the three

 830 24 real-ear tests of the yellow end, the open end of the

 830 25 Combat Arms, the three occasions on which the --

this

 831 1 device was tested on ten people.

 831 2 BY MS. ELIZABETH:

 831 3 Q. And is that what we discussed just a

 831 4 minute ago, the 0 NRR, another 0 NRR four years 

later,

 831 5 and a 5 NRR two years after that?

 831 6 A. Yes.

 831 7 Q. Were you involved in the decision to keep

 831 8 the labeling for the Combat Arms Version 2 plug 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 81 of 198
Kieper, Ronald - 12/20/2019 Objection Report 81

for

 831 9 the yellow end at an NRR of 0?

 831 10 A. No.

 831 11 Q. During Plaintiffs' counsel's questioning

 831 12 of you, they brought up Exhibit 30. Can you find 

that

 831 13 exhibit that's been previously marked?

 831 14 A. Yes, Exhibit 30.

 831 15 Q. Had you seen this exhibit before

 831 16 Plaintiffs' counsel showed it to you?

 831 17 A. No, I don't recall seeing this before

 831 18 that.

 831 19 Q. Are you the chair on this calendar invite

 831 20 of Exhibit 30?

 831 21 A. I am not.

 831 22 Q. Are you one of the invitees on this

 831 23 calendar invite that is labeled Exhibit 30?

 831 24 A. No.

 831 25 Q. You may recall that Plaintiffs' counsel

 832 1 pointed to the section under No. 3,

 832 2 Testing/Labeling/Reporting.

 832 3 Do you remember that?

 832 4 A. Yes.

 832 5 Q. And specifically he pointed out the

 832 6 language which says: "Who does what and how do 

we

 832 7 protect our current NRRs?"

 832 8 Do you remember that?

 832 9 A. Yes.

 832 10 Q. Mr. Kieper, did you ever have any

 832 11 discussions with anyone about how to "protect our

 832 12 current NRRs"?

 832 13 A. No, I did not.

 832 14 Q. Do you even have an understanding of what

 832 15 that means?

 832 16 A. No.

 832 17 Q. I want to quickly go back to -- we were

 832 18 talking about test 213015 which is Exhibit 84.

 832 19 Do you have that?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 82 of 198
Kieper, Ronald - 12/20/2019 Objection Report 82

 832 20 A. I believe I do.

 832 21 MR. BUCHANAN: Which study was that, 

Counsel?

 832 22 MS. ELIZABETH: 213015, Exhibit 84.

 832 23 BY THE WITNESS:

 832 24 A. Yes, I have it.

 832 25 BY MS. ELIZABETH:

 833 1 Q. And Plaintiffs' counsel asked you about

 833 2 this test multiple times during their questioning of

 833 3 you, correct?

 833 4 A. Yes.

 833 5 Q. And you discussed the reasons why you

 833 6 stopped the labeling test after eight subjects?

 833 7 MR. BUCHANAN: Objection to form.

 833 8 BY THE WITNESS:

 833 9 A. Yes.

833:11 - 833:14 Kieper, Ronald 12-20-2019

 833 11 Q. From your perspective, was there anything

 833 12 unusual about the decision to stop the 213015 test

 833 13 after eight subjects?

 833 14 A. No.

Re: [833:11-833:14]

Plt Objection - beyond the 

scope of clarification 

Re: [833:11-

833:14]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

834:8 - 834:10 Kieper, Ronald 12-20-2019

 834 8 BY MS. ELIZABETH:

 834 9 Q. In your view, were you permitted to stop

 834 10 labeling tests under the ANSI S3.19 standard?

Re: [834:8-834:10]

Plt Objection - beyond the 

scope of clarification 

Re: [834:8-

834:10]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

834:13 - 834:15 Kieper, Ronald 12-20-2019

 834 13 A. I -- I don't know why -- I don't know of

 834 14 any reason dictated in the ANSI standard that 

would

 834 15 prevent someone from stopping a test.

Re: [834:13-834:15]

Plt Objection - beyond the 

scope of clarification 

Re: [834:13-

834:15]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

834:24 - 835:1 Kieper, Ronald 12-20-2019

 834 24 Q. While working for the E-A-RCAL Lab, did

Re: [834:24-835:1]

Plt Objection - beyond the 

Re: [834:24-

835:1]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 83 of 198
Kieper, Ronald - 12/20/2019 Objection Report 83

 834 25 you ever stop a test for the purpose of "tricking the

 835 1 system" as Plaintiffs' counsel suggested?

scope of clarification Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

835:5 - 835:10 Kieper, Ronald 12-20-2019

 835 5 A. No, I did not.

 835 6 BY MS. ELIZABETH:

 835 7 Q. While working for the E-A-RCAL Lab, did

 835 8 you ever try to boost the NRR for the CAE v2 in 

order

 835 9 to help the company sell more plugs?

 835 10 A. No, I did not.

Re: [835:5-835:10]

Plt Objection - beyond the 

scope of clarification 

Re: [835:5-

835:10]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

835:13 - 835:21 Kieper, Ronald 12-20-2019

 835 13 Q. Do you remember when Plaintiffs' counsel

 835 14 put in front of you a series of HPDA test reports?

 835 15 A. Yes.

 835 16 Q. And he showed you that some of those tests

 835 17 had been stopped before getting to ten subjects.

 835 18 Do you remember that?

 835 19 A. Yes.

 835 20 Q. Would all of those tests have been REAT

 835 21 ANSI S3.19 labeling tests?

Re: [835:13-835:25]

Plt Objection - beyond the 

scope of clarification 

Re: [835:13-

835:25]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

835:24 - 835:25 Kieper, Ronald 12-20-2019

 835 24 A. I'd have to look at them again, but that's

 835 25 not my recollection.

Re: [835:13-835:25]

Plt Objection - beyond the 

scope of clarification 

Re: [835:13-

835:25]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

840:17 - 841:2 Kieper, Ronald 12-20-2019

 840 17 Were the same test subjects used in 213017

 840 18 that were used in 213015?

 840 19 A. Some were the same and some were

 840 20 different.

 840 21 Q. Why is it that you did not use all of the

 840 22 same subjects in 213017 that you did in 213015?

 840 23 A. I don't recall specifically. Probably

 840 24 the -- the subjects tested in 213015 may not have 

Re: [840:17-841:2]

Plt Objection - beyond the 

scope of clarification 

Re: [840:17-

841:2]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 84 of 198
Kieper, Ronald - 12/20/2019 Objection Report 84

been

 840 25 available to come in and test and other people were

 841 1 available and so I scheduled those people and tested

 841 2 them.

841:5 - 841:7 Kieper, Ronald 12-20-2019

 841 5 Q. What would have been your process in

 841 6 getting the test subjects for 213017 -- for the 

213017

 841 7 test in the 2000 timeframe?

Re: [841:5-841:7]

Plt Objection - beyond the 

scope of clarification

Re: [841:5-

841:7]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

841:10 - 842:25 Kieper, Ronald 12-20-2019

 841 10 A. I would randomly call people on our test

 841 11 subject panel.

 841 12 BY MS. ELIZABETH:

 841 13 Q. Did you think it was a problem that you

 841 14 did not test the exact same subjects for test 213017

 841 15 and test 213015?

 841 16 A. No.

 841 17 Q. Why not?

 841 18 MR. BUCHANAN: Objection to form, 

foundation.

 841 19 BY THE WITNESS:

 841 20 A. Because in my experience a person's

 841 21 results on a test of a given hearing protector can

 841 22 vary from test to test and there was no reason that -

-

 841 23 and there was no procedure that we had outlined to 

--

 841 24 to utilize the same subjects on subsequent tests.

 841 25 BY MS. ELIZABETH:

 842 1 Q. So you said in your experience a person's

 842 2 results on a test of a given hearing protector can

 842 3 vary from test to test, so there was no reason to use

 842 4 the same test subjects.

 842 5 Can you just explain what you mean?

 842 6 MR. BUCHANAN: Objection to the form.

 842 7 BY THE WITNESS:

 842 8 A. Well, no matter how consistently I or the

Re: [841:10-842:25]

Plt Objection - beyond the 

scope of clarification 

Re: [841:10-

842:25]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 85 of 198
Kieper, Ronald - 12/20/2019 Objection Report 85

 842 9 subject would fit a hearing protector on two 

different

 842 10 occasions, their test results were not going to be

 842 11 exactly the same. Their opens can vary. Even 

within

 842 12 one setting we do three repetitions. And the open

 842 13 values are not the same, nor are the occluded 

values

 842 14 the same in a test of a hearing protector in one day.

 842 15 BY MS. ELIZABETH:

 842 16 Q. When calling subjects to participate in

 842 17 test 213017, did you cherry pick the subjects from

 842 18 213015 that received higher NRRs on that test to

 842 19 participate in the 213017 test?

 842 20 MR. BUCHANAN: Objection to form and 

foundation.

 842 21 He has already said he doesn't remember.

 842 22 BY THE WITNESS:

 842 23 A. I -- again, I don't remember the specific

 842 24 test, but my procedure -- normal procedure would 

be to

 842 25 randomly call people for whatever test I was doing.

846:12 - 848:10 Kieper, Ronald 12-20-2019

 846 12 Q. I want to direct your attention to

 846 13 previously marked Exhibit 16, if you can get that 

in

 846 14 your stack.

 846 15 A. I've got it. Just a minute. There is 16.

 846 16 I have 16.

 846 17 Q. Okay. Do you recognize this document?

 846 18 A. Yes, it's --

 846 19 Q. You've talked a lot about this document,

 846 20 right?

 846 21 A. Yes.

 846 22 Q. And it's titled: "How folding the flanges

 846 23 back affects REAT result of the UltraFit earplug 

end

 846 24 of the Combat Arms plug."

 846 25 Did I read that right?

Re: [846:12-848:10]

Plt Objection - beyond the 

scope of clarification 

Re: [846:12-

848:10]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 86 of 198
Kieper, Ronald - 12/20/2019 Objection Report 86

 847 1 A. Yes.

 847 2 Q. And this has also been referred to as the

 847 3 flange memo or the flange report?

 847 4 A. Yes, I've heard it described that way.

 847 5 Q. If you turn to Bates 3M 21496?

 847 6 A. Yes.

 847 7 Q. You were asked about this Introduction

 847 8 section of the flange memo.

 847 9 Do you remember that?

 847 10 A. Yes, I remember being asked about it.

 847 11 Q. And specifically you were asked about the

 847 12 sentence that reads:

 847 13 "The purpose of this report is to document

 847 14 that the current length of the UltraFit earplug end 

of

 847 15 the Combat Arms plug is too short for proper 

insertion

 847 16 and how changing the fitting technique affected the

 847 17 results of real-ear tests of this plug."

 847 18 Do you see that?

 847 19 A. I see that.

 847 20 Q. I want to direct your attention to

 847 21 Exhibit 14 really quickly, if you can find that.

 847 22 Okay. So why don't you have both

 847 23 Exhibit 14 and Exhibit 16 handy.

 847 24 A. I have that.

 847 25 Q. Okay. Looking at Exhibit 14, what is this

 848 1 document?

 848 2 A. This would be a memo from me to Mr. Berger

 848 3 regarding the test results of test 213015 and 

213017.

 848 4 Q. And it's dated May 11th, 2000?

 848 5 A. Yes.

 848 6 Q. Is the language that I just read about the

 848 7 Combat Arms plug being too short for proper 

insertion

 848 8 anywhere in Exhibit 14, your memo to Elliott 

Berger as

 848 9 of May 11th, 2000?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 87 of 198
Kieper, Ronald - 12/20/2019 Objection Report 87

 848 10 A. No, I don't see that.

848:25 - 849:4 Kieper, Ronald 12-20-2019

 848 25 Q. I want you to refer back to Exhibit 16

 849 1 which is the flange memo, and I want you to look at

 849 2 the section that's entitled "Test Procedure."

 849 3 Do you see that?

 849 4 A. Yes.

Re: [848:25-849:14]

Plt Objection - beyond the

scope of clarification 

Re: [848:25-

849:14]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

849:5 - 849:14 Kieper, Ronald 12-20-2019

 849 5 Q. Okay. And I want you to focus on the

 849 6 second paragraph under Test Procedure.

 849 7 You were asked quite a few questions about

 849 8 this last sentence which says:

 849 9 "When the inward pressure on the plug was

 849 10 released, the yellow plug's flanges tended to return

 849 11 to their original shape and this sometimes loosened

 849 12 the plug, often imperceptibly to the subject."

 849 13 Do you see that?

 849 14 A. Yes.

Re: [848:25-849:14]

Plt Objection - beyond the 

scope of clarification 

Re: [848:25-

849:14]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

850:12 - 850:17 Kieper, Ronald 12-20-2019

 850 12 Q. You described in your previous testimony

 850 13 that before an ANSI S3.19 REAT test can begin, 

the

 850 14 subject has to sit in this test chamber that you've

 850 15 described as a soundproof room.

 850 16 Do you remember that testimony?

 850 17 A. Yes.

Re: [850:12-850:17]

Plt Objection - beyond the 

scope of clarification 

Re: [850:12-

850:17]

Plt Objection -

beyond the 

scope of 

clarification

SUSTAINED

850:20 - 851:6 Kieper, Ronald 12-20-2019

 850 20 You said something about the room being

 850 21 dark. Can you explain that?

 850 22 A. The -- the room has night lights just for

 850 23 some illumination. During the testing the overhead

 850 24 lights are turned off because there is a possibility

 850 25 of elect -- electrical hum noise being created and

 851 1 that could interfere with a person's open ear

 851 2 measurements. So because not only the lights are

 851 3 turned off and there is no noise created by that, but,

 851 4 again, the low levels of sound in the test chamber,

 851 5 people don't hear things. You know, they have --

Re: [850:20-851:6]

Plt Objection - beyond the 

scope of clarification 

Re: [850:20-

851:6]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 88 of 198
Kieper, Ronald - 12/20/2019 Objection Report 88

they

 851 6 hear nothing. It's very quiet.

851:13 - 851:16 Kieper, Ronald 12-20-2019

 851 13 Do you think it's more likely for someone

 851 14 in the test chamber to experience an imperceptible

 851 15 loosening of an earplug than for someone who is in 

the

 851 16 real world wearing an earplug?

Re: [851:13-851:16]

Plt Objection - beyond the 

scope of clarification 

Re: [851:13-

851:16]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

851:19 - 851:22 Kieper, Ronald 12-20-2019

 851 19 A. Yes, I would -- I would think that would

 851 20 be the case.

 851 21 BY MS. ELIZABETH:

 851 22 Q. And why is that?

Re: [851:19-851:22]

Plt Objection - beyond the 

scope of clarification 

Re: [851:19-

851:22]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

851:25 - 852:6 Kieper, Ronald 12-20-2019

 851 25 A. Again, because in the real world or

 852 1 outside a soundproof test chamber, there is what we

 852 2 call ambient noise or noises that are just inherent in

 852 3 the environment, and those noises can be a cue to 

the

 852 4 hearing protector wearer if the fit of the hearing

 852 5 protection device changes. They would perceive 

the

 852 6 noise levels around them to increase.

Re: [851:25-852:6]

Plt Objection - beyond the 

scope of clarification 

Re: [851:25-

852:6]

Plt Objection -

beyond the 

scope of 

clarification 

SUSTAINED

853:12 - 853:20 Kieper, Ronald 12-20-2019

 853 12 Is it correct, sir, that you spent some

 853 13 time meeting with counsel for 3M, the individual 

who

 853 14 just examined you for two-and-a-half hours?

 853 15 A. Yes.

 853 16 Q. Over the course of, what was that, five

 853 17 days, is that right, getting ready for today?

 853 18 A. Yes, that sounds right.

 853 19 Q. Some 40-plus hours working on your

 853 20 testimony, is that right?

Re: [853:12-853:24]

Def Objection - relevance (401, 

402)

Re: [853:19-853:24]

Def Objection - asked; 

argumentative (611, 403)

Re: [853:12-

853:24]

Def Objection -

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 89 of 198
Kieper, Ronald - 12/20/2019 Objection Report 89

Re: [853:19-

853:24]

Def Objection -

asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

853:23 - 853:24 Kieper, Ronald 12-20-2019

 853 23 BY THE WITNESS:

 853 24 A. It may have approached 40 hours.

Re: [853:12-853:24]

Def Objection - relevance (401, 

402)

Re: [853:19-853:24]

Def Objection - asked; 

argumentative (611, 403)

Re: [853:12-

853:24]

Def Objection -

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification

excluded.

Re: [853:19-

853:24]

Def Objection -

asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 90 of 198
Kieper, Ronald - 12/20/2019 Objection Report 90

clarification 

excluded.

856:17 - 856:21 Kieper, Ronald 12-20-2019

 856 17 Q. You ran through a bunch of questions with

 856 18 counsel for 3M about what a real NRR is versus an

 856 19 estimated NRR versus a completed NRR.

 856 20 Do you remember that?

 856 21 A. Yes.

Re: [856:17-856:22]

Def Objection - argumentative; 

misstates (611, 403); relevance 

(401, 402)

Re: [856:17-

856:22]

Def Objection -

argumentative; 

misstates (611, 

403); relevance 

(401, 402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

857:2 - 857:7 Kieper, Ronald 12-20-2019

 857 2 BY MR. BUCHANAN:

 857 3 Q. Am I correct, sir, that we looked through

 857 4 a bunch of documents over and over and over 

again? We

 857 5 were referring to NRRs and subjects and in tests,

 857 6 right, regardless of whether they had ten people,

 857 7 right, sir?

Re: [857:3-857:12]

Def Objection - 3M MIL No. 

18; argumentative; vague (611, 

403)

Re: [857:3-

857:12]

Def Objection -

3M MIL No. 

18; 

argumentative; 

vague (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

857:9 - 857:12 Kieper, Ronald 12-20-2019

 857 9 BY MR. BUCHANAN:

 857 10 Q. Do you remember that?

 857 11 A. Yes, we used the term "NRR" in our

 857 12 discussions.

Re: [857:3-857:12]

Def Objection - 3M MIL No. 

18; argumentative; vague (611, 

403)

Re: [857:3-

857:12]

Def Objection -

3M MIL No. 

18; 

argumentative; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 91 of 198
Kieper, Ronald - 12/20/2019 Objection Report 91

vague (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

858:7 - 858:11 Kieper, Ronald 12-20-2019

 858 7 BY MR. BUCHANAN:

 858 8 Q. We could agree that when you were

 858 9 reporting out those NRRs from the studies, in the 

very

 858 10 document the 3M counsel showed you, you didn't 

say

 858 11 they were estimated NRRs, did you?

Re: [858:8-858:17]

Def Objection - argumentative 

(611, 403)

Re: [858:8-

858:17]

Def Objection -

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

858:13 - 858:14 Kieper, Ronald 12-20-2019

 858 13 BY MR. BUCHANAN:

 858 14 Q. That's not what you wrote?

Re: [858:8-858:17]

Def Objection - argumentative 

(611, 403)

Re: [858:8-

858:17]

Def Objection -

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

858:16 - 858:20 Kieper, Ronald 12-20-2019

 858 16 BY THE WITNESS:

 858 17 A. No, I didn't write "estimated NRRs."

Re: [858:8-858:17]

Def Objection - argumentative 

(611, 403)

Re: [858:8-

858:17]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 92 of 198
Kieper, Ronald - 12/20/2019 Objection Report 92

 858 18 BY MR. BUCHANAN:

 858 19 Q. Right. You wrote "NRRs" in that list of

 858 20 studies in your history of the Combat Arms, right?

Re: [858:19-858:24]

Def Objection - asked; 

cumulative (611, 403)

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [858:19-

858:24]

Def Objection -

asked; 

cumulative

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

858:22 - 858:24 Kieper, Ronald 12-20-2019

 858 22 BY MR. BUCHANAN:

 858 23 Q. Isn't that right?

 858 24 A. Yes, I used the term "NRR."

Re: [858:19-858:24]

Def Objection - asked; 

cumulative (611, 403)

Re: [858:19-

858:24]

Def Objection -

asked; 

cumulative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

861:23 - 862:4 Kieper, Ronald 12-20-2019 Re: [861:23-862:9] Re: [861:23-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 93 of 198
Kieper, Ronald - 12/20/2019 Objection Report 93

 861 23 In the ordinary course of business when

 861 24 you were talking about the protection your hearing

 861 25 protection devices were providing well before 

there

 862 1 was this situation that brings you here today, sir,

 862 2 when you were talking about your study 

observations,

 862 3 you quoted out NRRs based on however many 

people had

 862 4 been tested, isn't that true, sir?

Def Objection - cumulative 

(403); misstates; argumentative 

(611, 403)

862:9]

Def Objection -

cumulative 

(403); 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

862:7 - 862:15 Kieper, Ronald 12-20-2019

 862 7 BY THE WITNESS:

 862 8 A. I would quote the results, the NRR that

 862 9 was the result of the tests that was done.

 862 10 BY MR. BUCHANAN:

 862 11 Q. That's right. And that's how you

 862 12 presented it in the Combat Arms memo in the 

ordinary

 862 13 course of business before you got called here to

 862 14 provide testimony in these proceedings.

 862 15 Isn't that true, sir?

Re: [861:23-862:9]

Def Objection - cumulative 

(403); misstates; argumentative 

(611, 403)

Re: [862:11-862:20]

Def Objection - asked; 

misstates; argumentative (611, 

403)

Re: [861:23-

862:9]

Def Objection -

cumulative 

(403); 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [862:11-

862:20]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 94 of 198
Kieper, Ronald - 12/20/2019 Objection Report 94

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

862:19 - 862:22 Kieper, Ronald 12-20-2019

 862 19 A. Yes, that's -- I called them NRRs in the

 862 20 documents that I've created.

 862 21 Q. Without the caveats that you just put on

 862 22 them with counsel on examination for 3M, correct, 

sir?

Re: [862:11-862:20]

Def Objection - asked; 

misstates; argumentative (611, 

403)

Re: [862:21-863:2]

Def Objection - asked; 

argumentative (611, 403)

Re: [862:11-

862:20]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [862:21-

863:2]

Def Objection -

asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

862:25 - 863:2 Kieper, Ronald 12-20-2019

 862 25 BY THE WITNESS:

 863 1 A. I didn't -- I didn't use estimated in

Re: [862:21-863:2]

Def Objection - asked; 

argumentative (611, 403)

Re: [862:21-

863:2]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 95 of 198
Kieper, Ronald - 12/20/2019 Objection Report 95

 863 2 my -- in my documents. asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

874:5 - 874:8 Kieper, Ronald 12-20-2019

 874 5 Q. There was a study, as I understand it,

 874 6 that you talked about with counsel that you also had

 874 7 in your pocket at the time that you were doing this

 874 8 that didn't make the chart, right?

Re: [874:5-874:11]

Def Objection - argumentative; 

misstates (611, 403)

Re: [874:5-

874:11]

Def Objection -

argumentative; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

874:10 - 874:15 Kieper, Ronald 12-20-2019

 874 10 BY THE WITNESS:

 874 11 A. I'm sorry. Which -- which test is that?

 874 12 BY MR. BUCHANAN:

 874 13 Q. Study 213030.

 874 14 Actually the largest study you ever did on

 874 15 the Combat Arms, isn't that right?

Re: [874:5-874:11]

Def Objection - argumentative; 

misstates (611, 403)

Re: [874:5-

874:11]

Def Objection -

argumentative; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 96 of 198
Kieper, Ronald - 12/20/2019 Objection Report 96

874:25 - 875:6 Kieper, Ronald 12-20-2019

 874 25 Q. Do you remember the study you just

 875 1 discussed with defense counsel?

 875 2 A. I remember some of it.

 875 3 Q. Right.

 875 4 You actually did a 20-person test on the

 875 5 Combat Arms, isn't that true, sir?

 875 6 A. I believe it was a Method B test, correct.

Re: [874:25-875:6]

Def Objection - 3M MIL No. 

22

Re: [874:25-

875:6]

Def Objection -

3M MIL No. 

22

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

875:15 - 876:1 Kieper, Ronald 12-20-2019

 875 15 Q. Okay. It is Exhibit 54, sir. If I can

 875 16 have the Elmo back.

 875 17 This is that study. Okay. It is also on

 875 18 your screen, sir. It's a study, sir, that we looked

 875 19 at earlier, but it's from June 27th, 2006, on the 

ARC

 875 20 plug solid end of Combat Arms Earplug.

 875 21 Do you see that, sir?

 875 22 A. Yes.

 875 23 Q. Would you satisfy yourself based on your

 875 24 review of the chart we've been looking at from the

 875 25 history of the Combat Arms that this is indeed the

 876 1 largest study ever done on the Combat Arms?

Re: [875:15-875:22]

Def Objection - 3M MIL No. 

22

Re: [875:23-876:5]

Def Objection - foundation 

(602); 3M MIL No. 22

Re: [875:15-

875:22]

Def Objection -

3M MIL No. 

22

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [875:23-

876:5]

Def Objection -

foundation 

(602); 3M MIL 

No. 22

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 97 of 198
Kieper, Ronald - 12/20/2019 Objection Report 97

excluded.

876:3 - 876:8 Kieper, Ronald 12-20-2019

 876 3 BY THE WITNESS:

 876 4 A. I don't -- I don't know that there is a

 876 5 larger -- if there is not a larger study.

 876 6 BY MR. BUCHANAN:

 876 7 Q. There is certainly not a larger study you

 876 8 were involved with, right, sir?

Re: [875:23-876:5]

Def Objection - foundation 

(602); 3M MIL No. 22

Re: [876:7-876:11]

Def Objection - foundation 

(602); relevance (401, 402); 

asked; argumentative (611, 

403)

Re: [875:23-

876:5]

Def Objection -

foundation 

(602); 3M MIL 

No. 22

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [876:7-

876:11]

Def Objection -

foundation 

(602); 

relevance (401, 

402); asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

876:10 - 876:11 Kieper, Ronald 12-20-2019

 876 10 BY THE WITNESS:

 876 11 A. Not that I'm aware of.

Re: [876:7-876:11]

Def Objection - foundation 

(602); relevance (401, 402); 

asked; argumentative (611, 

403)

Re: [876:7-

876:11]

Def Objection -

foundation 

(602); 

relevance (401, 

402); asked; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 98 of 198
Kieper, Ronald - 12/20/2019 Objection Report 98

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

876:19 - 876:20 Kieper, Ronald 12-20-2019

 876 19 Q. The study format that, as we discussed

 876 20 earlier, was the one mandated by the military?

Re: [876:19-876:25]

Def Objection - 3M MIL No. 

22; foundation (602); 

argumentative; misstates (611, 

403)

Re: [876:19-

876:25]

Def Objection -

3M MIL No. 

22; foundation 

(602); 

argumentative; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

876:23 - 876:25 Kieper, Ronald 12-20-2019

 876 23 BY THE WITNESS:

 876 24 A. We talked -- yes, we talked about the

 876 25 military requiring a Method B test.

Re: [876:19-876:25]

Def Objection - 3M MIL No. 

22; foundation (602); 

argumentative; misstates (611, 

403)

Re: [876:19-

876:25]

Def Objection -

3M MIL No. 

22; foundation 

(602); 

argumentative; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 99 of 198
Kieper, Ronald - 12/20/2019 Objection Report 99

Excluded 

because 

proposed 

clarification 

excluded.

877:2 - 877:5 Kieper, Ronald 12-20-2019

 877 2 Q. Right.

 877 3 In fact, that was reflected in the hearing

 877 4 conservation manual from the military in 1998, 

right,

 877 5 remember we saw that?

877:9 - 877:13 Kieper, Ronald 12-20-2019

 877 9 A. I believe I remember that.

 877 10 BY MR. BUCHANAN:

 877 11 Q. And Aearo in the E-A-RCAL Lab, you all

 877 12 have a study under that protocol in 2006 of 20 

people,

 877 13 right?

Re: [877:11-877:16]

Def Objection - 3M MIL No. 

22; vague (611, 403)

Re: [877:11-

877:16]

Def Objection -

3M MIL No. 

22; vague (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

877:15 - 878:4 Kieper, Ronald 12-20-2019

 877 15 BY THE WITNESS:

 877 16 A. Yes.

 877 17 BY MR. BUCHANAN:

 877 18 Q. Reporting out an NRR(SF), meaning subject

 877 19 fit, right?

 877 20 A. Yes.

 877 21 Q. Meaning it wasn't done by the

 877 22 experimenter, but the subjects themselves fit these

 877 23 earplugs in this study, isn't that right, sir?

 877 24 A. Yes.

 877 25 Q. And the NRR you reported out was 4.4,

 878 1 right?

 878 2 A. Yes.

Re: [877:11-877:16]

Def Objection - 3M MIL No. 

22; vague (611, 403)

Re: [877:17-878:7]

Def Objection - 3M MIL No. 

22; cumulative (403)

Re: [878:3-878:7]

Def Objection - asked; 

argumentative (611, 403); 

relevance (401, 402)

Re: [877:11-

877:16]

Def Objection -

3M MIL No. 

22; vague (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 100 of 198
Kieper, Ronald - 12/20/2019 Objection Report 100

 878 3 Q. And that didn't make your chart of REAT

 878 4 studies in the history of the Combat Arms, right?

Re: [877:17-

878:7]

Def Objection -

3M MIL No. 

22; cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [878:3-

878:7]

Def Objection -

asked; 

argumentative 

(611, 403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

878:6 - 878:16 Kieper, Ronald 12-20-2019

 878 6 BY THE WITNESS:

 878 7 A. We didn't include this test in that chart.

 878 8 BY MR. BUCHANAN:

 878 9 Q. Okay. We can agree there was another one

 878 10 that didn't make that chart also on the green end,

 878 11 right?

 878 12 A. Which one was that, sir?

 878 13 Q. 213015. Do you remember that study?

Re: [877:17-878:7]

Def Objection - 3M MIL No. 

22; cumulative (403)

Re: [878:3-878:7]

Def Objection - asked; 

argumentative (611, 403); 

relevance (401, 402)

Re: [878:9-878:18]

Def Objection - asked (611, 

Re: [877:17-

878:7]

Def Objection -

3M MIL No. 

22; cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 101 of 198
Kieper, Ronald - 12/20/2019 Objection Report 101

 878 14 A. Yes. That -- that study was stopped.

 878 15 Q. Right. Eight people, right?

 878 16 A. Yes.

403); cumulative (403); 

relevance (401, 402)

Excluded 

because 

proposed 

clarification 

excluded.

Re: [878:3-

878:7]

Def Objection -

asked; 

argumentative 

(611, 403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [878:9-

878:18]

Def Objection -

asked (611, 

403); 

cumulative 

(403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

878:17 - 878:18 Kieper, Ronald 12-20-2019 Re: [878:9-878:18] Re: [878:9-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 102 of 198
Kieper, Ronald - 12/20/2019 Objection Report 102

 878 17 Q. You told us today that you had test panels

 878 18 in 1999 that you thought were good test panels, 

right?

Def Objection - asked (611, 

403); cumulative (403); 

relevance (401, 402)

878:18]

Def Objection -

asked (611, 

403); 

cumulative 

(403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

878:21 - 879:1 Kieper, Ronald 12-20-2019

 878 21 A. I had one panel of listeners, yes.

 878 22 BY MR. BUCHANAN:

 878 23 Q. You had a panel of listeners that you had

 878 24 screened and you went through great detail with

 878 25 defense counsel about how you screened them.

 879 1 Do you recall that discussion?

879:4 - 879:5 Kieper, Ronald 12-20-2019

 879 4 A. I remember the discussion talking about

 879 5 how I trained the test subjects.

879:21 - 880:2 Kieper, Ronald 12-20-2019

 879 21 Q. Okay. Well, you've got these studies

 879 22 going on in 1999 with these qualified and trained 

test

 879 23 subjects in study 213015, right?

 879 24 A. Yes.

 879 25 Q. Okay. And please tell the jury what the

 880 1 NRR was in that test, in those trained test subjects,

 880 2 at the time you all pulled the plug on the study?

Re: [879:21-880:15]

Def Objection - asked; 

misstates; argumentative (611, 

403); relevance (401, 402)

Re: [879:21-

880:15]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 103 of 198
Kieper, Ronald - 12/20/2019 Objection Report 103

because 

proposed 

clarification 

excluded.

880:5 - 880:12 Kieper, Ronald 12-20-2019

 880 5 BY THE WITNESS:

 880 6 A. The -- the calculated NRR for that study

 880 7 after eight subjects was a 10.9.

 880 8 BY MR. BUCHANAN:

 880 9 Q. 10.9?

 880 10 A. I believe so.

 880 11 Q. Okay. We agree that that's not in your

 880 12 history of the Combat Arms, correct?

Re: [879:21-880:15]

Def Objection - asked; 

misstates; argumentative (611, 

403); relevance (401, 402)

Re: [879:21-

880:15]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

880:14 - 880:15 Kieper, Ronald 12-20-2019

 880 14 BY THE WITNESS:

 880 15 A. It is not on that chart.

Re: [879:21-880:15]

Def Objection - asked; 

misstates; argumentative (611, 

403); relevance (401, 402)

Re: [879:21-

880:15]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403); 

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

884:24 - 885:6 Kieper, Ronald 12-20-2019 Re: [885:1-885:9] Re: [885:1-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 104 of 198
Kieper, Ronald - 12/20/2019 Objection Report 104

 884 24 Q. All right. Please can we pull up P 925,

 884 25 Exhibit 15.

 885 1 We spent some time with this earlier, sir.

 885 2 I just want to make sure we have your testimony in

 885 3 context and whether you disagree with your boss.

 885 4 It's that e-mail from Mr. Berger to the

 885 5 business guy, Mr. Myers, on May 12, 2000.

 885 6 Do you see that?

Def Objection - argumentative; 

compound (611, 403); 

foundation (602); cumulative 

(403)

885:9]

Def Objection -

argumentative; 

compound 

(611, 403); 

foundation 

(602); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

885:8 - 885:15 Kieper, Ronald 12-20-2019

 885 8 BY THE WITNESS:

 885 9 A. Yes.

 885 10 BY MR. BUCHANAN:

 885 11 Q. Okay. It is talking about how the

 885 12 original study was stopped with eight subjects, 

right?

 885 13 A. It is, yes.

 885 14 Q. Okay. That's the study that had the NRR

 885 15 of 11, right?

Re: [885:1-885:9]

Def Objection - argumentative; 

compound (611, 403); 

foundation (602); cumulative 

(403)

Re: [885:14-885:19]

Def Objection - asked; 

misstates (611, 403)

Re: [885:1-

885:9]

Def Objection -

argumentative; 

compound 

(611, 403); 

foundation 

(602); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [885:14-

885:19]

Def Objection -

asked; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 105 of 198
Kieper, Ronald - 12/20/2019 Objection Report 105

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

885:17 - 886:8 Kieper, Ronald 12-20-2019

 885 17 BY THE WITNESS:

 885 18 A. Yes, the eight-subject NRR was 10.9 which

 885 19 rounds to 11.

 885 20 BY MR. BUCHANAN:

 885 21 Q. The second study was with the folded back

 885 22 flanges on the end sticking out of the ear.

 885 23 Do you see that, sir?

 885 24 A. I see that.

 885 25 Q. And then he says: "Should I share this

 886 1 with Ohlin?" with a question mark, right?

 886 2 A. Yes.

 886 3 Q. And then he continued. He said: "It

 886 4 looks like the existing product has problems," 

right?

 886 5 A. That's what it says.

 886 6 Q. Did Mr. Berger share with you his view

 886 7 that the existing product had problems in May of 

2000,

 886 8 sir?

Re: [885:14-885:19]

Def Objection - asked; 

misstates (611, 403)

Re: [885:21-886:5]

Def Objection - foundation 

(602)

Re: [886:6-886:12]

Def Objection - asked; 

argumentative (611, 403); 

cumulative (403)

Re: [885:14-

885:19]

Def Objection -

asked; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [885:21-

886:5]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [886:6-

886:12]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 106 of 198
Kieper, Ronald - 12/20/2019 Objection Report 106

Def Objection -

asked; 

argumentative 

(611, 403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

886:11 - 886:17 Kieper, Ronald 12-20-2019

 886 11 BY THE WITNESS:

 886 12 A. Not that I recall.

 886 13 BY MR. BUCHANAN:

 886 14 Q. Sir, you deferred quite a bit in your

 886 15 testimony to Mr. Berger, and he gave you 

instructions

 886 16 on when to start studies and stop studies, right?

 886 17 A. Yes, he did.

Re: [886:6-886:12]

Def Objection - asked; 

argumentative (611, 403); 

cumulative (403)

Re: [886:14-886:17]

Def Objection - argumentative 

(611, 403); 3M MIL No. 18

Re: [886:6-

886:12]

Def Objection -

asked; 

argumentative 

(611, 403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [886:14-

886:17]

Def Objection -

argumentative 

(611, 403); 3M 

MIL No. 18

SUSTAINED 

as to [853:12-

933:12]—

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 107 of 198
Kieper, Ronald - 12/20/2019 Objection Report 107

Excluded 

because 

proposed 

clarification 

excluded.

887:7 - 887:9 Kieper, Ronald 12-20-2019

 887 7 Q. Sir, Mr. Berger is the one who instructed

 887 8 you to flip back the flanges when you reran the 

study,

 887 9 that's study 213017, right, sir?

887:12 - 887:14 Kieper, Ronald 12-20-2019

 887 12 A. I don't have a recollection of that

 887 13 exactly, but that would be the standard procedure 

in

 887 14 the laboratory.

888:3 - 888:4 Kieper, Ronald 12-20-2019

 888 3 Q. Okay. He is the one who gave you the

 888 4 instructions on the study, right --

Re: [888:3-888:11]

Def Objection - asked (611, 

403); cumulative (403)

Re: [888:3-

888:11]

Def Objection -

asked (611, 

403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

888:6 - 888:7 Kieper, Ronald 12-20-2019

 888 6 BY MR. BUCHANAN:

 888 7 Q. -- how to do the study?

Re: [888:3-888:11]

Def Objection - asked (611, 

403); cumulative (403)

Re: [888:3-

888:11]

Def Objection -

asked (611, 

403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 108 of 198
Kieper, Ronald - 12/20/2019 Objection Report 108

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

888:10 - 888:15 Kieper, Ronald 12-20-2019

 888 10 BY THE WITNESS:

 888 11 A. He would have told me how to proceed, yes.

 888 12 BY MR. BUCHANAN:

 888 13 Q. Right.

 888 14 And what you wrote in your report, sir, is

 888 15 that you flipped back the flanges in study 017, 

right?

Re: [888:3-888:11]

Def Objection - asked (611, 

403); cumulative (403)

Re: [888:14-888:21]

Def Objection - foundation 

(602); asked (611, 403); 

cumulative (403)

Re: [888:3-

888:11]

Def Objection -

asked (611, 

403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [888:14-

888:21]

Def Objection -

foundation 

(602); asked 

(611, 403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

888:18 - 888:24 Kieper, Ronald 12-20-2019

 888 18 BY MR. BUCHANAN:

Re: [888:14-888:21]

Def Objection - foundation 

Re: [888:14-

888:21]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 109 of 198
Kieper, Ronald - 12/20/2019 Objection Report 109

 888 19 Q. Right, sir?

 888 20 A. I believe that's -- my comment is in

 888 21 the -- it's in the Comment section of the report.

 888 22 Q. Right.

 888 23 You folded back the flanges in study 017,

 888 24 correct?

(602); asked (611, 403); 

cumulative (403)

Re: [888:23-889:2]

Def Objection - foundation 

(602); asked; misstates (611, 

403); cumulative (403)

Def Objection -

foundation 

(602); asked 

(611, 403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [888:23-

889:2]

Def Objection -

foundation 

(602); asked; 

misstates (611, 

403); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

889:1 - 889:6 Kieper, Ronald 12-20-2019

 889 1 BY THE WITNESS:

 889 2 A. That's -- that's my recollection, yes.

 889 3 BY MR. BUCHANAN:

 889 4 Q. And your recollection, sir, is that you

 889 5 would have done as Mr. Berger instructed you to 

do,

 889 6 isn't that right, sir?

Re: [888:23-889:2]

Def Objection - foundation 

(602); asked; misstates (611, 

403); cumulative (403)

Re: [889:3-889:10]

Def Objection - asked (611, 

403)

Re: [888:23-

889:2]

Def Objection -

foundation 

(602); asked; 

misstates (611, 

403); 

cumulative 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 110 of 198
Kieper, Ronald - 12/20/2019 Objection Report 110

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [889:3-

889:10]

Def Objection -

asked (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [889:9-

889:15]

Def Objection -

relevance (401, 

402); 

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

889:9 - 889:13 Kieper, Ronald 12-20-2019

 889 9 BY THE WITNESS:

Re: [889:3-889:10]

Def Objection - asked (611, 

Re: [889:3-

889:10]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 111 of 198
Kieper, Ronald - 12/20/2019 Objection Report 111

 889 10 A. Yes.

 889 11 BY MR. BUCHANAN:

 889 12 Q. Let's look at some of your correspondence

 889 13 on these NRRs, sir.

403)

Re: [889:9-889:15]

Def Objection - relevance (401, 

402); foundation (602)

Def Objection -

asked (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [889:9-

889:15]

Def Objection -

relevance (401, 

402); 

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

889:17 - 889:19 Kieper, Ronald 12-20-2019

 889 17 Q. This is an e-mail from you, sir, to

 889 18 Mr. Berger, Mr. Hamer and a few other 

individuals. It

 889 19 is from May of 2007.

Re: [889:17-889:19]

Def Objection - 3M MIL No. 

18

Re: [889:17-

889:19]

Def Objection -

3M MIL No. 

18

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 112 of 198
Kieper, Ronald - 12/20/2019 Objection Report 112

890:8 - 890:20 Kieper, Ronald 12-20-2019

 890 8 Q. This is an e-mail from yourself to a

 890 9 series of folks, May 16th, 2007.

 890 10 "I've tested nine subjects in this test.

 890 11 The NRR is 20. The NRR for the previous version 

is

 890 12 21. I assume I should stop this test, yes?" with a

 890 13 question mark.

 890 14 Do you see that?

 890 15 A. Yes, I see that.

 890 16 Q. Okay. That was part of the policy that

 890 17 you had at the Aearo lab at that point in time, sir,

 890 18 of before you went final with your studies, 

checking

 890 19 in with your boss to see if the NRR was good 

enough to

 890 20 go to conclusion, right?

Re: [890:8-890:24]

Def Objection - 3M MIL No. 

18; relevance (401, 402)

Re: [890:8-

890:24]

Def Objection -

3M MIL No. 

18; relevance 

(401, 402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

890:23 - 890:25 Kieper, Ronald 12-20-2019

 890 23 A. I checked with Mr. Berger before I

 890 24 completed the test.

 890 25 BY MR. BUCHANAN:

Re: [890:8-890:24]

Def Objection - 3M MIL No. 

18; relevance (401, 402)

Re: [890:8-

890:24]

Def Objection -

3M MIL No. 

18; relevance 

(401, 402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

894:1 - 894:2 Kieper, Ronald 12-20-2019

 894 1 You spent some time looking at it with 3M counsel

 894 2 today and with me. Is that in the policy manual?

Re: [893:25-894:9]

Def Objection - 3M MIL No. 

18; argumentative; asked; 

misstates (611, 403)

Re: [893:25-

894:9]

Def Objection -

3M MIL No. 

18; 

argumentative; 

asked; 

misstates (611, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 113 of 198
Kieper, Ronald - 12/20/2019 Objection Report 113

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

894:4 - 894:16 Kieper, Ronald 12-20-2019

 894 4 BY THE WITNESS:

 894 5 A. That I check with Mr. Berger?

 894 6 BY MR. BUCHANAN:

 894 7 Q. Yes.

 894 8 A. I don't recall that being in the policy

 894 9 manual.

 894 10 Q. Right.

 894 11 So when the NVLAP folks come in to look at

 894 12 things and look at your policies and procedures and

 894 13 see whether you are doing science or whether you 

are

 894 14 fishing for NRRs or trying to protect NRRs for

 894 15 marketing purposes, that's not a policy they see

 894 16 written down in your manuals, right, sir?

Re: [893:25-894:9]

Def Objection - 3M MIL No. 

18; argumentative; asked; 

misstates (611, 403)

Re: [894:11-894:20]

Def Objection - 3M MIL No. 

18; asked; misstates; 

argumentative (611, 403)

Re: [893:25-

894:9]

Def Objection -

3M MIL No. 

18; 

argumentative; 

asked; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [894:11-

894:20]

Def Objection -

3M MIL No. 

18; asked; 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 114 of 198
Kieper, Ronald - 12/20/2019 Objection Report 114

proposed 

clarification 

excluded.

894:18 - 894:20 Kieper, Ronald 12-20-2019

 894 18 BY THE WITNESS:

 894 19 A. That policy is not written down that I'm

 894 20 aware of.

Re: [894:11-894:20]

Def Objection - 3M MIL No. 

18; asked; misstates; 

argumentative (611, 403)

Re: [894:11-

894:20]

Def Objection -

3M MIL No. 

18; asked; 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

903:16 - 904:2 Kieper, Ronald 12-20-2019

 903 16 Q. Here, sir, just to satisfy you.

 903 17 Here we are, sir, looking at Exhibit 14,

 903 18 it should be on the Elmo, you see here for test

 903 19 213017?

 903 20 A. Yes.

 903 21 Q. It reads: "The yellow flanges of the

 903 22 Combat Arms end of the plug were folded back 

prior to

 903 23 the plug being fit."

 903 24 Did I read that correctly, sir?

 903 25 A. Yes.

 904 1 Q. You don't doubt that's what you did,

 904 2 right?

904:5 - 904:5 Kieper, Ronald 12-20-2019

 904 5 A. I don't doubt that.

910:11 - 910:14 Kieper, Ronald 12-20-2019

 910 11 Q. This -- this study 213015 we talked about

 910 12 a moment ago, every person that you had tested in 

that

Re: [910:11-910:25]

Def Objection - cumulative 

(403)

Re: [910:11-

910:25]

Def Objection -

cumulative 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 115 of 198
Kieper, Ronald - 12/20/2019 Objection Report 115

 910 13 study you had checked the fit on three ways before 

you

 910 14 administered each of the tests to them, right?

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

910:16 - 910:25 Kieper, Ronald 12-20-2019

 910 16 BY THE WITNESS:

 910 17 A. Yes, we fit the plug the way we always fit

 910 18 plugs.

 910 19 BY MR. BUCHANAN:

 910 20 Q. Right.

 910 21 You got the best fit on every one of those

 910 22 people, every one of the eight before Mr. Berger

 910 23 terminated the study, you got the best fit before 

you

 910 24 walked out of that room and started the test, isn't

 910 25 that right, sir?

Re: [910:11-910:25]

Def Objection - cumulative 

(403)

Re: [910:11-

910:25]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

911:2 - 911:7 Kieper, Ronald 12-20-2019

 911 2 BY THE WITNESS:

 911 3 A. That was my goal.

 911 4 BY MR. BUCHANAN:

 911 5 Q. Your conclusion was they were adequately

 911 6 fit before you walked out of that room, isn't that

 911 7 true, sir?

Re: [911:5-911:10]

Def Objection - foundation 

(602)

Re: [911:5-

911:10]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

911:9 - 911:13 Kieper, Ronald 12-20-2019

 911 9 BY THE WITNESS:

 911 10 A. That was my assumption.

 911 11 BY MR. BUCHANAN:

Re: [911:5-911:10]

Def Objection - foundation 

(602)

Re: [911:12-912:1]

Re: [911:5-

911:10]

Def Objection -

foundation 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 116 of 198
Kieper, Ronald - 12/20/2019 Objection Report 116

 911 12 Q. That was your conclusion because you

 911 13 wouldn't have run the test unless you did?

Def Objection - argumentative; 

asked; misstates (611, 403)

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [911:12-

912:1]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

911:15 - 911:16 Kieper, Ronald 12-20-2019

 911 15 BY MR. BUCHANAN:

 911 16 Q. Right?

Re: [911:12-912:1]

Def Objection - argumentative; 

asked; misstates (611, 403)

Re: [911:12-

912:1]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 117 of 198
Kieper, Ronald - 12/20/2019 Objection Report 117

911:22 - 912:1 Kieper, Ronald 12-20-2019

 911 22 A. I believe that -- I believe that I was

 911 23 fitting the plug as well as it could be fit.

 911 24 Q. You believed each and every one of those

 911 25 people was adequately fit before you administered 

the

 912 1 test, true, sir?

Re: [911:12-912:1]

Def Objection - argumentative; 

asked; misstates (611, 403)

Re: [911:12-

912:1]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

912:7 - 912:9 Kieper, Ronald 12-20-2019

 912 7 A. I believed that the fit that we obtained

 912 8 on each subject, each fit was the best that could be

 912 9 gotten at that time, yes.

Re: [912:6-912:9]

Def Objection - argumentative; 

asked; misstates (611, 403)

Re: [912:6-

912:9]

Def Objection -

argumentative; 

asked; 

misstates (611, 

403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

913:2 - 913:4 Kieper, Ronald 12-20-2019

 913 2 Q. And what you wrote, sir, and what you told

 913 3 Mr. Berger is that you saw imperceptible loosening,

 913 4 right?

Re: [913:2-913:7]

Def Objection - cumulative 

(403)

Re: [913:2-

913:7]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 118 of 198
Kieper, Ronald - 12/20/2019 Objection Report 118

because 

proposed 

clarification 

excluded.

913:6 - 913:23 Kieper, Ronald 12-20-2019

 913 6 BY THE WITNESS:

 913 7 A. That's what I wrote.

 913 8 BY MR. BUCHANAN:

 913 9 Q. And there is some discussion about a

 913 10 paragraph in the flange report about whether you'd

 913 11 observed anything about the shortness of the plug.

 913 12 Do you remember that?

 913 13 A. I remember talking about the -- the length

 913 14 of the plug.

 913 15 Q. You observed something about the shortness

 913 16 of the plug, didn't you, sir? You said it was so

 913 17 short, right, your observation?

 913 18 A. It was so short.

 913 19 Q. It was so short it was difficult to fit it

 913 20 in deeply, right?

 913 21 A. In some subjects' ear canals.

 913 22 Q. Yeah, the some that had medium and larger,

 913 23 right --

Re: [913:2-913:7]

Def Objection - cumulative 

(403)

Re: [913:9-913:21]

Def Objection - cumulative 

(403)

Re: [913:21-914:8]

Def Objection - asked; 

argumentative (611, 403)

Re: [913:2-

913:7]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [913:9-

913:21]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [913:21-

914:8]

Def Objection -

asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 119 of 198
Kieper, Ronald - 12/20/2019 Objection Report 119

Excluded 

because 

proposed 

clarification 

excluded.

913:25 - 914:1 Kieper, Ronald 12-20-2019

 913 25 BY MR. BUCHANAN:

 914 1 Q. -- ear canals, that's what you wrote?

Re: [913:21-914:8]

Def Objection - asked; 

argumentative (611, 403)

Re: [913:9-

913:21]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [913:21-

914:8]

Def Objection -

asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

914:3 - 914:11 Kieper, Ronald 12-20-2019

 914 3 BY THE WITNESS:

 914 4 A. It says especially, yes --

 914 5 BY MR. BUCHANAN:

 914 6 Q. Right.

 914 7 A. -- with medium and larger ear canals.

 914 8 Q. Right.

Re: [913:21-914:8]

Def Objection - asked; 

argumentative (611, 403)

Re: [914:9-914:17]

Def Objection - asked; 

misstates; argumentative (611, 

403)

Re: [913:9-

913:21]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 120 of 198
Kieper, Ronald - 12/20/2019 Objection Report 120

 914 9 So not just with those with medium and

 914 10 larger, but it's worse in people with medium and

 914 11 larger, right?

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [913:21-

914:8]

Def Objection -

asked; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [914:9-

914:17]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

914:13 - 914:14 Kieper, Ronald 12-20-2019

 914 13 BY MR. BUCHANAN:

 914 14 Q. Especially in them?

Re: [914:9-914:17]

Def Objection - asked; 

misstates; argumentative (611, 

403)

Re: [914:9-

914:17]

Def Objection -

asked; 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 121 of 198
Kieper, Ronald - 12/20/2019 Objection Report 121

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

914:16 - 915:1 Kieper, Ronald 12-20-2019

 914 16 BY THE WITNESS:

 914 17 A. That's what it states.

 914 18 BY MR. BUCHANAN:

 914 19 Q. And then you note additional issues,

 914 20 right? "Additionally, the geometry of the ear canal

 914 21 opening sometimes inhibited the deep plug 

insertion

 914 22 required," right?

 914 23 A. That's what I stated, yes.

 914 24 Q. It wasn't just the shortness, something

 914 25 else about the design that inhibited with the 

geometry

 915 1 of the ear canal, right?

Re: [914:9-914:17]

Def Objection - asked; 

misstates; argumentative (611, 

403)

Re: [914:24-915:7]

Def Objection - cumulative 

(403)

Re: [914:9-

914:17]

Def Objection -

asked; 

misstates; 

argumentative 

(611, 403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [914:24-

915:7]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 122 of 198
Kieper, Ronald - 12/20/2019 Objection Report 122

915:3 - 915:17 Kieper, Ronald 12-20-2019

 915 3 BY MR. BUCHANAN:

 915 4 Q. That's what you wrote?

 915 5 A. It says, yes, "the geometry of the ear

 915 6 canal opening sometimes inhibited the deep plug

 915 7 insertion."

 915 8 Q. And then you further noted that "when the

 915 9 plug was fitted, the third flange could press against

 915 10 the subject's ear canal opening and fold up," right?

 915 11 A. Again, that's what I wrote.

 915 12 Q. And the consequence of that, as you noted

 915 13 here based on your observations, was that it could

 915 14 loosen the plug, right?

 915 15 A. That's right.

 915 16 Q. Sometimes imperceptibly to the subject,

 915 17 right?

Re: [914:24-915:7]

Def Objection - cumulative 

(403)

Re: [915:8-915:15]

Def Objection - cumulative 

(403)

Re: [915:16-915:20]

Def Objection - foundation 

(602)

Re: [914:24-

915:7]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [915:8-

915:15]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [915:16-

915:20]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 123 of 198
Kieper, Ronald - 12/20/2019 Objection Report 123

915:19 - 916:6 Kieper, Ronald 12-20-2019

 915 19 BY THE WITNESS:

 915 20 A. Yes.

 915 21 BY MR. BUCHANAN:

 915 22 Q. Okay. Now, there was some discussion with

 915 23 3M counsel about whether you observed any fit 

problems

 915 24 in study 016.

 915 25 Do you recall that?

 916 1 A. I recall talking about 016.

 916 2 Q. I mean, 016 was that study that was done

 916 3 on the yellow end, right?

 916 4 A. Yes.

 916 5 Q. The one that Mr. Berger didn't stop,

 916 6 right?

Re: [915:16-915:20]

Def Objection - foundation 

(602)

Re: [915:22-916:6]

Def Objection - cumulative 

(403)

Re: [915:16-

915:20]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [915:22-

916:6]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

916:8 - 916:24 Kieper, Ronald 12-20-2019

 916 8 BY THE WITNESS:

 916 9 A. That's right, we completed it.

 916 10 BY MR. BUCHANAN:

 916 11 Q. The one that -- the one that he allowed to

 916 12 go to completion and that yielded a 0 NRR --

actually

 916 13 a negative 2 NRR, right, sir?

 916 14 A. That's the -- yes, that was what the NRR

 916 15 computed to.

 916 16 Q. Right.

 916 17 The actual NRR on the study computed to a

 916 18 negative 2, right?

Re: [916:7-916:9]

Def Objection - cumulative 

(403)

Re: [916:11-916:22]

Def Objection - cumulative 

(403)

Re: [916:23-917:2]

Def Objection - asked; 

misstates (611, 403); 

foundation (602)

Re: [916:7-

916:9]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 124 of 198
Kieper, Ronald - 12/20/2019 Objection Report 124

 916 19 A. That's correct.

 916 20 Q. The company reported a 0, right?

 916 21 A. Yes, that's what they labeled the plug

 916 22 with.

 916 23 Q. Okay. In fact, there were fit issues in

 916 24 that study, isn't that true, sir?

Re: [916:11-

916:22]

Def Objection -

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [916:23-

917:2]

Def Objection -

asked; 

misstates (611, 

403); 

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

917:1 - 917:2 Kieper, Ronald 12-20-2019

 917 1 BY THE WITNESS:

 917 2 A. Not that I'm aware of.

Re: [916:23-917:2]

Def Objection - asked; 

misstates (611, 403); 

foundation (602)

Re: [916:23-

917:2]

Def Objection -

asked; 

misstates (611, 

403); 

foundation 

(602)

SUSTAINED 

as to [853:12-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 125 of 198
Kieper, Ronald - 12/20/2019 Objection Report 125

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

917:7 - 917:14 Kieper, Ronald 12-20-2019

 917 7 You've given prior testimony concerning

 917 8 this flange report, haven't you, sir?

 917 9 A. In my deposition yesterday and today?

 917 10 Q. You gave testimony back in 2015 in another

 917 11 proceeding, didn't you, sir?

 917 12 A. Yes, I was deposed in another proceeding.

 917 13 Q. Okay. Isn't it true, sir, that there were

 917 14 subjects in study 213016 that were poorly fit?

Re: [917:13-917:18]

Def Objection - foundation 

(602)

Re: [917:13-

917:18]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

917:16 - 917:18 Kieper, Ronald 12-20-2019

 917 16 BY THE WITNESS:

 917 17 A. I don't recall that they -- details about

 917 18 that study.

Re: [917:13-917:18]

Def Objection - foundation 

(602)

Re: [917:13-

917:18]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

917:24 - 918:1 Kieper, Ronald 12-20-2019

 917 24 BY MR. BUCHANAN:

 917 25 Q. What is your testimony on the fit in 016,

 918 1 sir?

Re: [917:25-918:5]

Def Objection - foundation 

(602)

Re: [917:25-

918:5]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 126 of 198
Kieper, Ronald - 12/20/2019 Objection Report 126

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

918:3 - 918:10 Kieper, Ronald 12-20-2019

 918 3 BY THE WITNESS:

 918 4 A. I don't remember any fitting problems in

 918 5 test 016.

 918 6 BY MR. BUCHANAN:

 918 7 Q. Okay. Well, let's refresh your

 918 8 recollection with your prior testimony.

 918 9 MR. BUCHANAN: Could we please have Mr. 

Kieper's

 918 10 deposition from 10/9/2015.

Re: [917:25-918:5]

Def Objection - foundation 

(602)

Re: [918:7-918:12]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [917:25-

918:5]

Def Objection -

foundation 

(602)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [918:7-

918:12]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed

clarification 

excluded.

Re: [918:12-

919:17]

Def Objection -

improper 

impeachment

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 127 of 198
Kieper, Ronald - 12/20/2019 Objection Report 127

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

918:12 - 918:12 Kieper, Ronald 12-20-2019

 918 12 MR. BUCHANAN: Page 109, Line 20 to Page 

110.

Re: [918:7-918:12]

Def Objection - relevance (401, 

402); cumulative (403)

Re: [918:12-919:17]

Def Objection - improper 

impeachment

Re: [918:7-

918:12]

Def Objection -

relevance (401, 

402); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [918:12-

919:17]

Def Objection -

improper 

impeachment

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

918:14 - 919:17 Kieper, Ronald 12-20-2019

 918 14 MR. BUCHANAN: You can play it.

 918 15 (Video played, as follows:

Re: [918:12-919:17]

Def Objection - improper 

impeachment

Re: [918:7-

918:12]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 128 of 198
Kieper, Ronald - 12/20/2019 Objection Report 128

 918 16 "Q. Anyway, sir, coming back to

 918 17 the exam, doesn't it look to you like

 918 18 on Exhibit 5205, the 213016 test,

 918 19 that GWG in the second trial had a

 918 20 poorly fit hearing protection device?

 918 21 "A. The fit -- the second fit

 918 22 was not as good as the fit -- the

 918 23 first fit. That is apparent from the

 918 24 results, yes. That's what I would

 918 25 say.

 919 1 "Q. And the effect of that

 919 2 second test -- withdrawn.

 919 3 That second test being a poor

 919 4 fit could have been caused because

 919 5 the green flanges were causing the

 919 6 yellow end to come out of GWG's ear,

 919 7 correct?

 919 8 "A. That's possible, sure.

 919 9 "Q. But you never did this test

 919 10 rolling back the flange on the green

 919 11 end while testing the yellow end,

 919 12 correct?

 919 13 "A. Not to my recollection, no.

 919 14 I wouldn't have done that.

 919 15 "Q. And Mr. Berger didn't ask

 919 16 you to do it?

 919 17 "A. He did not.")

relevance (401, 

402); 

cumulative 

(403)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

Re: [918:12-

919:17]

Def Objection -

improper 

impeachment

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

920:6 - 920:9 Kieper, Ronald 12-20-2019

 920 6 Q. Sir, and that's your prior testimony from

 920 7 four years ago concerning study 213016.

 920 8 You are not recanting your prior testimony

 920 9 from 2015, are you, sir?

Re: [920:6-920:18]

Def Objection - relevance (401, 

402)

Re: [920:6-

920:18]

Def Objection -

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 129 of 198
Kieper, Ronald - 12/20/2019 Objection Report 129

excluded.

920:11 - 920:14 Kieper, Ronald 12-20-2019

 920 11 BY THE WITNESS:

 920 12 A. No. It's -- it's on the screen.

 920 13 BY MR. BUCHANAN:

 920 14 Q. You agree with it, right?

Re: [920:6-920:18]

Def Objection - relevance (401, 

402)

Re: [920:6-

920:18]

Def Objection -

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

920:16 - 920:18 Kieper, Ronald 12-20-2019

 920 16 BY THE WITNESS:

 920 17 A. I agree that, like I said, fit two was --

 920 18 didn't give as much protection as the first fit did.

Re: [920:6-920:18]

Def Objection - relevance (401, 

402)

Re: [920:6-

920:18]

Def Objection -

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

excluded.

922:4 - 922:19 Kieper, Ronald 12-20-2019

 922 4 BY MR. BUCHANAN:

 922 5 Q. All right. Could we roll, please, your

 922 6 testimony from October 9, 2015, Page 111, 14 to 

20.

 922 7 (Video played, as follows:

 922 8 "Q. Looking at this, don't you

 922 9 believe -- doesn't it look to you

 922 10 like in trial two, the hearing

 922 11 protection device, the yellow end,

 922 12 was not fit as well as in trial one?

 922 13 "A. That -- apparently from the

Re: [922:4-922:9]

Def Objection - relevance (401, 

402)

Re: [922:4-

922:9]

Def Objection -

relevance (401, 

402)

SUSTAINED 

as to [853:12-

933:12]—

Excluded 

because 

proposed 

clarification 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 130 of 198
Kieper, Ronald - 12/20/2019 Objection Report 130

 922 14 results. That -- that -- that's

 922 15 probably the case, yes.")

 922 16 BY MR. BUCHANAN:

 922 17 Q. That was your testimony in 2015 concerning

 922 18 fit in study 213016, correct, sir?

 922 19 A. For GWG, yes.

excluded.

923:24 - 924:2 Kieper, Ronald 12-20-2019

 923 24 Q. Okay. Sir, passing you what we've just

 923 25 marked as Exhibit 86 to your deposition, this is an

 924 1 e-mail from a Brian Myers to Eric Fallon, cc'd to 

Doug

 924 2 Moses.

924:19 - 925:7 Kieper, Ronald 12-20-2019

 924 19 Do you have before you Exhibit 86, sir?

 924 20 A. Yes, I do.

 924 21 Q. It is an e-mail from Mr. Myers to Eric

 924 22 Fallon, Doug Moses. It says: "Thank you."

 924 23 Do you see that?

 924 24 A. I see that.

 924 25 Q. Mr. Myers is writing and he -- moving into

 925 1 the middle, he says: "I would just offer a couple of

 925 2 constructive comments."

 925 3 Do you see that?

 925 4 A. Oh, second, yes, I see that.

 925 5 Q. And underneath it says "Combat Arms

 925 6 Earplugs," right?

 925 7 A. Yes.

926:1 - 926:4 Kieper, Ronald 12-20-2019

 926 1 And so what he is writing here a little

 926 2 later, shortly before you stop selling them because

 926 3 the NRR of 22 couldn't be used on a label anymore, 

he

 926 4 writes this e-mail to Mr. Fallon, right?

926:7 - 926:21 Kieper, Ronald 12-20-2019

 926 7 A. He wrote the e-mail to Mr. Fallon in July

 926 8 of 2015.

 926 9 BY MR. BUCHANAN:

 926 10 Q. He says: "Combat Arms Earplugs -

 926 11 something I have always noticed with the Combat 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 131 of 198
Kieper, Ronald - 12/20/2019 Objection Report 131

Arms

 926 12 is that I never feel like they are working because I

 926 13 am used to that 'plugged up' distorted listening 

with

 926 14 convention" -- "with a conventional earplug."

 926 15 Do you see that, sir?

 926 16 A. I see that.

 926 17 Q. That's because the Combat Arms on the

 926 18 yellow side, the side that soldiers are supposed to

 926 19 wear when they are going to be exposed to fire or 

on

 926 20 the range or impulse noises had "hear-through" 

claims,

 926 21 right?

926:24 - 927:5 Kieper, Ronald 12-20-2019

 926 24 A. I remember hearing that term

 926 25 "hear-through."

 927 1 BY MR. BUCHANAN:

 927 2 Q. Right.

 927 3 Because when you had the open end in your

 927 4 ears, you were supposed to be able to hear-through,

 927 5 right?

927:8 - 927:9 Kieper, Ronald 12-20-2019

 927 8 A. When I've worn the plug I can hear people

 927 9 converse, yes.

929:7 - 929:12 Kieper, Ronald 12-20-2019

 929 7 And so that whole discussion you were

 929 8 having with counsel about being in that quiet room

 929 9 out -- people can't really tell if earplugs are

 929 10 imperceptibly listening because it is so quiet, that's

 929 11 a different story with the yellow end of the plug,

 929 12 right?

929:15 - 929:16 Kieper, Ronald 12-20-2019

 929 15 Q. Because you don't get that plugged up

 929 16 feeling with the yellow end of the plug, do you?

929:19 - 929:25 Kieper, Ronald 12-20-2019

 929 19 A. Mr. Myers doesn't.

 929 20 BY MR. BUCHANAN:

 929 21 Q. Right.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 132 of 198
Kieper, Ronald - 12/20/2019 Objection Report 132

 929 22 You don't get that plugged up distorted

 929 23 listening feeling like you do with a conventional

 929 24 earplug, right?

 929 25 A. That's what Mr. Myers said.

931:23 - 932:5 Kieper, Ronald 12-20-2019

 931 23 BY MR. BUCHANAN:

 931 24 Q. And Mr. Myers when he was writing to his

 931 25 colleagues said as the brand -- product manager of

 932 1 this product at the outset, "The one thing I've 

always

 932 2 noticed" -- "Something I have always noticed with 

the

 932 3 Combat Arms is that I never feel like they are

 932 4 working."

 932 5 Isn't that what he wrote?

932:9 - 932:9 Kieper, Ronald 12-20-2019

 932 9 A. That's what he wrote.

933:11 - 933:12 Kieper, Ronald 12-20-2019

 933 11 MR. BUCHANAN: Mr. Kieper, thank you. I 

have no

 933 12 further questions at this time. We have our

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 133 of 198
Knauer, Richard 12-17-2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 134 of 198
Knauer, Richard 12-17-2019 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

8:6 - 8:10 Knauer, Richard 12-17-2019

 8 6 BY MR. MONSOUR:

 8 7 Q. Good morning.

 8 8 A. Good morning.

 8 9 Q. What's your name?

 8 10 A. Richard Knauer.

8:18 - 8:24 Knauer, Richard 12-17-2019

 8 18 Q. Okay. What do you do for a living?

 8 19 A. I am retired.

 8 20 Q. Okay. How long have you been retired?

 8 21 A. I have been retired since 2006.

 8 22 Q. Okay. And who did you work for when you

 8 23 retired?

 8 24 A. I worked for Aearo.

8:25 - 9:4 Knauer, Richard 12-17-2019

 8 25 Q. And why did you retire in 2006?

 9 1 A. I was 60 years old, had three young

 9 2 grandchildren, my wife was retiring, and I wanted

 9 3 to -- and my wife and I enjoy time together, so I

 9 4 wanted to make sure we had a lot of time together.

9:10 - 10:1 Knauer, Richard 12-17-2019

 9 10 Q. Okay. Did you ever work for 3M?

 9 11 A. I -- after I retired from Aearo in -- in

 9 12 2006, I went back to work for Aearo at that time as a

 9 13 consultant and continued to work for Aearo for about

 9 14 three, three-and-a-half years, and I believe in that

 9 15 period of time -- definitely in that period of time 3M

 9 16 purchased Aearo, yes.

 9 17 Q. Okay. So you retired from working full

 9 18 time in 2006.

 9 19 Could you tell me exactly when in 2006?

 9 20 A. It was April 30th, 2006.

 9 21 Q. Okay. And then how long did you work as a

 9 22 consultant?

 9 23 A. I worked two different stints as a

 9 24 consultant. The original time I worked from 2006 to,

 9 25 I believe 2009, possibly a little bit in 2010. I

 10 1 don't have all -- I don't remember all of the details.

10:2 - 10:17 Knauer, Richard 12-17-2019

 10 2 But I --

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 135 of 198
Knauer, Richard 12-17-2019 3

 10 3 Q. Okay.

 10 4 A. And in the beginning it was fairly many

 10 5 days a week and at the end it was on a very limited

 10 6 basis.

 10 7 Q. Okay.

 10 8 A. And then, after that, I then stopped

 10 9 consulting, but because an individual had passed away

 10 10 unexpectedly, that had experience in materials

 10 11 development, which was my specialty, I advised the

 10 12 technical director, Jeff Hamer, that I would come back

 10 13 and do some consulting again on materials development,

 10 14 which is, again, my specialty. So that was in 2013.

 10 15 The spring of 2013, maybe February, March, April, and

 10 16 did that for two to -- I believe three years, up to

 10 17 three years.

12:1 - 12:8 Knauer, Richard 12-17-2019

 12 1 Q. When you retired, what was your title?

 12 2 A. Technical director.

 12 3 Q. And you have a Bachelor of Science degree,

 12 4 correct?

 12 5 A. I have a Bachelor of Science, a major in

 12 6 math, minor in chemistry.

 12 7 Q. Okay. And then you have an MBA, too?

 12 8 A. I have an MBA, yes.

Re: [12:1-13:8]

improper counter

SUSTAINED

12:9 - 12:18 Knauer, Richard 12-17-2019

 12 9 Q. And where did you get your bachelor's

 12 10 from?

 12 11 A. University of Toledo.

 12 12 Q. Okay. And then where did you get your

 12 13 MBA?

 12 14 A. Indiana University.

 12 15 Q. Okay. Where are you from?

 12 16 A. I am from Toledo, Ohio.

 12 17 Q. Okay.

 12 18 A. Originally.

Re: [12:1-13:8]

improper counter

SUSTAINED

12:19 - 13:3 Knauer, Richard 12-17-2019

 12 19 Q. And how did you end up with Aearo?

 12 20 A. I worked after college, I worked for a

 12 21 company called Owens-Illinois in the metal closure

 12 22 division and materials development issues, or

 12 23 materials development. I worked for them in Toledo,

 12 24 Ohio and Glassboro, New Jersey for several years, I

Re: [12:1-13:8]

improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 136 of 198
Knauer, Richard 12-17-2019 4

 12 25 think roughly 10 or 11 years. I was looking for a

 13 1 growth opportunity, saw it in Aearo, which at that

 13 2 time was called E-A-R, and joined that company in

 13 3 1979.

13:4 - 13:8 Knauer, Richard 12-17-2019

 13 4 Q. So you worked full time for Aearo or

 13 5 various versions of it from 1979 to 2006?

 13 6 A. That's correct.

 13 7 Q. Did you like the company?

 13 8 A. Yes.

Re: [12:1-13:8]

improper counter

OVERRULED

13:9 - 13:13 Knauer, Richard 12-17-2019

 13 9 Q. What was your work relationship, and I'm

 13 10 talking about hierarchy, with Elliott Berger?

 13 11 Were you his supervisor?

 13 12 A. At times -- yes, many times I was his

 13 13 supervisor.

13:14 - 13:17 Knauer, Richard 12-17-2019

 13 14 Q. Okay.

 13 15 A. Sometimes I wasn't; sometimes I was. They

 13 16 changed, they were continually changing the

 13 17 arrangement.

13:18 - 14:1 Knauer, Richard 12-17-2019

 13 18 Q. And then there is a man by the name of, I

 13 19 think, Ron Kieper?

 13 20 A. Yes.

 13 21 Q. Were you his supervisor as well?

 13 22 A. Elliott Berger was his supervisor.

 13 23 Q. Okay. So Kieper reported to Berger,

 13 24 Berger reported to you?

 13 25 A. At -- certainly at the end of the -- at --

 14 1 at one point, yes.

14:9 - 14:18 Knauer, Richard 12-17-2019

 14 9 Q. Okay. I've got a document here, and this

 14 10 document, it says several things, but I don't really

 14 11 care about a lot of what it says. I'm just trying to

 14 12 get some background and to kind of put people in

 14 13 perspective, and it -- it has kind of a simple

 14 14 biography for you, so I want to go through it and see

 14 15 if it's accurate?

 14 16 A. Okay.

 14 17 Q. Okay?

 14 18 A. Yes.

Re: [14:9-14:18]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 137 of 198
Knauer, Richard 12-17-2019 5

14:25 - 15:2 Knauer, Richard 12-17-2019

 14 25 Q. Okay. This is Knauer Exhibit 1. Here you

 15 1 go, sir.

 15 2 A. Okay.

Re: [14:25-15:2]

improper counter

SUSTAINED

15:13 - 16:14 Knauer, Richard 12-17-2019

 15 13 Q. It says: "Dick is the Senior Technical

 15 14 Director For Passive Hearing Protection for Aearo

 15 15 Company, with the overall responsibility for

 15 16 development of new passive hearing products, has

 15 17 worked for the company for 26 years in a variety of

 15 18 technical areas related to development, evaluation,

 15 19 and testing of hearing protection and noise control

 15 20 products."

 15 21 Did I get that right?

 15 22 A. Yes.

 15 23 Q. "Dick has a BS from the University of

 15 24 Toledo and an MBA from the University of Indiana. He

 15 25 holds several patents, including one for the

 16 1 technology used to manufacture the SuperFit style of

 16 2 multi-layered foam earplug."

 16 3 Did I get that right?

 16 4 A. That is correct.

 16 5 Q. "With the exception of the Classic foam

 16 6 earplug, Dick has worked on and/or overseen

 16 7 development of nearly all passive hearing protection

 16 8 products that are currently sold by Aearo. He is a

 16 9 member of The Society of Plastics Engineers and a

 16 10 former member and officer (vice president) of the

 16 11 Hearing Protection Committee of the International

 16 12 Safety Equipment Association."

 16 13 Did I get that right?

 16 14 A. Yes.

Re: [15:13-16:14]

improper counter

SUSTAINED

16:18 - 16:21 Knauer, Richard 12-17-2019

 16 18 Q. And this is about a year before you

 16 19 retired, if we look at this front page, it says May

 16 20 of 2005, correct?

 16 21 A. Yes.

Re: [16:18-16:21]

improper counter

SUSTAINED

18:14 - 18:25 Knauer, Richard 12-17-2019

 18 14 Q. What do you think of the Combat Arms

 18 15 Version 2 earplug?

 18 16 A. It is a good product. It -- I -- we heard

 18 17 many, many comments back about how -- lives it saved

Re: [18:14-18:25]

Plt Objection - improper counter

Re: [18:14-

18:25]

Plt Objection -

Improper 

Counter 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 138 of 198
Knauer, Richard 12-17-2019 6

 18 18 and that type of thing, as I remember.

 18 19 Q. Did you ever hear any criticisms of the

 18 20 product?

 18 21 A. I don't remember any criticisms. It would

 18 22 not be unusual, any project that's developed, you are

 18 23 going to get an occasional criticism. So it's

 18 24 possible that there were criticisms. I don't remember

 18 25 any, but it's possible there were criticisms.

Designation per 

PTO 64; 402

OVERRULED

19:9 - 19:10 Knauer, Richard 12-17-2019

 19 9 Q. Do you consider Elliott Berger to be the

 19 10 primary inventor of the Combat Arms Version 2 plug?

Re: [19:9-19:18]

Plt Objection - improper counter

Re: [19:9-19:18]

Plt Objection -

Improper 

Counter 

Designation per

PTO 64; 402; 

nonresponsive 

SUSTAINED

19:12 - 19:18 Knauer, Richard 12-17-2019

 19 12 BY THE WITNESS:

 19 13 A. The product -- the concept was Elliott

 19 14 Berger was the project manager for development of the

 19 15 thing -- of the concept. The product was developed

 19 16 through working with the military and taking feedback

 19 17 back and forth from the military about what they

 19 18 wanted in the product.

Re: [19:9-19:18]

Plt Objection - improper counter

Re: [19:9-19:18]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 402; 

nonresponsive 

SUSTAINED

25:21 - 26:3 Knauer, Richard 12-17-2019

 25 21 Q. Okay. Is Elliott good at his job?

 25 22 A. Yes.

 25 23 Q. Is Elliott a competent, capable person?

 25 24 A. Yes.

 25 25 Q. Is he smart?

 26 1 A. Yes.

 26 2 Q. Does he pay attention to detail?

 26 3 A. Yes, he pays attention to detail.

Re: [25:21-26:3]

improper counter; bolstering

SUSTAINED

50:23 - 52:2 Knauer, Richard 12-17-2019

 50 23 Q. Is there a way when you are testing people

 50 24 for an NRR that -- are there ways to kind of game the

 50 25 system or manipulate the system to alter what the NRR

 51 1 results are?

 51 2 A. To game the system, I don't understand

 51 3 what you mean.

 51 4 Q. Are there ways that you can -- you can, I

 51 5 guess, massage the data to get a better NRR?

Re: [50:23-51:14]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [51:15-52:2]

Def Objection - 3M MIL No. 23, 

Relevance (401, 402), Prejudice 

(403)

Re: [50:23-

51:14]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 139 of 198
Knauer, Richard 12-17-2019 7

 51 6 A. If there are ways to do it, we would not

 51 7 do that.

 51 8 Q. Are there ways to do it?

 51 9 A. There -- there might -- there might be

 51 10 ways to do it, but we wouldn't do it.

 51 11 Q. What are some of the ways that there might

 51 12 be that you could do it?

 51 13 A. I'm not even sure. I never thought about

 51 14 massaging data, so...

 51 15 Q. Could -- is one of the ways you could do

 51 16 it, could you hand select certain people to be tested

 51 17 that you know from past experience get certain

 51 18 results?

 51 19 Is that one way?

 51 20 A. Certainly if certain individuals get

 51 21 better results on products, for whatever reason, and

 51 22 showed consistency in results, the ability to hand

 51 23 select subjects could increase your chances of having

 51 24 a higher NRR.

 51 25 Q. So that would be one way that if a company

 52 1 wanted to massage the data, they could, I guess,

 52 2 cherry pick the people they test, true?

Re: [51:15-52:2]

Def Objection -

3M MIL No. 23, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

52:5 - 52:8 Knauer, Richard 12-17-2019

 52 5 A. I -- I -- again, I wouldn't -- I mean,

 52 6 when you say -- when you call it "massage the data,"

 52 7 you -- you could pick subjects that are more -- get

 52 8 more consistent results.

Re: [52:5-52:8]

Def Objection - 3M MIL No. 23, 

Relevance (401, 402), Prejudice 

(403)

Re: [52:5-52:8]

Def Objection -

3M MIL No. 23, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

52:24 - 54:8 Knauer, Richard 12-17-2019

 52 24 Q. Mr. Knauer, I wanted to ask you, were you

 52 25 ever involved in the testing of earplugs and -- as the

 53 1 tests were going on, the REAT testing?

 53 2 A. When you say "involved," I'm just trying

 53 3 to understand your question.

 53 4 Q. Sure.

 53 5 A lot of times in these REAT test -- REAT,

 53 6 I'll call it REAT?

 53 7 A. Yes.

 53 8 Q. Tests, they would test, let's say, ten

 53 9 people, correct?

 53 10 A. If -- if you were doing an official REAT

Re: [52:24-53:4]

Def Objection - Vague (403)

Re: [53:5-54:8]

Def Objection - 3M MIL No. 18, 

Relevance (401, 402), Prejudice 

(403)

Re: [54:6-54:8]

Def Objection - 3M MIL No. 18, 

Relevance (401, 402), Prejudice 

(403), Foundation (602); Vague 

(611, 402)

Re: [52:24-53:4]

Def Objection -

Vague (403)

OVERRULED

Re: [53:5-54:8]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [54:6-54:8]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 140 of 198
Knauer, Richard 12-17-2019 8

 53 11 test, you test ten people, that's correct.

 53 12 Q. Okay. And would you ever get updates on

 53 13 how the testing was going before they got to ten

 53 14 people?

 53 15 A. Yes, sometimes I got updates, yes.

 53 16 Q. And why would you be given updates prior

 53 17 to the completion of ten people?

 53 18 A. Trying to understand what -- what the data

 53 19 was looking at -- like through X number of subjects,

 53 20 whatever number of subjects it was.

 53 21 Q. Did you all ever stop the testing before

 53 22 you got to ten because you didn't like what the NRR

 53 23 was looking like?

 53 24 A. We did on sometimes stop the testing if

 53 25 there was a -- if the project goal was to hit a

 54 1 certain number and we were not going to be close to it

 54 2 and it was apparent that we were not going to get

 54 3 there with doing ten people, there was lit -- nothing

 54 4 to be gained, nothing to be learned by continuing, so

 54 5 sometimes we did stop, yes.

 54 6 Q. Now, why is ten the magic number? Why --

 54 7 once you got to ten, did it trigger some sort of a --

 54 8 a duty by the company?

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), 

Foundation 

(602); Vague 

(611, 402)

OVERRULED

54:11 - 54:21 Knauer, Richard 12-17-2019

 54 11 A. No. Ten -- ten is -- ten is what's called

 54 12 for in the ANSI standard, I believe, or the EPA

 54 13 regulation, one of them, so ten -- ten is the official

 54 14 test, but it just we -- we just took a look at the

 54 15 data and saw what the data was saying.

 54 16 BY MR. MONSOUR:

 54 17 Q. But -- but I guess if you did complete the

 54 18 test and you did ten people and the results were not

 54 19 what you had hoped for, is there a duty on the company

 54 20 to still report the testing since ten people were

 54 21 completed?

Re: [54:11-54:21]

Def Objection - 3M MIL No. 18, 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [54:17-55:1]

Def Objection - Foundation (602)

Re: [54:11-

54:21]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

Re: [54:17-55:1]

Def Objection -

Foundation (602)

OVERRULED

54:24 - 55:1 Knauer, Richard 12-17-2019

 54 24 A. If the product -- if -- if ten people were

 54 25 tested and you came out with that product, then the

 55 1 duty would be to report that data.

Re: [54:17-55:1]

Def Objection - Foundation (602)

OVERRULED

Re: [54:17-55:1]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 141 of 198
Knauer, Richard 12-17-2019 9

55:3 - 55:4 Knauer, Richard 12-17-2019

 55 3 Q. Okay. But if only eight people were

 55 4 tested, there is no duty to report it?

Re: [55:3-55:20]

improper counter; nonresponsive

OVERRULED

55:7 - 55:20 Knauer, Richard 12-17-2019

 55 7 A. When you say "duty to report," if we stop

 55 8 testing for any reason, our process would be to go in

 55 9 and evaluate why -- evaluate, the best we can, why we

 55 10 were not hitting our goal, and that could be any

 55 11 number of reasons. A lot of my experience is in foam,

 55 12 so the foam is too soft, the foam is too hard,

 55 13 whatever, the recovery is too fast, the recovery is

 55 14 too slow. We would go in and evaluate what was the

 55 15 difficulty and identify the difficulty and correct the

 55 16 difficulty if we could, and then create a new --

 55 17 basically start again. It would be a new product. It

 55 18 would be something different because we would go in

 55 19 and make a change to the product or the instructions

 55 20 or whatever.

Re: [55:3-55:20]

improper counter; nonresponsive

OVERRULED

55:22 - 56:3 Knauer, Richard 12-17-2019

 55 22 Q. Okay. Let me ask you this, sir. Let's

 55 23 say you've got a product and you're doing NRR REAT

 55 24 testing on the product and after eight people it looks

 55 25 like you are not going to get the NRR you want.

 56 1 Is it okay to stop the testing and then

 56 2 just bring in a new panel and start the testing again?

 56 3 A. No, we would not do that.

Re: [55:22-56:3]

Def Objection - 3M MIL No. 18, 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [55:22-56:3]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

56:4 - 56:25 Knauer, Richard 12-17-2019

 56 4 Q. Okay. Why would you not do that?

 56 5 A. Because that's -- that's -- we wouldn't do

 56 6 that. That wasn't our policy, not to do that. Our --

 56 7 our policy is if we stopped after any number of

 56 8 subjects and tried to see would be -- determine why we

 56 9 are not hitting -- going to hit our goal.

 56 10 Q. Okay. Is it true, sir, that to have a new

 56 11 test started, you had to somehow change the product

 56 12 and then you could test it again?

 56 13 A. We would have to change something. In

 56 14 some instances it would be to change the product, or

 56 15 if we found it was an instruction problem, a user

 56 16 instructions, we could change the instructions. It

 56 17 would have to be some significant change, we would --

 56 18 but we would evaluate it.

Re: [56:10-56:25]

improper counter; nonresponsive

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 142 of 198
Knauer, Richard 12-17-2019 10

 56 19 That's, again, the scientific process,

 56 20 going through, seeing -- get -- doing a test, seeing

 56 21 what you see, go back, learn from that, make a change,

 56 22 whatever that change might be. And that's an

 56 23 iterative process, it may be five steps, in some

 56 24 instances it may be one step. It just depended upon

 56 25 the product.

63:3 - 63:23 Knauer, Richard 12-17-2019

 63 3 Let me hand you what has been marked as

 63 4 Exhibit 7.

 63 5 (WHEREUPON, a certain document was

 63 6 marked Dick Knauer Deposition Exhibit

 63 7 No. 7, for identification, as of

 63 8 12/17/2019.)

 63 9 BY MR. MONSOUR:

 63 10 Q. I don't know if you've seen this before.

 63 11 Exhibit 7, do you know who a man by the

 63 12 name of Michael McLain is?

 63 13 A. Michael McLain, yes, I know who Michael

 63 14 McLain is.

 63 15 Q. And who is he?

 63 16 A. At -- at -- at that time he was president

 63 17 of the company.

 63 18 Q. Okay. If you will look, this is a letter

 63 19 from Michael McLain dated November 27, 2002, and this

 63 20 is a letter that is referencing Aearo's position

 63 21 regarding NRR testing.

 63 22 Do you see that?

 63 23 A. Yes.

Re: [63:3-63:23]

Def Objection - Foundation (602)

Re: [63:3-63:23]

Def Objection -

Foundation (602)

OVERRULED

63:24 - 64:12 Knauer, Richard 12-17-2019

 63 24 Q. And it says: "First, I want to underscore

 63 25 Aearo's position regarding NRR testing."

 64 1 The second bullet point, he notes, is:

 64 2 "The labeling on our products meets EPA requirements,

 64 3 and our disclaimer (which is not required) is in the

 64 4 best interests of informing and protecting workers."

 64 5 Do you see that?

 64 6 A. Yes, I see that.

 64 7 Q. No. 3, it says: "We do not believe that

 64 8 our advertising is misleading in any way. It simply

 64 9 states the NRR's for our products and that our testing

 64 10 laboratory is NVLAP approved, which it is."

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 143 of 198
Knauer, Richard 12-17-2019 11

 64 11 Did I get that right?

 64 12 A. Yes.

64:13 - 64:14 Knauer, Richard 12-17-2019

 64 13 Q. Was it important to your company that the

 64 14 advertising not to be misleading in any way?

Re: [64:13-64:14]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403)

Re: [64:13-

64:14]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

64:19 - 64:19 Knauer, Richard 12-17-2019

 64 19 A. Of course it's important.

Re: [64:19-64:19]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403)

Re: [64:19-

64:19]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

64:20 - 64:25 Knauer, Richard 12-17-2019

 64 20 BY MR. MONSOUR:

 64 21 Q. You would never want to say that a product

 64 22 like the yellow end of the Combat Arms Earplug

 64 23 provided protection without impairment, you would

 64 24 never want to say that because that's not true,

 64 25 correct?

Re: [64:21-64:25]

Def Objection - Relevance (401, 

402), Prejudice (403), Foundation 

(602)

Re: [64:21-

64:25]

Def Objection -

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

65:3 - 65:4 Knauer, Richard 12-17-2019

 65 3 A. I would -- I would prefer that it -- it

 65 4 say something in a little more general sense.

Re: [65:3-65:4]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [65:3-65:4]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

65:15 - 65:21 Knauer, Richard 12-17-2019

 65 15 BY MR. MONSOUR:

 65 16 Q. Sure.

 65 17 If -- if the company in its advertisements

 65 18 was noting that the yellow end provided hearing

 65 19 protection and allowed people to hear without

 65 20 impairment, that could be misleading to the users,

 65 21 true?

Re: [65:15-66:8]

improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 144 of 198
Knauer, Richard 12-17-2019 12

65:23 - 66:8 Knauer, Richard 12-17-2019

 65 23 BY THE WITNESS:

 65 24 A. The word -- the word "misleading" is a --

 65 25 is a gross exaggeration. It's -- it's just -- it --

 66 1 it -- it provides the information -- excuse me. It

 66 2 provides information.

 66 3 BY MR. MONSOUR:

 66 4 Q. You said the word "misleading" is a gross

 66 5 exaggeration.

 66 6 A. Well, it's -- it's -- you call it

 66 7 misleading. It's -- the company is making a comment,

 66 8 okay.

Re: [65:15-66:8]

improper counter

OVERRULED

66:9 - 66:12 Knauer, Richard 12-17-2019

 66 9 Q. Right. But if the company were to say

 66 10 that the yellow end of the plug allowed its users to

 66 11 hear without impairment, that would be misleading,

 66 12 true?

Re: [66:9-66:12]

Def Objection - Relevance (401, 

402), Prejudice (403), Foundation 

(602)

Re: [66:9-66:12]

Def Objection -

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

66:16 - 66:18 Knauer, Richard 12-17-2019

 66 16 A. It -- it is. "Without impairment" is

 66 17 probably not scientifically absolutely correct. There

 66 18 is minor impairment.

Re: [66:16-66:18]

Def Objection - Relevance (401, 

402), Prejudice (403), Foundation 

(602)

Re: [66:16-

66:18]

Def Objection -

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

OVERRULED

67:20 - 68:21 Knauer, Richard 12-17-2019

 67 20 "Aearo supports that new products rated

 67 21 above the designated ceiling must receive that rating

 67 22 based on testing with an outside testing laboratory."

 67 23 Did I get that right?

 67 24 A. Yes.

 67 25 Q. Okay.

 68 1 "It goes without saying that Aearo

 68 2 supports that multiple testing attempts with the same

 68 3 product are not allowed because this is prohibited by

 68 4 the EPA."

 68 5 Did I get that right?

 68 6 A. Yes.

 68 7 Q. That's the question that I was asking you

 68 8 earlier. Do you remember that?

Re: [67:20-68:21]

Def Objection - Foundation (602)

Re: [67:20-

68:21]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 145 of 198
Knauer, Richard 12-17-2019 13

 68 9 A. Yes.

 68 10 Q. It goes on: "Further, when multiple tests

 68 11 are conducted, we must all agree and have EPA approval

 68 12 for the proper NRR labeling protocol."

 68 13 Did I get that right?

 68 14 A. Yes.

 68 15 Q. So let's go back and let's look at the

 68 16 second sentence in No. 3.

 68 17 "It goes without saying that Aearo

 68 18 supports that multiple testing attempts with the same

 68 19 product are not allowed because this is prohibited by

 68 20 the EPA."

 68 21 What does that mean?

68:24 - 69:3 Knauer, Richard 12-17-2019

 68 24 A. What does that mean, I don't know what

 68 25 that means. I mean it -- I don't know what it means.

 69 1 BY MR. MONSOUR:

 69 2 Q. Does it mean that you can't just keep

 69 3 retesting a product to get the NRR you want?

Re: [68:24-69:3]

Def Objection - Foundation (602)

Re: [68:24-69:3]

Def Objection -

Foundation (602)

OVERRULED

69:6 - 69:15 Knauer, Richard 12-17-2019

 69 6 A. It means that you cannot just keep

 69 7 testing -- without making a change, without doing some

 69 8 modification, be it to the product, the design,

 69 9 formulation, instructions, whatever, something that

 69 10 affects how the plug is fitted into the ear, I -- I

 69 11 say plug, how the plug is fitted into the ear. You

 69 12 cannot just go in and test until you get the NRR that

 69 13 you desire.

 69 14 BY MR. MONSOUR:

 69 15 Q. Okay. Why is that important?

Re: [69:6-69:15]

Def Objection - Foundation (602)

Re: [69:6-69:15]

Def Objection -

Foundation (602)

OVERRULED

69:24 - 70:1 Knauer, Richard 12-17-2019

 69 24 A. It's -- it's -- it's just a -- it -- you

 69 25 would -- just because it -- you need to -- you need to

 70 1 do a test and get the results that you get.

Re: [69:24-70:1]

Def Objection - Foundation (602)

Re: [69:24-70:1]

Def Objection -

Foundation (602)

OVERRULED

70:15 - 70:19 Knauer, Richard 12-17-2019

 70 15 Q. Okay. Because it's true that if a company

 70 16 wanted to massage the data, if they didn't get the NRR

 70 17 that they liked the first time, they could bring a

 70 18 different group in to test that had certain

 70 19 characteristics and maybe improve the NRRs, true?

Re: [70:15-71:1]

Def Objection - Argumentative, 

Vague (403), Prejudice (403), 

Foundation (602)

Re: [70:15-71:1]

Def Objection -

Argumentative, 

Vague (403), 

Prejudice (403), 

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 146 of 198
Knauer, Richard 12-17-2019 14

70:22 - 71:1 Knauer, Richard 12-17-2019

 70 22 A. If -- if you are asking could -- if you

 70 23 did not get the NRR you desired, could you hand pick

 70 24 subjects and then just test those subjects and get a

 70 25 higher NRR, that is -- that is within the range of

 71 1 possibilities, I guess.

Re: [70:15-71:1]

Def Objection - Argumentative, 

Vague (403), Prejudice (403), 

Foundation (602)

Re: [70:15-71:1]

Def Objection -

Argumentative, 

Vague (403), 

Prejudice (403), 

Foundation (602)

OVERRULED

75:2 - 76:1 Knauer, Richard 12-17-2019

 75 2 Q. Let me hand you Exhibit No. 9, sir.

 75 3 A. Okay.

 75 4 Q. And what I would like for you to do is

 75 5 look at --

 75 6 MR. WASDIN: Is there a copy for me?

 75 7 MS. KROTTINGER: Yes. Sorry.

 75 8 BY MR. MONSOUR:

 75 9 Q. This is an e-mail dated April 9, 1999, and

 75 10 it is from Doug Ohlin to Doug Ohlin. It says:

 75 11 "Letter for Combat Arms earplug." And immediately

 75 12 below that there is an e-mail from Brian Myers to Doug

 75 13 Ohlin.

 75 14 Do you see that?

 75 15 A. Yes, I see that.

 75 16 Q. And it says, they are talking about --

 75 17 they are talking about the Combat Arms Version 2

 75 18 earplug, correct?

 75 19 A. Yes, it look -- it appears that way, yes,

 75 20 sir.

 75 21 Q. And it says in the second paragraph, it

 75 22 says: "I spoke with Dick Knauer who believes that we

 75 23 can probably shorten the plug by 1/4" required to fit

 75 24 your current container."

 75 25 Did I read that correctly?

 76 1 A. Yes.

Re: [75:6-75:7]

Relevance / 403

OVERRULED

76:2 - 76:21 Knauer, Richard 12-17-2019

 76 2 Q. Do you remember speaking with Brian Myers

 76 3 about shortening the Combat Arms Earplug Version 2 by

 76 4 a quarter of an inch?

 76 5 A. I have a memory that we did -- that I --

 76 6 that we were asked to shorten the plug, yes.

 76 7 Q. Okay. Good.

 76 8 How did it come up, do you remember?

 76 9 A. It came up, to the best of my memory, that

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 147 of 198
Knauer, Richard 12-17-2019 15

 76 10 when we provided samples to the military where the

 76 11 plug was longer, provided a -- I don't know how many

 76 12 samples, but we provided samples, and it may have been

 76 13 multiple samples multiple times, they did an

 76 14 evaluation of the product, and may have taken weeks,

 76 15 it may have taken months, I don't remember, but they

 76 16 came back with the evaluation and said, We like things

 76 17 about the product but we would like it a quarter inch

 76 18 shorter.

 76 19 Q. Okay. What went into the decision-making

 76 20 process of whether or not the original length of the

 76 21 plug could be shortened by a quarter of an inch?

76:24 - 78:3 Knauer, Richard 12-17-2019

 76 24 A. What -- what went into the decision-making

 76 25 process, I don't understand your question.

 77 1 BY MR. MONSOUR:

 77 2 Q. It probably was an inartful question.

 77 3 What I'm trying to find out is, is what

 77 4 did you have to look at to determine whether or not

 77 5 the plug could be shortened by a quarter of an inch?

 77 6 A. Okay.

 77 7 Q. I'm -- I'm assuming that you came up or

 77 8 someone came up with the original length for some

 77 9 reason, you didn't just pick it out of the air, and

 77 10 then I'm assuming that there was a reason for the

 77 11 original length and then I'm assuming that somebody

 77 12 had to look at something to determine whether or not a

 77 13 quarter inch could have been taken off of it?

 77 14 A. There -- there was a -- to answer your

 77 15 question then, there was a -- because of the

 77 16 manufacturing process of how that plug was

 77 17 manufactured, there was a concern about our ability to

 77 18 make a plug, if -- if you shorten the plug by a

 77 19 quarter of an inch, you basically then have no -- the

 77 20 stem is as -- ends at where the black flange ended as

 77 21 I remember, and trying to do that in -- in

 77 22 manufacturing, there were some manufacturing issues

 77 23 with that.

 77 24 Q. Okay. So the -- the decision whether or

 77 25 not the plug could be shortened by a quarter of an

 78 1 inch didn't necessarily have to do with the

Re: [77:7-77:23]

Def Objection - Relevance (401, 

402); Foundation (602)

Re: [77:24-78:3]

Def Objection - Misstates (403), 

Prejudice (403)

Re: [77:7-77:23]

Def Objection -

Relevance (401, 

402); Foundation 

(602)

OVERRULED

Re: [77:24-78:3]

Def Objection -

Misstates (403), 

Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 148 of 198
Knauer, Richard 12-17-2019 16

 78 2 performance of the plug, it had more to do with

 78 3 production of the plug, am I close?

78:6 - 78:13 Knauer, Richard 12-17-2019

 78 6 A. The -- the issue had to be with our

 78 7 capability to -- to manufacture a plug that had a --

 78 8 you know, that quarter inch taken off, yes.

 78 9 BY MR. MONSOUR:

 78 10 Q. Okay. So the thought process in whether

 78 11 or not the plug could be shortened a quarter inch, the

 78 12 thought process wasn't on would the plug perform, it

 78 13 was, can our machines make the plug?

Re: [78:6-78:13]

Def Objection - Misstates (403), 

Prejudice (403)

Re: [78:6-78:13]

Def Objection -

Misstates (403), 

Prejudice (403)

OVERRULED

78:16 - 79:11 Knauer, Richard 12-17-2019

 78 16 A. The -- the question at this time was could

 78 17 we do that, and we could basically -- so we had to

 78 18 investigate whether we could do that. So the way we

 78 19 would do that would be to, at minimum, we could cut

 78 20 the end off, make some samples and send them to the

 78 21 Army and let them evaluate it and tell us what -- how

 78 22 the performance was.

 78 23 BY MR. MONSOUR:

 78 24 Q. Right. But I'm getting at -- it says: "I

 78 25 spoke with Dick Knauer who believes we can probably

 79 1 shorten the plug by the 1/4" required to fit your

 79 2 current container."

 79 3 When you made the decision that -- that

 79 4 the plug could be shortened by a quarter of an inch,

 79 5 were you looking at the capabilities of the plug or

 79 6 were you looking at the manufacturing process

 79 7 necessary to create the plug?

 79 8 A. We were looking at -- I -- I was

 79 9 specifically -- or Bob Falco was specifically looking

 79 10 at the capability of being able to manufacture a

 79 11 shorter plug.

Re: [78:16-78:22]

Def Objection - Misstates (403), 

Prejudice (403)

Re: [78:16-

78:22]

Def Objection -

Misstates (403), 

Prejudice (403)

OVERRULED

79:12 - 80:16 Knauer, Richard 12-17-2019

 79 12 Q. Okay.

 79 13 A. However, we then wanted to provide that

 79 14 plug to the Army and let them evaluate it and tell us

 79 15 whether it works, because we were depending upon their

 79 16 feedback, did this solve your problem, is it working,

 79 17 and that type of thing.

 79 18 Q. Okay. How was the original length of the

 79 19 Combat Arms Version 2 plug arrived at?

Re: [79:12-80:21]

improper counter; nonresponsive

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 149 of 198
Knauer, Richard 12-17-2019 17

 79 20 A. I do not remember how that was arrived at.

 79 21 Q. Was it your decision or would it have been

 79 22 Berger's decision or would it have been Falco's

 79 23 decision or would it have been somebody else?

 79 24 A. I do not remember how that was decided.

 79 25 Q. Okay. Do you consider yourself one of the

 80 1 designers of the Combat Arms Version 2 earplug?

 80 2 A. No.

 80 3 Q. Who do you consider to be the designer of

 80 4 the Combat Arms Version 2 earplug?

 80 5 A. When you -- when you say designed, what do

 80 6 you mean, design?

 80 7 Q. I don't know any other word.

 80 8 A. Certainly we provided samples, we provided

 80 9 a variety of samples to the military. Originally, if

 80 10 I remember correctly, and this is if I remember

 80 11 correctly, the first product we showed them was a

 80 12 single-ended UltraFit long stem, the normal length of

 80 13 the stem of the UltraFit, with a filter in it, provide

 80 14 the samples, got feedback. So it was an iterative

 80 15 process back and forth, to answer your question the

 80 16 best I can.

80:17 - 80:21 Knauer, Richard 12-17-2019

 80 17 Q. Who was the one, though, that came up with

 80 18 the -- the let's take two UltraFits, put them on two

 80 19 ends, we'll put a piece of plastic in the middle and

 80 20 we'll put a filter in there, who is the one that --

 80 21 who is the one that came up with that design?

Re: [79:12-80:21]

improper counter; nonresponsive

SUSTAINED

80:24 - 81:17 Knauer, Richard 12-17-2019

 80 24 A. When you asked who came up with the

 80 25 design, the feedback we got from the military after

 81 1 providing them with a single-ended stem, single-ended

 81 2 product, was we liked the concept, we would like

 81 3 something -- Doug Ohlin specifically, but it was the

 81 4 military in general, we -- we like the concept, but we

 81 5 would like it to have a double-ended plug to it.

 81 6 BY MR. MONSOUR:

 81 7 Q. Right. And so if Doug Ohlin says, We

 81 8 would like to have a double-ended to it, that product

 81 9 doesn't just appear, somebody has to literally design

 81 10 the product so you can make it, right?

 81 11 A. Basically, when he asked for that, we then

Re: [80:24-81:17]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 150 of 198
Knauer, Richard 12-17-2019 18

 81 12 went in and made up samples, however we made them 

up,

 81 13 and sent them to Doug, and it could have been two or

 81 14 three, I don't remember.

 81 15 Q. Okay.

 81 16 A. We sent samples to him, he said this is --

 81 17 this is good, this is bad, whatever.

81:24 - 82:3 Knauer, Richard 12-17-2019

 81 24 Q. Yeah. Yeah. Who -- who came up with the

 81 25 idea of how to put the -- the -- come up with this --

 82 1 if the military said we wanted a two-sided document,

 82 2 who is the one that came up with the design for the

 82 3 two sides?

82:6 - 82:17 Knauer, Richard 12-17-2019

 82 6 A. To the best of my memory, what we did was

 82 7 we took the -- because we had the UltraFit tips, we

 82 8 took them and cut them down to certain lengths, put a

 82 9 filter in the adapter and put them together and sent

 82 10 them and said, Doug, is this what you want, is this

 82 11 not what you want, that type of thing.

 82 12 Q. So who did that, was it you?

 82 13 A. No, it was not me.

 82 14 Q. Okay.

 82 15 A. The most likely person that had did -- had

 82 16 made the actual samples was Bob Falco, the design

 82 17 engineer.

83:10 - 83:15 Knauer, Richard 12-17-2019

 83 10 Q. Okay. But for the simple premise, you --

 83 11 you understand that -- that triple flange plugs do

 83 12 come in more than one size, right?

 83 13 A. They can come in more than one size, yes.

 83 14 Q. Okay. How did the company arrive at this

 83 15 size for the Version 2 Combat Arms?

83:18 - 84:25 Knauer, Richard 12-17-2019

 83 18 A. How did they determine that that size for

 83 19 the Combat Arms?

 83 20 BY MR. MONSOUR:

 83 21 Q. Uh-huh.

 83 22 A. The company basically made the UltraFit

 83 23 earplug and -- and did since I believe the early --

 83 24 excuse me -- mid '80s.

 83 25 Q. Okay.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 151 of 198
Knauer, Richard 12-17-2019 19

 84 1 A. They came out -- came out with the

 84 2 UltraFit earplug, and field experience, feedback from

 84 3 end users, indicated that that product, the UltraFit,

 84 4 fit almost everyone, no -- no product fits everybody.

 84 5 There are people that have very small ear canals, very

 84 6 large ear canals. That product fit the vast majority

 84 7 of the population. So the design was a good design to

 84 8 fit a lot of people, the vast majority of the

 84 9 population.

 84 10 Q. Okay. So is this -- the UltraFit was a

 84 11 one-size product, correct?

 84 12 A. The UltraFit was a one-size product with a

 84 13 longer stem, yes.

 84 14 Q. Okay. Is the Version 2 the exact same

 84 15 size as the UltraFit?

 84 16 A. To the best of my memory, the UltraFit --

 84 17 the -- excuse me. Let me -- let me take a step back.

 84 18 To the best of my memory, the Combat

 84 19 Arms 2 version uses the same size flanges, of course

 84 20 the stem is shorter, but the flanges are the same as

 84 21 they were in the UltraFit, to the best of my memory.

 84 22 Q. Okay. So literally you took the existing

 84 23 UltraFits that you had, you kind of stuck them

 84 24 together with the piece of plastic and that's the

 84 25 Version 2, and you added a filter?

85:3 - 85:5 Knauer, Richard 12-17-2019

 85 3 A. We -- we -- we took those -- those items

 85 4 and that eventually became the Combat Arms product,

 85 5 yes.

85:6 - 85:14 Knauer, Richard 12-17-2019

 85 6 BY MR. MONSOUR:

 85 7 Q. Okay. Now, do you know what percentage of

 85 8 the population has very large ear canals?

 85 9 A. No, I don't know.

 85 10 Q. Can you give me an estimate?

 85 11 A. No.

 85 12 Q. Okay. I mean, you don't know if it's like

 85 13 1 percent or maybe 10 percent or anything like that?

 85 14 A. No, I don't know the number.

Re: [85:6-85:14]

improper counter

SUSTAINED

87:6 - 87:8 Knauer, Richard 12-17-2019

 87 6 Q. Are you familiar with the document that we

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 152 of 198
Knauer, Richard 12-17-2019 20

 87 7 refer to as "the flange report"?

 87 8 A. No.

87:9 - 87:23 Knauer, Richard 12-17-2019

 87 9 Q. Okay. Let me hand you what I'll mark as

 87 10 Exhibit 10.

 87 11 (WHEREUPON, a certain document was

 87 12 marked Dick Knauer Deposition Exhibit

 87 13 No. 10, for identification, as of

 87 14 12/17/2019.)

 87 15 BY MR. MONSOUR:

 87 16 Q. This is Exhibit 10. It is entitled How

 87 17 Folding the Flanges Back Affects REAT Results of the

 87 18 UltraFit Earplug End of the Combat Arms Plug.

 87 19 Do you see that?

 87 20 A. Yes, I see that.

 87 21 Q. And it is dated July 10th of 2000.

 87 22 Do you see that?

 87 23 A. Yes, I see that.

Re: [87:9-87:23]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [87:9-87:23]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

87:24 - 88:3 Knauer, Richard 12-17-2019

 87 24 Q. Have you ever seen this document before

 87 25 today?

 88 1 A. Back to my original comment, I -- when I

 88 2 was employed at Aearo and 3M, I do not remember seeing

 88 3 this document.

90:3 - 90:22 Knauer, Richard 12-17-2019

 90 3 Q. And the document states under the

 90 4 Introduction, it says: "The Combat Arms Earplug was

 90 5 shortened, at the request of the Army, so that it

 90 6 would fit into a carrying case. Because of this, the

 90 7 plug is shorter than any other UltraFit Plug design.

 90 8 The purpose of this report is to document that the

 90 9 current length of the UltraFit earplug end of the

 90 10 Combat Arms plug is too short for proper insertion and

 90 11 how changing the fitting technique affected the

 90 12 results of real-ear tests of this plug."

 90 13 Did I get that right?

 90 14 A. Yes, you read that correctly.

 90 15 Q. Do you agree with the statement that the

 90 16 current length of the UltraFit earplug end of the

 90 17 Combat Arms plug is too short for proper insertion?

 90 18 Do you agree with that statement?

 90 19 MR. WASDIN: Objection to foundation.

Re: [90:3-90:22]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [90:3-90:22]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 153 of 198
Knauer, Richard 12-17-2019 21

 90 20 BY THE WITNESS:

 90 21 A. I agree with that, without changing the

 90 22 fitting instructions.

90:24 - 91:1 Knauer, Richard 12-17-2019

 90 24 Q. Okay. So without changing the fitting

 90 25 instructions, the plug is too short for proper

 91 1 insertion, you do agree with that?

91:3 - 91:8 Knauer, Richard 12-17-2019

 91 3 BY THE WITNESS:

 91 4 A. That was the comment that was made in this

 91 5 report.

 91 6 BY MR. MONSOUR:

 91 7 Q. Okay.

 91 8 A. So it was written by someone else.

95:6 - 95:13 Knauer, Richard 12-17-2019

 95 6 Q. Okay. Would it be concerning if you're

 95 7 testing a Combat Arms Version 2 plug and you've got

 95 8 the UltraFit that you used to make the Version 2 plug,

 95 9 correct?

 95 10 A. Correct.

 95 11 Q. If you know the UltraFit typically is

 95 12 getting you a 21 NRR, is it concerning when testing of

 95 13 the Version 2 shows a 10.9 NRR?

Re: [95:6-95:13]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [95:6-95:13]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

95:16 - 95:18 Knauer, Richard 12-17-2019

 95 16 A. The -- if you saw results like that, you

 95 17 would believe that something -- you needed to go in

 95 18 and try to figure out what's happening.

Re: [95:16-95:18]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [95:16-

95:18]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

95:19 - 96:3 Knauer, Richard 12-17-2019

 95 19 BY MR. MONSOUR:

 95 20 Q. Okay. Let me ask you this: It mentions

 95 21 on test on the next page, 213017, it mentions that the

 95 22 yellow flanges were folded outward to allow a deeper

 95 23 insertion of the green plug, correct?

 95 24 A. That's what it says, yes, sir.

 95 25 Q. Okay. So let me -- let me show this on --

 96 1 so what it talks about, if we could, this is the plug,

 96 2 correct, and what -- what that 213017 report is

 96 3 talking about is doing that, correct?

Re: [95:19-96:3]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 154 of 198
Knauer, Richard 12-17-2019 22

96:5 - 96:19 Knauer, Richard 12-17-2019

 96 5 BY MR. MONSOUR:

 96 6 Q. Is rolling back the yellow side, correct?

 96 7 A. My interpretation is that that was done

 96 8 on -- on some subjects, yes.

 96 9 Q. Okay. Do you know how many subjects it

 96 10 was done on?

 96 11 A. No, I do not.

 96 12 Q. Okay. So here is what was done on 213017.

 96 13 Let me ask you this: To insert the yellow

 96 14 end, would you need to roll back the green flange like

 96 15 that?

 96 16 A. I do not know.

 96 17 Q. Would you think you would need to do that

 96 18 to get a proper fit?

 96 19 A. I do not know. I did not do the testing.

Re: [96:5-96:19]

improper counter; nonresponsive

SUSTAINED

98:1 - 98:6 Knauer, Richard 12-17-2019

 98 1 Do you see that?

 98 2 A. Yes, I see that.

 98 3 Q. Do you remember ever talking with Elliott

 98 4 Berger or Ron Kieper about this imperceptible

 98 5 loosening of the plug?

 98 6 A. No, I do not.

98:7 - 98:8 Knauer, Richard 12-17-2019

 98 7 Q. Do you consider imperceptible loosening of

 98 8 a plug to be a problem?

Re: [98:7-99:1]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [98:7-99:1]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

98:11 - 99:3 Knauer, Richard 12-17-2019

 98 11 A. I don't know what imperceptible -- I'm

 98 12 sorry -- I don't know what that terminology means.

 98 13 That was Mr. Kieper's or -- and/or Mr. Berger term.

 98 14 I -- I'm not sure what imperceptible means.

 98 15 Q. You -- you do not know what imperceptible

 98 16 means?

 98 17 A. I -- well, I know what imperceptible

 98 18 means. I don't know what they meant by this.

 98 19 Q. Do you know what the term "loosened"

 98 20 means?

 98 21 A. Loosened, yes.

Re: [98:7-99:1]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [99:2-99:8]

Def Objection - Vague (403, 611); 

Foundation (602), Relevance (401, 

402), Prejudice (403)

Re: [98:7-99:1]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

Re: [99:2-99:8]

Def Objection -

Vague (403, 

611); Foundation 

(602), Relevance 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 155 of 198
Knauer, Richard 12-17-2019 23

 98 22 Q. Okay. So if a plug is -- if you know what

 98 23 imperceptible means and you know what loosened means

 98 24 and you know what an ear -- you know what an earplug

 98 25 is, correct?

 99 1 A. That is correct.

 99 2 Q. If an earplug imperceptibly loosens, would

 99 3 that be a problem with the plug?

(401, 402), 

Prejudice (403)

SUSTAINED 

AS TO 

imperceptibly. 

OVERRULED 

in all other 

respects.

99:6 - 99:8 Knauer, Richard 12-17-2019

 99 6 A. If a earplug loosened, there is certainly

 99 7 something that is going on and you need to understand

 99 8 what is going on.

Re: [99:2-99:8]

Def Objection - Vague (403, 611); 

Foundation (602), Relevance (401, 

402), Prejudice (403)

Re: [99:2-99:8]

Def Objection -

Vague (403, 

611); Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

SUSTAINED 

AS TO 

imperceptibly. 

OVERRULED 

in all other 

respects.

99:10 - 99:11 Knauer, Richard 12-17-2019

 99 10 Q. Okay. Why is loosening of an earplug

 99 11 significant?

Re: [99:10-99:11]

improper counter

OVERRULED

99:13 - 99:19 Knauer, Richard 12-17-2019

 99 13 BY THE WITNESS:

 99 14 A. If a earplug were loosened, it -- it may

 99 15 affect -- it may or may not affect its performance.

 99 16 BY MR. MONSOUR:

 99 17 Q. If -- if an earplug loosens and it creates

 99 18 leaks, do leaks lessen the attenuation of a plug?

 99 19 A. They may lessen the attenuation of a plug.

Re: [99:13-99:19]

improper counter

OVERRULED

100:8 - 100:14 Knauer, Richard 12-17-2019

 100 8 Q. And what happens if there is a leak?

 100 9 A. What happens if there is a leak?

 100 10 Q. Uh-huh.

 100 11 A. It depend upon the leak. There are -- it

 100 12 could be a very minor leak that would not affect

 100 13 anything at all. If there was a major leak, sound

 100 14 could theoretically go through that path.

Re: [100:8-100:14]

improper counter

OVERRULED

102:22 - 103:18 Knauer, Richard 12-17-2019

 102 22 Q. What -- what material are these flanges

Re: [103:15-103:24]

Def Objection - Foundation (602)

Re: [103:15-

103:24]

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 156 of 198
Knauer, Richard 12-17-2019 24

 102 23 made out of?

 102 24 A. It's a thermoplastic elastomer.

 102 25 Q. Do you know why the plastic piece in the

 103 1 middle, and I'm looking at it right here, I'm folding

 103 2 back both flanges, if we could look.

 103 3 Do you know why this -- do you see the

 103 4 piece I'm pointing to?

 103 5 A. Yes, yes.

 103 6 Q. The -- the -- the white piece?

 103 7 A. Um-hum.

 103 8 Q. How did you all determine how hard that --

 103 9 that white piece of plastic should be?

 103 10 A. I have no memory at all what -- how that

 103 11 was decided.

 103 12 Q. Was there any testing that was done to

 103 13 determine how hard that should be?

 103 14 A. I have no memory of that. I'm sorry.

 103 15 Q. Are there -- are there other options for

 103 16 the -- the white piece in the middle? Could -- could

 103 17 your company have made a -- the plastic piece more

 103 18 pliable?

Def Objection -

Foundation (602)

OVERRULED

103:21 - 103:24 Knauer, Richard 12-17-2019

 103 21 A. I -- we -- I have no i- -- I mean, could

 103 22 it have been made more, possibly, by why we made it

 103 23 that, I don't know, we made it that and provided

 103 24 samples and we are happy with it.

Re: [103:15-103:24]

Def Objection - Foundation (602)

Re: [103:15-

103:24]

Def Objection -

Foundation (602)

OVERRULED

105:19 - 105:25 Knauer, Richard 12-17-2019

 105 19 Q. Again, one of the things that we look from

 105 20 an earlier page is the fact that Mr. Kieper is noting

 105 21 that there is imperceptible loosening, correct?

 105 22 A. Mr. Kieper noted that, yes.

 105 23 Q. The fact that there is imperceptible

 105 24 loosening with the plug, that's important, true?

 105 25 A. Cor- --

Re: [105:19-105:25]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [105:19-

105:25]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

106:2 - 106:8 Knauer, Richard 12-17-2019

 106 2 BY THE WITNESS:

 106 3 A. Certainly he made that observation, so

 106 4 it's important information.

 106 5 BY MR. MONSOUR:

 106 6 Q. Since it's important information that he

 106 7 observed, is that the type of information that should

 106 8 have been shared with the government?

Re: [106:2-106:8]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [106:2-

106:8]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 157 of 198
Knauer, Richard 12-17-2019 25

106:10 - 106:18 Knauer, Richard 12-17-2019

 106 10 BY THE WITNESS:

 106 11 A. I don't know what was shared or could have

 106 12 been shared. I don't know what was done.

 106 13 BY MR. MONSOUR:

 106 14 Q. It -- that's not my question.

 106 15 My question was: Should it have been

 106 16 shared --

 106 17 A. It --

 106 18 Q. -- with the government?

Re: [106:10-106:18]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [106:10-

106:18]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

106:20 - 107:3 Knauer, Richard 12-17-2019

 106 20 BY THE WITNESS:

 106 21 A. It -- it was -- that -- that would be a --

 106 22 a call that an Elliott Berger would make.

 106 23 BY MR. MONSOUR:

 106 24 Q. Okay. If this flange report had been

 106 25 shared with you, would you have shared the fact that

 107 1 there was imperceptible loosening with the government?

 107 2 A. It wasn't shared with me, as -- as I -- as

 107 3 I remembered.

Re: [106:20-107:8]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [106:20-

107:8]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

SUSTAINED

109:2 - 109:18 Knauer, Richard 12-17-2019

 109 2 Q. Okay. And you know who the end users are

 109 3 of these earplugs, the Combat Arms Earplugs Version 2,

 109 4 correct?

 109 5 A. Yes.

 109 6 Q. They are our soldiers, correct?

 109 7 A. Absolutely, yes.

 109 8 Q. A pretty worthy group of people to have

 109 9 information shared with on their behalf, true?

 109 10 A. Obviously, the soldiers are somebody that

 109 11 deserve all of the benefit, everything that we can

 109 12 tell them, yes.

 109 13 Q. Sure.

 109 14 So knowing that they are a very deserving

 109 15 group and knowing that imperceptible loosening is

 109 16 important, had you been made aware of imperceptible

 109 17 loosening in 2000, you would have shared that with the

 109 18 government, true?

Re: [108:23-109:18]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [109:14-109:25]

Def Objection - Argumentative, 

Vague (403, 611); Relevance (401, 

402)

Re: [108:23-

109:18]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

SUSTAINED

Re: [109:14-

109:25]

Def Objection -

Argumentative, 

Vague (403, 

611); Relevance 

(401, 402)

SUSTAINED

109:21 - 109:25 Knauer, Richard 12-17-2019

 109 21 A. Again, I would need to understand what

 109 22 the -- what he meant by imperceptibly loosening,

 109 23 depending upon what he meant, then, yes, we'll share

Re: [109:14-109:25]

Def Objection - Argumentative, 

Vague (403, 611); Relevance (401, 

402)

Re: [109:14-

109:25]

Def Objection -

Argumentative, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 158 of 198
Knauer, Richard 12-17-2019 26

 109 24 it, absolutely if it is something -- if it is a real

 109 25 observation.

Re: [109:21-109:25]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Vague (403, 

611); Relevance 

(401, 402)

SUSTAINED

Re: [109:21-

109:25]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

SUSTAINED

110:24 - 111:13 Knauer, Richard 12-17-2019

 110 24 Q. Do you know why -- since Kieper reported

 110 25 to Berger and Berger reported to you, why would this

 111 1 have not been shared with you?

 111 2 A. I do not know why this was not shared with

 111 3 me.

 111 4 Q. Does it concern you that it was not shared

 111 5 with you?

 111 6 A. No.

 111 7 Q. Are you disappointed in Elliott Berger

 111 8 that he didn't share this with you?

 111 9 A. No.

 111 10 Q. Why not?

 111 11 A. Because Elliott Berger is a very thorough

 111 12 individual and will look at everything and I trust his

 111 13 judgment.

Re: [110:24-111:13]

Plt Objection - improper counter

Re: [110:24-

111:13]

Plt Objection -

Improper 

Counter 

Designation per 

PTO 64; 402

SUSTAINED

112:24 - 113:11 Knauer, Richard 12-17-2019

 112 24 Q. Okay. Did you work with Ron Kieper on a

 112 25 regular basis?

 113 1 A. When you say did I work with him, he

 113 2 worked -- he basically worked for Elliott Berger. Did

 113 3 I discuss items with him, yes.

 113 4 Q. Okay. Was he capable?

 113 5 A. Yes.

 113 6 Q. Okay. Good employee?

 113 7 A. Yes.

 113 8 Q. Trustworthy?

 113 9 A. Yes.

 113 10 Q. Smart?

 113 11 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 159 of 198
Knauer, Richard 12-17-2019 27

114:14 - 115:5 Knauer, Richard 12-17-2019

 114 14 Q. Let me hand you what I've marked as

 114 15 Exhibit 11. It is a very short e-mail. And it is an

 114 16 e-mail from Elliott Berger to Brian Myers.

 114 17 And it says: "Here are the data on the

 114 18 UltraFit end of the Combat Arms. Note the original

 114 19 study was stopped with eight subjects. The second

 114 20 study was with the folded-back flanges on the end

 114 21 sticking out of the ear. Should I share this with

 114 22 Ohlin? It looks like the existing product has

 114 23 problems unless the user instructions are revised."

 114 24 Do you see that?

 114 25 A. Yes, I see that.

 115 1 Q. Did I read it correctly?

 115 2 A. Yes.

 115 3 Q. Why would Elliott Berger be talking with

 115 4 Brian Myers about whether important data from the

 115 5 Combat Arms earplugs should be shared with Doug 

Ohlin?

Re: [114:14-115:5]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [114:14-

115:5]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

115:8 - 115:9 Knauer, Richard 12-17-2019

 115 8 A. Again, I don't know. I -- I have no -- I

 115 9 don't know why he sent that e-mail.

Re: [115:8-115:9]

Def Objection - Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [115:8-

115:9]

Def Objection -

Foundation 

(602), Relevance 

(401, 402), 

Prejudice (403)

OVERRULED

181:7 - 181:8 Knauer, Richard 12-17-2019

 181 7 So we last looked at Exhibit?

 181 8 MS. HOEKSTRA: That was Exhibit 18.

182:5 - 182:18 Knauer, Richard 12-17-2019

 182 5 Q. So -- so one thing we know is that the ARC

 182 6 is a quality control for acoustic resistance.

 182 7 Now, did you have an understanding that,

 182 8 for the Combat Arms plugs that contained the -- the

 182 9 French filter in the yellow end, right?

 182 10 A. Yes, it contained a filter in the yellow

 182 11 end, yeah.

 182 12 Q. Okay. So did you have an understanding

 182 13 that the Combat Arms plugs that contained that French

 182 14 filter, that to make sure that you are getting to get

 182 15 the impulse noise reduction from that filter the way

Re: [182:5-182:11]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [182:12-183:3]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403), Vague (403)

Re: [182:5-

182:11]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [182:12-

183:3]

Def Objection -

3M MIL No. 26, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 160 of 198
Knauer, Richard 12-17-2019 28

 182 16 it is manufactured and put together, that you need to

 182 17 test -- test the acoustic resistance to make sure it

 182 18 is within certain levels?

Relevance (401, 

402), Prejudice 

(403), Vague 

(403)

OVERRULED

182:21 - 183:9 Knauer, Richard 12-17-2019

 182 21 A. My understanding for what that test did is

 182 22 that it measured the acoustic resistance and that

 182 23 Elliott Berger had done some work to -- Elliott Berger

 182 24 and Ron Kieper and poss- -- very possibly others had

 182 25 done some work to determine what that range of

 183 1 acoustic resistance needed to be in order to -- for

 183 2 the filter to be performing in a way it's designed to

 183 3 be -- designed.

 183 4 BY MR. OVERHOLTZ:

 183 5 Q. Okay. And it was your understanding

 183 6 that -- that that test -- that -- that work that had

 183 7 been done with acoustic resistance, that it a- -- that

 183 8 it was done to make sure that the filter was going to

 183 9 limit impulse noise?

Re: [182:12-183:3]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403), Vague (403)

Re: [183:4-184:5]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [182:12-

183:3]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), Vague 

(403)

OVERRULED

Re: [183:4-

184:5]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

183:12 - 183:25 Knauer, Richard 12-17-2019

 183 12 Q. That's why you do this test?

 183 13 A. The test was to measure the acoustic

 183 14 resistance and based on Elliott Berger's, and possibly

 183 15 other people's testing, a range was identified of

 183 16 acoustic resistance that the filter was performing in

 183 17 the range that it was supposed to be performing.

 183 18 Q. All right. So what -- so based on your

 183 19 testimony, what you are looking for is -- is the

 183 20 acoustic resistance within an acceptable range?

 183 21 A. It was -- it was within an acceptable

 183 22 range.

 183 23 Q. Okay. And you are trying to make sure

 183 24 that this filter side of the plug is going to work

 183 25 right and stop the impulse noise, right?

Re: [183:4-184:5]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [183:4-

184:5]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

184:3 - 184:5 Knauer, Richard 12-17-2019

 184 3 A. The objective was to demonstrate that the

 184 4 filter was in there and doing what the testing had

 184 5 said it should do.

Re: [183:4-184:5]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [183:4-

184:5]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 161 of 198
Knauer, Richard 12-17-2019 29

402), Prejudice 

(403)

OVERRULED

184:14 - 184:17 Knauer, Richard 12-17-2019

 184 14 Q. Okay. So looking at Exhibit 21, this is

 184 15 an e-mail that you sent to Brian Myers and Gary Warren

 184 16 on January 5th, 2006, is that right?

 184 17 A. That's what it looks like, yes, sir.

Re: [184:14-184:17]

improper counter

OVERRULED

185:9 - 185:15 Knauer, Richard 12-17-2019

 185 9 And you say: "Gary: We have developed a

 185 10 test fixture that measures acoustical impedance" I

 185 11 think is what you meant there, right?

 185 12 A. Where --

 185 13 Q. At the very --

 185 14 A. The -- yes, yes, yeah, yeah, yes,

 185 15 impedance, yes.

Re: [185:9-185:15]

improper counter

OVERRULED

186:13 - 186:21 Knauer, Richard 12-17-2019

 186 13 Q. Okay. So let me ask that again and then I

 186 14 think -- that was because that was going to be my next

 186 15 question. My next one was in my head.

 186 16 Is -- Gary Warren wrote on January 5th and

 186 17 said: "Dick: how do we test the effectiveness of

 186 18 Combat Arms to ensure that it in fact blocks out

 186 19 impact noise levels?"

 186 20 Do you see that?

 186 21 A. Yes, I see that.

Re: [186:13-186:21]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [186:13-

186:21]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

DESIGNATION 

WITHDRAWN 

[186:13-186:15], 

3/13/2021 

OVERRULED 

as to [186:16-21]

187:13 - 188:17 Knauer, Richard 12-17-2019

 187 13 So you respond and say: "We have

 187 14 developed a test fixture that measures acoustical

 187 15 impedance," and then you go on.

 187 16 Do you see that?

 187 17 A. Yes.

 187 18 Q. "When the product was developed, the

 187 19 Combat Arms were tested at a firing range: for those

 187 20 that provided acceptable performance for blocking out

 187 21 the appropriate amount of impact noise, it was

 187 22 determined that those plugs had a particular

 187 23 acoustical impedance."

 187 24 Do you see that?

Re: [187:13-188:15]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [188:16-188:17]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [187:13-

188:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [188:16-

188:17]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 162 of 198
Knauer, Richard 12-17-2019 30

 187 25 A. Yes.

 188 1 Q. Is that the work that Elliott Berger, you

 188 2 were talking about, had done?

 188 3 A. On the test device, yes.

 188 4 Q. Yeah, okay.

 188 5 "A range of acceptable acoustical

 188 6 impedance was developed thereafter."

 188 7 Do you see that?

 188 8 A. Yes.

 188 9 Q. So that was the range that we were talking

 188 10 about before, right?

 188 11 A. Yes.

 188 12 Q. Okay. "Currently when the product is

 188 13 assembled, the testing is done on 100% of the plugs."

 188 14 Do you see that?

 188 15 A. Yes.

 188 16 Q. Now, why do you do the testing on

 188 17 100 percent of the plugs?

402), Prejudice 

(403)

OVERRULED

188:20 - 189:3 Knauer, Richard 12-17-2019

 188 20 A. We -- I mean, you asked why we do it on

 188 21 100 percent of the plugs?

 188 22 BY MR. OVERHOLTZ:

 188 23 Q. Yes.

 188 24 A. When we set up this product, had various

 188 25 discussions obviously, I had various discussions, and

 189 1 because of the importance of the test, we made a

 189 2 decision, and I'm not sure who all made it, but we

 189 3 made a decision to test 100 percent of the plugs.

Re: [188:20-189:3]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [188:20-

189:3]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

192:9 - 192:12 Knauer, Richard 12-17-2019

 192 9 Q. Was the quality control testing done in

 192 10 Mexico as well?

 192 11 A. There was a quality control testing done

 192 12 in Mexico, yes.

Re: [192:9-192:12]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [192:9-

192:12]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [192:9-192:12]

Baker MIL 1

OVERRULED

193:5 - 196:17 Knauer, Richard 12-17-2019

 193 5 Q. 22, which is DK-15, MDL434795.

 193 6 So if you'll take a look at this

 193 7 Exhibit 22, Mr. Knauer, it's another one of the

 193 8 Elliott Berger monthly reports, this one dated

 193 9 February 28th, 2003, February Monthly Report.

Re: [193:5-195:6]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403)

Re: [195:7-196:21]

Def Objection - 3M MIL No. 26, 

Re: [193:5-

195:6]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

Re: [194:9-194:19]

Baker MIL 1, 403

Re: [195:4-195:6]

Baker MIL 1, 403

Re: [195:14-196:17]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 163 of 198
Knauer, Richard 12-17-2019 31

 193 10 A. Yeah.

 193 11 Q. Do you see that?

 193 12 A. Yes, I see that.

 193 13 Q. And there's a couple of different

 193 14 sections, Hercules Project and then below that,

 193 15 Project-Related Research and Development and Support.

 193 16 Do you see that?

 193 17 A. Yes.

 193 18 Q. Okay. It said: "Hosted Mead" -- "Mead

 193 19 Killion."

 193 20 Do you see that?

 193 21 A. Yes.

 193 22 Q. He was one of the head guys over at

 193 23 Etymotic Research, is that right?

 193 24 A. He was the head guy at Etymotic Research,

 193 25 yes.

 194 1 Q. Okay. The next sentence says -- okay, and

 194 2 just to be clear, this monthly report that Berger

 194 3 sent, he sent it to you, right, at the top of the

 194 4 page?

 194 5 A. Yes.

 194 6 Q. Okay. And the next sentence says: "RWK,"

 194 7 that would be referring to Ron Kieper?

 194 8 A. That's correct.

 194 9 Q. Okay. "Ron Kieper assisted Gordon Grogan

 194 10 and spoke with Bob Zielinski about the problems with

 194 11 the Combat Arms Plug in Mexico."

 194 12 Do you see that?

 194 13 A. Yes.

 194 14 Q. "He recommended that one of the ARCs be

 194 15 sent to Indianapolis so the 100 plugs can be measured

 194 16 in the lab, to help determine why Mexico's

 194 17 measurements had an 80% reject rate."

 194 18 Did I read that right?

 194 19 A. Yes.

 194 20 Q. Okay. And the ARCs, again, is talking

 194 21 about the same thing that we were talking about before

 194 22 on the screen, this quality control device, right?

 194 23 A. Yes.

 194 24 Q. Okay. And you told me Zielinski's job was

 194 25 in operations, is that right?

 195 1 A. His job was in operations, yes.

Relevance (401, 402), Prejudice 

(403); Foundation (602)

(403)

OVERRULED

Re: [195:7-

196:21]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 164 of 198
Knauer, Richard 12-17-2019 32

 195 2 Q. Okay. And how about Gordon Grogan?

 195 3 A. He was a quality control guy and...

 195 4 Q. Okay. And so -- do you remember the

 195 5 80 percent failure they were getting down in Mexico?

 195 6 A. No, I don't remember that.

 195 7 Q. Okay. Let's -- let's take a look at what

 195 8 we'll mark as Exhibit 23, which is DK-46.

 195 9 (WHEREUPON, a certain document was

 195 10 marked Dick Knauer Deposition Exhibit

 195 11 No. 23, for identification, as of

 195 12 12/17/2019.)

 195 13 BY MR. OVERHOLTZ:

 195 14 Q. So if we can take a look at this document,

 195 15 it's titled "Mexico Visit, Bob Zielinski

 195 16 Responsibilities," right?

 195 17 A. Yes.

 195 18 Q. And the first section is called Issues.

 195 19 And it says: "There have been problems

 195 20 with test equipment procedures not being followed at

 195 21 TJR."

 195 22 Do you see that?

 195 23 A. Yes.

 195 24 Q. TJR, is that the Mexican company?

 195 25 A. Yes.

 196 1 Q. Okay. Do you remember what that stood

 196 2 for?

 196 3 A. No.

 196 4 Q. The machine -- do you know where -- did I

 196 5 ask you this before, do you know where it was in

 196 6 Mexico?

 196 7 A. I -- it was in the middle of nowhere in

 196 8 Mexico from my best understanding.

 196 9 Q. Okay.

 196 10 The next sentence says: "The machines

 196 11 were due for calibration in May of 03 as stipulated in

 196 12 the specified Operating procedure, but even a year

 196 13 later were not calibrated."

 196 14 Do you see that?

 196 15 A. Yes.

 196 16 Q. That was talking about the ARC quality

 196 17 control testing equipment in Mexico, right?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 165 of 198
Knauer, Richard 12-17-2019 33

196:20 - 197:2 Knauer, Richard 12-17-2019

 196 20 A. That was talking about the equipment that

 196 21 was used, the -- the ARC equipment.

 196 22 BY MR. OVERHOLTZ:

 196 23 Q. Because what we looked at before in that

 196 24 monthly report was Ron Kieper was recommending we 

send

 196 25 another ARC down to Mexico to see what's going on,

 197 1 right?

 197 2 A. I would --

Re: [195:7-196:21]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403); Foundation (602)

Re: [196:22-198:15]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403); Foundation (602)

Re: [195:7-

196:21]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); 

Foundation (602)

OVERRULED

Re: [196:22-

198:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); 

Foundation (602)

DESIGNATION 

WITHDRAWN 

[198:11 198:15], 

3/13/2021

OVERRULED 

as to [196:22-

198:10]

Re: [196:20-197:2]

Baker MIL 1

OVERRULED

197:5 - 198:11 Knauer, Richard 12-17-2019

 197 5 A. I would have to go back and look to see.

 197 6 BY MR. OVERHOLTZ:

 197 7 Q. Sure.

 197 8 Yeah, he said: "RWK assisted Gordon

 197 9 Grogan and spoke with Bob Zielinski about the problems

 197 10 with the plug in Mexico. He recommended that one of

 197 11 the ARCs be sent to Indianapolis so the 100 plugs

 197 12 could be measured in the lab to help determine why

 197 13 Mexico's measurements had a 80% reject rate."

 197 14 Right?

 197 15 A. Yeah, he recommended that the device be

 197 16 sent to Indianapolis --

 197 17 Q. Right.

 197 18 A. -- so we could look at it, yes.

 197 19 Q. So send the ARC from Mexico up to

 197 20 Indianapolis and let's see what's happening?

 197 21 A. That's what it sounds like was he was

Re: [196:22-198:15]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403); Foundation (602)

Re: [196:22-

198:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); 

Foundation (602)

DESIGNATION 

WITHDRAWN 

[198:11 198:15], 

3/13/2021

OVERRULED 

as to [196:22-

198:10]

Re: [197:5-198:15]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 166 of 198
Knauer, Richard 12-17-2019 34

 197 22 asking for.

 197 23 Q. Okay.

 197 24 Issue No. 2. "It was requested in May 04

 197 25 to rectify the calibration issue but it has taken

 198 1 approximately six months for TJR to get all of the

 198 2 machines out for calibration. Operating procedures

 198 3 not followed."

 198 4 Do you see that?

 198 5 A. Yes.

 198 6 Q. "Because of equipment measurement

 198 7 problems, TJR had to operate with a quality waiver for

 198 8 several months."

 198 9 Do you see that?

 198 10 A. Yes.

 198 11 Q. What's a quality waiver?

197:24 - 198:10 Knauer, Richard 12-17-2019

 197 24 Issue No. 2. "It was requested in May 04

 197 25 to rectify the calibration issue but it has taken

 198 1 approximately six months for TJR to get all of the

 198 2 machines out for calibration. Operating procedures

 198 3 not followed."

 198 4 Do you see that?

 198 5 A. Yes.

 198 6 Q. "Because of equipment measurement

 198 7 problems, TJR had to operate with a quality waiver for

 198 8 several months."

 198 9 Do you see that?

 198 10 A. Yes.

Re: [196:22-198:15]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403); Foundation (602)

Re: [196:22-

198:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); 

Foundation (602)

DESIGNATION 

WITHDRAWN 

[198:11  

198:15], 

3/13/2021 

OVERRULED 

as to [196:22-

198:10]

Re: [197:5-198:15]

Baker MIL 1

OVERRULED

201:16 - 202:14 Knauer, Richard 12-17-2019

 201 16 Q. Okay. Now it says R&D Position.

 201 17 Do you see that?

 201 18 A. Yes.

 201 19 Q. "It took over six months for TJR to get

 201 20 their quality testing in place for the Combat Arms

 201 21 product."

 201 22 Do you see that?

 201 23 A. Yes.

 201 24 Q. "Now we have more quality testing

 201 25 problems. We need to take this opportunity to fix the

Re: [201:8-202:22]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [201:8-

202:22]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

DESIGNATION 

WITHDRAWN 

[201:8-201:15], 

Re: [201:8-202:14]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 167 of 198
Knauer, Richard 12-17-2019 35

 202 1 equipment, ensure people are properly trained and

 202 2 procedures are being followed."

 202 3 Right?

 202 4 A. Yes.

 202 5 Q. "A joint visit by Bob and Ron to make a

 202 6 big improvement in our quality testing is needed."

 202 7 That's what's written there, right?

 202 8 A. Yes.

 202 9 Q. The next page: "We believe this issue is

 202 10 not an acute problem, but rather a chronic that needs

 202 11 to be fixed now."

 202 12 Right?

 202 13 A. Yes.

 202 14 Q. Chronic means a continuing problem, right?

3/13/2021 

OVERRULED 

as to 201:16-

202:22

202:17 - 202:22 Knauer, Richard 12-17-2019

 202 17 A. I don't know what it means. I didn't

 202 18 write this.

 202 19 BY MR. OVERHOLTZ:

 202 20 Q. Like chronic hip pain or chronic knee

 202 21 pain?

 202 22 A. I -- I don't know what it means.

Re: [201:8-202:22]

Def Objection - 3M MIL No. 26, 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [201:8-

202:22]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), 

Foundation (602)

DESIGNATION 

WITHDRAWN 

[201:8-201:15], 

3/13/2021

OVERRULED 

as to 201:16-

202:22

Re: [202:17-202:22]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 168 of 198
Madison, Ted 12-10-2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 169 of 198
Madison, Ted 12-10-2019 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

8:24 - 9:5 Madison, Ted 12-10-2019

 8 24 Q. Good morning.

 8 25 A. Good morning.

 9 1 Q. Would you please state your name for the

 9 2 record?

 9 3 A. Ted Madison.

 9 4 Q. Mr. Madison, my name is Tom Pirtle. I am

 9 5 a lawyer out of Houston with a firm called Laminack,

9:9 - 9:10 Madison, Ted 12-10-2019

 9 9 Do you understand?

 9 10 A. I do, yes.

9:22 - 9:25 Madison, Ted 12-10-2019

 9 22 Q. All right. I'd note, and I'm not

 9 23 going to -- nothing up my sleeve, you testified in

 9 24 front of the EPA?

 9 25 A. Yes.

Re: [9:22-9:25]

Relevance (403)

SUSTAINED

11:2 - 11:7 Madison, Ted 12-10-2019

 11 2 Q. And you are retired?

 11 3 A. I am retired from 3M. I continue to work

 11 4 as an audiologist in St. Paul.

 11 5 Q. Okay. You are retired from 3M, and you

 11 6 had been employed by 3M for how long?

 11 7 A. From 1992 until 2019.

11:11 - 11:13 Madison, Ted 12-10-2019

 11 11 Q. And now your practice is as an audiologist

 11 12 in St. Paul?

 11 13 A. Yes.

15:19 - 15:21 Madison, Ted 12-10-2019

 15 19 Were you an audiologist when you started

 15 20 with 3M?

 15 21 A. Yes.

15:22 - 16:5 Madison, Ted 12-10-2019

 15 22 Q. And how did you become an audi --

 15 23 audiologist?

 15 24 A. I completed a master's degree in audiology

 15 25 at the University of Iowa.

 16 1 Q. Is that where you got your undergraduate

 16 2 degree, too?

 16 3 A. Yes, sir.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 170 of 198
Madison, Ted 12-10-2019 3

 16 4 Q. And what was that in?

 16 5 A. Speech and hearing science.

16:9 - 16:12 Madison, Ted 12-10-2019

 16 9 Q. Tell me about that. Where did you go

 16 10 after you got your degree?

 16 11 A. I started working for the United States

 16 12 Veterans Administration.

16:16 - 17:15 Madison, Ted 12-10-2019

 16 16 Q. And were you working with hearing impaired

 16 17 veterans?

 16 18 A. Yes, sir.

 16 19 Q. How long did you keep that position?

 16 20 A. From 1984 until the end of 1986. So a

 16 21 little over two years.

 16 22 Q. Was that your first job after you got your

 16 23 master's?

 16 24 A. Yes.

 16 25 Q. And were you in the -- well, what did you

 17 1 do at the Veterans Administration?

 17 2 A. I provided clinical audiology services,

 17 3 including diagnostic testing and rehabilitative

 17 4 services.

 17 5 Q. You fit people with hearing aids and that

 17 6 kind of stuff?

 17 7 A. Absolutely.

 17 8 Q. Now, after 1986 I've got to get up to '92

 17 9 when you went with 3M. What were you doing between

 17 10 '86 and '92, 1992?

 17 11 A. In 1987 through the end of '88 I worked

 17 12 for a company called Timbre, T-i-m-b-r-e, Hearing and

 17 13 Speech Centers in Kansas City, Missouri.

 17 14 Q. As an audiologist?

 17 15 A. Yes, um-hum.

26:2 - 26:5 Madison, Ted 12-10-2019

 26 2 Q. You provided support for these product

 26 3 lines?

 26 4 A. To some extent as they related to certain

 26 5 markets, but not for the military market.

26:8 - 26:11 Madison, Ted 12-10-2019

 26 8 When you say "not for the military

 26 9 market," explain that a little bit more?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 171 of 198
Madison, Ted 12-10-2019 4

 26 10 A. The military business was outside of my

 26 11 scope.

35:18 - 35:21 Madison, Ted 12-10-2019

 35 18 Q. And the -- the -- the laboratory that

 35 19 Elliot Berger worked at was acquired along with the

 35 20 Aearo company or product lines in 2008?

 35 21 A. Yes.

40:6 - 40:17 Madison, Ted 12-10-2019

 40 6 Q. So in this particular document, Exhibit 3,

 40 7 you list job responsibilities.

 40 8 Is this a -- a -- a fair and accurate

 40 9 depiction of your job responsibilities at least as of

 40 10 2015?

 40 11 A. Yes, I think so.

 40 12 Q. And how long had these job

 40 13 responsibilities been the same before 2015?

 40 14 A. I couldn't say for sure how long.

 40 15 Q. Give me your best estimate.

 40 16 A. I would -- I would say since 2008, since

 40 17 the Aearo acquisition.

40:18 - 41:4 Madison, Ted 12-10-2019

 40 18 Q. And did your job responsibilities pretty

 40 19 much remain the same from '15 -- from 2015 to 2019

 40 20 when you -- when you retired?

 40 21 A. Yes.

 40 22 Q. And did you retire at the end of -- or the

 40 23 beginning?

 40 24 A. No. I retired May -- well, June 1st was

 40 25 the first day of my retirement, 2019.

 41 1 Q. Oh, you are freshly retired?

 41 2 A. Yes.

 41 3 Q. Enjoying it?

 41 4 A. Yes, sir.

41:5 - 41:24 Madison, Ted 12-10-2019

 41 5 Q. "Support growth of 3M global hearing

 41 6 protection business by: Enhancing the technical

 41 7 knowledge and skills of 3M technical, marketing and

 41 8 sales."

 41 9 Did I read that reasonably correct?

 41 10 A. Yes.

 41 11 Q. And what I take from this, and I think

 41 12 we've already talked about it, you trained and helped

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 172 of 198
Madison, Ted 12-10-2019 5

 41 13 3M technical people and 3M marketing people and 3M

 41 14 salespeople in the hearing protection business?

 41 15 A. Hearing protection and more broadly

 41 16 hearing conservation.

 41 17 Q. What's the difference?

 41 18 A. Hearing protection is only one part of

 41 19 hearing conservation. Hearing conservation involves

 41 20 assessing the hazard, controlling noise, providing

 41 21 hearing protection, doing -- conducting annual hearing

 41 22 tests, monitoring the health of the worker, training

 41 23 workers. So those are all components of hearing

 41 24 conservation.

42:4 - 42:8 Madison, Ted 12-10-2019

 42 4 Q. "Developing tools and technical documents

 42 5 to help 3M customers select, fit, and use hearing

 42 6 protectors more effectively."

 42 7 Did I read that reasonably correct?

 42 8 A. Yes.

43:9 - 43:19 Madison, Ted 12-10-2019

 43 9 Q. So you would have developers within 3M

 43 10 that would be working on a certain new product?

 43 11 A. Yes.

 43 12 Q. All right. And --

 43 13 A. Or modifying an old one, yeah.

 43 14 Q. To fit a customer's specific needs?

 43 15 A. Yes.

 43 16 Q. And then you would be involved in the

 43 17 evaluation process of how that actually does or

 43 18 doesn't fit the customer's specific needs?

 43 19 A. Yes.

48:12 - 48:23 Madison, Ted 12-10-2019

 48 12 Back to the Exhibit 3: "Responding to

 48 13 customer requests, both internal and external, for

 48 14 technical support"?

 48 15 A. Yes, that's correct.

 48 16 Q. I think I understand that. If a customer

 48 17 had a question, it would get referred to you and if

 48 18 you needed to talk to somebody else, you would refer

 48 19 them to someone else or talk to someone else?

 48 20 A. That's correct.

 48 21 Q. "Investigating and resolving complaints

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 173 of 198
Madison, Ted 12-10-2019 6

 48 22 related to 3M hearing protection products"?

 48 23 A. Yes.

49:2 - 49:5 Madison, Ted 12-10-2019

 49 2 Q. Well, I -- you -- you did respond to

 49 3 some -- some complaints from people within the

 49 4 military?

 49 5 A. Yes.

64:14 - 65:6 Madison, Ted 12-10-2019

 64 14 Q. Let me see if I understand, and I think I

 64 15 was getting to that when I rephrased the question

 64 16 and -- and said, Well, tell me about NRR.

 64 17 NRR is an -- is an estimate within a

 64 18 laboratory of the noise reduction rating of an implant

 64 19 and it might not be indicative of what it -- what is

 64 20 actually going on with -- out in the field with the

 64 21 people, is that fair?

 64 22 A. Yes, I -- I would say that's correct, that

 64 23 it's not necessarily a good predictor of individual

 64 24 attenuation in the workplace.

 64 25 Q. All right. Fair enough.

 65 1 So you might get an earplug that has an

 65 2 NRR of 30 that doesn't do as good a job protecting

 65 3 your hearing, under certain circumstances, as a

 65 4 hearing plug that had an NRR of 26?

 65 5 A. Correct.

 65 6 Q. See, I can learn.

67:14 - 67:16 Madison, Ted 12-10-2019

 67 14 Q. Okay. And obviously if I get the gist of

 67 15 this, too, every manufacturer out there, not just 3M,

 67 16 wants a high NRR number --

67:19 - 67:19 Madison, Ted 12-10-2019

 67 19 Q. -- in terms of sales?

67:22 - 67:22 Madison, Ted 12-10-2019

 67 22 A. I don't agree with that.

76:11 - 76:25 Madison, Ted 12-10-2019

 76 11 Q. Now, you were not involved in testing,

 76 12 you've already told me that, in -- in terms of the NRR

 76 13 numbers within -- for 3M products?

 76 14 A. What do you mean "involved"?

 76 15 Q. You didn't conduct the test?

 76 16 A. I didn't conduct the tests, no.

 76 17 Q. And they were actually done at a

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 174 of 198
Madison, Ted 12-10-2019 7

 76 18 laboratory called E-A-RCAL Laboratories in

 76 19 Indianapolis?

 76 20 A. Can you be specific about the timeframe?

 76 21 Q. Sure. After you had -- starting after the

 76 22 3M company had purchased Aearo in 2008?

 76 23 A. The tests were performed not only at

 76 24 E-A-RCAL Laboratory in Indianapolis but also at

 76 25 Michael & Associates in State College, Pennsylvania.

77:11 - 77:22 Madison, Ted 12-10-2019

 77 11 Q. Well, according to my reading, I'm just --

 77 12 that there was two, one of them was E-A-RCAL or

 77 13 E-A-RCAL and the other one was in -- in Pennsylvania.

 77 14 I think the State College is what they called it.

 77 15 A. I know that those two labs were NVLAP

 77 16 accredited.

 77 17 Q. What is NVLAV (sic)?

 77 18 A. NVLAP is a voluntary accreditation through

 77 19 the Department of -- US Department of Commerce.

 77 20 Q. Which lab about 3M use prior to the

 77 21 acquisition of Aearo?

 77 22 A. Michael & Associates and E-A-RCAL.

78:2 - 78:12 Madison, Ted 12-10-2019

 78 2 Q. And then after the acquisition, they had

 78 3 the one in Pennsylvania that Elliot Berger ran, and

 78 4 did they also acquire one in Sweden?

 78 5 MR. FIELDS: Objection. You said "Pennsylvania

 78 6 that Elliot Berger ran."

 78 7 MR. PIRTLE: I'm sorry. Indiana. Thank you.

 78 8 BY THE WITNESS:

 78 9 A. Yes, there was a real-ear attenuation test

 78 10 facility in Indianapolis, the E-A-RCAL Lab, and there

 78 11 is also a facility in V�rnamo, Sweden in the Peltor

 78 12 offices, laboratory.

79:7 - 79:8 Madison, Ted 12-10-2019

 79 7 Q. I'm going to hand you what I've marked as

 79 8 Exhibit 5 to your deposition and ask you to review it.

Re: [79:7-79:8]

Def Objection - Foundation (602)

Re: [79:7-79:8]

Def Objection -

Foundation 

(602)

OVERRULED

79:24 - 80:11 Madison, Ted 12-10-2019

 79 24 Q. When is the last time you saw this

 79 25 document?

 80 1 A. I don't recall.

Re: [79:24-81:22]

Def Objection - Foundation (602)

Re: [79:24-

81:22]

Def Objection -

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 175 of 198
Madison, Ted 12-10-2019 8

 80 2 Q. Do you recall ever seeing it?

 80 3 A. Yes, I believe so.

 80 4 Q. I will tell you that it -- a copy of this

 80 5 was in your custodial file, which was produced to us

 80 6 by 3M. That doesn't tell me when you saw it last.

 80 7 Has it been recently?

 80 8 A. No.

 80 9 Q. This is a report of testing done at

 80 10 E-A-RCAL, correct?

 80 11 A. Yes, it appears to be.

(602)

OVERRULED

Re: [80:4-80:6]

Def Objection -

Relevance (401, 

402); attorney 

colloquy (401, 

402); 

Foundation 

(602)

SUSTAINED

Re: [80:7-

81:18]

Def Objection -

Foundation 

(602)

OVERRULED

80:12 - 81:22 Madison, Ted 12-10-2019

 80 12 Q. And it looks like that the people that

 80 13 performed the testing was Mr. Berger and Mr. Kieper,

 80 14 Kieper?

 80 15 A. Kieper.

 80 16 Q. Kieper?

 80 17 A. Yes.

 80 18 Q. Who you've identified earlier, correct?

 80 19 A. Yes.

 80 20 Q. And it talks about: "How folding back the

 80 21 flanges" -- "How Folding the Flanges Back Affects REAT

 80 22 Results..." for -- for "...the UltraFit Earplug End of

 80 23 the Combat Arms Plug."

 80 24 Did I read that reasonably correct?

 80 25 A. Yes.

 81 1 Q. And when we are talking about the UltraFit

 81 2 end of the Combat Arms earplug, we are talking about

 81 3 the green part, correct?

 81 4 A. Yes, I -- as I read this, that is what

 81 5 they are referring to as the -- the solid end, the

 81 6 green.

 81 7 Q. In this Mr. Berger writes:

 81 8 "Combat Arms earplug was shortened, at the

 81 9 request of Army, so that it would fit in the carrying

 81 10 case. Because of this the plug is shorter than any

Re: [79:24-81:22]

Def Objection - Foundation (602)

Re: [79:24-

81:22]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [80:7-

81:18]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [81:19-

81:22]

Def Objection -

Foundation, 

speculation 

(602); assumes 

facts (611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 176 of 198
Madison, Ted 12-10-2019 9

 81 11 other UltraFit design. The purpose of this report is

 81 12 to document that the current length of the UltraFit

 81 13 Earplug end of the Combat Arms Plug is too short for

 81 14 proper insertion, and how changing the fitting

 81 15 technique affected the results of the real-ear tests

 81 16 of this plug."

 81 17 Did I read that reasonably correct?

 81 18 A. Yes.

 81 19 Q. So what had went on was, this plug was --

 81 20 Elliot Berger, as the lead investigator, had tested

 81 21 this plug prior to this 2000 test result that we have

 81 22 in our hand, correct?

81:25 - 82:5 Madison, Ted 12-10-2019

 81 25 A. I don't know when it was tested before.

 82 1 BY MR. PIRTLE:

 82 2 Q. It was a device tested, but it -- but it

 82 3 appears that the Combat Arms earplug was too short,

 82 4 right, according to Mr. Berger?

 82 5 A. That's what he states, yes.

Re: [81:25-81:25]

Def Objection - Foundation, 

speculation (602); assumes facts 

(611, 403)

Re: [82:1-82:7]

Def Objection - Foundation (602)

Re: [81:25-

81:25]

Def Objection -

Foundation, 

speculation 

(602); assumes 

facts (611, 403)

OVERRULED

Re: [82:1-82:5]

Def Objection -

Foundation 

(602)

OVERRULED

82:20 - 83:13 Madison, Ted 12-10-2019

 82 20 Q. So you'll see reported down here: "The

 82 21 initial test," and there is a number on it, "213015,"

 82 22 it is under Results.

 82 23 A. Okay.

 82 24 Q. "...was stopped after eight subjects

 82 25 because individual results were variable and the NRR

 83 1 was quite low (11)."

 83 2 Are you with me?

 83 3 A. I see it, yes.

 83 4 Q. All right. So what I'd ask you, if it had

 83 5 been tested before, and the answer is yes, and there

 83 6 is the -- the E-A-RCAL number, correct?

 83 7 A. I don't know that what that test number

 83 8 refers to, if it was an initial test during this test

 83 9 period or some previous time.

 83 10 Q. "The initial test" -- what he says is:

Re: [82:9-83:16]

Def Objection - Foundation (602)

Re: [82:20-

83:13]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 177 of 198
Madison, Ted 12-10-2019 10

 83 11 "Initial test" and gives a number "was stopped after

 83 12 eight subjects," correct?

 83 13 A. That's what he wrote, yes.

84:4 - 84:23 Madison, Ted 12-10-2019

 84 4 Q. You -- you discussed NRRs and --

 84 5 A. Yes.

 84 6 Q. -- retested to get bigger ones or better

 84 7 ones?

 84 8 A. Yes, in the previous document.

 84 9 Q. Yeah.

 84 10 And so what Mr. Berger says in this

 84 11 document is, this initial test, as he describes it,

 84 12 213015, was stopped, the NRR was quite low at 11,

 84 13 correct?

 84 14 A. That's what it says, yes.

 84 15 Q. And 11 is quite low, isn't it?

 84 16 A. It -- again, I don't know what his context

 84 17 was for making that comparison. Low compared to what,

 84 18 I don't know. It is lower -- much lower than a

 84 19 typical earplug.

 84 20 Q. I mean, 3M typically doesn't sell hearing

 84 21 protection with an NRR of 11, does it?

 84 22 A. We have at least one. It's in that range.

 84 23 Q. What's it used for?

Re: [84:15-84:19]

701, 403

OVERRULED

84:24 - 85:3 Madison, Ted 12-10-2019

 84 24 A. It is used for listening to music.

 84 25 Q. Not for use in combat situations?

 85 1 A. No, sir.

 85 2 Q. Not for military applications?

 85 3 A. No.

Re: [84:24-84:24]

Def Objection - Incomplete 

designation, no question (403); 

relevance (401, 402); Prejudice 

(403)

Re: [84:24-85:3]

Def Objection - Foundation (602)

Re: [84:25-85:6]

Def Objection - (403); Relevance 

(401, 402); Prejudice (403)

Re: [84:24-

84:24]

Def Objection -

Incomplete 

designation, no 

question (403); 

relevance (401, 

402); Prejudice 

(403); 

Foundation 

(602)

OVERRULED

Re: [84:25-

85:6]

Def Objection -

Foundation 

(602); 

Incomplete 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 178 of 198
Madison, Ted 12-10-2019 11

designation 

(403); 

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

89:5 - 89:7 Madison, Ted 12-10-2019

 89 5 Q. Do you know if test -- the initial test,

 89 6 213015, was given to the EPA?

 89 7 A. I do not.

Re: [88:17-89:10]

Def Objection - Foundation (602)

Re: [88:17-

88:19]

Def Objection -

Foundation 

(602); misstates 

(611,403)

OVERRULED

Re: [88:20-

89:24]

Def Objection -

Foundation 

(602)

OVERRULED

89:8 - 89:10 Madison, Ted 12-10-2019

 89 8 Q. Do you know if it was given to anybody

 89 9 outside of Aearo -- E-A-RCAL?

 89 10 A. I don't know that.

Re: [88:17-89:10]

Def Objection - Foundation (602)

Re: [88:20-

89:24]

Def Objection -

Foundation 

(602)

OVERRULED

90:21 - 90:23 Madison, Ted 12-10-2019

 90 21 Q. I said the -- the folding of the flanges

 90 22 was not an improvement of the product in a meaningful

 90 23 way, was it?

91:1 - 91:4 Madison, Ted 12-10-2019

 91 1 A. The improvement in the product was that

 91 2 the military requested a shorter earplug that was --

 91 3 that was an improvement that they were requesting to

 91 4 make.

91:13 - 91:20 Madison, Ted 12-10-2019

 91 13 Q. "But by retesting a product repeatedly,"

 91 14 that did happen, didn't it, at least twice?

 91 15 A. The first test was -- was stopped, so I --

 91 16 I don't know that you'd call that a retest.

 91 17 Q. Well, if it was stopped because the NRR

 91 18 was 11, then that shouldn't have occurred either, and

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 179 of 198
Madison, Ted 12-10-2019 12

 91 19 you -- you would say that, and I think you did, by the

 91 20 way?

91:23 - 92:1 Madison, Ted 12-10-2019

 91 23 A. I wouldn't say that stopping a test is --

 91 24 yeah, I'm not -- I'm not sure how you characterized

 91 25 it, but I wouldn't say that that's necessarily

 92 1 inappropriate.

142:9 - 142:12 Madison, Ted 12-10-2019

 142 9 (WHEREUPON, a certain document was

 142 10 marked Ted Madison Deposition Exhibit

 142 11 No. 11, for identification, as of

 142 12 12/10/2019.)

142:17 - 142:22 Madison, Ted 12-10-2019

 142 17 Q. Mr. Madison, I want to hand you a document

 142 18 which is Exhibit 11. The front page is meaningless,

 142 19 but the second page, I believe, gets into something we

 142 20 talked about earlier, which is your hearing protection

 142 21 and conservation seminars?

 142 22 A. Yes.

143:3 - 143:9 Madison, Ted 12-10-2019

 143 3 Q. Did you author this document?

 143 4 A. Yes.

 143 5 Q. And is this a -- it is dated, at least on

 143 6 the PowerPoint I'm looking at, October 11th of 2012.

 143 7 Do you see? We'll blow it up for you.

 143 8 There you go.

 143 9 A. I see, yes, um-hum.

144:4 - 144:8 Madison, Ted 12-10-2019

 144 4 Q. But this -- this is your thinking in

 144 5 October of 2012, at least, on the subject of hearing

 144 6 protection and conservation, correct, as reflected in

 144 7 these slides?

 144 8 A. Yes, um-hum.

144:14 - 144:21 Madison, Ted 12-10-2019

 144 14 Q. And then the next -- did you have someone

 144 15 you were -- you would present with sometimes?

 144 16 A. Yeah. Dr. Laurie Wells.

 144 17 Q. And she was an audiologist?

 144 18 A. She is.

 144 19 Q. And would you do part of it, would she do

 144 20 part of it?

 144 21 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 180 of 198
Madison, Ted 12-10-2019 13

145:7 - 146:1 Madison, Ted 12-10-2019

 145 7 Q. Okay. And I don't want to go through all

 145 8 of them, but I want to go to Page 11.

 145 9 A. What -- you are referring to the number

 145 10 down at the bottom right?

 145 11 Q. Yes, sir. Yes, sir.

 145 12 A. Okay.

 145 13 Q. And where it -- "Health Effects Related to

 145 14 Noise Exposure"?

 145 15 A. Yes.

 145 16 Q. And in here you've got, after that, the

 145 17 auditory system?

 145 18 A. Yes.

 145 19 Q. And the next page continues with talking

 145 20 about the inner ear and then hair cells, I assume you

 145 21 are talking about within the inner ear?

 145 22 A. That's correct.

 145 23 Q. And -- and the idea is if you are exposed

 145 24 to loud noises, the -- some of those hair cells start

 145 25 to die?

 146 1 A. They can die, yes.

147:12 - 148:9 Madison, Ted 12-10-2019

 147 12 You describe on the next page, 13, health

 147 13 effects associated with hearing loss. You go and talk

 147 14 about the damage to the hair cells?

 147 15 A. Yes.

 147 16 Q. And then health effects, tinnitus or

 147 17 tinnitus?

 147 18 A. Um-hmm, yes.

 147 19 Q. Annoying ringing or buzzing sound,

 147 20 interferes with concentration and sleeping?

 147 21 A. Yes.

 147 22 Q. That's what happens?

 147 23 A. Those are some of the things, interfering

 147 24 with concentration or sleeping may happen. It

 147 25 doesn't --

 148 1 Q. May or may not?

 148 2 A. May not.

 148 3 Q. You've just got to interview the person to

 148 4 figure that out?

 148 5 A. Yes.

 148 6 Q. And hearing loss is permanent, am I

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 181 of 198
Madison, Ted 12-10-2019 14

 148 7 correct?

 148 8 A. It can be temporary or permanent.

 148 9 Q. A lot of times it's permanent?

148:12 - 148:15 Madison, Ted 12-10-2019

 148 12 Q. Or it can be permanent?

 148 13 A. Permanent threshold shift, or PTS, is --

 148 14 is very common. I don't know if that's what you are

 148 15 asking, but...

148:21 - 150:21 Madison, Ted 12-10-2019

 148 21 In terms of health effects, you say:

 148 22 Noise-induced hearing loss; difficulty

 148 23 hearing quiet sounds; conversation sounds muffled;

 148 24 certain words are difficult to hear correctly; need to

 148 25 ask other people to repeat; need to turn up volume on

 149 1 TV or radio.

 149 2 These are things that you have noticed

 149 3 both in the literature and as an audiologist?

 149 4 A. Yes, they are.

 149 5 Q. And then it looks like on Page 14 you do a

 149 6 hearing loss simulation and, quite frankly, I don't

 149 7 have the ability to do that so we are not going to do

 149 8 it. Then there is non-auditory effects.

 149 9 What do -- what do you mean by stress

 149 10 reactions?

 149 11 A. So exposure to noise, loud noise,

 149 12 hazardous noise, creates a stress response in the

 149 13 body.

 149 14 So when you work in a noisy area, people's

 149 15 physiological reaction is -- is similar to other kinds

 149 16 of stress, noise is a stressful hazard in the

 149 17 workplace.

 149 18 Q. So noise itself or prolonged exposure to

 149 19 noise --

 149 20 A. I wanted to add to that if I may.

 149 21 Q. Oh, okay, I'm sorry. I'm --

 149 22 A. So I mean -- I meant two things there. I

 149 23 meant that, that working in noise can be stressful and

 149 24 you can have health effects related to that. But

 149 25 also, having hearing loss can be stressful, the person

 150 1 who has the hearing loss, it creates stress as they

 150 2 experience those symptoms.

 150 3 Q. Okay. So the stress -- the noisy

Re: [149:21-150:7]

701

Re: [150:10-150:18]

701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 182 of 198
Madison, Ted 12-10-2019 15

 150 4 environment in and of itself can be stressful, but the

 150 5 effects of hearing loss can also have a -- an effect

 150 6 on the individual too?

 150 7 A. Yes, that's what I was indicating.

 150 8 Q. Okay. Thank you.

 150 9 A. Uh-huh.

 150 10 Q. Irritability, is that part of that chain

 150 11 of things?

 150 12 A. It could be related to stress, yes.

 150 13 Q. Lower morale, reduced productivity,

 150 14 annoyance and disrupted -- disrupted concentration and

 150 15 fatigue.

 150 16 A. Uh-huh.

 150 17 Q. And I'm just going to ask, you believe

 150 18 that hearing loss is -- can be a serious problem?

 150 19 A. Yes, I do.

 150 20 Q. And it can be permanent?

 150 21 A. Yes, it can.

151:21 - 152:5 Madison, Ted 12-10-2019

 151 21 Q. What are the over-the-counter treatments

 151 22 that some people find effective?

 151 23 A. There are some dietary supplements that

 151 24 for some people provide relief from their tinnitus and

 151 25 there -- tinnitus can be caused by many things and for

 152 1 some people changing sleep, diet, exercise can provide

 152 2 them with some relief, but I would call those

 152 3 lifestyle changes or --

 152 4 Q. Sure.

 152 5 A. Yeah, not necessarily medical treatment.

153:14 - 153:18 Madison, Ted 12-10-2019

 153 14 Q. I think I saw some figure, it was -- and

 153 15 it may have been in these slides, about $1.3 billion

 153 16 annually on hearing loss spend for the VA or the

 153 17 taking care of the -- the -- the veterans and soldiers

 153 18 who have come home?

153:20 - 154:5 Madison, Ted 12-10-2019

 153 20 BY MR. PIRTLE:

 153 21 Q. Regardless of -- of how it was caused,

 153 22 it's a problem?

 153 23 A. It's a very significant expenditure of

 153 24 money that the VA pays to veterans for tinnitus and

 153 25 hearing loss.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 183 of 198
Madison, Ted 12-10-2019 16

 154 1 Q. Do you know where it tanks on the chart

 154 2 of -- of the expenditures?

 154 3 A. I have been told it is the No. 1 and 2

 154 4 compensable conditions in the VA, tinnitus and hearing

 154 5 loss.

196:15 - 197:2 Madison, Ted 12-10-2019

 196 15 Q. And then, again, we've talked about New

 196 16 Dynamics and the partnership.

 196 17 Do you know what AbilityOne is?

 196 18 A. I believe it relates to that federal

 196 19 program that provides companies that employ disabled

 196 20 people certain purchasing priorities or preferences.

 196 21 Q. You are correct. AbilityOne is the

 196 22 program, New Dynamics is the company partnered with

 196 23 3M, and the statement down at the bottom is the

 196 24 Federal Procurement List For Mandatory Purchase 

Combat

 196 25 Arms Earplugs and the -- and the like.

 197 1 That's -- the whole thing is interrelated

 197 2 as a program, correct?

197:5 - 197:6 Madison, Ted 12-10-2019

 197 5 A. It appears from this brochure that that's

 197 6 the case, yes.

197:8 - 198:9 Madison, Ted 12-10-2019

 197 8 Q. All right. Go to the next page.

 197 9 A. Okay.

 197 10 Q. Des -- Designed for Combat. And of course

 197 11 there is a picture of the Combat Arms Version 2 down

 197 12 there, correct?

 197 13 A. Yes.

 197 14 Q. Now, the second paragraph, it says:

 197 15 "The level-dependent technology used in

 197 16 the earplug has been tested and found to be protective

 197 17 up to approximately 190 dBP for outdoor exposures

 197 18 (sufficient to cover most weapons in the military

 197 19 inventory, including shoulder-fired rockets)."

 197 20 And then there is another citation or an

 197 21 asterisk, and it refers down to D.L. Johnson, correct,

 197 22 same study?

 197 23 A. Yes, I believe it is.

 197 24 Q. Do you know what shoulder-fired rockets 3M

 197 25 is referring to here?

Re: [197:7-198:9]

Def Objection - Foundation (602)

Re: [197:7-

198:9]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 184 of 198
Madison, Ted 12-10-2019 17

 198 1 A. No, I don't.

 198 2 Q. Do you know what was in the US military

 198 3 inventory at this point in time?

 198 4 A. No, I don't.

 198 5 Q. Any familiarity with shoulder-fired

 198 6 rockets at all?

 198 7 A. None whatsoever.

 198 8 Q. Have you ever heard one go off?

 198 9 A. I have not.

199:22 - 200:1 Madison, Ted 12-10-2019

 199 22 Q. I mean, these are people out there

 199 23 protecting this country and 3M is saying, Hey, you can

 199 24 fire shoulder-fired rocket with this earplug in

 199 25 clearly.

 200 1 That's what they are saying, isn't it?

Re: [199:22-200:1]

Def Objection - Foundation (602); 

misstates, argumentative (611, 

403)

Re: [199:22-

200:1]

Def Objection -

Foundation 

(602); 

misstates, 

argumentative 

(611, 403)

SUSTAINED 

as to I mean, 

these are 

people out 

there 

protecting this 

country and. 

OVERRULED 

in all other 

respects

200:4 - 200:17 Madison, Ted 12-10-2019

 200 4 A. What they said was that the -- the -- the

 200 5 earplugs are protective up to 190 dB Peak.

 200 6 BY MR. PIRTLE:

 200 7 Q. Which covers most weapons in the US

 200 8 inventory, including shoulder-fired rockets?

 200 9 A. I don't have any background in that area

 200 10 to say yes or no.

 200 11 Q. I'm not asking if you have background.

 200 12 That's just what the company you used to work for said

 200 13 in this brochure, isn't it?

 200 14 A. Yes, they -- they listed examples of

 200 15 weapons, yes.

 200 16 Q. That was one of the examples used?

 200 17 A. Uh-huh, yes, it was.

Re: [200:4-200:5]

Def Objection - Foundation (602); 

misstates, argumentative (611, 

403)

Re: [200:4-

200:5]

Def Objection -

Foundation 

(602); 

misstates, 

argumentative 

(611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 185 of 198
Madison, Ted 12-10-2019 18

201:20 - 201:24 Madison, Ted 12-10-2019

 201 20 Q. I'm looking at the top of -- I'm looking

 201 21 at the top of the Frequently Asked Questions. We are

 201 22 going to get it back up. And we'll blow it up.

 201 23 MR. FIELDS: Which exhibit is that?

 201 24 MR. PIRTLE: It is the preceding.

202:1 - 202:1 Madison, Ted 12-10-2019

 202 1 MR. PIRTLE: 16, at the top.

202:3 - 202:3 Madison, Ted 12-10-2019

 202 3 A. I've seen that tag line before.

203:4 - 203:7 Madison, Ted 12-10-2019

 203 4 Q. -- but the truth of the matter is, "You

 203 5 protect us," you are talking, you are saying, Thank

 203 6 you, soldiers, for protecting us, we protect you, you

 203 7 are talking about the soldiers' hearing?

Re: [203:4-203:7]

Def Objection - Foundation (602); 

argumentative (611, 403)

Re: [203:4-

203:7]

Def Objection -

Foundation 

(602); 

argumentative 

(611, 403)

OVERRULED

203:10 - 203:12 Madison, Ted 12-10-2019

 203 10 Q. That's just the truth, isn't it?

 203 11 A. I think that's a reasonable interpretation

 203 12 of that phrase.

Re: [203:10-203:12]

Def Objection - Foundation (602); 

argumentative (611, 403)

Re: [203:10-

203:12]

Def Objection -

Foundation 

(602); 

argumentative 

(611, 403)

OVERRULED

213:11 - 213:19 Madison, Ted 12-10-2019

 213 11 Q. I'm going to show you what I'm marking as

 213 12 Exhibit 20 to your deposition.

 213 13 (WHEREUPON, a certain document was

 213 14 marked Ted Madison Deposition Exhibit

 213 15 No. 20, for identification, as of

 213 16 12/10/2019.)

 213 17 BY MR. PIRTLE:

 213 18 Q. Just let me know when you are ready to go.

 213 19 A. Okay.

Re: [213:11-213:24]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [213:11-

213:25]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

215:14 - 215:19 Madison, Ted 12-10-2019

 215 14 Q. If you turn to the next-to-last page,

 215 15 which is 10146.

 215 16 A. Okay.

 215 17 Q. It looks like a Ryan Kamerzell, zellee, or

Re: [215:12-216:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [215:7-

219:1]

Def Objection -

Relevance (401, 

402); Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 186 of 198
Madison, Ted 12-10-2019 19

 215 18 zell?

 215 19 A. Um-mm, yes.

(403)

OVERRULED

215:20 - 216:2 Madison, Ted 12-10-2019

 215 20 Q. CI -- I mean, yeah, CIH, from Lawrence

 215 21 Liver -- Livermore National Laboratory, Worker Safety

 215 22 and Health, is -- is sending an e-mail to various

 215 23 members of 3M, Eric, Bill and Larry.

 215 24 A. Yes, I see that.

 215 25 Q. Are you familiar with Lawrence

 216 1 Livermore --

 216 2 A. Yes.

Re: [215:12-216:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [215:7-

219:1]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

216:3 - 216:9 Madison, Ted 12-10-2019

 216 3 Q. -- National Laboratory?

 216 4 A. Yes.

 216 5 Q. Is it in San Francisco?

 216 6 A. It's in -- outside of Oakland, yeah.

 216 7 Q. University of California-Davis?

 216 8 A. I don't -- I don't know about its

 216 9 university affiliation.

216:14 - 216:19 Madison, Ted 12-10-2019

 216 14 Q. So: "Thank you for your information. I'm

 216 15 very excited to get my hands on the technical proof

 216 16 that the 3M Combat Arms plugs are effective up to

 216 17 190 dB, even though they only have an NRR of 21."

 216 18 Did I read that reasonably correct?

 216 19 A. I believe so.

Re: [216:14-216:19]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [215:7-

219:1]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

217:5 - 217:21 Madison, Ted 12-10-2019

 217 5 Q. These are saying that they are

 217 6 currently -- they have 8-hour time weighted average of

 217 7 111 average decibels?

 217 8 A. dBA is a -- is a specific decibel scale,

 217 9 the A scale, and so the statement appears to say that

 217 10 they are eight-hour average, time weighted average,

 217 11 for these workers is, I don't know what upwards of,

 217 12 but it is in that range of 111 dBA.

 217 13 Q. Go to Page 144. This is an e-mail from

 217 14 Jason Jones, whom you've identified, correct?

 217 15 A. I don't know that we've mentioned Jason

 217 16 today. He is a marketer, yeah.

 217 17 Q. And it is to Larry Dick?

 217 18 A. Yes.

 217 19 Q. And who is that?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 187 of 198
Madison, Ted 12-10-2019 20

 217 20 A. Larry was a 3M PSD sales specialist,

 217 21 hearing specialist in southern California.

217:22 - 218:13 Madison, Ted 12-10-2019

 217 22 Q. It says: "Larry, I can't answer most of

 217 23 the questions below." And "Ted we need you (sic) to

 217 24 weigh in here."

 217 25 That -- you are the Ted, aren't you?

 218 1 A. Yes, "Ted will need to weigh in here,"

 218 2 yes.

 218 3 Q. And it says: "If" -- and I'm going down

 218 4 to the third-to-the-bottom bullet point -- "If you are

 218 5 at the range shooting and the guns are going off a lot

 218 6 (every 30 seconds, et cetera), the open position of

 218 7 the combat arms plug is not going to provide

 218 8 protection. Your ear cannot take a 110 dB," decibel,

 218 9 "blast every 30 seconds."

 218 10 Did I read that correctly?

 218 11 A. Yes, you read it correctly.

 218 12 Q. Do you agree with that statement?

 218 13 A. No, I do not.

Re: [217:22-218:13]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [215:7-

219:1]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

218:14 - 218:23 Madison, Ted 12-10-2019

 218 14 Q. What part of it do you disagree with?

 218 15 A. Personally, the -- the open position of

 218 16 the Combat Arms is not going to provide protection,

 218 17 that's what Mr. Jones said, and that's not a true

 218 18 statement.

 218 19 And then, secondly, your ear cannot take a

 218 20 110-dB blast every 30 seconds, that's -- that's a

 218 21 gross overstatement I think. I wouldn't agree with

 218 22 that. If you are wearing protection, it may be that

 218 23 that's a safe level to be exposed.

218:24 - 219:6 Madison, Ted 12-10-2019

 218 24 Q. Well, let's turn over to Page 143.

 218 25 The -- this is Mr. Berger, correct?

 219 1 A. Bear with me a moment --

 219 2 Q. Sure.

 219 3 A. -- while I catch up to you.

 219 4 Yes.

 219 5 Q. Mr. Berger should know about what this

 219 6 earplug could do, shouldn't he?

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 188 of 198
Madison, Ted 12-10-2019 21

219:10 - 220:13 Madison, Ted 12-10-2019

 219 10 A. Mr. Berger is very knowledgeable about

 219 11 this earplug and how it works.

 219 12 Q. And he said: "The onset of risk for

 219 13 impulse noise is normally estimated at 135 to 140 dB

 219 14 Peak."

 219 15 Is that what he says?

 219 16 A. That is what he says.

 219 17 Q. Do you agree with that?

 219 18 A. Yes, I do.

 219 19 Q. "Thus, if gunfights" -- "shots can be

 219 20 reduced below that level, they are considered

 219 21 essentially safe. However, when shooting in an indoor

 219 22 reverberant space, the reverberant energy, which is

 219 23 much longer lived than the impulses, even at low (sic)

 219 24 level, can still be hazardous."

 219 25 Did I read that reasonably correct?

 220 1 A. "Even at a lower level can still be

 220 2 hazardous."

 220 3 Q. Do you agree with that?

 220 4 A. Yes, I do agree.

 220 5 Q. "At indoor ranges many weapons firing more

 220 6 protection than can be provided by the" -- "many" --

 220 7 "at indoor ranges with many weapons firing, more

 220 8 protection than can be provided by the Combat Arms

 220 9 earplug is required."

 220 10 Did I read that correctly?

 220 11 A. Yes.

 220 12 Q. Do you agree with that?

 220 13 A. Yes, I do.

Re: [219:12-220:13]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [219:12-

220:13]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

220:14 - 220:15 Madison, Ted 12-10-2019

 220 14 Q. So these Combat Arms earplugs are not good

 220 15 for indoor in the yellow position in the ear?

220:18 - 220:22 Madison, Ted 12-10-2019

 220 18 A. The yellow end in the ear, that

 220 19 level-dependent mode, will provide some reduction in

 220 20 the sound, the peak sound level in an indoor range.

 220 21 The phrase -- the statement that he is making here is

 220 22 whether that's sufficient to reduce risk.

221:4 - 221:6 Madison, Ted 12-10-2019

 221 4 Q. Well, this is important. Should it be

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 189 of 198
Madison, Ted 12-10-2019 22

 221 5 used indoors or not?

 221 6 A. I believe what I said --

221:7 - 221:13 Madison, Ted 12-10-2019

 221 7 Q. We are getting there.

 221 8 A. Yep. So that's my --

 221 9 Q. I'm -- I'm -- trust me, I'm not going to

 221 10 leave it out.

 221 11 A. What I be -- are you asking -- why don't

 221 12 you restate the question.

 221 13 Q. Sure.

221:14 - 222:1 Madison, Ted 12-10-2019

 221 14 It says: "Even at a lower level can still

 221 15 be hazardous. At indoor ranges with many weapons

 221 16 firing, more protection than can be provided by the

 221 17 CAE is required," "is required."

 221 18 Is that true?

 221 19 A. I believe that in some cases that would be

 221 20 true.

 221 21 Q. All right. Now, these -- these Combat

 221 22 Arms Version 2 earplugs were sold to the US military,

 221 23 right?

 221 24 A. Yes.

 221 25 Q. It's wholly foreseeable that folks are

 222 1 going to be shooting weapons indoors, isn't it?

Re: [221:14-222:1]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [221:25-222:1]

Def Objection - Foundation (602); 

Calls for legal conclusion (403)

Re: [221:14-

221:24]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

Re: [221:25-

222:1]

Def Objection -

Relevance (401, 

402); Prejudice 

(403); 

Foundation 

(602); Calls for 

legal conclusion 

(403)

OVERRULED

222:4 - 223:12 Madison, Ted 12-10-2019

 222 4 A. I -- I don't know how they are -- how they

 222 5 shoot their weapons or -- or practice shooting. I

 222 6 have not been to a military base.

 222 7 BY MR. PIRTLE:

 222 8 Q. Well, let's just handle it this way. On

 222 9 the gun range situation, you've seen or been to indoor

 222 10 gun ranges, particularly handgun ranges, haven't you?

 222 11 A. Yes, I have.

 222 12 Q. Would it surprise you to find out that the

 222 13 military has indoor handgun ranges for their people to

 222 14 qualify with?

 222 15 A. You are asking me if it would surprise me?

 222 16 Q. Surprise you.

Re: [222:4-222:6]

Def Objection - Foundation (602); 

Calls for legal conclusion (403)

Re: [222:4-

222:6]

Def Objection -

Foundation 

(602); Calls for 

legal conclusion 

(403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 190 of 198
Madison, Ted 12-10-2019 23

 222 17 A. That wouldn't surprise me.

 222 18 Q. And you know -- and you would know as

 222 19 somebody who has watched the television news that --

 222 20 and you would have certainly known by the time that

 222 21 these documents were written in 2014 that, outside of

 222 22 the gun range scenario, that there are soldiers that

 222 23 are going and clearing houses in Iraq, in Afghanistan,

 222 24 discharging weapons indoors on top of each other.

 222 25 You've seen that on the news, hadn't you?

 223 1 A. I've seen video of combat situations,

 223 2 urban combat.

 223 3 Q. You've heard of Fallujah, hadn't you?

 223 4 A. I have.

 223 5 Q. Do you know of any statement by 3M that

 223 6 said, Hey, we are selling these to you, but they won't

 223 7 protect you in Fallujah?

 223 8 A. No, I know of no such statement.

 223 9 Q. Or they won't protect you in an indoor

 223 10 range?

 223 11 A. I haven't seen a statement phrased that

 223 12 way before, no.

223:24 - 224:4 Madison, Ted 12-10-2019

 223 24 Don't you think the people on the ground

 223 25 that are sweeping and clearing houses in Afghanistan,

 224 1 in Iraq and even Syria -- Syria, would have a right --

 224 2 they have a right to know that, Hey, these Combat Arms

 224 3 earplugs are not going to protect my hearing when I'm

 224 4 in this house in a fire fight?

224:6 - 224:8 Madison, Ted 12-10-2019

 224 6 BY THE WITNESS:

 224 7 A. Yeah, I guess I don't agree with the

 224 8 premise of that that they are not going to protect.

224:18 - 224:25 Madison, Ted 12-10-2019

 224 18 Q. Well, are you saying you believe that they

 224 19 do protect their hearing?

 224 20 A. It gets down to what you mean by protect.

 224 21 It reduces your exposure, so it helps to reduce

 224 22 your -- the risk of hearing loss.

 224 23 Q. Well, are you saying that it is better

 224 24 than nothing?

 224 25 A. Yes.

Re: [224:18-224:24]

(701) (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 191 of 198
Madison, Ted 12-10-2019 24

225:2 - 225:3 Madison, Ted 12-10-2019

 225 2 Now, this is you weighing in, correct?

 225 3 A. Yes, these are my comments.

Re: [225:2-225:3]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [225:2-

225:3]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

226:20 - 227:2 Madison, Ted 12-10-2019

 226 20 Q. "More broadly, I'm not sure the Combat

 226 21 Arms makes sense in this application. The benefit of

 226 22 Combat Arms is to allow the wearer to hear better

 226 23 between impulses (i.e. situational awareness) which

 226 24 makes sense in a tactical police, hunting, or military

 226 25 combat situation."

 227 1 Is that what you wrote?

 227 2 A. Yes, I wrote that.

Re: [226:20-227:2]

Def Objection - Relevance (401, 

402); Prejudice (403)

Re: [225:17-

227:4]

Def Objection -

Relevance (401, 

402); Prejudice 

(403)

OVERRULED

227:3 - 227:4 Madison, Ted 12-10-2019

 227 3 Q. Do you agree with it?

 227 4 A. Yes.

228:2 - 228:4 Madison, Ted 12-10-2019

 228 2 Q. Well, in combat situations, at least in --

 228 3 in a large number of them the fire is almost

 228 4 continuous, isn't it?

Re: [228:2-228:7]

Foundation (403,701)

OVERRULED

228:7 - 228:7 Madison, Ted 12-10-2019

 228 7 A. I have never been in combat.

Re: [228:2-228:7]

Foundation (403,701)

OVERRULED

228:24 - 229:5 Madison, Ted 12-10-2019

 228 24 Q. So are you saying that these earplugs work

 228 25 for that situation?

 229 1 A. I'm saying that that's an example of the

 229 2 situation where situational awareness is critical to

 229 3 the -- to the war fighter and that the Army has chosen

 229 4 that hearing protector to allow that situational

 229 5 awareness, as we described earlier.

229:21 - 230:4 Madison, Ted 12-10-2019

 229 21 Q. After 2008 it's been represented that --

 229 22 by 3M that these earplugs in this configuration work

 229 23 in combat situations by 3M employees, including

 229 24 yourself, right?

 229 25 A. Yes, that they are -- they help provide

 230 1 protection in combat situations as well as situational

 230 2 awareness.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 192 of 198
Madison, Ted 12-10-2019 25

 230 3 Q. Are you saying they are better than

 230 4 nothing?

230:7 - 230:13 Madison, Ted 12-10-2019

 230 7 A. You have used that phrase twice.

 230 8 BY MR. PIRTLE:

 230 9 Q. That's right.

 230 10 A. Those aren't -- those aren't my words.

 230 11 Q. Okay.

 230 12 A. I'm saying they help reduce the exposure

 230 13 to impulse noise.

258:18 - 259:14 Madison, Ted 12-10-2019

 258 18 Q. What did you do with the complaint?

 258 19 A. The complaint, because it was an alleged

 258 20 health allegation, we implemented our process for

 258 21 responding and documenting this type of complaint. So

 258 22 we -- we met with our product responsibility liaison,

 258 23 these are the people who are responsible for any

 258 24 alleged health out -- negative health outcomes as well

 258 25 as our business team and our laboratory to assess the

 259 1 proper response.

 259 2 Q. And what was the proper response?

 259 3 A. There were several, several responses.

 259 4 First thing we a -- we all agreed we needed to notify

 259 5 the U.S. Army about the complaint and so we did so.

 259 6 Secondly, we discussed whether additional

 259 7 warnings and cautions and user information should be

 259 8 added to our products, the Combat Arms earplugs, to

 259 9 help people understand the risks of impulse noise and

 259 10 how to select which mode the earplugs should be worn

 259 11 in for the type of exposure, whether the open mode

 259 12 with level dependent attenuation was appropriate or

 259 13 whether the closed mode for continuous noise

 259 14 applications would be more appropriate.

273:16 - 274:24 Madison, Ted 12-10-2019

 273 16 Q. Let me show you Exhibit 28.

 273 17 Do you recognize Exhibit 28?

 273 18 A. Yes.

 273 19 Q. When is the last time you saw it?

 273 20 A. At the time it was written, I believe.

 273 21 Q. This is another complaint?

 273 22 A. It is a complaint, yes, and my response to

 273 23 the complaint.

Re: [273:15-274:24]

Def Objection - Baker MIL No. 1; 

(403)

Re: [273:15-

274:13]

Def Objection -

404; Prejudice 

(403); Hearsay 

(801, 802); 

relevance (401, 

402); 3M MIL 

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 193 of 198
Madison, Ted 12-10-2019 26

 273 24 Q. This is Howard Elmer. It looks like he is

 273 25 from Marietta, Georgia, writing you.

 274 1 "I inserted the olive end into my ears, as

 274 2 recommended on the back of the package, thought it had

 274 3 seated, entered the shooting range and set up and

 274 4 began firing. "

 274 5 A. "Thought it had seated well, entered the

 274 6 shooting range."

 274 7 Q. Yep.

 274 8 A. "And set up and began firing."

 274 9 Q. "At some point I felt a sharp piercing

 274 10 pain/noise in my left ear. Both ears had some

 274 11 ringing, which subsided, by my left ear feels like

 274 12 there is a buzzing/vibrating feeling when I speak

 274 13 now."

 274 14 You are an audiologist, what type of

 274 15 symptom is that indicative of or what type of an

 274 16 injury is that symptom indicative of?

 274 17 A. A buzzing and vibrating feeling could be a

 274 18 tinnitus, a type of tinnitus. I -- I don't know what

 274 19 he was referring to, but...

 274 20 Q. "It" -- "It has been about two weeks since

 274 21 this occurred with only slight improvement in my left

 274 22 ear. Loud noises are bothersome to my left ear."

 274 23 Did I read that reasonably correct?

 274 24 A. I believe so.

No. 10

OVERRULED

Re: [274:20-

274:24]

Def Objection -

404; Prejudice 

(403); Hearsay 

(801, 802); 

relevance (401, 

402); 3M MIL 

No. 10

OVERRULED

275:13 - 275:20 Madison, Ted 12-10-2019

 275 13 Q. And then you write him back: "Thank you

 275 14 for letting us know about your experience," this is

 275 15 2014. "I'm traveling today and tomorrow."

 275 16 Did you ever talk to this fellow, Howard

 275 17 Elmer?

 275 18 A. I -- I can't tell from this document

 275 19 whether that conversation ever happened or not. I

 275 20 don't recall that.

Re: [275:13-276:2]

Baker MIL No. 1; (403); 

Relevance

OVERRULED

275:21 - 276:2 Madison, Ted 12-10-2019

 275 21 Q. Do you recall that -- whether or not

 275 22 anything ever happened after that?

 275 23 A. Well, I'm sure that we would have entered

 275 24 this complaint into our complaint system and it would

 275 25 have been identified as an alleged injury and we would

Re: [275:13-276:2]

Baker MIL No. 1; (403); 

Relevance

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 194 of 198
Madison, Ted 12-10-2019 27

 276 1 have followed that procedure to respond to an alleged

 276 2 injury.

348:20 - 348:21 Madison, Ted 12-10-2019

 348 20 Q. Mr. Madison, as you know, my name is Barry

 348 21 Fields. I just wanted to ask you a few questions.

350:8 - 351:15 Madison, Ted 12-10-2019

 350 8 Q. Now, one of the -- there were a series of

 350 9 questions during the deposition regarding various

 350 10 testing that might have been performed relating to the

 350 11 Combat Arms earplug Version 2.

 350 12 Do you recall that?

 350 13 A. I recall that.

 350 14 Q. And for purposes of my questions, when I

 350 15 use the term "Combat Arms earplug Version 2," I'm

 350 16 speaking about the dual-ended Combat Arms earplug.

 350 17 Can we agree on that?

 350 18 A. Yes.

 350 19 Q. And one of -- some of the questions

 350 20 concerned certain labeling tests that were performed

 350 21 by Aearo back in the early 2000s for the Combat Arms

 350 22 Version 2.

 350 23 Do you recall that, the questions?

 350 24 A. Yes, I recall that, those questions.

 350 25 Q. At 3M, was it your responsibility to

 351 1 perform labeling tests on the Combat Arms earplug

 351 2 Version 2?

 351 3 A. No, it was not.

 351 4 Q. Was it your responsibility to perform

 351 5 labeling tests on what has been called the ARC

 351 6 earplug?

 351 7 A. No.

 351 8 Q. Was it your responsibility to perform

 351 9 labeling tests on any hearing protection device at 3M?

 351 10 A. It was not my responsibility.

 351 11 Q. Putting aside whether or not it was your

 351 12 responsibility, did you consider one of your

 351 13 specialties when you were at 3M to perform labeling

 351 14 tests for hearing protection devices?

 351 15 A. No.

Re: [350:8-355:1]

Plt Objection - improper counter 

per PTO 64

Re: [350:8-

351:15]

Plt Objection -

improper 

counter per 

PTO 64

OVERRULED

351:16 - 355:1 Madison, Ted 12-10-2019

 351 16 Q. Earlier there was some discussion

 351 17 regarding a specific type of test called the REAT

Re: [350:8-355:1]

Plt Objection - improper counter 

per PTO 64

Re: [351:16-

355:1]

Plt Objection -

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 195 of 198
Madison, Ted 12-10-2019 28

 351 18 test.

 351 19 Do you recall that?

 351 20 A. Yes.

 351 21 Q. And what does REAT stand for?

 351 22 A. Real-ear attenuation at threshold.

 351 23 Q. And based on your work at 3M, did you

 351 24 become aware of various REAT tests that were 

performed

 351 25 on 3M or Aearo hearing protection devices?

 352 1 A. Can you say that again, please.

 352 2 Q. Sure. While we -- while you were at 3M,

 352 3 did you become aware of certain REAT tests that were

 352 4 performed on various hearing protection devices?

 352 5 A. Yes, I was aware of testing being

 352 6 performed on hearing protection devices.

 352 7 Q. While you were at 3M, was one of your

 352 8 specialties or focuses to perform REAT tests on

 352 9 hearing protection devices?

 352 10 A. No.

 352 11 Q. Was one of your specialties or focuses

 352 12 while you were at 3M to perform labeling tests on

 352 13 hearing protection devices?

 352 14 A. No.

 352 15 Q. You indicated earlier that your job title,

 352 16 at least after the acquisition of Aearo by 3M, was a

 352 17 technical services specialist or something similar to

 352 18 that?

 352 19 A. That's right.

 352 20 Q. As a technical service specialist, was one

 352 21 of your responsibility -- in one of your

 352 22 responsibilities to review all of the testing that had

 352 23 been performed relating to the Combat Arms earplug

 352 24 Version 2?

 352 25 A. No.

 353 1 Q. Did you ever attempt to identify all of

 353 2 the testing of the Combat Arms earplug Version 2 that

 353 3 had been performed, first of all, before the

 353 4 acquisition of Aearo in 2008?

 353 5 A. No.

 353 6 Q. Did you ever attempt to identify all of

 353 7 the testing of the Combat Arms earplug Version 2 that

 353 8 was performed at any point in time after the

improper 

counter per 

PTO 64

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 196 of 198
Madison, Ted 12-10-2019 29

 353 9 acquisition of Aearo by 3M in 2008?

 353 10 A. No.

 353 11 Q. There was some discussion earlier in the

 353 12 deposition regarding testing concerning the

 353 13 situational awareness that could result if one was

 353 14 wearing a hearing protection device.

 353 15 Do you recall that?

 353 16 A. Yes.

 353 17 Q. Was one of your specialties or -- or

 353 18 focuses as a technical service specialist to evaluate

 353 19 the test data on the intelligibility that would result

 353 20 when users were wearing a hearing protection device

 353 21 such as the Combat Arms earplug Version 2?

 353 22 A. No.

 353 23 Q. Were you ever involved in performing

 353 24 testing to evaluate a soldier's situation awareness

 353 25 when wearing hearing protection devices?

 354 1 A. No.

 354 2 Q. As you sit here today, are you aware of

 354 3 all of the various tests that have been performed over

 354 4 the years relating to the Combat Arms earplug

 354 5 Version 2?

 354 6 A. No.

 354 7 Q. Do you know all of the entities or

 354 8 agencies that have been involved in evaluating or

 354 9 testing the Combat Arms earplug Version 2?

 354 10 A. No.

 354 11 Q. What about with respect to the testing on

 354 12 the Version 3 or Version 4 of the earplug?

 354 13 A. No.

 354 14 Q. There were a series of questions earlier

 354 15 about the Johnson Blast Overpressure study.

 354 16 Do you recall that?

 354 17 A. Yes, I do.

 354 18 Q. Was -- do you consider yourself to have

 354 19 expertise in evaluating blast overpressure studies?

 354 20 A. No, I don't.

 354 21 Q. At any point in time did you attempt to

 354 22 identify whether there were similar studies to the

 354 23 Johnson study that had been published in the

 354 24 peer-reviewed literature or otherwise that were

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 197 of 198
Madison, Ted 12-10-2019 30

 354 25 evaluating Combat Arms earplugs?

 355 1 A. No, I didn't.

Case 7:20-cv-00039-MCR-GRJ Document 147-1 Filed 06/04/21 Page 198 of 198