EXHIBIT 1

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 1 of 48
Cimino, M. 12-11-2019

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 2 of 48
Cimino, M. 12-11-2019 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

7:8 - 7:13 Cimino, M. 12-11-2019

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

 7 9 the record?

 7 10 A. My full name is Mike Cimino.

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

Tom

 7 12 Cartmell. It is nice to meet you.

 7 13 A. Nice to meet you.

8:12 - 8:17 Cimino, M. 12-11-2019

 8 12 Q. All right. So, let me ask you where you

 8 13 presently reside?

 8 14 A. I reside in Barrie, Ontario, Canada.

 8 15 Q. And how long have you been a resident of

 8 16 Canada?

 8 17 A. All my life.

8:23 - 9:5 Cimino, M. 12-11-2019

 8 23 Who are you currently employed by, sir?

 8 24 A. 3M.

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

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

 9 2 leader.

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

 9 4 its predecessor, the Aearo Technology Company 

for

 9 5 approximately 20 years?

Re: [9:3-9:5]

Def Objection - Compound 

(611, 403)

Re: [9:3-9:5]

Def Objection -

Compound (611, 

403)

Overruled

9:8 - 9:11 Cimino, M. 12-11-2019

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

 9 9 when they purchased Aearo company. With 

Aearo company

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

Aearo

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

Re: [9:8-9:11]

Def Objection - Compound 

(611, 403)

Re: [9:8-9:11]

Def Objection -

Compound (611, 

403)

Overruled

9:18 - 9:22 Cimino, M. 12-11-2019

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

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

marketing

 9 20 department or the business side of the companies?

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 3 of 48
Cimino, M. 12-11-2019 3

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

 9 22 either marketing or sales side.

10:15 - 10:24 Cimino, M. 12-11-2019

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

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

resume

 10 17 for this litigation?

 10 18 A. No.

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

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

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

that I

 10 22 would have picked up as a result of having 

applied to

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

consolidated

 10 24 CV.

11:3 - 12:4 Cimino, M. 12-11-2019

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

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

who

 11 5 you are.

 11 6 But when you started at Aearo

 11 7 Technologies, it looks like you were a marketing

 11 8 director in -- in 1999, correct?

 11 9 A. Correct.

 11 10 Q. And then you received a promotion to

 11 11 business manager in October of 2006, is that 

correct?

 11 12 A. Correct.

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

 11 14 you became a business leader, tactical PPE 

military

 11 15 markets in April of 2008, right?

 11 16 A. Correct.

 11 17 Q. And PPE stands for personal protection

 11 18 equipment, is that right?

 11 19 A. Correct.

 11 20 Q. Okay. You then became a product 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 4 of 48
Cimino, M. 12-11-2019 4

marketing

 11 21 manager in January 2012 for active hearing, 

correct?

 11 22 A. Correct.

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

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

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

 12 1 product marketing manager, in 2014 you were a 

national

 12 2 accounts manager, in 2015 you were a regional 

sales

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

became

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

current

12:5 - 12:15 Cimino, M. 12-11-2019

 12 5 position, business development leader, is that

 12 6 correct?

 12 7 A. Correct.

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

 12 9 those positions that you've had.

 12 10 Have those been promotions through the

 12 11 company primarily over those 20-some years?

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

 12 13 escalating responsibility and not all promotions.

 12 14 Q. Some of them lateral moves?

 12 15 A. Yes.

14:7 - 14:11 Cimino, M. 12-11-2019

 14 7 Q. And as you marched through the company

 14 8 over the 20-some years, I take it you have 

benchmarks

 14 9 as far as sales and revenues for the products you 

are

 14 10 responsible for that are given to you by upper

 14 11 management, is that right?

Re: [14:7-14:11]

Def Objection - Compound; 

Vague (611, 403)

Re: [14:7-14:11]

Def Objection -

Compound; 

Vague (611, 

403)

Overruled

14:13 - 14:13 Cimino, M. 12-11-2019

 14 13 A. Yeah.

Re: [14:13-14:13]

Def Objection - Compound; 

Vague (611, 403)

Re: [14:13-

14:13]

Def Objection -

Compound; 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 5 of 48
Cimino, M. 12-11-2019 5

Vague (611, 

403)

Overruled

17:22 - 18:17 Cimino, M. 12-11-2019

 17 22 Have you always been in Canada,

 17 23 Mr. Cimino --

 17 24 A. Correct.

 17 25 Q. -- when you have been working for both

 18 1 Aearo -- Aearo Technologies and for 3M?

 18 2 A. Yes.

 18 3 Q. Okay. Now, for example, Aearo

 18 4 Technologies, I think their United States offices 

or

 18 5 the -- the primary office is in Indianapolis, is that

 18 6 right, when you were working for them?

 18 7 A. Yes.

 18 8 Q. But you worked remotely from Canada 

during

 18 9 that entire time, is that fair?

 18 10 A. Correct.

 18 11 Q. Okay. And as far as your work at 3M as

 18 12 well, their primary offices, I believe, in the

 18 13 United States are in Minnesota, is that right?

 18 14 A. Correct.

 18 15 Q. And you have, during your time at 3M,

 18 16 always worked remotely from Canada, right?

 18 17 A. Correct.

Re: [17:22-18:17]

Improper counter per PTO 64 

SUSTAINED

18:21 - 19:4 Cimino, M. 12-11-2019

 18 21 And I noted that you have not included

 18 22 anything here about your education before you 

started

 18 23 working for Aearo Technologies. So can you 

just

 18 24 briefly but completely tell us about your 

educational

 18 25 background?

 19 1 A. Sure. I went to Ryerson Polytechnical

 19 2 University in Toronto with a -- a bachelor degree 

in

Re: [18:21-19:4]

Improper counter per PTO 64

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 6 of 48
Cimino, M. 12-11-2019 6

 19 3 mechanical engineering, and then I've got a -- an 

MBA

 19 4 from City University of Sea -- out of Seattle.

21:11 - 21:15 Cimino, M. 12-11-2019

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

 21 12 case because you were in marketing and in 

management

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

 21 14 product called the Combat Arms Earplug, is that 

fair?

 21 15 A. Yeah.

Re: [21:11-21:15]

Def Objection - Compound; 

Vague (611, 403)

Re: [21:11-

21:15]

Def Objection -

Compound; 

Vague (611, 

403)

Overruled

23:17 - 24:13 Cimino, M. 12-11-2019

 23 17 Q. When was it that you were first involved

 23 18 in any capacity with the Combat Arms Earplug 

Version 2

 23 19 while you were working at Aearo?

 23 20 A. So when I moved into the role as a

 23 21 business leader for the tactical markets as a 

business

 23 22 manager for Aearo back in October of 2006, that

 23 23 product came along as part of a product mix that

 23 24 the -- that particular market focus had.

 23 25 Q. So if I understand you correctly, you

 24 1 first started having some involvement and

 24 2 responsibility with this earplug, the Combat Arms

 24 3 Earplug Version 2, starting in October of 2006?

 24 4 A. That product, yes, in 2006, that product

 24 5 would have come along as part of the product mix 

under

 24 6 the -- the B -- the business manager role for the

 24 7 military business unit.

 24 8 Q. Did you have any involvement with this

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

Earplug,

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

or

 24 11 sales?

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

 24 13 have any responsibility for it.

Re: [23:17-24:13]

Improper counter per PTO 

64, 403, waste of time 

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 7 of 48
Cimino, M. 12-11-2019 7

25:23 - 26:3 Cimino, M. 12-11-2019

 25 23 Q. Prior to 2006 when you started having

 25 24 responsibility for this earplug, I want to know if 

you

 25 25 needed to have any training related to this 

product

 26 1 before then?

 26 2 A. So that product was not part of my role

 26 3 scope at that time.

Re: [25:23-26:3]

Improper counter per PTO 

64, 403

OVERRULED

26:14 - 26:17 Cimino, M. 12-11-2019

 26 14 So prior to 2006, you didn't need any

 26 15 training or sort of in-depth knowledge about this

 26 16 earplug or how it worked, is that fair?

 26 17 A. Correct.

Re: [26:14-26:17]

Improper counter per PTO 

64, 403

SUSTAINED

36:2 - 36:13 Cimino, M. 12-11-2019

 36 2 You stated previously that you were first

 36 3 involved with the Combat Arms Earplugs in 

2006, right?

 36 4 A. As part of my product portfolio

 36 5 responsibility, correct.

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

 36 7 after that that you were involved from a 

marketing

 36 8 standpoint with the Combat Arms Version 2 

earplug?

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

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

mix

 36 11 through December 2011 as part of my 

responsibility as

 36 12 the business leader for the military market. So 

that

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

time.

36:14 - 36:23 Cimino, M. 12-11-2019

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

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

 36 16 you were in a marketing management role 

related to the

Re: [36:14-36:23]

Improper counter per PTO 64 

for 36:20-36:23

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 8 of 48
Cimino, M. 12-11-2019 8

 36 17 Combat Arms Version 2 earplug would have 

been from

 36 18 2006 through a portion of 2011?

 36 19 A. Correct.

 36 20 Q. Do you think you had any responsibility

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

after

 36 22 2011?

 36 23 A. I did not.

41:4 - 41:18 Cimino, M. 12-11-2019

 41 4 (WHEREUPON, a certain document was

 41 5 marked Mike Cimino Deposition Exhibit

 41 6 No. 4, for identification, as of

 41 7 12/11/2019.)

 41 8 BY MR. CARTMELL:

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

 41 10 as Exhibit 4.

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

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

from 3M's

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

 41 14 questions about this.

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

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

Fallon.

 41 17 Do you see that?

 41 18 A. I do.

Re: [40:21-41:18]

Def Objection - Foundation 

(602)

Re: [41:4-41:18]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN 

[41:4-41:18], 

3/12/2021

42:14 - 44:4 Cimino, M. 12-11-2019

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

 42 15 forwarded by Mr. Moses that talks about military

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

a

 42 17 timeline.

 42 18 Do you see that?

 42 19 A. The Historical Timeline chart, yes.

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

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

is

 42 22 going on during the periods of time that the 

Re: [42:14-43:24]

Def Objection - Foundation 

(602)

Re: [43:25-44:4]

Def Objection - Comopund; 

Misstates (611, 403) ; 

Foundation (602)

Re: [42:14-

43:24]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

Re: [43:25-44:4]

Def Objection -

Compound; 

Misstates (611, 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 9 of 48
Cimino, M. 12-11-2019 9

Combat

 42 23 Arms Earplugs Version 2 was being sold.

 42 24 And you see that this Historical Timeline

 42 25 has US military activity that is occurring from

1999

 43 1 through 2004, do you see that?

 43 2 A. Um-hum.

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

 43 4 Afghan -- Afghanistan deployments began, right?

 43 5 A. Yes.

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

 43 7 consistent with your recollection?

 43 8 A. Correct.

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

 43 10 shortly after the Iraqi war began, the Generation 

2

 43 11 Combat Arms Earplug was launched.

 43 12 Is that consistent with your memory?

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

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

officially

 43 15 launched.

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

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

you

 43 18 taking over responsibility for it?

 43 19 A. Yes.

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

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

 43 22 being spent by the military when you took over 

in

 43 23 2006, correct?

 43 24 A. Correct.

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

 44 1 timeline shows, there were two wars that had 

been

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

thousands

 44 3 of soldiers had been deployed overseas into 

403) ; 

Foundation (602)

Overruled

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 10 of 48
Cimino, M. 12-11-2019 10

combat, is

 44 4 that -- is that correct?

44:7 - 44:24 Cimino, M. 12-11-2019

 44 7 A. So there was certainly surge deployments

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

 44 9 BY MR. CARTMELL:

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

 44 11 are deployed over into combat or overseas into 

wars,

 44 12 obviously the military is going to have a greater 

need

 44 13 for personal protection equipment like earplugs 

or

 44 14 earmuffs, that sort of thing, correct?

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

 44 16 more consumption.

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

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

 44 19 appointed to lead the strategic business unit that

 44 20 included the Combat Arms Earplug, one million 

pair of

 44 21 Generation 2 Combat Arms Earplugs were 

purchased by or

 44 22 ordered by the DLA.

 44 23 Do you see that?

 44 24 A. I do.

Re: [44:7-44:8]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602)

Re: [44:9-44:24]

Def Objection - Foundation 

(602)

Re: [44:7-44:8]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602)

Overruled

Re: [44:9-44:24]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

59:11 - 59:21 Cimino, M. 12-11-2019

 59 11 Q. And during that period of time, what types

 59 12 of activities would Mr. Moses, with your 

approval,

 59 13 allow Mr. Olin to do on behalf of 3M?

 59 14 A. So my recollection of his scope of

 59 15 activities would have included going to trade 

shows

 59 16 with us, helping us with product feedback, 

helping us

 59 17 with understanding the military procurement 

landscape

 59 18 a little bit better, helping us understand, you 

Re: [59:11-59:21]

Improper counter per PTO 64 

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 11 of 48
Cimino, M. 12-11-2019 11

know,

 59 19 where does an audiologist fit in the decisionmaking

 59 20 process as it relates to hearing conservation and

 59 21 hearing-related products.

60:18 - 61:2 Cimino, M. 12-11-2019

 60 18 Q. Sir, I want to talk again about this

 60 19 Combat Arms Earplug Version 2 a little bit in 

more

 60 20 detail here and -- and ask you some questions 

about

 60 21 your knowledge of that earplug when you started 

as the

 60 22 vice president of the strategic business unit.

 60 23 At that time when you were now responsible

 60 24 for the strategic business unit that would be 

selling

 60 25 this to the material, what did you do to try to

 61 1 educate yourself on how this earplug worked as 

far as

 61 2 technically and that sort of thing?

Re: [60:18-61:2]

Improper counter per PTO 64 

SUSTAINED

61:6 - 61:9 Cimino, M. 12-11-2019

 61 6 A. At that time I was -- my -- my focus would

 61 7 have been more on the strategic -- the strategic 

plan

 61 8 for the business unit, not delving into the 

technical

 61 9 formalities of a product.

Re: [61:6-61:9]

Improper counter per PTO 64 

SUSTAINED

62:24 - 63:2 Cimino, M. 12-11-2019

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

 62 25 of business development activities related to the

 63 1 Combat Arms Earplug?

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

Re: [62:24-63:2]

Improper counter per PTO 64 

SUSTAINED

70:14 - 70:20 Cimino, M. 12-11-2019

 70 14 Q. As far as testing of any of the products

 70 15 that you were responsible for in your portfolio, 

were

 70 16 you involved in testing of the products at all?

 70 17 A. No.

Re: [70:14-70:20]

Improper counter per PTO 64 

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 12 of 48
Cimino, M. 12-11-2019 12

 70 18 Q. Okay. But I take it you would want to be

 70 19 kept informed of what was going on with the 

testing

 70 20 related to those products, fair?

70:23 - 70:23 Cimino, M. 12-11-2019

 70 23 A. No, not necessarily.

Re: [70:23-70:23]

Improper counter per PTO 64 

SUSTAINED

85:8 - 85:13 Cimino, M. 12-11-2019

 85 8 Q. So when you became the vice president

 85 9 for -- of the strategic business unit in charge of

 85 10 this product and the sales to the military, did you 

go

 85 11 back and look to see if it had ever been tested in

 85 12 your laboratory at Aearo Technologies?

 85 13 A. I did not.

85:19 - 85:22 Cimino, M. 12-11-2019

 85 19 Q. You knew prior to taking over this product

 85 20 that before this product could be sold to the

 85 21 military, it needed to have what's called a noise

 85 22 reduction rating?

Re: [85:19-85:22]

Def Objection - Misstates 

(611, 403); Foundation (602)

Re: [85:19-

85:22]

Def Objection -

Misstates (611, 

403); Foundation 

(602)

Sustained

85:24 - 86:3 Cimino, M. 12-11-2019

 85 24 BY THE WITNESS:

 85 25 A. So, I did not know that going in. I don't

 86 1 know -- I did not know what the specs -- the

 86 2 specifications were around that product going 

into --

 86 3 into my job.

Re: [85:25-86:3]

Def Objection - Misstates 

(611, 403); Foundation (602)

Re: [85:25-86:3]

Def Objection -

Misstates (611, 

403); Foundation 

(602)

Sustained

90:23 - 90:25 Cimino, M. 12-11-2019

 90 23 Q. Did you know anything about the EPA

 90 24 requiring an NRR rating on your products that 

you are

 90 25 responsible for?

Re: [90:23-90:25]

Def Objection - Foundation 

(602)

Re: [90:23-

90:25]

Def Objection -

Foundation (602)

Sustained

91:2 - 91:3 Cimino, M. 12-11-2019

 91 2 BY THE WITNESS:

 91 3 A. I don't recall.

Re: [91:3-91:8]

Def Objection - Foundation 

(602)

Re: [91:3-91:8]

Def Objection -

Foundation (602)

SUSTAINED 

AS TO [91:3] 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 13 of 48
Cimino, M. 12-11-2019 13

FOUNDATION 

OBJECTION 

WITHDRAWN 

[91:5-91:8]

91:5 - 91:8 Cimino, M. 12-11-2019

 91 5 Q. You don't think you did?

 91 6 A. I say I don't recall.

 91 7 Q. You may have, you just don't know?

 91 8 A. I -- I don't recall.

Re: [91:3-91:8]

Def Objection - Foundation 

(602)

Re: [91:3-91:8]

Def Objection -

Foundation (602)

SUSTAINED 

AS TO [91:3] 

FOUNDATION 

OBJECTION 

WITHDRAWN 

[91:5-91:8]

93:1 - 93:16 Cimino, M. 12-11-2019

 93 1 Q. Would you have assumed that it would have

 93 2 been tested at Aearo Technology prior to the time 

that

 93 3 it was first sold to the military?

 93 4 A. I'm not really comfortable answering what

 93 5 I assumed or didn't assume at the time.

 93 6 Q. Well, you would review test results from

 93 7 the Aearo Technology lab from time to time?

 93 8 A. I would not review tests.

 93 9 Q. You would review test results?

 93 10 A. No.

 93 11 Q. And you would have interaction with the

 93 12 laboratory at Aearo Technology from time to 

time?

 93 13 A. Definitely.

 93 14 Q. And part of that was so that you could

 93 15 figure out what the noise reduction rating was for 

the

 93 16 products that you were responsible for, correct?

Re: [93:14-93:16]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [93:14-

93:16]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

Re: [93:1-93:13]

Foundation (602)

OVERRULED; 

no new 

objection 

specific to 

McCombs.

93:20 - 94:13 Cimino, M. 12-11-2019

 93 20 A. So, we would know what the final NRRs

 93 21 would be of products that were tested.

 93 22 BY MR. CARTMELL:

 93 23 Q. And you understood, as you just said, that

 93 24 an NRR, or a noise reduction rating, would come 

Re: [93:20-93:21]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [93:23-94:13]

Def Objection - Foundation 

(602)

Re: [93:20-

93:21]

Def Objection -

Compound (611, 

403); Foundation 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 14 of 48
Cimino, M. 12-11-2019 14

about

 93 25 as a result of a test, correct?

 94 1 A. Yes.

 94 2 Q. Okay. And you understood from your

 94 3 experience, and we can go through some of these

 94 4 documents, but your experience was in order for 

the

 94 5 Aearo Technologies products to get an NRR 

rating, they

 94 6 would be tested in the laboratory?

 94 7 A. There would be a testing process in place,

 94 8 correct.

 94 9 Q. Right. And typically I think individuals

 94 10 who are employed by the company in the 

laboratory

 94 11 like, for example, Elliott Berger or Ron Kieper 

would

 94 12 be the ones who would test the product, correct?

 94 13 A. As I recall.

(602)

Overruled

Re: [93:23-

94:13]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

94:14 - 95:1 Cimino, M. 12-11-2019

 94 14 Q. Okay. But if I understand correctly, I

 94 15 think you're saying that when you took over

 94 16 responsibility for this product, you never went 

and

 94 17 talked to Elliott Kieper (sic) about the testing that

 94 18 had been done on this -- this product, correct?

 94 19 MR. ELLIS: Object to the form of the question.

 94 20 BY THE WITNESS:

 94 21 A. To the best of my recollection, correct.

 94 22 BY MR. CARTMELL:

 94 23 Q. And you would have never gone, I take it,

 94 24 to go to Elliott Berger in the laboratory to ask 

about

 94 25 the testing that had been done on this product, 

fair

 95 1 enough?

Re: [94:14-95:1]

Improper counter per PTO 64

SUSTAINED

95:4 - 95:10 Cimino, M. 12-11-2019

 95 4 A. Again, I don't recall what I would have

 95 5 gone back to Elliott for.

Re: [95:4-95:10]

Improper counter per PTO 64

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 15 of 48
Cimino, M. 12-11-2019 15

 95 6 BY MR. CARTMELL:

 95 7 Q. Do you recall any conversations with

 95 8 Elliott about the testing that was done on this 

Combat

 95 9 Arms Earplug?

 95 10 A. No, no.

95:12 - 96:1 Cimino, M. 12-11-2019

 95 12 (WHEREUPON, a certain document was

 95 13 marked Mike Cimino Deposition Exhibit

 95 14 No. 7, for identification, as of

 95 15 12/11/2019.)

 95 16 BY MR. CARTMELL:

 95 17 Q. I'm going to hand you Exhibit 7, sir.

 95 18 Exhibit 7 is an e-mail and attachment that

 95 19 was produced in this litigation from the 

Defendants,

 95 20 and it -- you'll see it is an e-mail from Kevin

Spahn

 95 21 to Doug Moses.

 95 22 Kevin Spahn is who?

 95 23 A. Kevin Spahn was a -- I can't remember his

 95 24 official -- well, there it is. He was a graphics

 95 25 coordinator, so he did all of the graphics and

 96 1 packaging and whatnot.

Re: [95:17-96:1]

Def Objection - Foundation 

(602)

Re: [95:17-96:1]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

96:10 - 96:17 Cimino, M. 12-11-2019

 96 10 Q. Now, we -- we've talked about an NRR, or

 96 11 noise reduction rating, and on the right side of 

this

 96 12 exhibit, there is two boxes for the Combat Arms

 96 13 Earplugs that we're talking about in this lawsuit, 

one

 96 14 that has a noise reduction rating of 22 and the 

other

 96 15 that has a noise reduction of 0.

 96 16 Do you see that?

 96 17 A. I do.

Re: [96:10-96:17]

Def Objection - Foundation 

(602)

Re: [96:10-

96:17]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

99:13 - 99:18 Cimino, M. 12-11-2019

 99 13 Q. Okay. And the 22, for instance, on the

 99 14 green end, you understand from being in this 

Re: [99:13-99:18]

Def Objection - Foundation 

(602)

Re: [99:13-

99:18]

Def Objection -

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 16 of 48
Cimino, M. 12-11-2019 16

industry

 99 15 for 20 years and working with hearing protective

 99 16 devices, that the higher numbers denote greater

 99 17 effectiveness of the earplug, correct?

 99 18 A. Yes.

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

100:5 - 100:9 Cimino, M. 12-11-2019

 100 5 Q. So, in other words, if somebody is using

 100 6 an earplug like the green end of the Combat 

Arms

 100 7 Earplug, the higher number or the higher the 

number it

 100 8 is, the greater effectiveness that earplug has,

 100 9 correct?

Re: [100:5-100:9]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [100:5-

100:9]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

100:11 - 100:13 Cimino, M. 12-11-2019

 100 11 BY THE WITNESS:

 100 12 A. The higher the number, the higher the

 100 13 noise reduction rating of the earplug, correct.

Re: [100:12-100:13]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [100:12-

100:13]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

106:15 - 107:13 Cimino, M. 12-11-2019

 106 15 (WHEREUPON, a certain document was

 106 16 marked Mike Cimino Deposition Exhibit

 106 17 No. 8, for identification, as of

 106 18 12/11/2019.)

 106 19 BY MR. CARTMELL:

 106 20 Q. Mr. Cimino, I'm going to hand you what's

 106 21 been marked as Exhibit 8, which is an e-mail 

string

 106 22 that was produced to us by 3M in this litigation 

and

 106 23 ask you a few questions about this.

 106 24 Mr. Cimino, if you go to the bottom of

 106 25 this e-mail string, this is 2004, January 7th.

 107 1 Do you see that?

 107 2 A. I do.

 107 3 Q. This is before you ever took over

 107 4 responsibility for the Combat Arms Earplug 

Version 2,

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 17 of 48
Cimino, M. 12-11-2019 17

 107 5 correct?

 107 6 A. Correct.

 107 7 Q. You're having an e-mail conversation with

 107 8 a man named Elliott Berger, are you not?

 107 9 A. Yep.

 107 10 Q. Elliott Berger was actually the director

 107 11 of the laboratory at Aearo Technologies at this 

time,

 107 12 correct?

 107 13 A. Correct.

107:23 - 108:3 Cimino, M. 12-11-2019

 107 23 Q. Right. And you had been responsible from

 107 24 products during the early 2000s that were 

launched by

 107 25 Aearo Technologies onto the marketplace, 

correct?

 108 1 A. Correct.

 108 2 Q. Hearing protective devices, correct?

 108 3 A. Correct.

108:21 - 108:25 Cimino, M. 12-11-2019

 108 21 answer to my prior question, you understand as 

of 2004

 108 22 that products would be tested by Elliott Berger 

and

 108 23 others in the laboratory at Aearo Technologies 

in

 108 24 order to get a noise reduction rating for the 

product,

 108 25 correct?

Re: [108:21-108:25]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [108:21-

108:25]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

109:4 - 109:10 Cimino, M. 12-11-2019

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

 109 5 Indianapolis did testing for NRR for our 

products.

 109 6 BY MR. CARTMELL:

 109 7 Q. And if you were responsible for that

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

your

 109 9 portfolio, you were very interested in that NRR 

Re: [109:4-109:5]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [109:7-109:10]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [109:4-

109:5]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

Re: [109:7-

109:10]

Def Objection -

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 18 of 48
Cimino, M. 12-11-2019 18

rating

 109 10 from a marketing perspective, correct?

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

109:13 - 109:15 Cimino, M. 12-11-2019

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

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

NRR

 109 15 target.

Re: [109:13-109:15]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [109:13-

109:15]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

109:24 - 110:1 Cimino, M. 12-11-2019

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

 109 25 a marketing perspective of where you wanted to 

see the

 110 1 NRR for your products, correct?

Re: [109:24-110:1]

Def Objection - Compound; 

Vague(611, 403); Foundation 

(602)

Re: [109:24-

110:1]

Def Objection -

Compound; 

Vague(611, 

403); Foundation 

(602)

Overruled

110:4 - 110:9 Cimino, M. 12-11-2019

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

 110 5 BY MR. CARTMELL:

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

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

market to

 110 8 customers about your product and the noise 

reduction

 110 9 capabilities of those products, right?

Re: [110:4-110:4]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [110:6-110:9]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [110:4-

110:4]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

Re: [110:6-

110:9]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

110:12 - 110:22 Cimino, M. 12-11-2019

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

Re: [110:12-110:14]

Def Objection - Compound; 

Re: [110:12-

110:14]

Re: [110:16-110:18]

Foundation (602)

OVERRULED; 

no new 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 19 of 48
Cimino, M. 12-11-2019 19

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

target

 110 14 NRR as part of the project specification.

 110 15 BY MR. CARTMELL:

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

 110 17 about a product that is being tested.

 110 18 A. Uh-huh.

 110 19 Q. You have responsibility as the marketing

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

by

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

do

 110 22 you not?

Vague (611, 403); Foundation 

(602)

Re: [110:19-110:22]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

Re: [110:19-

110:22]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

objection 

specific to 

McCombs.

110:25 - 112:1 Cimino, M. 12-11-2019

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

 111 1 e-mail.

 111 2 BY MR. CARTMELL:

 111 3 Q. Right. Who is getting ready to test one

 111 4 of your product -- products you are responsible 

for,

 111 5 right?

 111 6 A. So this would have been in my product

 111 7 portfolio at the time, correct.

 111 8 Q. You say:

 111 9 "Just to confirm, the current powercom

 111 10 plus product(s) were tested there..all three 

models

 111 11 (A, B, P3E.)"

 111 12 Right?

 111 13 A. Yes.

 111 14 Q. That's what you are asking?

 111 15 A. Yep.

 111 16 Q. And then you say:

 111 17 "My request is that worst case scenario

 111 18 the new ones you have there come out with an

 111 19 equivalent NRR value as the current version. 

Can't

 111 20 except a lower NRR."

Re: [110:25-111:1]

Def Objection - Compound; 

Vague (611, 403); Foundation 

(602)

Re: [111:3-112:1]

Def Objection - Relevance 

(401, 402); Prejudice (403)

Re: [110:25-

111:1]

Def Objection -

Compound; 

Vague (611, 

403); Foundation 

(602)

Overruled

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 20 of 48
Cimino, M. 12-11-2019 20

 111 21 You see that?

 111 22 A. I do.

 111 23 Q. And instead of "except," the way you

 111 24 spelled it, it should have been "accept," a-c-c-ep-t.

 111 25 Do you see that?

 112 1 A. Yes, I see that.

112:16 - 112:18 Cimino, M. 12-11-2019

 112 16 Q. You are telling the person who tests it

 112 17 before the test that you are not going to accept 

an

 112 18 NRR lower than a certain number, aren't you?

Re: [112:16-112:18]

Improper counter per PTO 64

SUSTAINED

113:4 - 113:5 Cimino, M. 12-11-2019

 113 4 A. It also says that the product would need

 113 5 to be modified or may have to be modified.

Re: [113:4-113:5]

Improper counter per PTO 64

SUSTAINED

116:2 - 116:9 Cimino, M. 12-11-2019

 116 2 Q. And if you go up above, Elliott responds

 116 3 to you and says: "The results will be the results."

 116 4 But then he offers to you that while the test is 

going

 116 5 on, he will let you know in the middle of the test

 116 6 after the 8th or 9th person how it's looking as far 

as

 116 7 the noise reduction rating and whether or not he 

is

 116 8 going to be able to achieve your marketing target 

for

 116 9 the NRR, correct?

Re: [116:2-116:9]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18

Re: [116:2-

116:9]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18

Overruled

116:11 - 116:12 Cimino, M. 12-11-2019

 116 11 BY THE WITNESS:

 116 12 A. He says what he says there, yes.

Re: [116:12-116:12]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18

Re: [116:12-

116:12]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18

Overruled

116:14 - 117:4 Cimino, M. 12-11-2019

 116 14 Q. Okay. And then you respond to that by

 116 15 saying:

 116 16 "Understood. Please advise by the 8th or

Re: [116:13-116:23]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18

Re: [116:13-

116:23]

Def Objection -

Relevance (401, 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 21 of 48
Cimino, M. 12-11-2019 21

 116 17 9th person what it looks like it will come up to.

 116 18 Looking for minimum 26 on A, 24 on B, 23 on 

P3E, that

 116 19 is what the current ones tested out to there. 

Ideally

 116 20 a little bit higher on the B and P3E would be 

great.

 116 21 Keep me posted."

 116 22 Do you see that?

 116 23 A. I do.

 116 24 Q. So you are a member of marketing and you

 116 25 have now reached out to the laboratory that's 

going to

 117 1 test one of the products you are responsible for 

and

 117 2 you've told them what your targets would be and 

what

 117 3 you would like to see or what you would desire 

to see

 117 4 the NRRs to be for those products, correct?

Re: [116:24-117:4]

Def Objection - Relevance 

(401, 402); Compound; 

Misstates (611, 403); 3M 

MIL No. 18

402); 3M MIL 

No. 18

Overruled

Re: [116:24-

117:4]

Def Objection -

Relevance (401, 

402); 

Compound; 

Misstates (611, 

403); 3M MIL 

No. 18

Overruled

117:7 - 117:8 Cimino, M. 12-11-2019

 117 7 A. That would have been part of the project

 117 8 scope, yes.

Re: [117:7-117:8]

Def Objection - Relevance 

(401, 402); Compound; 

Misstates (611, 403); 3M 

MIL No. 18

Re: [117:7-

117:8]

Def Objection -

Relevance (401, 

402); 

Compound; 

Misstates (611, 

403); 3M MIL 

No. 18

Overruled

117:17 - 117:20 Cimino, M. 12-11-2019

 117 17 Q. You understood that when the NRR rating

 117 18 was being tested or they were testing to try to 

obtain

 117 19 that for your products that there would be ten

 117 20 subjects who would usually be tested, correct?

Re: [117:17-117:20]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Foundation (602)

Re: [117:17-

117:20]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Foundation (602)

Overruled

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 22 of 48
Cimino, M. 12-11-2019 22

117:24 - 117:25 Cimino, M. 12-11-2019

 117 24 A. So this I'm responding to Elliott that per

 117 25 his note after the 8th or 9th person to let me 

know.

Re: [117:24-117:25]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Foundation (602)

Re: [117:24-

117:25]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Foundation (602)

Overruled

119:6 - 119:10 Cimino, M. 12-11-2019

 119 6 Q. Okay. And I think we have established

 119 7 that you know that those numbers come from 

testing

 119 8 that was done at the Aearo Technology 

laboratories,

 119 9 but that was well before you were responsible for 

the

 119 10 Combat Arms Earplugs, correct?

Re: [119:6-119:10]

Improper counter per PTO 64

OVERRULED

119:13 - 119:20 Cimino, M. 12-11-2019

 119 13 A. So I don't know where the NRR testing was

 119 14 done for this product.

 119 15 BY MR. CARTMELL:

 119 16 Q. You don't know it was done at Aearo

 119 17 Technologies laboratory?

 119 18 A. Correct. Correct.

 119 19 Q. Or an outside laboratory?

 119 20 A. Exactly, yeah.

Re: [119:13-119:20]

Improper counter per PTO 64

OVERRULED

121:7 - 121:11 Cimino, M. 12-11-2019

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

 121 8 (WHEREUPON, a certain document was

 121 9 marked Mike Cimino Deposition Exhibit

 121 10 No. 9, for identification, as of

 121 11 12/11/2019.)

121:15 - 122:7 Cimino, M. 12-11-2019

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

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

and

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

 121 18 July 10th of 2000.

 121 19 Do you see that?

Re: [121:15-122:4]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [122:5-122:7]

Def Objection - Foundation 

Re: [121:15-

122:4]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 23 of 48
Cimino, M. 12-11-2019 23

 121 20 A. I do.

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

 121 22 Affects REAT Results of the UltraFit Earplug 

End of

 121 23 the Combat Arms Plug.

 121 24 Do you see that?

 121 25 A. I see that.

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

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

 122 3 Do you see that?

 122 4 A. I do.

(602); Relevance (401, 402); 

Prejudice (403)

OVERRULED 

AS TO 401, 402, 

AND 403 

OBJECTIONS; 

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

 122 5 Q. We were just talking about, before the

 122 6 break, some e-mails related to NRR testing that 

you

 122 7 were involved with with Mr. Berger, correct?

Re: [122:5-

122:7]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Sustained

122:10 - 122:11 Cimino, M. 12-11-2019

 122 10 A. We were looking at an e-mail exchange,

 122 11 yes.

Re: [122:10-122:11]

Def Objection - Foundation 

(602); Relevance (401, 402);

Prejudice (403)

Re: [122:10-

122:11]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Sustained

123:22 - 124:4 Cimino, M. 12-11-2019

 123 22 Do you think, though, having looked

 123 23 briefly through this report that somebody has 

told you

 123 24 about this report before?

 123 25 A. No. I don't -- I don't have any

 124 1 recollection.

 124 2 Q. This report includes testing that was done

 124 3 on the Combat Arms dual-ended earplug back in 

2000.

 124 4 Do you see that?

Re: [123:10-124:4]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [123:22-

124:4]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 24 of 48
Cimino, M. 12-11-2019 24

124:7 - 124:7 Cimino, M. 12-11-2019

 124 7 A. I see what's on the screen as this, yeah.

Re: [124:7-124:7]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [124:7-

124:7]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

125:9 - 126:2 Cimino, M. 12-11-2019

 125 9 Q. Okay. This report says that there were

 125 10 two tests done on the green end of the Combat 

Arms

 125 11 Earplug to try to determine the noise reduction

 125 12 rating, correct?

 125 13 A. I don't know. Where -- where would it say

 125 14 that?

 125 15 Q. Okay. It states, if you go up to Device

 125 16 Tested on the second page, the paragraph 

beginning

 125 17 Device Tested.

 125 18 A. Uh-huh.

 125 19 Q. And if you go to the last sentence, it

 125 20 states:

 125 21 "The solid plug end is green and it was

 125 22 this plug which was evaluated in two separate 

REAT

 125 23 tests," and then it gives the number of the test,

 125 24 "213015 and 213017. This is" -- "this plug is 

the

 125 25 linear earplug end of the Combat Arms Plug."

 126 1 Do you see that?

 126 2 A. I see that.

Re: [125:9-126:2]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [125:9-

126:2]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

126:19 - 127:6 Cimino, M. 12-11-2019

 126 19 "The initial test 213015 was stopped after

 126 20 eight subjects because the individual results 

were

 126 21 variable and the NRR was quite low," and then 

in

 126 22 parentheses it says, "(11)?"

Re: [126:19-126:24]

Def Objection - 3M MIL No. 

18; Foundation (602); 

Relevance (401, 402); 

Prejudice (403)

Re: [126:25-127:6]

Def Objection - Misstates; 

Re: [126:19-

126:24]

Def Objection -

3M MIL No. 18; 

Foundation 

(602); Relevance 

(401, 402); 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 25 of 48
Cimino, M. 12-11-2019 25

 126 23 Do you see that?

 126 24 A. I see that, yes.

 126 25 Q. So we -- we just talked about an e-mail he

 127 1 can change that you had with Elliott Berger 

about one

 127 2 of the products you were responsible for in 2011, 

and

 127 3 you asked Elliott Berger to stop the testing and

tell

 127 4 you, a member of marketing, what the results 

were

 127 5 after eight or nine people were tested.

 127 6 Do you recall that?

Argumentative (611, 403); 

3M MIL No. 18; Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

Re: [126:25-

127:6]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 18; 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

127:9 - 127:18 Cimino, M. 12-11-2019

 127 9 A. I asked him to advise. I didn't tell him

 127 10 to stop.

 127 11 BY MR. CARTMELL:

 127 12 Q. Okay. But you -- so you knew as of the

 127 13 time of this report, 2006 at least, that that was

 127 14 something that Elliott Berger might do, in other

 127 15 words, he might do testing and he, at least you 

knew,

 127 16 might inform marketing what the result -- results 

were

 127 17 after eight or nine individuals, correct? You had

 127 18 that experience?

Re: [127:9-127:18]

Def Objection - Misstates; 

Argumentative (611, 403); 

3M MIL No. 18; Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [127:9-

127:18]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 3M 

MIL No. 18; 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

127:21 - 128:1 Cimino, M. 12-11-2019

 127 21 A. I can only speak to this one. I don't --

 127 22 I don't have a general experience.

 127 23 BY MR. CARTMELL:

 127 24 Q. Now, it states that the NRR was quite low,

Re: [127:21-127:22]

Def Objection - Misstates; 

Argumentative (611, 403); 

3M MIL No. 18; Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [127:21-

127:22]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 3M 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 26 of 48
Cimino, M. 12-11-2019 26

 127 25 11, after the eight subjects.

 128 1 Do you see that?

MIL No. 18; 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

128:4 - 128:4 Cimino, M. 12-11-2019

 128 4 A. Yeah, up on the screen, yeah.

131:4 - 131:11 Cimino, M. 12-11-2019

 131 4 Q. And then if you -- if you go down to the

 131 5 next paragraph, this is the test on the green end 

of

 131 6 the Combat Arms Earplug.

 131 7 It states: "For test 213015, the plugs

 131 8 were fit according to the standard plug's fitting

 131 9 instructions, with no modifications."

 131 10 Do you see that?

 131 11 A. I do.

Re: [131:4-131:11]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [131:4-

131:11]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

131:25 - 132:14 Cimino, M. 12-11-2019

 131 25 Q. And then it states: "Because the stem of

 132 1 the green, solid end of the plug is so short; it was

 132 2 difficult for the experimenter to insert the plug

 132 3 deeply into some subject's ear canals, especially

 132 4 those with medium and larger ear canals."

 132 5 Do you see that?

 132 6 A. I do.

 132 7 Q. "Additionally, the geometry of the ear

 132 8 canal opening sometimes prevented the deep 

plug

 132 9 insertion required for maximum attenuation 

values."

 132 10 And so that -- that's just saying that

 132 11 when they did this test in Aearo's laboratory on 

the

 132 12 green end, in some individuals who had medium 

Re: [131:25-132:14]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [131:25-

132:14]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 27 of 48
Cimino, M. 12-11-2019 27

and

 132 13 larger ear canals, it was very difficult to insert it

 132 14 and get a good fit, correct?

132:17 - 133:5 Cimino, M. 12-11-2019

 132 17 A. Again, I can only read what -- what's up

 132 18 there. I wasn't -- I did not witness it, so.

 132 19 BY MR. CARTMELL:

 132 20 Q. And then it states: "When the solid plug

 132 21 was fitted during first test, the basal edge of the

 132 22 third flange of the yellow, level-dependent plug

 132 23 sometimes pressed against the subject's ear canal

 132 24 opening and folded up. When the inward 

pressure of

 132 25 the plug was released, the yellow plug's flanges

 133 1 tended to return to their original shape and this

 133 2 sometimes loosened the plug, often 

imperceptibly to

 133 3 the subject."

 133 4 Do you see that?

 133 5 A. I can read that, yes.

Re: [132:17-133:5]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [132:17-

133:5]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

136:18 - 137:2 Cimino, M. 12-11-2019

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

 136 19 this report or any of its findings?

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

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

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

Ron

 136 23 Kieper, or anyone else when you took over

 136 24 responsibility for marketing this product, that 

they

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

 137 1 stop the test after eight subjects.

 137 2 You were never told that, correct?

Re: [136:8-136:20]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [136:21-137:2]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [136:18-

136:20]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

Re: [136:21-

137:2]

Def Objection -

Foundation 

(602); Relevance 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 28 of 48
Cimino, M. 12-11-2019 28

(401, 402); 

Prejudice (403)

Overruled

137:5 - 137:6 Cimino, M. 12-11-2019

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

 137 6 being told.

Re: [137:5-137:6]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [137:5-

137:6]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

138:7 - 138:13 Cimino, M. 12-11-2019

 138 7 Q. Do you agree with me, sir, that this test

 138 8 of the eight subjects, when they found these 

things in

 138 9 2000 related to Combat Arms Earplugs, you as 

the

 138 10 marketing director and vice president of the 

strategic

 138 11 business unit for sales of this product to the

 138 12 military, you should have been told this.

 138 13 Do you agree with me?

Re: [138:7-138:13]

Def Objection - Compound; 

Argumentative (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [138:7-

138:13]

Def Objection -

Compound; 

Argumentative 

(611, 403); 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

138:16 - 138:16 Cimino, M. 12-11-2019

 138 16 A. I wouldn't say so.

Re: [138:16-138:19]

Def Objection - Compound; 

Argumentative (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [138:16-

138:17]

Def Objection -

Compound; 

Argumentative 

(611, 403); 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

139:21 - 139:22 Cimino, M. 12-11-2019

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

 139 22 you to be made aware of?

Re: [139:21-139:22]

Def Objection - Vague (611, 

403); Foundation (602); 

Relevance (401, 402); 

Prejudice (403)

Re: [139:21-

139:22]

Def Objection -

Vague (611, 

403); Foundation 

(602); Relevance 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 29 of 48
Cimino, M. 12-11-2019 29

(401, 402); 

Prejudice (403)

Overruled

139:25 - 140:1 Cimino, M. 12-11-2019

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

 140 1 this report.

Re: [139:25-140:16]

Def Objection - Vague (611, 

403); Foundation (602); 

Relevance (401, 402); 

Prejudice (403)

Re: [139:25-

140:1]

Def Objection -

Vague (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

Re: [140:3-

140:16]

Def Objection -

Vague (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

140:22 - 140:25 Cimino, M. 12-11-2019

 140 22 Q. Would you have wanted to know this

 140 23 information?

 140 24 A. Again, I wasn't privy to it and I -- I

 140 25 just did not know about this report.

Re: [140:22-140:25]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [140:22-

140:25]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

141:3 - 141:6 Cimino, M. 12-11-2019

 141 3 In retrospect, is it something you think

 141 4 you would have wanted to have known so that 

you could

Re: [141:3-141:6]

Def Objection - Vague; 

Misstates (611, 403); 

Re: [141:3-

141:6]

Def Objection -

Vague; Misstates 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 30 of 48
Cimino, M. 12-11-2019 30

 141 5 at least discuss it with individuals to make sure 

the

 141 6 product was safe?

Foundation (602); Relevance 

(401, 402); Prejudice (403)

(611, 403); 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

141:10 - 141:19 Cimino, M. 12-11-2019

 141 10 A. At the point I took it over, those

 141 11 discussions would have already been had.

 141 12 BY MR. CARTMELL:

 141 13 Q. Do you know if this report actually was

 141 14 provided to anyone else in the company other 

than

 141 15 Elliott Berger or Ron Kieper?

 141 16 A. I do not know that.

 141 17 Q. So you say the discussions would have 

been

 141 18 had, but if nobody saw the report, how would 

there

 141 19 have been discussions?

Re: [141:10-141:11]

Def Objection - Vague; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [141:13-141:16]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [141:17-141:19]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [141:10-

141:11]

Def Objection -

Vague; Misstates 

(611, 403); 

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

Re: [141:13-

141:16]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

REMAINING 

OBJECTIONS 

OVERRULED

Re: [141:17-

141:19]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 31 of 48
Cimino, M. 12-11-2019 31

Prejudice (403)

Overruled

141:22 - 141:22 Cimino, M. 12-11-2019

 141 22 A. I don't know.

Re: [141:22-141:22]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [141:22-

141:22]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

147:4 - 147:6 Cimino, M. 12-11-2019

 147 4 Q. Let me ask you this: Don't you think that

 147 5 soldiers who are wearing these plugs that were 

sold by

 147 6 your company would have wanted to know this?

Re: [147:3-147:6]

Def Objection - Foundation

(602); Relevance (401, 402); 

Prejudice (403); Vague (611. 

403)

Re: [147:4-

147:6]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403); 

Vague (611. 

403)

Sustained

147:8 - 147:11 Cimino, M. 12-11-2019

 147 8 BY THE WITNESS:

 147 9 A. I don't have any knowledge of this report

 147 10 or what the details were in order to be able to 

tell

 147 11 anybody about it.

Re: [147:9-147:23]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403); Vague (611. 

403)

Re: [147:9-

147:11]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403); 

Vague (611. 

403)

Sustained

150:24 - 151:2 Cimino, M. 12-11-2019

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

 150 25 was assigned to the Combat Arms Earplug 

Version 2

 151 1 actually resulted from testing with the flanges 

folded

 151 2 back on the outward-facing plug?

Re: [150:24-151:2]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [150:24-

151:2]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602); Relevance 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 32 of 48
Cimino, M. 12-11-2019 32

(401, 402); 

Prejudice (403)

Overruled

151:6 - 151:9 Cimino, M. 12-11-2019

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

 151 7 BY MR. CARTMELL:

 151 8 Q. You never knew that before this

 151 9 litigation?

Re: [151:6-151:9]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [151:6-

151:9]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

151:12 - 151:12 Cimino, M. 12-11-2019

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

Re: [151:12-151:12]

Def Objection - Compound; 

Misstates (611, 403); 

Foundation (602); Relevance 

(401, 402); Prejudice (403)

Re: [151:12-

151:12]

Def Objection -

Compound; 

Misstates (611, 

403); Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

Overruled

240:13 - 240:22 Cimino, M. 12-11-2019

 240 13 Q. In your experience with working at Aearo

 240 14 Technologies and then 3M and your experience

with the

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

Berger

 240 16 runs, have you experienced that there is tension

 240 17 between the marketing department and the lab?

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

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

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

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

products?

 240 22 A. So --

Re: [240:19-240:21]

Def Objection -

Argumentative; Misstates 

(611, 403); Foundation (602)

Re: [240:19-

240:21]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Sustained

Re: [240:13-240:18]

Foundation (602)

240:25 - 241:2 Cimino, M. 12-11-2019

 240 25 BY THE WITNESS:

Re: [241:1-241:2]

Def Objection -

Re: [241:1-

241:2]

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 33 of 48
Cimino, M. 12-11-2019 33

 241 1 A. Elliott would have had his processes in

 241 2 place. I'm not familiar.

Argumentative; Misstates 

(611, 403); Foundation (602)

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Sustained

241:14 - 242:1 Cimino, M. 12-11-2019

 241 14 (WHEREUPON, a certain document was

 241 15 marked Mike Cimino Deposition Exhibit

 241 16 No. 17, for identification, as of

 241 17 12/11/2019.)

 241 18 BY MR. CARTMELL:

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

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

provided to

 241 21 us by 3M in this litigation.

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

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

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

pages,

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

Ohlin to

 242 1 Doug Moses in the marketing group on May 

28th, 2009.

Re: [241:19-242:1]

Def Objection - Foundation 

(602)

Re: [241:19-

242:1]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

243:11 - 243:16 Cimino, M. 12-11-2019

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

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

was

 243 13 the director of the Hearing Conservation 

program

 243 14 there, and after he retired your company actually

 243 15 hired him as a consultant, right?

 243 16 A. Correct.

Re: [243:11-243:16]

Def Objection - Foundation 

(602)

Re: [243:11-

243:16]

Def Objection -

Foundation (602)

Overruled

244:11 - 244:21 Cimino, M. 12-11-2019

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

 244 12 this between you and me. There is already 

enough

 244 13 tension between the research and marketing 

groups in

Re: [244:11-244:21]

Def Objection - Compound 

(611, 403); Hearsay (801, 

802); Foundation (602)

Re: [244:11-

244:21]

Def Objection -

Compound (611, 

403); Hearsay 

(801, 802); 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 34 of 48
Cimino, M. 12-11-2019 34

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

vent

 244 15 to you my frustration over that reduced NRR for 

the

 244 16 new version of the Combat Arms Earplug."

 244 17 And you -- did you say you reviewed

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

 244 19 because this is something that Mr. Moses talked 

about

 244 20 in his deposition?

 244 21 Did you know that?

Foundation (602)

Overruled

245:2 - 246:13 Cimino, M. 12-11-2019

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

 245 3 Q. Okay. Anyway, he mentions tension 

between

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

and

 245 5 has that been consistent with your finding at the

 245 6 company?

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

 245 8 he being Doug, is this Doug Ohlin?

 245 9 Q. Doug Ohlin, yes.

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

 245 11 to.

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

 245 13 guard at Aearo has always believed that the 

classic

 245 14 foam and the one size UltraFit were the ultimate 

in

 245 15 earplug protection. The lab would use every 

legal

 245 16 trick in the book to get the highest NRRs 

possible.

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

 245 18 Do you see that?

 245 19 A. I do.

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

 245 21 Combat Arms Version 2 that the lab actually did 

a test

Re: [245:2-245:2]

Def Objection - Compound 

(611, 403); Hearsay (801, 

802); Foundation (602)

Re: [245:3-245:19]

Def Objection - Hearsay 

(801, 802); Foundation (602)

Re: [245:20-246:5]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403)

Re: [246:6-246:13]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [245:2-

245:2]

Def Objection -

Compound (611,

403); Hearsay 

(801, 802); 

Foundation (602)

Overruled

Re: [245:3-

245:19]

Def Objection -

Hearsay (801, 

802); Foundation

(602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to hearsay 

objection. The 

term "legal" at 

[245:15] 

excluded under 

403.

Re: [245:20-

246:5]

Def Objection -

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 35 of 48
Cimino, M. 12-11-2019 35

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

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

to

 245 24 get a higher NRR.

 245 25 Remember that?

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

 246 2 talking about the report?

 246 3 Q. Yeah.

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

 246 5 says in the report.

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

 246 7 different product, also, that you were involved 

with,

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

told

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

that it

 246 10 needed to be equivalent or higher than the prior

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

less

 246 12 than that.

 246 13 Do you recall that?

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403)

FOUNDATION 

OBJECTION 

WITHDRAWN,

3/12/2021; 

OVERRULED 

as to remaining 

objections.

Re: [246:6-

246:13]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

246:16 - 246:16 Cimino, M. 12-11-2019

 246 16 A. I recall the e-mail.

Re: [246:16-246:16]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [246:16-

246:16]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Overruled

247:4 - 247:11 Cimino, M. 12-11-2019

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

 247 5 Exhibit 18.

 247 6 BY MR. CARTMELL:

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

 247 8 prior exhibit that Mr. Ohlin said he was 

frustrated

 247 9 with the lower NRR on the new Combat Arms 

Earplug.

Re: [247:7-247:11]

Def Objection - Hearsay 

(801, 802); Foundation (602)

Re: [247:7-

247:11]

Def Objection -

Hearsay (801, 

802); Foundation 

(602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 36 of 48
Cimino, M. 12-11-2019 36

 247 10 Do you remember reading that?

 247 11 A. Yes.

OVERRULED 

as to hearsay 

objection.

248:2 - 248:8 Cimino, M. 12-11-2019

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

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

weeks

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

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

Arms

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

 248 7 Do you see that?

 248 8 A. I see that.

Re: [248:2-248:8]

Def Objection - Hearsay 

(801, 802); 3M MIL No. 15; 

Foundation (602)

Re: [248:2-

248:8]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 15; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 15; 

OVERRULED 

as to hearsay 

objection.

248:16 - 249:3 Cimino, M. 12-11-2019

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

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

 248 18 "Doug, This situation reminds me of

 248 19 something that happened at Aearo years ago of 

which

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

been

 248 21 intense pressure on Elliott to match the 

attenuation

 248 22 values the Penn State lab is able to produce. I'm 

not

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

 248 24 but Aearo received a six figure fine from the 

EPA over

 248 25 some protocol issue related to an attempt to 

produce

 249 1 higher NRR's."

Re: [248:16-249:3]

Def Objection - Hearsay 

(801, 802); 3M MIL No. 8; 

Foundation (602)

Re: [248:16-

249:3]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to hearsay 

objection. 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 37 of 48
Cimino, M. 12-11-2019 37

 249 2 Do you see that?

 249 3 A. I see that.

249:18 - 249:24 Cimino, M. 12-11-2019

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

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

-

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

 249 21 Elliott at your company, Aearo Technologies, 

had been

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

an

 249 23 attempt to get a higher NRR?

 249 24 A. This is news to me.

Re: [249:18-249:24]

Def Objection - 3M MIL No. 

8; Foundation (602)

Re: [249:18-

249:24]

Def Objection -

3M MIL No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8

250:10 - 251:1 Cimino, M. 12-11-2019

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

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

most

 250 12 professional of the hearing protection 

manufacturers

 250 13 while Walmart was selling hearing protectors 

from

 250 14 China without NRR's."

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

 250 16 because it sounds like history repeating itself. 

We

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

 250 18 higher NRR for this new version of the Combat 

Arms

 250 19 Earplug."

 250 20 Do you see that?

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

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

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

 250 24 concerned that pressure was being put on the

 250 25 laboratory, Elliott Berger and the laboratory to 

come

 251 1 up with a higher NRR for the Combat Arms 

Earplug?

Re: [250:10-250:21]

Def Objection - Hearsay 

(801, 802); 3M MIL No. 8; 

Foundation (602)

Re: [250:22-251:1]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [250:10-

250:21]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to hearsay 

objection.

Re: [250:22-

251:1]

Def Objection -

Compound (611, 

403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 38 of 48
Cimino, M. 12-11-2019 38

251:4 - 251:4 Cimino, M. 12-11-2019

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

Re: [251:4-251:4]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [251:4-

251:4]

Def Objection -

Compound (611, 

403); Foundation 

(602)

OVERRULED

251:17 - 252:2 Cimino, M. 12-11-2019

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

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

who

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

 251 20 Do you see that?

 251 21 A. I do.

Re: [251:17-251:21]

Def Objection - Hearsay 

(801, 802); 3M MIL No. 8; 

Foundation (602)

Re: [251:17-

251:21]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to remaining

objections

Re: [251:22-

252:2]

Def Objection -

Misstates; Vague 

(611, 403); 

Foundation (602)

Sustained

 251 22 Q. And let me ask you, as somebody who has

 251 23 been involved in this industry for 24 years -- or

 251 24 excuse me -- 20 years.

 251 25 Do you agree that the marketing department

 252 1 should not pressure the laboratory, put pressure 

on

 252 2 them in -- to get the highest NRRs possible?

Re: [251:22-252:2]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602)

Re: [251:22-

252:2]

Def Objection -

Misstates; Vague 

(611, 403); 

Foundation (602)

Sustained

252:5 - 252:6 Cimino, M. 12-11-2019

 252 5 A. So the laboratory would have their own

 252 6 protocols in place for doing testing.

Re: [252:5-252:6]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602)

Re: [252:5-

252:6]

Def Objection -

Misstates; Vague 

(611, 403); 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 39 of 48
Cimino, M. 12-11-2019 39

Foundation (602)

Sustained

253:10 - 253:11 Cimino, M. 12-11-2019

 253 10 Q. You have beliefs and attitudes and

 253 11 opinions as you sit here today, don't you?

Re: [253:10-253:11]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [253:10-

253:11]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Sustained

253:14 - 254:8 Cimino, M. 12-11-2019

 253 14 A. As does everybody.

 253 15 BY MR. CARTMELL:

 253 16 Q. Right. As you walked through that door

 253 17 today and came in here for this deposition, the 

things

 253 18 that have happened in your life have made you 

develop

 253 19 beliefs and opinions about certain things, 

correct?

 253 20 MR. ELLIS: Object to the form of the question.

 253 21 BY THE WITNESS:

 253 22 A. Again, everybody has opinions.

 253 23 BY MR. CARTMELL:

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

 253 25 you about, not about what protocols your lab 

had, I

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

opinions

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

and

 254 3 I want the jury to hear your response.

 254 4 Do you have a belief or an opinion about

 254 5 whether it is appropriate for the marketing 

department

 254 6 to put pressure on the laboratory to provide the

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

an

 254 8 opinion about that?

Re: [253:14-253:14]

Def Objection - Compound 

(611, 403); Foundation (602)

Re: [253:16-253:19]

Def Objection - Compound 

(611, 403); Relevance (401, 

402); Foundation (602)

Re: [253:22-254:8]

Def Objection - Compound 

(611, 403); Relevance (401, 

402); Foundation (602)

Re: [253:14-

253:14]

Def Objection -

Compound (611, 

403); Foundation 

(602)

Sustained

Re: [253:16-

253:19]

Def Objection -

Compound (611, 

403); Relevance 

(401, 402); 

Foundation (602)

Sustained

Re: [253:22-

254:8]

Def Objection -

Compound (611, 

403); Relevance 

(401, 402); 

Foundation (602)

Overruled

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 40 of 48
Cimino, M. 12-11-2019 40

254:11 - 255:2 Cimino, M. 12-11-2019

 254 11 A. I don't.

 254 12 BY MR. CARTMELL:

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

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

 254 15 compromising the integrity of his lab. A 2 

decibel

 254 16 increase in the NRR would not be worth another 

fine.

 254 17 You would also have the additional headache of 

now

 254 18 being answerable to 3M corporate."

 254 19 Do you see that?

 254 20 A. I do.

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

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

when

 254 23 you were in charge, if your marketing 

department was

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

get

 254 25 the highest NRRs for the Combat Arms 

Earplugs, that

 255 1 would -- that would actually compromise the 

integrity

 255 2 of the lab, would it not?

Re: [254:11-254:11]

Def Objection - Compound 

(611, 403); Relevance (401, 

402); Foundation (602)

Re: [254:13-254:20]

Def Objection - Hearsay 

(801, 802); 3M MIL No. 8; 

Foundation (602)

Re: [254:21-255:2]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [254:11-

254:11]

Def Objection -

Compound (611, 

403); Relevance 

(401, 402); 

Foundation (602)

Overruled

Re: [254:13-

254:20]

Def Objection -

Hearsay (801, 

802); 3M MIL 

No. 8; 

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021; 

OVERRULED 

as to 3M MIL 

No. 8; 

OVERRULED 

as to hearsay 

objection.

Re: [254:21-

255:2]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

(602)

Overruled

255:5 - 255:7 Cimino, M. 12-11-2019

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

 255 6 processes and protocols in place to do their

 255 7 evaluations and tests.

Re: [255:5-255:7]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [255:5-

255:7]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 41 of 48
Cimino, M. 12-11-2019 41

(602)

Overruled

255:13 - 255:16 Cimino, M. 12-11-2019

 255 13 Do you believe that if the marketing

 255 14 department was putting pressure on the lab to 

get the

 255 15 highest NRRs possible, that that would 

compromise the

 255 16 integrity of the lab?

Re: [255:13-255:16]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [255:13-

255:16]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

255:19 - 255:20 Cimino, M. 12-11-2019

 255 19 BY THE WITNESS:

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

Re: [255:20-255:20]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [255:20-

255:20]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

256:11 - 257:4 Cimino, M. 12-11-2019

 256 11 (WHEREUPON, a certain document was

 256 12 marked Mike Cimino Deposition Exhibit

 256 13 No. 19, for identification, as of

 256 14 12/11/2019.)

 256 15 BY MR. CARTMELL:

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

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

1436.

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

 256 19 came from the company files in this litigation, 

and I

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

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

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

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

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

maybe a

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

Doug

 257 1 Moses that talked about the legal tricks and 

talked

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

Re: [256:16-257:4]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [256:16-

257:4]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED,

with the 

exception of the 

term "legal" at 

[257:1], which is 

excluded under 

403.

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 42 of 48
Cimino, M. 12-11-2019 42

for the

 257 3 Combat Arms Earplug.

 257 4 Isn't that right?

257:7 - 257:7 Cimino, M. 12-11-2019

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

Re: [257:7-257:7]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [257:7-

257:7]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

258:10 - 258:19 Cimino, M. 12-11-2019

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

 258 11 words:

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

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

lower

 258 14 NRR product? MC."

 258 15 Do you see that?

 258 16 A. I do.

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

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

with the

 258 19 Combat Arms, correct?

Re: [258:3-258:16]

Def Objection - Foundation 

(602)

Re: [258:17-258:19]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602)

Re: [258:10-

258:16]

Def Objection -

Foundation (602)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/12/2021

Re: [258:17-

258:19]

Def Objection -

Misstates; Vague 

(611, 403); 

Foundation (602)

Overruled

258:22 - 258:22 Cimino, M. 12-11-2019

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

Re: [258:22-258:22]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602)

Re: [258:22-

258:22]

Def Objection -

Misstates; Vague 

(611, 403); 

Foundation (602)

Overruled

260:9 - 260:17 Cimino, M. 12-11-2019

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

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

will be

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

Re: [260:8-260:14]

Def Objection - Foundation 

(602)

Re: [260:15-260:17]

Def Objection - Vague; 

Re: [260:8-

260:14]

Def Objection -

Foundation (602)

Foundation 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 43 of 48
Cimino, M. 12-11-2019 43

 260 12 you posted."

 260 13 You see that?

 260 14 A. I do.

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

 260 16 put pressure on Jeff Hamer to tell them there 

would be

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

correct?

Misstates (611, 403); 

Foundation (602)

Objection 

Withdrawn, 

3/12/2021

Re: [260:15-

260:17]

Def Objection -

Vague; Misstates 

(611, 403); 

Foundation (602)

Overruled

260:20 - 260:20 Cimino, M. 12-11-2019

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

Re: [260:20-260:20]

Def Objection - Vague; 

Misstates (611, 403); 

Foundation (602)

Re: [260:20-

260:20]

Def Objection -

Vague; Misstates 

(611, 403); 

Foundation (602)

Overruled

266:22 - 267:4 Cimino, M. 12-11-2019

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

 266 23 We talked about this earlier, but

 266 24 Mr. Ohlin mentioned that pressure was often put 

on the

 266 25 lab and that can cause EPA fines and 

compromise the

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

talked

 267 2 about previously where you told the lab that you 

would

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

equivalent

 267 4 NRR as the current version of this product, 

correct?

Re: [266:22-267:4]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [266:22-

267:4]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Foundation (602)

OVERRULED

267:8 - 267:10 Cimino, M. 12-11-2019

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

 267 9 request was that the worst case scenario the new 

ones

 267 10 you have there come out with an equivalent 

NRR value.

Re: [267:8-267:10]

Def Objection - Compound; 

Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

Re: [267:8-

267:10]

Def Objection -

Compound; 

Misstates (611, 

403); Hearsay 

(801, 802); 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 44 of 48
Cimino, M. 12-11-2019 44

Foundation (602)

OVERRULED

267:17 - 267:19 Cimino, M. 12-11-2019

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

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

before

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

Re: [267:17-267:19]

Def Objection - Misstates; 

Argumentative (611, 403); 

Foundation (602)

Re: [267:17-

267:19]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Overruled

267:22 - 267:24 Cimino, M. 12-11-2019

 267 22 BY THE WITNESS:

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

 267 24 NRR.

Re: [267:23-267:24]

Def Objection - Misstates; 

Argumentative (611, 403); 

Foundation (602)

Re: [267:23-

267:24]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Overruled

271:10 - 272:19 Cimino, M. 12-11-2019

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

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

 271 12 Exhibit 20 is an e-mail dated

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

And,

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

guess

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

 271 16 has completed nine subjects on the product.

 271 17 Do you see that?

 271 18 A. Yep.

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

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

 271 21 PowerCom product?

 271 22 A. That would have been a communication

 271 23 headset product.

 271 24 Q. Okay. A hearing protective device with

 271 25 communication, electronic?

 272 1 A. Correct.

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

Re: [271:10-272:14]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Foundation (602)

Re: [272:15-272:19]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [271:10-

272:14]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Foundation (602)

Foundation 

Objection 

Withdrawn, 

3/12/2021; 

Remaining 

Objections 

Overruled

Re: [272:15-

272:19]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 45 of 48
Cimino, M. 12-11-2019 45

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

 272 4 You had asked for a 26, right?

 272 5 A. Was it 8?

 272 6 Q. Yes, sir.

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

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

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

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

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

NRR. It is

 272 12 the bare minimum I can accept."

 272 13 Do you see that?

 272 14 A. I do.

 272 15 Q. So marketing is telling the laboratory,

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

for

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

25, I

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

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

Compound (611, 

403); Foundation 

(602)

Overruled

272:22 - 272:23 Cimino, M. 12-11-2019

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

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

Re: [272:22-273:1]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

273:7 - 273:11 Cimino, M. 12-11-2019

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

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

do

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

you

 273 10 need from a marketing perspective or what you 

desire

Re: [273:5-273:11]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 46 of 48
Cimino, M. 12-11-2019 46

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

that?

403); Foundation 

(602)

Overruled

273:13 - 273:16 Cimino, M. 12-11-2019

 273 13 BY THE WITNESS:

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

 273 15 the discussions with this, but that was the 

discussion

 273 16 as -- as laid out here.

Re: [273:14-273:24]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

273:18 - 273:24 Cimino, M. 12-11-2019

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

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

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

tests

 273 21 on the hearing protective device, give you what 

they

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

with

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

 273 24 pressure them?

Re: [273:14-273:24]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Re: [272:22-

273:23]

Def Objection -

Relevance (401, 

402); 3M MIL 

No. 18; 

Misstates; 

Compound (611, 

403); Foundation 

(602)

Overruled

274:3 - 274:5 Cimino, M. 12-11-2019

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

 274 4 of this particular discussion, but that is the

 274 5 discussion that was had.

Re: [274:3-274:6]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

274:13 - 274:20 Cimino, M. 12-11-2019

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

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

there

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

the

 274 16 Combat Arms Earplugs, now in that case they 

stopped

 274 17 the test.

Re: [274:13-274:20]

Def Objection - Relevance 

(401, 402); 3M MIL No. 18; 

Misstates; Compound (611, 

403); Foundation (602)

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 47 of 48
Cimino, M. 12-11-2019 47

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

 274 19 you know?

 274 20 A. I don't know.

Case 7:20-cv-00094-MCR-GRJ Document 128-1 Filed 05/18/21 Page 48 of 48