EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 1 of 78
Preserved Objections Previous Rulings New Objections Rulings

19:21 - 20:01 Gates, Kathy (2020-05-29) 0:12

19:21 Q. (BY MR. MORRISS:) Good morning,

19:22 Col. Gates.

19:23 A. Good morning.

19:24 Q. Would you, just for the record,

19:25 identify yourself to the jury, please?

20:01 A. Yes, I am Kathy Gates.

21:13 - 22:06 Gates, Kathy (2020-05-29) 1:53

21:13 Q. Could you tell the jury a little bit

21:14 about your formal education, where you went to

21:15 college, postgraduate work?

21:16 A. I -- I did my undergraduate work at

21:17 State University of New York in Plattsburgh in

21:18 speech and hearing science. I went to University

21:19 of Maryland at College Park and obtained my

21:20 master's in audiology. And then I went to A.T.

21:21 Still University through a distance learning

21:22 program and obtained my audiology clinical

21:23 doctorate degree.

21:24 Q. So did the undergraduate and master's

21:25 come consecutively, or did you take a break between

22:01 studying for the two degrees?

22:02 A. No. Consecutive. Consecutively.

22:03 Q. And how about the postdoctoral work,

22:04 was it something that came later in your career or

22:05 immediately after you finished your master's?

22:06 A. Later in the career, in my career.

22:07 - 22:11 Gates, Kathy (2020-05-29) 0:09

22:07 Q. Are you currently licensed as an

22:08 audiologist?

22:09 A. Yes.

22:10 Q. And in what state or states?

22:11 A. In New Jersey and New York.

22:15 - 23:13 Gates, Kathy (2020-05-29) 1:29

22:15 Q. Let me ask it an easier way.

22:16 Approximately when did you become licensed?

22:17 A. I became licensed in 1988.

22:18 Q. And are you currently a member of any

22:19 professional association or group?

22:20 A. Yes. I am a member of the American

22:21 Speech-Hearing Association, ASHA; and I am a member

22:22 of the National Hearing Conservation Association

Designations

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22:23 and a member of the American Academy of Audiology.

22:24 Q. Do you play a leadership role in any

22:25 of those professional associations?

23:01 A. I do. I play a leadership role in

23:02 ASHA. I am the coordinator for the special

23:03 interest group Public Health and Audiology, and

23:04 then for the NHCA, the National Hearing

23:05 Conservation Association, I am the marketing and

23:06 communications director.

23:07 Q. Do you know how long you have had

23:08 some role with these three professional

23:09 associations, and just approximate?

23:10 A. ASHA, I have been a member since

23:11 1988; NHCA, I became more active in 2010; and then

23:12 AAA, I have been a member since the beginning of

23:13 the organization, which I think was around 1990.

25:04 - 25:15 Gates, Kathy (2020-05-29) 1:43

25:04 Q. And can you just briefly describe as

25:05 an audiologist what your roles and responsibilities

25:06 were?

25:07 A. I was the chief of the audiology

25:08 clinic, and my primary roles were to provide

25:09 clinical audiology services to soldiers and their

25:10 family members, also retirees. And then the other

25:11 portion of my responsibility was hearing loss

25:12 prevention or hearing conservation and providing

25:13 health education and earplug fittings to the basic

25:14 training soldiers there at Fort Dix that were

25:15 attending basic training.

25:16 - 27:18 Gates, Kathy (2020-05-29) 3:20

25:16 Q. And what year did you retire from

25:17 that?

25:18 A. I retired in 2011.

25:19 Q. So I expect you have had a lot of

25:20 stops along the way. But could you give the jury

25:21 just an overview of your career in the Army and the

25:22 roles you played as an Army doctor?

25:23 A. Well, I first started out, again, at

25:24 Fort Dix, serving as chief of audiology. Then I

25:25 transferred to 98th General Hospital in Nuremberg,

26:01 Germany, and I served as chief of the audiology

26:02 clinic at the hospital. And then I was responsible

26:03 for, I would say, approximately fifteen outlying

26:04 hearing conservation clinics. And then I PCS'd

26:05 from Germany, I went to the advanced course in San

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26:06 Antonio at the Army Medical Department Center and

26:07 School. And then upon completion of the advanced

26:08 course, I went to Fort Polk, Louisiana, and I

26:09 served as the chief audiology, a clinic there, and

26:10 was both responsible for the clinical mission as

26:11 well as the hearing conservation mission.

26:12 And then after Fort Polk, I went to

26:13 the Center For Health Promotion and Preventive

26:14 Medicine at Aberdeen and primarily worked in

26:15 hearing conservation. My title was consulting

26:16 audiologist. I went around and did site assessment

26:17 visits to hearing conservation sites and provided

26:18 recommendations for program improvements and also

26:19 was instrumental in the development of the hearing

26:20 conservation software program, the Defense

26:21 Occupational Hearing Readiness-Hearing Conservation

26:22 program.

26:23 And then after that, I went to Walter

26:24 Reed. I served as the deputy director for the Army

26:25 Audiology and Speech Center. And then I went to

27:01 the Office of the Surgeon General and worked there

27:02 as a audiology consultant, and also during that

27:03 time I served as the audiology consultant to the

27:04 Army surgeon general.

27:05 And I worked in the Preventive

27:06 Medicine office, the Proponency Office For

27:07 Preventive Medicine, focusing in more on

27:08 strategic-level projects and -- and working those

27:09 types of activities.

27:10 And then my final position, I served

27:11 as the integrated service chief at the --

27:12 between -- at the Walter Reed National Military

27:13 Medical Center. And I was very heavily involved in

27:14 the integration of the Army Audiology and Speech

27:15 Center and Bethesda audiology and speech clinic, to

27:16 combine those two under the audiology and speech

27:17 center known today at Walter Reed National Military

27:18 Medical Center.

28:04 - 28:08 Gates, Kathy (2020-05-29) 0:15

28:04 Q. Let me repeat it. So did you have

28:05 some involvement with hearing conservation and

28:06 hearing protection devices at every job while you

28:07 were in the military?

28:08 A. Yes.

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30:21 - 34:23 Gates, Kathy (2020-05-29) 6:23

30:21 Q. So I asked a poor question. So if I

30:22 went to the centralized database and I wanted to

30:23 find the hearing history or audiogram history of a

30:24 particular individual soldier, would I be able to

30:25 get it from there?

31:01 A. Yes.

31:02 Q. Is there other information contained

31:03 in the DOEHRS database, such as noise exposure by

31:04 installation or hearing loss by installation?

31:05 A. There are various reports that can

31:06 be -- you can run them. The Hearing Conservation

31:07 Program manager has access to the data repository,

31:08 and they can run various reports looking at

31:09 different types of trends.

31:10 Q. And do you recall, just to give me

31:11 some examples, some of the trends that you can

31:12 analyze from the database?

31:13 A. You can look at -- for example, in

31:14 the Army, we have hearing profiles. And there's an

31:15 H-1, H-2, -3, and -4. And you can run a report

31:16 looking at the percents hearing profiles broken out

31:17 by the individual profile data. And you can also

31:18 run a report and look at compliance trends in terms

31:19 of participation in the Hearing Conservation

31:20 Program.

31:21 Q. Would that be by installation?

31:22 A. It is by installation, and it can

31:23 also be rolled up to a -- a service level.

31:24 Q. If I wanted to talk to someone in the

31:25 military to give me the best information about what

32:01 kind of data I could get from this system, who

32:02 would I talk to?

32:03 A. Well, there are functional

32:04 representatives within each service. I don't know

32:05 the functional representatives, but I believe they

32:06 are located -- the functional representative for

32:07 the Army is located at the Public Health Center at

32:08 Aberdeen Proving Ground. For the Navy, I think

32:09 that they are located at the Navy Marine Corps

32:10 Public Health Center. And Air Force, they are

32:11 located at -- at Wright Patterson. I am not sure

32:12 of the name of the location, but that is where they

32:13 are housed.

32:14 Q. During your military career, did you

32:15 have an opportunity to work with the Department of

32:16 Defense working group?

32:17 A. I did. While I was assigned at the

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32:18 Center For Health Promotion and Preventive

32:19 Medicine, I was a participant in the DoD Hearing

32:20 Conservation Working Group while I was there. And

32:21 then later on in my career, for a brief time, I

32:22 served as the chair of the Hearing Conservation

32:23 Working Group.

32:24 Q. So in the first instance where you

32:25 were working with the DoD working group, what time

33:01 frame would that have covered?

33:02 A. That was, I would say, 1999

33:03 through -- or, I'm sorry, 1996 through 1999.

33:04 Q. And then when you returned as chair,

33:05 approximately when was that?

33:06 A. I believe that was 2010.

33:07 Q. And just so I have the name correct,

33:08 it is the DoD Hearing Conservation Working Group?

33:09 A. Yes, sir, that is correct.

33:10 Q. And in that '96 to '99 time frame,

33:11 what were your roles and responsibilities?

33:12 A. During that time frame, my primary

33:13 roles and responsibilities were development of the

33:14 hearing conservation software, kind of working with

33:15 the programmers in developing the logic for the

33:16 software, and also working with the -- the other

33:17 Navy and Air Force counterparts.

33:18 I also was involved in maintaining

33:19 data for Army hearing conservation compliance data,

33:20 the monitoring audiometry. And I also worked a

33:21 project of creating a separate MEPRS code, a

33:22 workload reporting code, for hearing conservation.

33:23 In the past, hearing conservation has

33:24 always been lumped under occupational health,

33:25 clinical audiology or preventive medicine. And so

34:01 visibility at the installation level, there was no

34:02 visibility until we were able to create this

34:03 Medical Expense Performance Reporting code. So I

34:04 was very much involved in that and worked with the

34:05 individual services on getting the code created and

34:06 approved.

34:07 Q. Who would have been the chairman of

34:08 the DoD Hearing Conservation Work Group?

34:09 A. That was Dr. Doug Ohlin.

34:10 Q. And would that be -- in the time '96

34:11 to '99, when you were involved with the working

34:12 group, was Dr. Doug Ohlin chairman of the group for

34:13 that period?

34:14 A. Yes, sir. Uh-huh.

34:15 Q. Did you have interactions with him

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34:16 from '96 to '99?

34:17 A. I did. He was my -- he was my boss,

34:18 my rater at CHPPM.

34:19 Q. Did the DoD working group, was it

34:20 limited to the Army or did it include all branches

34:21 of the military?

34:22 A. It included all branches of the

34:23 military.

34:24 - 35:01 Gates, Kathy (2020-05-29) 0:11

34:24 Q. Did the DoD working group play a role

34:25 in evaluating hearing protection devices?

35:01 A. No, not directly, no.

35:02 - 35:11 Gates, Kathy (2020-05-29) 1:40

35:02 Q. Do you recall whether Doug Ohlin was Re: [35:02 to 35:11] Re: [35:02 to 35:11] Re: [35:02 to 35:11] SUSTAINED

35:03 involved in the evaluation of hearing protection Pltf Obj 602, MIL G3, SUSTAINED Pltf Obj 602; speculation;

35:04 devices in that '96 to '99 time frame? speculation 802; 402/403

35:05 A. I believe he was involved with the --

35:06 I guess the creation of the Combat Arms Earplug.

35:07 And so he did have some coordination between the --

35:08 the French that developed the filter and then the

35:09 company that -- the U.S. company that worked on

35:10 incorporating the filter into the device. I think

35:11 that was the era.

36:11 - 36:18 Gates, Kathy (2020-05-29) 0:26

36:11 Q. Since joining the service as an Re: [36:11 to 36:18] SUSTAINED

36:12 audiologist in '87, has it been your experience Pltf Obj 403 Vague. misstates,

36:13 that certain noise exposures in military MIL G5, attributing personal

36:14 settings -- risk of hearing loss to soldiers and govt agent to the military

36:15 other military persons?

36:16 A. The military noise exposures and

36:17 potential of hearing loss, noise-induced hearing

36:18 loss? Yes.

39:09 - 39:16 Gates, Kathy (2020-05-29) 0:22

39:09 Q. As a military audiologist advising

39:10 soldiers, are there some noises that have required

39:11 double protection?

39:12 A. Yes. In accordance with the

39:13 regulations, yes.

39:14 Q. What is double protection?

39:15 A. Double protection is when you wear an

39:16 earplug along with a noise muff.

39:17 - 39:23 Gates, Kathy (2020-05-29) 0:27

39:17 Q. And do you, as we sit here today, Re: [39:20 to 39:23] Re: [39:20 to 39:23] Re: [39:19 to 39:23] SUSTAINED

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39:18 recall what noise levels require double protection? Pltf Obj 602, foundation, SUSTAINED Pltf Obj 602, foundation,

39:19 A. I really -- I mean, I -- it has been misstates, 403 (misleading) misstates, 403 (misleading)

39:20 a while, and it is a little foggy. But anything

39:21 beyond a hundred and ten dB for a steady state and

39:22 over a hundred and forty dBP for impulse noise, I

39:23 believe.

39:24 - 40:04 Gates, Kathy (2020-05-29) 0:17

39:24 Q. So that would mean if you -- whatever Re: [40:04 to 40:04] SUSTAINED

39:25 the regulations say the noise level is, if a Pltf Obj 602, foundation, 403

40:01 soldier or military personnel knows that they will (misleading)

40:02 be exposed to that, they would have to wear both a

40:03 plug and then earmuffs?

40:04 A. That is correct.

41:04 - 41:16 Gates, Kathy (2020-05-29) 1:36

41:04 Q. (BY MR. MORRISS:) Since you joined Re: [41:04 to 41:16] SUSTAINED

41:05 the military in 1987, have hearing loss and Pltf Obj 403, vague,

41:06 tinnitus been common problems that you have seen in

foundation

41:07 soldiers?

41:08 A. Yes.

41:09 Q. Was that true in 1987, when you

41:10 started?

41:11 A. Yes, it -- in 1987, yes.

41:12 Q. Was it true throughout your work in

41:13 the military up until your retirement?

41:14 A. Yes.

41:15 Q. And is it true still today?

41:16 A. Yes.

41:17 - 42:07 Gates, Kathy (2020-05-29) 1:03

41:17 Q. You mentioned earlier the Hearing

41:18 Conservation Program. What is a Hearing

41:19 Conservation Program?

41:20 A. The Hearing Conservation Program is a

41:21 program that-- for DoD, there's a regulation, DoDI

41:22 6055.12, and it specifically provides information

41:23 on the individual elements of a Hearing

41:24 Conservation Program. There are seven elements

41:25 that make up the Hearing Conservation Program, and

42:01 each service, then, from the DoDI, they take

42:02 their -- that information and then develop their

42:03 own service-specific regulation. For the Army that

42:04 is DA PAM 40-501, but the seven elements of the

42:05 program are similar across all services. They can

42:06 make their regulation more stringent, but it cannot

42:07 be less stringent than the DoDI.

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43:17 - 44:22 Gates, Kathy (2020-05-29) 2:54

43:17 Q. (BY MR. MORRISS:) So, Colonel Gates, Re: [43:23 to 44:07] SUSTAINED

43:18 looking at Exhibit Number 1 [sic], is this the DoD Pltf Obj 403, waste of time,

43:19 requirements that would have been in place for the 611

43:20 various branches of the military in terms of

43:21 implementing a Hearing Conservation Program? Re: [44:14 to 44:22]

43:22 A. Yes. Pltf Obj no objection

43:23 Q. And if we turn over to the third page

43:24 of the document, Section 6.1, does it require that

43:25 each branch prepare a written plan for the

44:01 implementation of a comprehensive Hearing

44:02 Conservation Program?

44:03 A. Yes. That is correct.

44:04 Q. And did that include addressing

44:05 hearing protection devices?

44:06 A. Yes. That was one of the elements of

44:07 the Hearing Conservation Program.

44:08 Q. And then if you will turn over to

44:09 Page 7, Section 6.6.2. Does the DoD give guidance

44:10 on when hearing protectors were to be available to

44:11 military personnel?

44:12 A. Yes.

44:13 Q. And can you describe that, please?

44:14 A. The individual service members were

44:15 provided hearing protection by -- well, the units

44:16 were responsible for providing them unit -- hearing

44:17 protection. However, at the time of monitoring

44:18 audiometry, usually they are -- they are also

44:19 provided hearing protection and instruction

44:20 regarding proper fitting and wear of the hearing

44:21 protection. And I am speaking normally on behalf

44:22 of the Army because that is my experience.

45:12 - 45:16 Gates, Kathy (2020-05-29) 0:12

45:12 Q. (BY MR. MORRISS:) Col. Gates, has Re: [45:12 to 45:16] SUSTAINED

45:13 the DoD requirement that we are looking at, has Pltf Obj 403-misleading, 701,

45:14 this or one similar to it been in place for many 602

45:15 years?

45:16 A. Yes.

46:01 - 48:11 Gates, Kathy (2020-05-29) 3:14

46:01 Q. (BY MR. MORRISS:) I will ask it Re: [46:01 to 46:14] SUSTAINED

46:02 again, Col. Gates. If we go to 6.6.7, is there a Pltf Obj 403 (waste of time,

46:03 section that deals with preformed earplugs? cumulative), outside the scope

46:04 A. Yes. of clarification

46:05 Q. And what is your understanding as an

46:06 audiologist, what is a preformed earplug? Re: [47:04 to 47:23] SUSTAINED

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46:07 A. A preformed earplug is an earplug Pltf Obj cumulative, 403, 701,

46:08 that can be used over and over again. They come in 602, 611 leading

46:09 different sizes, and depending on the ear canal

46:10 size determines the -- the size of the earplug. Re: [47:24 to 48:03] SUSTAINED

46:11 Early on in my career we had Pltf Obj 403 cummulative waste

46:12 single-flange earplugs or triple-flange earplugs, of time

46:13 and those were the earplugs that we would fit our

46:14 soldiers with.

46:15 Q. Would the Combat Arms Version 2

46:16 dual-ended plug that we are here about today, would

46:17 that be a preformed earplug?

46:18 A. Yes.

46:19 Q. All right. And does the DoD set out

46:20 how the preformed earplugs would be fitted and

46:21 issued?

46:22 A. There are hearing conservationists

46:23 that are assigned to units, and they are provided

46:24 training and become hearing conservation

46:25 technicians so that they can assist and educate and

47:01 make sure that soldiers under their command

47:02 understand how to properly use and insert the

47:03 earplug.

47:04 Q. And the -- and the DoD 6.6.7

47:05 specifically requires for a preformed earplug that

47:06 it be fitted and issued only under the supervision

47:07 of personnel who have been specifically trained to

47:08 fit earplugs, correct?

47:09 A. Right.

47:10 Q. And then if we go down to 6.6.9, is

47:11 it fair to say that the DoD required that medically

47:12 trained personnel examine the fit and condition of

47:13 preformed earplugs?

47:14 A. Yes.

47:15 Q. Okay. And that would include the

47:16 Combat Arms Version 2 dual-ended plug, correct?

47:17 A. Yes.

47:18 Q. And then finally 6.6.10 would require

47:19 that the individual personnel receiving the plug

47:20 receive adequate and effective training on proper

47:21 care of the personal hearing protection device,

47:22 correct?

47:23 A. Correct.

47:24 Q. All right. Now, then, the DoD would

47:25 be sort of the guidance that the individual branch

48:01 would use in putting their programs together; is

48:02 that correct?

48:03 A. That's correct.

48:04 Q. And did, in fact, the Army, during

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48:05 the time that you were there, have a Hearing

48:06 Conservation Program that was in place?

48:07 A. Yes.

48:08 Q. And did the written program comply

48:09 with the DoD requirements?

48:10 A. Yes.

48:11 Q. All right.

48:22 - 49:08 Gates, Kathy (2020-05-29) 1:59

48:22 A. Oh, Tab 39? Okay. Okay. I have it Re: [48:22 to 49:11] SUSTAINED

48:23 opened. It says "DA PAM 40-501," dated December of Pltf Obj 403 -mistates

48:24 1998. document, misleading

48:25 Q. And is this the Hearing Conservation

49:01 Program that would have been implemented by the

49:02 Army following the DoD requirements for a Hearing

49:03 Conservation Program?

49:04 A. Yes, sir.

49:05 Q. Do you know how long this particular

49:06 version of the Hearing Conservation Program was in

49:07 place until it was amended or changed in some

49:08 substantive way?

49:09 - 50:05 Gates, Kathy (2020-05-29) 2:03

49:09 A. It was updated, I think it was 2012, Re: [48:22 to 49:11] SUSTAINED

49:10 the -- the DA PAM 40-501 was revised to reflect the Pltf Obj 403 -mistates

49:11 Army Hearing Program. document, misleading

49:12 Q. All right. Let me show you what we

49:13 will mark as Tab 40, and it will be Exhibit 5.

49:14 (Exhibit 5 was marked for

49:15 identification.)

49:16 Q. (BY MR. MORRISS:) And if you can

49:17 identify Exhibit 5 for us, please.

49:18 A. That is the DA PAM 40-501 Army

49:19 Hearing Program, and the date is 2015. So I was a

49:20 little bit early on the date.

49:21 Q. So, now, Exhibits 4 and 5, do they

49:22 sort of represent the Army's Hearing Conservation

49:23 Program requirements from December of -- 10th,

49:24 1998, and at least up through and including January

49:25 the 15th -- January 8, 2015, and beyond?

50:01 A. Yes.

50:02 Q. So if you will turn back to Exhibit

50:03 39, please -- Exhibit 4. Tab 39, Exhibit 4. If

50:04 you will go over to Section 6.1, which is on Page 5

50:05 of the document.

50:06 - 51:17 Gates, Kathy (2020-05-29) 2:23

50:06 Did the -- did the Army Hearing

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50:07 Conservation Program have a section that dealt with

50:08 hearing protectors?

50:09 A. Yes.

50:10 Q. In compliance with the DoD

50:11 requirements, did it require that all personnel

50:12 working or visiting in potentially hazardous noise

50:13 areas be provided hearing protection?

50:14 A. Yes.

50:15 Q. And then if you look down at 6.2, did

50:16 the Army program give specifications of the kinds

50:17 of plugs that would be required under certain

50:18 particular noise environments?

50:19 A. Yes.

50:20 Q. If you turn to 6.3(a), did the Army's

50:21 Hearing Conservation Program provide information

50:22 specific to preformed earplugs, both triple- or

50:23 single-flange?

50:24 A. Yes.

50:25 Q. And who was responsible for fitting

51:01 and examining these earplugs when they were given

51:02 to soldiers or other military personnel?

51:03 A. The audiology clinic, as part of

51:04 monitoring audiometry, would -- I -- the clinics

51:05 that I managed, we incorporated the hearing

51:06 protection fitting at the time of monitoring

51:07 audiometry. So we would fit their -- recheck their

51:08 hearing testing annually at the time of their

51:09 annual hearing test.

51:10 There are other ways of doing this as

51:11 well. Soldier readiness processing, the -- that is

51:12 an annual requirement. That is another way of

51:13 accomplishing the refitting and the recheck of the

51:14 hearing protection. And then also the individual

51:15 unit hearing conservation NCO is also trained to --

51:16 to fit and evaluate the hearing protection on an

51:17 annual basis.

51:18 - 52:14 Gates, Kathy (2020-05-29) 1:08

51:18 Q. And under any of the three scenarios

51:19 you described for us, as long as it was a medically

51:20 trained person fitting the preformed earplug, it

51:21 would be in compliance with the Hearing

51:22 Conservation Program?

51:23 A. Yes.

51:24 Q. Was there sort of an order or ranking

51:25 of the type plug that would first be tried when

52:01 this medically trained person was fitting the plug

52:02 on a particular soldier or military personnel?

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52:03 A. Well, oftentimes if you are doing a

52:04 large group fitting, you go with the -- the medium

52:05 orange triple-flange earplug and -- and just have

52:06 the group, by the numbers, insert the earplug.

52:07 And then I would have them

52:08 single-file up, and we would evaluate their

52:09 earplug. And then if it was too small or too

52:10 large, we would have them either go with the green

52:11 triple-flange or the blue triple-flange and then

52:12 have them go through the line again to make sure

52:13 that they were fitted properly with the hearing

52:14 protection.

52:15 - 52:18 Gates, Kathy (2020-05-29) 0:14

52:15 Q. Was there any single plug that fit

52:16 everyone?

52:17 A. Based on -- no. Maybe the yellow

52:18 foam plug --

52:19 - 52:23 Gates, Kathy (2020-05-29) 1:37

52:19 Q. Were there any triple-flange or

52:20 single-flange plugs that fit everyone?

52:21 A. These -- these earplugs were sized,

52:22 and they were sized to fit different ear canals.

52:23 So not one size fit all.

52:24 - 53:13 Gates, Kathy (2020-05-29) 1:05

52:24 Q. During the -- sort of the late '90s,

52:25 early 2000 time frame, who would have been the

53:01 individuals physically helping fit the earplug,

53:02 checking the fitting, examining the plug -- who

53:03 would have been the pool of people that could do

53:04 that? Not individual names, but like the type of

53:05 people that could do that?

53:06 A. Trained hearing conservationists, the

53:07 ear, nose and throat, ENT, technicians, civilian

53:08 occupational nurse personnel, and then the hearing

53:09 conservationists that were trained under the

53:10 hearing conservation training program would be unit

53:11 medics and other NCOs that had been appointed to

53:12 serve as the hearing conservation officer within

53:13 the unit.

54:05 - 54:14 Gates, Kathy (2020-05-29) 0:25

54:05 Q. So did audiologists within the

54:06 military from time to time put on presentations

54:07 about hearing protection devices?

54:08 A. Yes.

Page 12 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 13 of 78
54:09 Q. And did those presentations include,

54:10 in some instances, how to fit plugs?

54:11 A. Yes.

54:12 Q. All right. Did it include specifics

54:13 on certain types of plugs?

54:14 A. Yes.

57:01 - 57:07 Gates, Kathy (2020-05-29) 0:28

57:01 Q. Let me ask a better question. Do you

57:02 remember the Combat Arms Version 2 dual-ended plug,

57:03 what it looked like?

57:04 A. I do. From the working group, we did

57:05 have the opportunity to experiment with the

57:06 dual-ended Combat Arms earplug. And so I am

57:07 familiar with that dual-ended-type device.

60:19 - 61:16 Gates, Kathy (2020-05-29) 1:08

60:19 Q. And if you will go now to Exhibit Re: [60:19 to 62:03] Re: [60:19 to 62:03] Re: [60:19 to 63:20] SUSTAINED

60:20 10 -- or Tab 10. And I am going to give you Pltf Obj 602, foundation, 403 SUSTAINED Pltf Obj 602, foundation, 403

60:21 something that is easier to read here in just a (undue delay, waste of time, , waste of time

60:22 minute. needless presentation of Re: [61:05 to 61:10]

60:23 (Exhibit 7 was marked for cumulative evidence) SUSTAINED

60:24 identification.)

60:25 A. Okay. Re: [61:05 to 61:10]

61:01 Q. (BY MR. MORRISS:) But this was -- Pltf Obj 611, 802

61:02 this is what was attached to the email that we just

61:03 looked at. Does this appear to be a wallet card?

61:04 A. Does it -- yes.

61:05 Q. And on the first page, it has got --

61:06 from a soldier in Iraq, and it has got a quote

61:07 about Combat Arms working "great in this

61:08 environment...they probably made the difference

61:09 between eardrum/hearing damage and not," correct?

61:10 A. That's correct, yes.

61:11 Q. Who would have been responsible

61:12 for -- if you know, for preparing wallet cards like

61:13 this within the military?

61:14 A. I think it was CHPPM, the -- the

61:15 folks that were assigned under Dr. Doug Ohlin

61:16 probably worked on developing the wallet cards.

61:17 - 62:03 Gates, Kathy (2020-05-29) 1:47

61:17 Q. And then if you will go over to the Re: [60:19 to 62:03] Re: [60:19 to 62:03] Re: [60:19 to 63:20] SUSTAINED

61:18 next page of the wallet, does it provide Pltf Obj 602, foundation, 403 SUSTAINED Pltf Obj 602, foundation, 403

61:19 instructions about insertion of the dual-ended (undue delay, waste of time, , waste of time

61:20 plug? needless presentation of Re: [61:17 to 62:03]

61:21 A. Yes. cumulative evidence) OVERRULED

Page 13 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 14 of 78
61:22 Q. And is one of those, if you look --

61:23 if you look down, are there bullet points that Re: [61:17 to 62:03]

61:24 relate to both fit and care for the earplugs? Pltf Obj 611

61:25 A. Yes.

62:01 Q. And if you go down to the second

62:02 bullet point, is there also an instruction about

62:03 folding the opposing plug back?

62:06 - 62:06 Gates, Kathy (2020-05-29) 0:01

62:06 A. Yes, I see that. Re: [62:06 to 62:16] Re: [62:06 to 62:16] Re: [60:19 to 63:20] OVERRULED

Pltf Obj 602, foundation, 403 OVERRULED Pltf Obj 602, foundation, 403

(undue delay, waste of time, , waste of time

needless presentation of

62:07 - 62:16 Gates, Kathy (2020-05-29) 1:30 cumulative evidence)

62:07 Q. (BY MR. MORRISS:) Okay. So just for Re: [62:06 to 62:16] Re: [62:06 to 62:16] Re: [60:19 to 63:20] OVERRULED

62:08 the record, the wallet card says, "For very large Pltf Obj 602, foundation, 403 OVERRULED Pltf Obj 602, foundation, 403

62:09 ear canals, fold the opposing plug back," correct? (undue delay, waste of time, , waste of time

62:10 A. That's correct. needless presentation of Re: [62:11 to 62:16]

62:11 Q. Okay. And do you know how this cumulative evidence) SUSTAINED Re: [62:11 to 62:16] SUSTAINED

62:12 particular wallet card would have been distributed Pltf Obj 611

62:13 within the military? Re: [62:11 to 62:16]

62:14 A. I think that it probably was Pltf Obj 611

62:15 disseminated through the audiology community from

62:16 the CHPPM office.

62:17 - 62:20 Gates, Kathy (2020-05-29) 0:11

62:17 Q. Do you know where the fitting Re: [60:19 to 63:20] OVERRULED

62:18 instruction or tip about folding the opposing plug Pltf Obj 602, foundation, 403

62:19 back, where it originated or where it came from? , waste of time

62:20 A. No, I don't.

63:05 - 63:14 Gates, Kathy (2020-05-29) 0:27

63:05 MR. MORRISS: That is fair; let me Re: [63:05 to 63:14] Re: [63:05 to 63:14] Re: [60:19 to 63:20] OVERRULED

63:06 ask it this way. Let's go to -- Pltf Obj 602, foundation, 403 OVERRULED Pltf Obj 602, foundation, 403

63:07 Will, it's Tab 65. It will be (undue delay, waste of time, , waste of time

63:08 Exhibit 6 [sic], I guess. needless presentation of

63:09 (Exhibit 8 was marked for cumulative evidence)

63:10 identification.)

63:11 Q. (BY MR. MORRISS:) Just -- you are

63:12 welcome to look at it. It is just a little better

63:13 version of what we looked at earlier.

63:14 A. Sure.

63:18 - 66:07 Gates, Kathy (2020-05-29) 3:22

63:18 Q. (BY MR. MORRISS:) There is an Re: [65:03 to 65:09] Re: [65:03 to 65:09] Re: [60:19 to 63:20] OVERRULED

63:19 insignia of USACHPPM on the bottom, correct? Pltf Obj 602, 611, foundation, OVERRULED Pltf Obj 602, foundation, 403

63:20 A. That's correct, yes. 403 (undue delay, waste of , waste of time

63:21 Q. And tell me what "USACHPPM" stands time, needless presentation of Re: [65:18 to 66:07]

Page 14 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 15 of 78
63:22 for. cumulative evidence) OVERRULED Re: [65:03 to 65:09] OVERRULED

63:23 A. That is U.S. Army Center For Health Pltf Obj 602, 611, foundation,

63:24 Promotion and Preventive Medicine. Re: [65:18 to 66:07] 403 (undue delay, waste of

63:25 Q. And did you work for USACHPPM at some Pltf Obj 602, 611, 802, time, needless presentation of

64:01 point in time? foundation, 403 (undue delay, cumulative evidence)

64:02 A. I did. waste of time, needless

64:03 Q. Okay. In what years or time frames presentation of cumulative Re: [65:18 to 66:07] OVERRULED

64:04 did you work for USACHPPM? evidence) Pltf Obj 602, 611, 802,

64:05 A. 1996 through I believe 1999, the end foundation, 403 (undue delay,

64:06 of 1999. waste of time, needless

64:07 Q. And did you interact with USACHPPM in presentation of cumulative

64:08 your other roles with the military? evidence)

64:09 A. Yes.

64:10 Q. Okay. And what was the sort of

64:11 purpose of USACHPPM both when you worked for them

64:12 and during the time that you interacted with

64:13 USACHPPM?

64:14 A. USACHPPM was kind of the hearing

64:15 conservation consultant branch, and it provided

64:16 audiologists information regarding the Hearing

64:17 Conservation Program. Early on in the -- in the

64:18 days they would conduct data analysis of the HEARS

64:19 data and look at different trends. They would look

64:20 at STS trends, significant threshold shift trends,

64:21 they would look at overall compliance trends. And

64:22 so CHPPM would share that information with the

64:23 individual audiologists who were responsible for

64:24 managing their individual programs.

64:25 Q. And did USACHPPM also provide

65:01 information about hearing protection devices?

65:02 A. Yes.

65:03 Q. All right. And at least on Exhibits

65:04 5 and 6 there is a USACHPPM insignia, correct?

65:05 A. That's correct, yes.

65:06 Q. And it provides information about how

65:07 to fit the Combat Arms Version 2 dual-ended plug,

65:08 correct?

65:09 A. Yes.

65:10 Q. Have you also seen publications from

65:11 CHPPM or other military sources -- well, first of

65:12 all, CHPPM is a military organization? I want to

65:13 make sure that is clear.

65:14 A. Yes, that is correct.

65:15 Q. It is not a manufacturer of earplugs,

65:16 right?

65:17 A. No. No.

65:18 Q. Did USACHPPM also publish information

Page 15 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 16 of 78
65:19 that was distributed under the title of "Just the

65:20 Facts"?

65:21 A. I believe so. There was a document,

65:22 "Just the Facts."

65:23 Q. And do you recall, you know, what the

65:24 purpose of the "Just the Fact" publication was?

65:25 A. I would have to look at it. I -- I

66:01 think that they had various "Just the Facts" types

66:02 of information, just to educate the soldiers and

66:03 civilians routinely exposed to noise on just the

66:04 facts regarding noise exposure and hearing loss

66:05 prevention and the impact noise can have on your

66:06 hearing if it is -- if you are not wearing hearing

66:07 protection.

66:08 - 66:11 Gates, Kathy (2020-05-29) 0:15

66:08 Q. Do you recall seeing the "Just the

66:09 Facts" publication during the time you were at the

66:10 working group?

66:11 A. I don't remember.

67:06 - 67:18 Gates, Kathy (2020-05-29) 1:33

67:06 Q. (BY MR. MORRISS:) So let me correct Re: [67:06 to 68:24] Re: [67:06 to 68:24] Re: [67:06 to 68:24] OVERRULED

67:07 that. So what you have now in front of you, Tab 4, Pltf Obj 602, 611, 802, OVERRULED Pltf Obj 602, 611, 802,

67:08 is Exhibit 9. foundation, 403 (undue delay, foundation, 403 (undue delay,

67:09 A. Okay. waste of time, needless waste of time, needless

67:10 Q. Is this one of the "Just the Facts" presentation of cumulative presentation of cumulative

67:11 publications that we talked about earlier? evidence) evidence)

67:12 A. Yes.

67:13 Q. Is it, again, on a USACHPPM

67:14 letterhead?

67:15 A. Yes, that is correct.

67:16 Q. Okay. And is it styled "Just the

67:17 Facts...The Combat Arms Earplug"?

67:18 A. It is.

67:19 - 68:07 Gates, Kathy (2020-05-29) 1:33

67:19 Q. And does this provide information Re: [67:06 to 68:24] Re: [67:06 to 68:24] Re: [67:06 to 68:24] OVERRULED

67:20 about the Combat Arms dual-ended plug? Pltf Obj 602, 611, 802, OVERRULED Pltf Obj 602, 611, 802,

67:21 A. Yes, it does. foundation, 403 (undue delay, foundation, 403 (undue delay,

67:22 Q. And if you will flip over to the waste of time, needless waste of time, needless

67:23 second page, does it have a section entitled "User presentation of cumulative presentation of cumulative

67:24 Tips"? evidence) evidence)

67:25 A. Yes, it does.

68:01 Q. And under the first bullet point,

68:02 does it state that the earplug should be properly

68:03 inserted?

68:04 A. The first bullet point?

Page 16 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 17 of 78
68:05 Q. If you look at the second bullet

68:06 point, it says --

68:07 A. Oh.

68:08 - 68:15 Gates, Kathy (2020-05-29) 0:21

68:08 Q. -- "Like any earplug, it is essential Re: [67:06 to 68:24] Re: [67:06 to 68:24] Re: [67:06 to 68:24] OVERRULED

68:09 that the Combat Arms Earplug be properly inserted." Pltf Obj 602, 611, 802, OVERRULED Pltf Obj 602, 611, 802,

68:10 A. Yes, that is correct. I see that. foundation, 403 (undue delay, foundation, 403 (undue delay,

68:11 Q. And then if you go to the next bullet waste of time, needless waste of time, needless

68:12 point, which would be the third one in the presentation of cumulative presentation of cumulative

68:13 document, it says, "For exceptionally large ear evidence) evidence)

68:14 canals, fold the opposing plug back to enhance

68:15 proper insertion."

68:16 - 68:19 Gates, Kathy (2020-05-29) 0:09

68:16 A. Yes, I see that. Re: [67:06 to 68:24] Re: [67:06 to 68:24] Re: [67:06 to 68:24] OVERRULED

68:17 Q. So this is instructions about the Pltf Obj 602, 611, 802, OVERRULED Pltf Obj 602, 611, 802,

68:18 Combat Arms Earplug coming from USACHPPM, correct?

foundation, 403 (undue delay, foundation, 403 (undue delay,

68:19 A. Yes, sir, that is correct. waste of time, needless waste of time, needless

presentation of cumulative presentation of cumulative

evidence) evidence)

68:20 - 68:24 Gates, Kathy (2020-05-29) 0:14

68:20 Q. And it is your understanding that Re: [67:06 to 68:24] Re: [67:06 to 68:24] Re: [67:06 to 68:24] OVERRULED

68:21 these documents would be distributed among the Pltf Obj 602, 611, 802, OVERRULED Pltf Obj 602, 611, 802,

68:22 audiology community and among general military foundation, 403 (undue delay, foundation, 403 (undue delay,

68:23 personnel, correct? waste of time, needless waste of time, needless

68:24 A. Yes. presentation of cumulative presentation of cumulative

evidence) evidence)

68:25 - 69:04 Gates, Kathy (2020-05-29) 0:15

68:25 Q. Do you know whether you had any

69:01 involvement in reviewing or preparing that

69:02 particular document?

69:03 A. I am -- I am just familiar with the

69:04 document, but I didn't write it.

69:09 - 69:14 Gates, Kathy (2020-05-29) 0:18

69:09 Q. (BY MR. MORRISS:) Well, let me ask Re: [69:09 to 69:14] Re: [69:09 to 69:14] Re: [69:09 to 69:14] SUSTAINED

69:10 it again. Do you know where the language about how Pltf Obj 602, 802, foundation, SUSTAINED Pltf Obj 602; 802; foundation;

69:11 to insert the plug, and specifically Bullet Point 403 (undue delay, waste of 403; misstates

69:12 Number 3 about folding the opposing plug back to time, needless presentation of

69:13 enhance proper insertion, do you know where CHPPM cumulative evidence),

69:14 got that information? misstates the document

69:16 - 69:17 Gates, Kathy (2020-05-29) 0:06

69:16 A. I think it came from the hearing Re: [69:16 to 69:17] Re: [69:16 to 69:17] Re: [69:16 to 69:17] SUSTAINED

Page 17 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 18 of 78
69:17 conservation office at CHPPM. Pltf Obj 602, 802, foundation, SUSTAINED Pltf Obj 602; 802; foundation;

403 (undue delay, waste of 403; misstates

time, needless presentation of

69:18 - 69:20 Gates, Kathy (2020-05-29) 0:09 cumulative evidence),

69:18 Q. (BY MR. MORRISS:) Do you know where misstates the document

69:19 they sort of came to the conclusion that folding

69:20 back the flange might aid in proper insertion?

69:22 - 69:22 Gates, Kathy (2020-05-29) 0:07

69:22 A. I don't know.

70:17 - 71:03 Gates, Kathy (2020-05-29) 1:41

70:17 Q. We talked a little bit about slide Re: [70:17 to 71:03] Re: [70:17 to 71:03] Re: [70:17 to 71:03] OVERRULED

70:18 presentations. Do you know Lt. Merkley? Pltf Obj 602, 403 (undue OVERRULED Pltf Obj vague

70:19 A. Yes, I do. delay, waste of time, needless

70:20 Q. In 2002, would you have had any presentation of cumulative Re: [70:17 to 71:03]

70:21 occasion to work with him? evidence), improper comment on Pltf Obj 602, 403, vague

70:22 A. No. credibility of another witness

70:23 Q. Do you know whether he was a person

70:24 in that early 2000 time frame that would have had

70:25 responsibility for presenting training to

71:01 audiologists and other personnel about how to fit

71:02 earplugs?

71:03 A. I believe so, he would have.

71:14 - 72:03 Gates, Kathy (2020-05-29) 1:46

71:14 Q. All right. Okay. Let me ask it Re: [71:14 to 72:03] Re: [71:14 to 72:03] Re: [71:14 to 72:06] SUSTAINED

71:15 again. Would Lt. Merkley in the early 2000s have Pltf Obj 602, 403 (undue SUSTAINED Pltf Obj 602, 611, 403

71:16 been in a position where he would have been delay, waste of time, needless

71:17 providing training to audiologists and others about presentation of cumulative Re: [71:24 to 72:03]

71:18 hearing protection devices? evidence), improper comment on SUSTAINED

71:19 A. Yes. credibility of another witness

71:20 Q. Have you since seen his testimony as

71:21 it relates to the training on the proper insertion Re: [71:24 to 72:03]

71:22 of the Combat Arms earplug? Pltf Obj 611

71:23 A. I looked at it, yes.

71:24 Q. All right. And do you recall that

71:25 his recollection was that he communicated to

72:01 military personnel that one of the fitting tips was

72:02 to roll back the flange to get proper insertion; do

72:03 you recall that?

72:06 - 72:06 Gates, Kathy (2020-05-29) 0:00

72:06 A. Yes. Re: [72:06 to 72:06] Re: [72:06 to 72:06] Re: [71:14 to 72:06] SUSTAINED

Pltf Obj 602, 611, 403 (undue SUSTAINED Pltf Obj 602, 611, 403

delay, waste of time, needless

73:25 - 75:19 Gates, Kathy (2020-05-29) 2:41 presentation of cumulative

73:25 (Whereupon, the following video clip evidence), improper comment onRe: [73:25 to 75:19] Re: [73:25 to 75:19] Re: [73:25 to 75:19] OVERRULED

Page 18 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 19 of 78
74:01 was played from the deposition credibility of another witnessPltf Obj OVERRULED Pltf Obj 602, 611, 403 (undue

74:02 testimony of Lt. Col. John Merkley, delay, waste of time, needless delay, waste of time, needless

74:03 February 26, 2020.) presentation of cumulative Re: [75:03 to 75:19] presentation of cumulative

74:04 Q. "(BY MR. WASDIN:) You mentioned that evidence), improper comment on OVERRULED evidence), improper comment on

74:05 in your conversations with Doug Ohlin regarding credibility of another witness credibility of another witness

74:06 instructions that you discussed the wallet card

74:07 with him on those occasions, did I remember that? Re: [75:03 to 75:19]

74:08 A. Right. Pltf Obj 802, MIL G5

74:09 Q. Okay.

74:10 A. Now, I -- I want to make it clear,

74:11 this -- these wasn't necessarily one-on-one

74:12 discussions, but discussions at a -- at a meeting

74:13 with a group.

74:14 Q. Okay. Who were the people that were

74:15 in the group?

74:16 A. It would have been military

74:17 audiologists.

74:18 Q. Like yourself that were the head of

74:19 some program --

74:20 A. Um-hum.

74:21 Q. -- at a different installation?

74:22 A. Right.

74:23 Q. Okay. If you look at the wallet

74:24 card, beside the pictures, there is an image on the

74:25 right of the plug with the flange folded back on

75:01 the opposite end?

75:02 A. Correct.

75:03 Q. Did you ever discuss whether or not

75:04 to fold the flanges back on the opposite end of the

75:05 plug with Doug Ohlin?

75:06 A. I remember Doug Ohlin giving us

75:07 instruction on how to fit the earplug.

75:08 Q. What did he say?

75:09 A. And he -- he said if you have --

75:10 well, I don't remember his exact words, but I

75:11 remember, you know, if you needed to, you could

75:12 fold back the flange on the earplug to get a good

75:13 fit.

75:14 Q. And so, Doug Ohlin was telling the

75:15 program managers at the various installations in

75:16 the country that if they needed to fold back the

75:17 flanges on one side of the plug, they could do so

75:18 to get a good fit?

75:19 A. Yes."

75:22 - 75:24 Gates, Kathy (2020-05-29) 0:05

75:22 Q. (BY MR. MORRISS:) And is this the Re: [75:22 to 75:24] Re: [75:22 to 75:24] Re: [75:22 to 75:24] SUSTAINED

75:23 testimony that you had read earlier, Col. Gates? Pltf Obj 602, 611, 403 (undue SUSTAINED Pltf Obj FRE 602, 611, 403

Page 19 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 20 of 78
75:24 A. Yes. delay, waste of time, needless

presentation of cumulative

76:23 - 77:05 Gates, Kathy (2020-05-29) 0:18 evidence), improper comment on

76:23 Q. Would Lt. Merkley have been in the credibility of another Re: [76:23 to 77:05] Re: [76:23 to 77:05] SUSTAINED

76:24 early 2000 time frame someone knowledgeable about witness, prohibited by Touhy SUSTAINED Pltf Obj 602, 611, 403 (undue

76:25 information concerning hearing protection devices calls for speculation delay, waste of time, needless

77:01 and how to properly insert them? Re: [76:23 to 77:05] presentation of cumulative

77:02 A. Sure, yes. Pltf Obj 602, 611, 403 (undue evidence), improper comment on

77:03 Q. And you have no reason to doubt the delay, waste of time, needless credibility of another

77:04 testimony that he has given in this case; is that presentation of cumulative witness, prohibited by Touhy,

77:05 true? evidence), improper comment on calls for speculation

credibility of another

witness, prohibited by Touhy, Re: [77:03 to 77:07] SUSTAINED

calls for speculation Pltf Obj 602, 611, 403 (undue

delay, waste of time, needless

presentation of cumulative

evidence), improper comment on

credibility of another

witness, prohibited by Touhy,

calls for speculation

77:07 - 77:07 Gates, Kathy (2020-05-29) 0:00

77:07 A. That's true. Re: [77:07 to 77:07] Re: [77:07 to 77:07] Re: [77:03 to 77:07] SUSTAINED

Pltf Obj 602, 611, 403 (undue SUSTAINED Pltf Obj 602, 611, 403 (undue

delay, waste of time, needless delay, waste of time, needless

presentation of cumulative presentation of cumulative

evidence), improper comment on evidence), improper comment on

credibility of another credibility of another

witness, prohibited by Touhy, witness, prohibited by Touhy,

calls for speculation calls for speculation

77:13 - 78:06 Gates, Kathy (2020-05-29) 1:52

77:13 Q. Do you know Eric Fallon? Re: [77:13 to 78:19] Re: [77:13 to 78:19]

77:14 A. I do. Pltf Obj 402, 602, 403 (undue OVERRULED

77:15 Q. Was Eric Fallon someone who at delay, waste of time, needless

77:16 various points in time would have had presentation of cumulative

77:17 responsibility for providing training about hearing evidence), improper comment on

77:18 protection devices? credibility of another

77:19 A. Yes. witness, calls for speculation

77:20 Q. Do you know what time frame he would

77:21 have been involved in that role, where he would

77:22 have been making presentations on how to fit a

77:23 hearing protection device?

77:24 A. When he was at CHPPM in, I think,

77:25 2004 or '5 time frame.

78:01 Q. And would you defer to him about what

78:02 materials in that time frame would have been used

78:03 to train audiologists and others about how to fit

Page 20 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 21 of 78
78:04 the Combat Arms Version 2 plug?

78:05 A. Yes. That was his lane of

78:06 responsibility at CHPPM.

78:07 - 78:19 Gates, Kathy (2020-05-29) 1:32

78:07 Q. And he worked for you at some point Re: [77:13 to 78:19] Re: [77:13 to 78:19] Re: [78:17 to 78:19] OVERRULED

78:08 in time; did he not? Pltf Obj 402, 602, 403 (undue OVERRULED Pltf Obj 402, 602, 403 (undue

78:09 A. He was kind of a special projects delay, waste of time, needless delay, waste of time, needless

78:10 officer and worked with me. But I was never in his presentation of cumulative presentation of cumulative

78:11 rating chain or anything. evidence), improper comment on evidence), improper comment on

78:12 Q. But you had -- credibility of another credibility of another

78:13 A. Yes. witness, calls for speculation witness, calls for speculation

78:14 Q. You had significant interaction with

78:15 him at various points in time?

78:16 A. Yes.

78:17 Q. Found him to be reliable and

78:18 dependable?

78:19 A. Yes.

79:02 - 79:08 Gates, Kathy (2020-05-29) 0:21

79:02 Q. Is it fair to say that earplugs Re: [79:02 to 79:08] OVERRULED

79:03 loosen during normal activities? Pltf Obj Vague; FRE 701

79:04 A. Yes.

79:05 Q. And is it fair to say that

79:06 preformed -- all preformed earplugs can loosen from

79:07 chewing or walking or any sort of activity at all?

79:08 A. Yes, that is correct.

80:16 - 81:09 Gates, Kathy (2020-05-29) 1:58

80:16 Q. (BY MR. MORRISS:) So Exhibit 3 is

80:17 the Department of Defense Instruction that would

80:18 guide military branches on their hearing

80:19 conservation programs, correct?

80:20 A. Right. What I -- what I am seeing

80:21 right now is Exhibit 6 [sic]. I am seeing -- I see

80:22 here "Earplugs: General Information."

80:23 MR. MORRISS: So go to the front page

80:24 of this document first, Will.

80:25 Q. (BY MR. MORRISS:) Okay. So this is

81:01 Exhibit Number 3. And it is the Department of

81:02 Defense Instruction, correct?

81:03 A. Yes.

81:04 Q. And this is what we talked about

81:05 earlier, right?

81:06 A. Right.

81:07 Q. If you will turn over in that

81:08 document to Page 25, it has something called "E6.

81:09 Enclosure 6"; is that correct?

Page 21 of 41

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81:10 - 82:07 Gates, Kathy (2020-05-29) 1:08

81:10 A. I -- I just don't recall seeing that

81:11 in the DoDI, but I --

81:12 Q. And if you actually look at the top

81:13 right-hand corner of that very document, it says,

81:14 "DoDI 6055.2, April 12, '96" [sic]?

81:15 A. Okay.

81:16 Q. Okay. So this is in the -- this is

81:17 in the Department of Defense document, correct?

81:18 A. Yes.

81:19 Q. Okay. And I don't think this is

81:20 controversial. The DoD points out in Item Number 3

81:21 that earplugs tend to work loose as a result of

81:22 talking and even just chewing gum and must be

81:23 reseated, correct?

81:24 A. That's correct, yes.

81:25 Q. That is consistent with the Army

82:01 hearing conservation's own program as it relates to

82:02 all earplugs, including premolded plugs?

82:03 A. Yes.

82:04 Q. And it would be consistent with your

82:05 personal understanding of how hearing protection

82:06 devices work?

82:07 A. Yes.

82:15 - 83:02 Gates, Kathy (2020-05-29) 1:35

82:15 Q. (BY MR. MORRISS:) Well, let me

82:16 rephrase it. Have you instructed soldiers on how

82:17 to tell when a plug is loose and it has got to be

82:18 reseated?

82:19 A. Yes. Yes.

82:20 Q. And this is -- things you would tell

82:21 them is that you can hear more once the seal

82:22 breaks?

82:23 A. Yes.

82:24 Q. And so one of the cues is just the

82:25 noise is either existent or louder than if the seal

83:01 is properly inserted and is working?

83:02 A. That's correct, yes.

83:03 - 84:05 Gates, Kathy (2020-05-29) 2:33

83:03 Q. Did you personally use the Combat

83:04 Arms Version 2?

83:05 A. I don't -- I believe I used the first

83:06 version of the dual-ended plug. I don't recall

83:07 using the -- the -- the second version.

83:08 Q. So that -- so let's talk about that a

Page 22 of 41

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83:09 little bit. So do you recall there being more than

83:10 one version of the dual-ended plug?

83:11 A. I do.

83:12 Q. Actually -- pardon?

83:13 A. Yes, I do recall there were two

83:14 versions of the dual-ended plug.

83:15 Q. Do you recall the first version,

83:16 whether it was actually distributed to the

83:17 military?

83:18 A. Yes.

83:19 Q. Okay. And what was different between

83:20 the first version and the second version, as you

83:21 recall?

83:22 A. As I recall, based on feedback from

83:23 soldiers using the earplug, they were having a

83:24 difficult time using the earplug with their Kevlar.

83:25 And so I believe the earplug was modified to allow

84:01 them to have more comfort when using the Combat

84:02 Arms earplug when wearing Kevlar.

84:03 Q. And you think you used the version of

84:04 the plug before it was shortened?

84:05 A. Yes.

84:11 - 85:01 Gates, Kathy (2020-05-29) 1:11

84:11 Q. (BY MR. MORRISS:) So you just tell

84:12 me sort of what you recall about the Combat Arms

84:13 Version 2 plug -- excuse me. Let me strike that.

84:14 When do you recall the first version

84:15 of the dual-ended plug coming out?

84:16 A. It was -- gosh, it was part of a DoD

84:17 Hearing Conservation Working Group meeting, and the

84:18 plug was introduced to the working group members.

84:19 And we were all given a pair of the Combat Arms

84:20 Earplugs, the dual-ended earplug. And I had an

84:21 opportunity to experiment with that earplug.

84:22 Q. And do you recall how long after that

84:23 that the plug was shortened and the Version 2 came

84:24 out?

84:25 A. I -- I think it was shortly after

85:01 that, based on feedback from the field.

85:07 - 85:11 Gates, Kathy (2020-05-29) 0:09

85:07 Q. Do you recall after leaving the

85:08 working group that you had an occasion to use the

85:09 Combat Arms Earplug, either first version or second

85:10 version?

85:11 A. No.

Page 23 of 41

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85:12 - 86:05 Gates, Kathy (2020-05-29) 1:59

85:12 Q. Do you recall any communications with Re: [85:12 to 85:20] Re: [85:12 to 85:20] Re: [85:12 to 86:24] SUSTAINED

85:13 Doug Ohlin about whether or not you could wear the Pltf Obj 402, 802, compound, SUSTAINED Pltf Obj 402, 403, MIL G7 (lay

85:14 plug and whether it worked for you? MIL G3 (argument that gov't opinion on the efficacy of

85:15 A. I don't recall any conversations. I had responsibility for Re: [85:21 to 86:24] CAEv2)

85:16 do recall that -- reading an email in the book that design/label), MIL G7 (lay SUSTAINED - 402, 403

85:17 he sent me the newer version of the Combat Arms opinion on the efficacy of

85:18 Earplug because he had me confused with someone CAEv2) Re: [86:01 to 86:24]

85:19 else. Because I had never had problems with the SUSTAINED

85:20 earplug, inserting the earplug, but yes. Re: [85:21 to 86:24]

85:21 Q. So the version of the plug that you Pltf Obj 402, 403, MIL G7 (lay

85:22 used in whatever time frame, did it work for you? opinion on the efficacy of

85:23 A. It did. CAEv2)

85:24 Q. Did you use both ends of the plug?

85:25 A. Yes. Re: [86:01 to 86:24]

86:01 Q. Did it fit properly for you? Pltf Obj 702

86:02 A. Yes, it did.

86:03 Q. Did you need to roll back the flange

86:04 in order for the plug to fit for you?

86:05 A. No, I did not.

86:06 - 86:09 Gates, Kathy (2020-05-29) 0:14

86:06 Q. Did you use the plug in a noise Re: [85:21 to 86:24] Re: [85:21 to 86:24] Re: [85:12 to 86:24] SUSTAINED

86:07 environment so that you could tell whether it was Pltf Obj 402, 403, MIL G7 (lay SUSTAINED - 402, 403 Pltf Obj 402, 403, MIL G7 (lay

86:08 attenuating noise or working? opinion on the efficacy of opinion on the efficacy of

86:09 A. Yes, I did it at a weapons range. CAEv2) Re: [86:01 to 86:24] CAEv2)

 SUSTAINED

86:08 - 86:13 Gates, Kathy (2020-05-29) 0:20 Re: [86:01 to 86:24]

86:08 attenuating noise or working? Pltf Obj 702Re: [85:21 to 86:24] Re: [85:21 to 86:24] Re: [85:12 to 86:24] SUSTAINED

86:09 A. Yes, I did it at a weapons range. Pltf Obj 402, 403, MIL G7 (lay SUSTAINED - 402, 403 Pltf Obj 402, 403, MIL G7 (lay

86:10 Q. And do you recall on how many opinion on the efficacy of opinion on the efficacy of

86:11 different occasions you utilized the plug in a CAEv2) Re: [86:01 to 86:24] CAEv2)

86:12 setting where there was noise? SUSTAINED

86:13 A. Maybe a couple times. Re: [86:01 to 86:24]

Pltf Obj 702

86:14 - 86:24 Gates, Kathy (2020-05-29) 1:34

86:14 Q. And at least on each of the occasions Re: [85:21 to 86:24] Re: [85:21 to 86:24] Re: [85:12 to 86:24] SUSTAINED

86:15 that you used the plug in a noisy environment, it Pltf Obj 402, 403, MIL G7 (lay SUSTAINED - 402, 403 Pltf Obj 402, 403, MIL G7 (lay

86:16 both fit -- opinion on the efficacy of opinion on the efficacy of

86:17 A. I missed the last word you said. CAEv2) Re: [86:01 to 86:24] CAEv2)

86:18 Q. Sure. On the two occasions that you SUSTAINED

86:19 used the plug, on both of those occasions, the Re: [86:01 to 86:24]

86:20 plug -- you were able to get a good fit? Pltf Obj 702

86:21 A. Yes, I was.

86:22 Q. And the plug worked on both occasion

86:23 at attenuating noise for you?

86:24 A. Yes, it did.

Page 24 of 41

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87:13 - 87:17 Gates, Kathy (2020-05-29) 0:20

87:13 Q. During your tenure, did you ever Re: [87:13 to 88:02] Re: [87:13 to 88:02] Re: [87:13 to 88:02] SUSTAINED

87:14 collect information about whether the Combat Arms Pltf Obj 402, 403 (more SUSTAINED Pltf Obj 402, 403 (more

87:15 Earplugs were working in the field? prejudicial than probative), prejudicial than probative),

87:16 A. Yes, I did. 802, lacks foundation 802, lacks foundation

87:17 Q. And tell me about it.

87:18 - 88:02 Gates, Kathy (2020-05-29) 1:37

87:18 A. I -- it was -- it was around 2005, Re: [87:13 to 88:02] Re: [87:13 to 88:02] Re: [87:13 to 88:02] SUSTAINED

87:19 maybe. I was at the Surgeon General's Office and Pltf Obj 402, 403 (more SUSTAINED Pltf Obj 402, 403 (more

87:20 was trying to gather feedback from the field about prejudicial than probative), prejudicial than probative),

87:21 success stories regarding the wear of the Combat 802, lacks foundation 802, lacks foundation

87:22 Arms Earplug.

87:23 And I do recall getting information

87:24 from Fort Polk and DePakaris's response and also

87:25 Capt. Jillyen Curry in Fort Stewart. And they had

88:01 positive feedback. They conducted surveys and

88:02 shared that information with me.

88:03 - 88:11 Gates, Kathy (2020-05-29) 0:25

88:03 Q. And was the positive feedback

88:04 specific to the Combat earplug Version 2 dual-ended

88:05 plug?

88:06 A. That I do not know. I am not -- I am

88:07 not certain.

88:08 Q. Do you know which plugs the various

88:09 installations were using that were responding to

88:10 your inquiries?

88:11 A. I don't. I'm sorry. I don't recall.

89:17 - 89:23 Gates, Kathy (2020-05-29) 1:34

89:17 Q. Can you tell whether that is -- which

89:18 version of the Combat Arms Earplug that pertains

89:19 to?

89:20 A. I can't tell. It is dated 2006, so I

89:21 guess it -- depending on what version was available

89:22 at that time. I don't recall if it were the Combat

89:23 Version 2 or not.

89:24 - 90:04 Gates, Kathy (2020-05-29) 0:18

89:24 Q. So the general feedback that you got Re: [89:24 to 91:05] Re: [89:24 to 91:05] Re: [89:24 to 91:05] SUSTAINED

89:25 was favorable, but you don't at this point know one Pltf Obj 402, 403 (more SUSTAINED Pltf Obj 402, 403 (more

90:01 way or the other whether it was specific to Version prejudicial than probative), prejudicial than probative),

90:02 2 or some of the other versions of the plug? 802, lacks foundation 802, lacks foundation

90:03 A. That is correct. I believe it was

90:04 the dual-ended earplug, though.

Page 25 of 41

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90:05 - 91:05 Gates, Kathy (2020-05-29) 1:16

90:05 Q. Pardon? Re: [89:24 to 91:05] Re: [89:24 to 91:05] Re: [89:24 to 91:05] SUSTAINED

90:06 A. I do believe that it was the Pltf Obj 402, 403 (more SUSTAINED Pltf Obj 402, 403 (more

90:07 dual-ended earplug. prejudicial than probative), prejudicial than probative),

90:08 Q. Okay. So let's -- let me back up and 802, lacks foundation 802, lacks foundation

90:09 make sure I understand. So you collected survey

90:10 information from various military sources; is that

90:11 correct?

90:12 A. Yes.

90:13 Q. And the information you received back

90:14 from the field was favorable as it relates to the

90:15 Combat Arms Earplug, true?

90:16 A. That's correct, yes.

90:17 Q. And you believe that the -- this

90:18 information was dated somewhere in the 2006 time

90:19 frame?

90:20 A. Yes, that is correct.

90:21 Q. And you are certain that it was the

90:22 dual-ended plug?

90:23 A. I believe so, yes.

90:24 Q. At least the information that you

90:25 received in 2006 about the military's use of the

91:01 Combat Arms Version 2 dual-ended plug was

91:02 favorable, in that it was -- at least the reports

91:03 were that it was working?

91:04 A. According to the survey information,

91:05 yes.

91:22 - 92:18 Gates, Kathy (2020-05-29) 2:30

91:22 Q. If you will go to Tab 39, which I Re: [91:22 to 92:18] SUSTAINED

91:23 think is Exhibit 4. And this is the Hearing Pltf Obj FRE 403 602 611

91:24 Conservation Program of December 1998, correct?

91:25 A. Yes, that is correct.

92:01 Q. If you will go to the Section 6.2(d).

92:02 And there's a section that says, "Combat scenarios.

92:03 In combat, soldiers." Do you see that?

92:04 A. Yes, I do see that.

92:05 Q. And if you go over to the next

92:06 column, Number 2, it says, "Should not wear hearing

92:07 protectors when they impair necessary hearing, for

92:08 example, with dismounted infantry operations." See

92:09 that?

92:10 A. I see that, yes.

92:11 Q. So the Army's regulation in its

92:12 Hearing Conservation Program in '98 and up through

92:13 2015 said if a soldier believed using a hearing

92:14 protection device would impair their ability to

92:15 hear in combat settings, they were not to wear

Page 26 of 41

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92:16 protection, correct?

92:17 A. That is what is in the regulation, in

92:18 the DA PAM.

92:19 - 92:22 Gates, Kathy (2020-05-29) 0:12

92:19 Q. And was it your experience that, in

92:20 fact, combat soldiers were reluctant to wear

92:21 hearing protection devices in situations where they

92:22 needed to hear commands in combat settings?

93:02 - 93:04 Gates, Kathy (2020-05-29) 0:19

93:02 A. Anecdotal information from the field,

93:03 with the Combat Arms Earplug, soldiers would wear

93:04 the earplug and -- in the operational settings.

93:18 - 94:11 Gates, Kathy (2020-05-29) 1:13

93:18 Q. Okay. But my question is a little

93:19 different. For the -- for the general infantryman

93:20 or -woman who was in the field, was there sort of

93:21 an earplug that was commonly distributed that would

93:22 provide protection from impulse noise but allow the

93:23 soldier to hear commands and low-level sounds?

93:24 A. Not that I am aware of.

93:25 Q. So at least in that '96, '97, '98

94:01 time frame, a soldier in combat would have the

94:02 choice of either wearing hearing protection that

94:03 would impair communication and ability to hear

94:04 orders and things of that nature or not have

94:05 protection at all?

94:06 A. Yes.

94:07 Q. Is that one of the reasons that the

94:08 DoD working group began looking at the potential of

94:09 developing what is called a nonlinear plug?

94:10 A. Something, yes, for the dismounted

94:11 operations for soldiers and Marines.

116:12 - 117:13 Gates, Kathy (2020-05-29) 2:34

116:12 Q. Do you remember at some point Re: [116:21 to 117:13] Re: [116:21 to 117:13] Re: [116:21 to 117:13] SUSTAINED

116:13 receiving production samples, the first production Pltf Obj 602, 611, 802, MIL G3 SUSTAINED Pltf Obj 602, 611, 802, MIL

116:14 samples of the Combat Arms dual-ended plug? (argument that gov't had G3, MIL G5, Foundation

116:15 A. I do. I -- I -- I believe they were responsibility for

116:16 handed out during a working group meeting to the design/label), MIL G5

116:17 members. (attributing personal gov't

116:18 Q. Is that the first version of the plug agent position to gov't),

116:19 that you would have used? foundation

116:20 A. Yes, that is correct.

116:21 Q. And then, do you recall at some point

116:22 after the samples were handed out, that there was a

Page 27 of 41

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116:23 discussion with Ohlin and others about

116:24 modifications that needed to be made to the plug?

116:25 A. I wasn't directly involved with those

117:01 conversations, no.

117:02 Q. I just want to make sure I understand

117:03 the answer. So, whether you were involved, do you

117:04 recall being present when Ohlin or anyone else

117:05 discussed changes that they wanted to see made to

117:06 the plug?

117:07 A. I do recall conversations based on

117:08 feedback from soldiers about the issue regarding

117:09 the insertion of the Combat Arms dual plug while

117:10 wearing the Kevlar. And I do recall discussions

117:11 about trying to shorten it so that it would fit

117:12 better in -- under the Kevlar and in the earplug

117:13 case.

117:20 - 120:01 Gates, Kathy (2020-05-29) 4:34

117:20 Q. Let me show you -- let's go to Tab Re: [117:20 to 120:01] Re: [117:20 to 120:01] Re: [117:20 to 120:01] SUSTAINED

117:21 44, which I think is Exhibit 13. Pltf Obj 802, 602, 611, SUSTAINED - 802 in Pltf Obj 602, 611, 802, MIL

117:22 (Exhibit 13 was marked for foundation, 403, MIL G3 part G3, MIL G5, Foundation

117:23 identification.) (argument that gov't had

117:24 A. Okay. Yes, I see it. responsibility for

117:25 Q. (BY MR. MORRISS:) The second page, design/label), MIL G5

118:01 which is an email from -- (attributing personal gov't

118:02 A. Oh, okay. agent position to gov't)

118:03 Q. -- Doug Ohlin. And do you know Wayne

118:04 Loyborg?

118:05 A. He is an audiologist, yes.

118:06 Q. Is he a military audiologist?

118:07 A. I believe he is civilian. Yes,

118:08 civilian audiologist working over in Europe.

118:09 Q. But for the military?

118:10 A. Can you repeat that?

118:11 Q. Sure. He was a civilian audiologist,

118:12 but was he working for the military?

118:13 A. Yes, that is correct.

118:14 Q. And then how about Lt. David

118:15 Chandler, Lt. Col. David Chandler?

118:16 A. Yes, I know him very well.

118:17 Q. Who is he?

118:18 A. He -- he is a retired Army

118:19 audiologist. And I worked for him when I served as

118:20 the deputy director at Walter Reed. He was my

118:21 boss. He was the director at Walter Reed. And

118:22 prior to taking over the position as audiology

118:23 consultant to the surgeon general, he filled that

118:24 position before me.

Page 28 of 41

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118:25 Q. So Ohlin just makes the statement

119:01 that he took the liberty in cutting down the

119:02 samples and sending them under separate cover. Do

119:03 you have a recollection looking at this? Does it

119:04 refresh your recollection that Dr. Ohlin physically

119:05 cut down any of these samples that were received?

119:06 A. Again, I may have overheard something

119:07 to that fact, but I -- based on office

119:08 conversations, maybe. But I wasn't part of that

119:09 effort.

119:10 Q. But you don't remember seeing him

119:11 physically cut the plug down, put it back together?

119:12 A. No.

119:13 Q. That was just something outside your

119:14 particular area of interest and expertise?

119:15 A. Yes, that is correct.

119:16 Q. After sort of this proclamation by

119:17 Ohlin that the plug was too long, do you recall

119:18 receiving shortly after that samples that had been

119:19 modified by the manufacturer that met Ohlin's

119:20 requirements?

119:21 A. I don't recall receiving them, but I

119:22 do know that they were, you know, re -- reproduced

119:23 or re -- you know, redone to make them a little bit

119:24 shorter so they would fit in the earplug case and

119:25 under the Kevlar. So I probably did receive the

120:01 revised -- the revision of the earplug.

120:05 - 120:19 Gates, Kathy (2020-05-29) 1:00

120:05 Q. Okay. Look at the page on Exhibit Re: [120:05 to 120:19] Re: [120:05 to 120:19] Re: [120:05 to 120:19] SUSTAINED

120:06 13 -- so the email we were originally looking at Pltf Obj 802, 602, 611, SUSTAINED Pltf Obj 602, 611, 802, MIL

120:07 was dated April 13th, '99. If you go to the next foundation, 403, MIL G3 G3, MIL G5, Foundation

120:08 page, there's an email dated May 12th, 1999, so a (argument that gov't had

120:09 couple of months later. Dr. Ohlin reports that responsibility for

120:10 "the manufacturer, Aearo, got back to us with design/label), MIL G5

120:11 acceptable production samples." Does your (attributing personal gov't

120:12 recollection sort of match that, that within a agent position to gov't)

120:13 couple of months of the first samples coming in, or

120:14 at least a couple of months of when Dr. Ohlin

120:15 reported that they were too long, that samples came

120:16 in from the manufacturer that were acceptable to

120:17 him?

120:18 A. I recall that that is possible, yes.

120:19 He was very involved with that project.

121:01 - 121:07 Gates, Kathy (2020-05-29) 0:20

121:01 Q. Was Doug Ohlin from the Re: [121:01 to 121:07] Re: [121:01 to 121:07] Re: [121:01 to 121:07] OVERRULED

121:02 DoD working group side the person that took, sort Pltf Obj 611, foundation, OVERRULED Pltf Obj 602, 611, 802, MIL

Page 29 of 41

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121:03 of, the primary interest and focus in the calls for speculation, vague G3, MIL G5, Foundation

121:04 non-linear earplug? (as to primary interest and

121:05 A. I would say so, yes. He was the focus)

121:06 chair of the DoD Hearing Conservation Working

121:07 Group, so, yes.

125:19 - 126:03 Gates, Kathy (2020-05-29) 0:29

125:19 Q. (BY MR. MORRISS:) So Col. Gates, we Re: [125:19 to 126:03] Re: [125:19 to 126:03] Re: [125:19 to 126:03] OVERRULED

125:20 were talking about Exhibit 14. And I'm not quite Pltf Obj 802, 602, foundation, OVERRULED Pltf Obj 802, 602, foundation,

125:21 sure where we cut off, but I had just asked you, 403, calls for speculation 403

125:22 sort of, what role you were playing at this point

125:23 in March of 2005?

125:24 A. Oh, that is right. Yes. I was a

125:25 staff officer at the Proponency Office for

126:01 Preventive Medicine at the Surgeon General's

126:02 Office. And I think that Dr. Ohlin cc'd me just to

126:03 keep me in the loop.

126:14 - 127:11 Gates, Kathy (2020-05-29) 1:08

126:14 Q. (BY MR. MORRISS:) So you think this Re: [126:14 to 128:16] Re: [126:14 to 128:16] Re: [126:14 to 128:16] SUSTAINED

126:15 was just for informational purposes only in terms Pltf Obj 802, 602, foundation, SUSTAINED Pltf Obj 802, 602, foundation,

126:16 of why you would have been copied on this? 403, calls for speculation 403

126:17 A. Oh, yeah. Uh-huh. Because the

126:18 Proponency Office for Preventive Medicine was the

126:19 staff office that CHPPM would share information

126:20 with to get information through the Surgeon

126:21 General's Office and getting staff actions

126:22 developed and created.

126:23 Q. Did you play any substantive role in

126:24 the response about whether it would be appropriate

126:25 to make the statement that the Combat Arms Earplug

127:01 was evaluated and specified by the U.S. Armed

127:02 Forces?

127:03 A. No. I -- I didn't. Kind of outside

127:04 my area.

127:05 Q. You did not have a view about that

127:06 and it was outside your area of interest and

127:07 expertise?

127:08 A. Correct.

127:09 Q. It would have been in the area of

127:10 expertise of Doug Ohlin; is that correct?

127:11 A. Yes.

127:12 - 128:12 Gates, Kathy (2020-05-29) 1:16

127:12 Q. And Mr. Ohlin responded that, in the Re: [126:14 to 128:16] Re: [126:14 to 128:16] Re: [126:14 to 128:16] SUSTAINED

127:13 last sentence of that first paragraph, "Yes, I Pltf Obj 802, 602, foundation, SUSTAINED Pltf Obj 802, 602, foundation,

127:14 think you can say the Combat Arms Earplug has," it 403, calls for speculation 403

127:15 says "be," "evaluated and specified by the U.S.

Page 30 of 41

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127:16 Armed Forces," correct?

127:17 A. I see that, yes.

127:18 Q. Mr. Ohlin's response to the question?

127:19 A. That is his response, yes.

127:20 Q. If you look at the very first

127:21 sentence in this exhibit, it says that "the Combat

127:22 Arms Earplug has been evaluated during blast

127:23 overpressure studies at White Sands Missile Range

127:24 and at the Army Research Lab at the Aberdeen

127:25 Proving Ground." Do you know what studies Doug

128:01 Ohlin is referring to when he references

128:02 overpressure studies?

128:03 A. No, I don't.

128:04 Q. Do you know whether it is the

128:05 overpressure study that we discussed earlier that

128:06 was performed in 1995 by the military?

128:07 A. That is possible, yes.

128:08 Q. Any research that would have been

128:09 performed at the Army Research Lab at the Aberdeen

128:10 Proving Ground, that would have been a military

128:11 study, correct?

128:12 A. Yes, that is correct.

128:13 - 128:16 Gates, Kathy (2020-05-29) 0:12

128:13 Q. Doug Ohlin is saying that whatever Re: [126:14 to 128:16] Re: [126:14 to 128:16] Re: [126:14 to 128:16] SUSTAINED

128:14 this study was that was done by the military, it Pltf Obj 802, 602, foundation, SUSTAINED Pltf Obj 802, 602, foundation,

128:15 was an evaluation of the Combat Arms Earplug, 403, calls for speculation 403

128:16 correct? Re: [128:13 to 128:16]

Re: [128:13 to 128:16] SUSTAINED

128:18 - 129:24 Gates, Kathy (2020-05-29) 2:42 Pltf Obj 602, 611,

128:18 Q. (BY MR. MORRISS:) Was Doug Ohlin a argumentative, calls for

128:19 decision-maker in the DoD working group arena? speculation, incomplete

128:20 A. Yes. He was the chair of the working designation

128:21 group. Re: [129:09 to 129:24] Re: [129:09 to 129:24] Re: [129:09 to 129:24] SUSTAINED

128:22 Q. Do you know whether he was involved Pltf Obj 802, 602, foundation, OVERRULED Pltf Obj 802, 602, foundation,

128:23 in other hearing protection devices besides the 403, calls for speculation 403

128:24 Combat Arms Earplug Version 2?

128:25 A. The -- the future generations of the Re: [129:09 to 129:20] Re: [129:09 to 129:20]

129:01 Combat Arms Earplugs, yes. Pltf Obj 402, 602, 611, calls SUSTAINED

129:02 Q. All right, fair point. Do you know for speculation,

129:03 whether he was involved in the evaluation of argumentative, 403 (more

129:04 earplugs other than the Combat Arms series? prejudicial than probative),

129:05 A. In his role as the CHPPM Hearing improper comment on witness

129:06 Conservation Program manager, he did get involved credibility

129:07 in other aspects of hearing protection, not just

129:08 the Combat Arms Earplug.

129:09 Q. In the working group, was there

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129:10 anyone more knowledgeable about hearing protection

129:11 devices other than Doug Ohlin?

129:12 A. I -- I don't have the answer to that.

129:13 Q. That same question, outside the

129:14 working group, within the military, were there

129:15 others that had more, sort of, expertise and

129:16 knowledge about hearing protection devices besides

129:17 Doug Ohlin that you know of?

129:18 A. I -- I don't know. I just know that

129:19 Dr. Ohlin was very knowledgeable about hearing

129:20 protection.

129:21 Q. And was hands-on in the working

129:22 group, at least as it related to the Combat Arms

129:23 Earplug?

129:24 A. Yes.

133:06 - 133:10 Gates, Kathy (2020-05-29) 0:24

133:06 Q. So, just to confirm, if we go to Re: [133:06 to 133:10] Re: [133:06 to 133:10] Re: [133:06 to 133:10] SUSTAINED

133:07 Exhibit 6 -- excuse me, Tab 46, which will be Pltf Obj 802, 602, calls for SUSTAINED Pltf Obj 802, 602, 702,

133:08 Exhibit 16 -- speculation, calls for expert foundation

133:09 (Exhibit 16 was marked for testimony from a non-expert,

133:10 identification.) foundation

133:15 - 133:18 Gates, Kathy (2020-05-29) 0:08

133:15 Q. (BY MR. MORRISS:) Col. Gates, do you Re: [133:15 to 133:18] Re: [133:15 to 133:18] Re: [133:15 to 133:18] SUSTAINED

133:16 have in front of you Exhibit 15? Pltf Obj 802, 602, calls for SUSTAINED Pltf Obj 802, 602, 702,

133:17 A. The only thing I see is, "Document speculation, calls for expert foundation

133:18 was provided in native format upon request." testimony from a non-expert,

foundation

133:24 - 134:04 Gates, Kathy (2020-05-29) 1:35

133:24 Q. (BY MR. MORRISS:) Okay. Is this Re: [133:24 to 134:04] Re: [133:24 to 134:04] Re: [133:24 to 134:04] SUSTAINED

133:25 anything you have ever seen before? Pltf Obj 802, 602, calls for SUSTAINED Pltf Obj 802, 602, 702,

134:01 A. I -- I believe that this may have speculation, calls for expert foundation

134:02 been presented during one of our military audiology testimony from a non-expert,

134:03 conferences. I believe this is a -- a dissertation foundation

134:04 study conducted by Lt. Col. Lorraine Babeu.

134:05 - 134:22 Gates, Kathy (2020-05-29) 1:00

134:05 Q. And -- and what do you understand the

134:06 reason for this study being performed? If you have

134:07 one.

134:08 A. I -- I really don't have a lot of

134:09 background in this, what -- what she was looking

134:10 at.

134:11 Q. Do you have an understanding of how

134:12 the testing was done or her findings?

134:13 A. I haven't really looked at the --

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134:14 reviewed the PowerPoint presentation. So I really

134:15 can't comment on that.

134:16 Q. Well, I guess I am trying to figure

134:17 out if this is something that is within your area

134:18 of knowledge and scope. If you looked at the

134:19 PowerPoint presentation, would you be in a position

134:20 to comment on what she did and her findings?

134:21 A. No. I am not -- no, that is kind of

134:22 outside my area. She is a research audiologist.

135:10 - 136:08 Gates, Kathy (2020-05-29) 1:28

135:10 Q. Do you recall approximately when the Re: [135:10 to 136:22] Re: [135:10 to 136:22] Re: [135:10 to 136:21] SUSTAINED

135:11 study was done? Pltf Obj 802, 602, calls for SUSTAINED Pltf Obj 802, 602, 702 calls

135:12 A. I -- no, I don't. speculation, calls for expert for speculation, calls for

135:13 Q. Go to the first page of the document. testimony from a non-expert, expert testimony from a

135:14 Do you know when it was presented? That's -- maybe foundation non-expert, foundation

135:15 that is an easier way.

135:16 A. Oh, when it was presented? I would

135:17 say, maybe in -- around 2005. But, you know, I'm

135:18 not certain.

135:19 Q. Fair. And the testing, whatever it

135:20 consisted of, would have been -- was it done at the

135:21 United States Army Research Lab?

135:22 A. I believe so, yes.

135:23 Q. And whatever the results were, is it

135:24 fair to say that the Combat Arms Version 2 plug

135:25 remained approved by the military and used by the

136:01 military for a period of time many years after this

136:02 2005 presentation?

136:03 A. I would -- I would say the earplug

136:04 was available in the system. However, there were

136:05 newer versions of the Combat Arms Earplug that

136:06 were -- were available later, and probably more

136:07 preferred, because they were sized Combat Arms

136:08 Earplugs that they provided.

136:09 - 136:21 Gates, Kathy (2020-05-29) 1:43

136:09 Q. They made -- they made improvements Re: [135:10 to 136:22] Re: [135:10 to 136:22] Re: [135:10 to 136:21] SUSTAINED

136:10 to the first version, and as newer, improved Pltf Obj 802, 602, calls for SUSTAINED Pltf Obj 802, 602, 702 calls

136:11 versions were issued, fewer soldiers and military speculation, calls for expert for speculation, calls for

136:12 personnel were using the dual-ended plug; is that testimony from a non-expert, expert testimony from a

136:13 correct? foundation non-expert, foundation

136:14 A. I would -- I would say that with the

136:15 additional earplugs available in the system, I

136:16 would say that they had opportunities to, you know,

136:17 have other earplugs available to them besides the

136:18 dual-ended Combat Arms Earplug.

136:19 Q. But the dual-ended version was still

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136:20 available for those who wanted it?

136:21 A. Yes.

222:15 - 222:19 Gates, Kathy (2020-05-29) 0:25

222:15 Q. (BY MR. MORRISS:) So let's just make Re: [222:15 to 223:07] Re: [222:15 to 223:07] Re: [222:15 to 223:07] SUSTAINED

222:16 sure. So I'm showing you a document that we looked Pltf Obj 602, 802, 611, SUSTAINED Pltf Obj 602, 802, 611,

222:17 at earlier. This is Exhibit 9. And so one of the foundation, 403 (undue delay, foundation, 403 (undue delay,

222:18 things we know is that USACHPPM issued publications waste of time, needless waste of time, needless

222:19 called "Just the Facts," right? presentation of cumulative presentation of cumulative

evidence) evidence)

222:20 - 223:07 Gates, Kathy (2020-05-29) 1:43

222:20 A. Yes. Re: [222:15 to 223:07] Re: [222:15 to 223:07] Re: [222:15 to 223:07] SUSTAINED

222:21 Q. And we know that one of the "Just the Pltf Obj 602, 802, 611, SUSTAINED Pltf Obj 602, 802, 611,

222:22 Facts" communications that USACHPPM issued foundation, 403 (undue delay, foundation, 403 (undue delay,

222:23 concerned the Combat Arms Earplug, true? waste of time, needless waste of time, needless

222:24 A. Yes. presentation of cumulative presentation of cumulative

222:25 Q. And if we go to Page 2, we know for evidence) evidence)

223:01 certain that USACHPPM, the United States military,

223:02 included user tips. It said the earplug must be

223:03 properly inserted, and for exceptionally large ear

223:04 canals, fold the opposing plug back to enhance

223:05 proper insertion. That's something we know,

223:06 correct?

223:07 A. Yes.

224:17 - 224:25 Gates, Kathy (2020-05-29) 0:21

224:17 Q. (BY MR. MORRISS:) So, Col. Gates, Re: [224:17 to 224:25] Re: [224:17 to 224:25] Re: [224:17 to 224:25] SUSTAINED

224:18 before our technical glitch, we had been discussing Pltf Obj 602, 611, 802, SUSTAINED Pltf Obj 602, 611, 802,

224:19 the "Just the Facts" CHPPM publication and it foundation, 403 (undue delay, foundation, 403 (undue delay,

224:20 talked about the Combat Arms Earplug, right? waste of time, needless waste of time, needless

224:21 A. Yes, that's correct. presentation of cumulative presentation of cumulative

224:22 Q. And we had established that CHPPM evidence) evidence)

224:23 understood that folding back the flange was an

224:24 insertion technique and had published about it,

224:25 correct?

225:02 - 225:03 Gates, Kathy (2020-05-29) 0:03

225:02 A. Yes, in the "Just the Facts" Re: [225:02 to 225:03] Re: [225:02 to 225:03] Re: [225:02 to 225:03] SUSTAINED

225:03 document, yes. Pltf Obj 602, 802, 611, SUSTAINED Pltf Obj 602, 802, 611,

foundation, 403 (undue delay, foundation, 403 (undue delay,

waste of time, needless waste of time, needless

presentation of cumulative presentation of cumulative

evidence) evidence)

225:04 - 225:11 Gates, Kathy (2020-05-29) 0:15

225:04 Q. (BY MR. MORRISS:) And then the next Re: [225:04 to 225:11] Re: [225:04 to 225:11] Re: [225:04 to 225:11] SUSTAINED

225:05 document I wanted you to look at is Exhibit Number Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

Page 34 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 35 of 78
225:06 8. And this is the wallet card that we talked 403 (undue delay, waste of 403 (undue delay, waste of

225:07 about earlier, correct? time, needless presentation of time, needless presentation of

225:08 A. Yes. Uh-huh. cumulative evidence) cumulative evidence)

225:09 Q. This is also a USACHPPM-generated

225:10 document, true?

225:11 A. That's correct, yes.

225:13 - 226:08 Gates, Kathy (2020-05-29) 1:02

225:13 Q. (BY MR. MORRISS:) It has USACHPPM on Re: [225:13 to 226:14] Re: [225:13 to 226:14] Re: [225:13 to 226:14] SUSTAINED

225:14 the right bottom of the front sheet, correct? Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

225:15 A. Yes, correct. 403 (undue delay, waste of 403 (undue delay, waste of

225:16 Q. Has a quote on the top of the front time, needless presentation of time, needless presentation of

225:17 sheet from a soldier in Iraq about the Combat Arms cumulative evidence) cumulative evidence)

225:18 Earplug?

225:19 A. That's correct, yes.

225:20 Q. Then if we go to the second page of

225:21 the wallet card, do you see that it has

225:22 instructions and information on how to insert the

225:23 Dual-Ended Combat Arms Earplug; is that correct?

225:24 A. Yes, uh-huh.

225:25 Q. We go down to the second bullet point

226:01 below the ear; it has a bullet point that says "For

226:02 very large ear canals, fold opposing plug back,"

226:03 correct?

226:04 A. Correct, yes.

226:05 Q. And then it actually has a picture on

226:06 the wallet card with the flange folded back,

226:07 correct?

226:08 A. Yes. I see that, yes; uh-huh.

226:09 - 226:22 Gates, Kathy (2020-05-29) 1:44

226:09 Q. And the idea behind the wallet card Re: [225:13 to 226:14] Re: [225:13 to 226:14] Re: [225:13 to 226:14] SUSTAINED

226:10 is that it would be distributed to audiologists and Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

226:11 military personnel and folks doing the fitting to 403 (undue delay, waste of 403 (undue delay, waste of

226:12 understand how to insert the Combat Arms plug, time, needless presentation of Re: [226:15 to 226:22] time, needless presentation of

226:13 correct? cumulative evidence) SUSTAINED cumulative evidence)

226:14 A. Yes.

226:15 Q. Now, we also listened today and saw Re: [226:15 to 226:22] Re: [226:15 to 226:22] SUSTAINED

226:16 today testimony from Lt. Merkley, correct? Pltf Obj 602, 611, foundation, Pltf Obj 602, 611, foundation,

226:17 A. Yes. 403 (undue delay, waste of 403 (undue delay, waste of

226:18 Q. And if we believe him, he understood time, needless presentation of time, needless presentation of

226:19 from Doug Ohlin in the early 2000 time frame that cumulative evidence), improper cumulative evidence), improper

226:20 folding back the plug was one of the insertion comment on credibility of comment on credibility of

226:21 techniques for the dual-ended plug; is that another witness another witness

226:22 correct?

226:24 - 226:24 Gates, Kathy (2020-05-29) 0:03

226:24 A. That is what Lt. Merkley stated, yes. Re: [226:24 to 226:24] Re: [226:24 to 226:24] Re: [226:24 to 226:24] SUSTAINED

Page 35 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 36 of 78
Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

403 (undue delay, waste of 403 (undue delay, waste of

time, needless presentation of time, needless presentation of

cumulative evidence), improper cumulative evidence), improper

comment on credibility of comment on credibility of

another witness another witness

227:05 - 227:15 Gates, Kathy (2020-05-29) 0:29

227:05 Q. (BY MR. MORRISS:) We know from Lt. Re: [227:05 to 227:15] Re: [227:05 to 227:15] Re: [227:05 to 227:15] SUSTAINED

227:06 Merkley's testimony that in the early 2000s, he Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

227:07 understood that folding back the flange was one of 403 (undue delay, waste of 403 (undue delay, waste of

227:08 the insertion techniques for the Dual-Ended Combat time, needless presentation of time, needless presentation of

227:09 Arms Earplug, correct? cumulative evidence), improper cumulative evidence), improper

227:10 A. Yes, that's correct. comment on credibility of comment on credibility of

227:11 Q. And at least if he is to be believed, another witness another witness

227:12 that information came from Doug Ohlin and was

227:13 presented to a large group of the audiology

227:14 community in the military, correct?

227:15 A. Yes.

228:04 - 228:13 Gates, Kathy (2020-05-29) 0:28

228:04 MR. THOMAS: Exhibit Number 26. Re: [228:03 to 228:13] Re: [228:03 to 228:13] Re: [228:03 to 228:13] SUSTAINED

228:05 (Exhibit 26 was marked for Pltf Obj 602, foundation, 802 SUSTAINED Pltf Obj 602, foundation, 802

228:06 identification.)

228:07 Q. (BY MR. MORRISS:) So I'll show you

228:08 now, Col. Gates, Exhibit Number 26. And I'll

228:09 represent to you that this is also a slide deck

228:10 from Eric Fallon and one he used to make a

228:11 presentation. This was not shown to you earlier

228:12 today, was it?

228:13 A. No.

230:02 - 230:25 Gates, Kathy (2020-05-29) 1:12

230:02 Q. (BY MR. MORRISS:) So if you'll look Re: [230:02 to 230:25] Re: [230:02 to 230:25] Re: [230:02 to 230:25] OVERRULED

230:03 at Page 1 of Exhibit 26, you have that in front of Pltf Obj 602, 611, foundation, OVERRULED Pltf Obj 602, 611, foundation,

230:04 you, Col. Gates? 802 802

230:05 A. Yes.

230:06 Q. If you look at the right-hand corner,

230:07 is there a name and a number that's stamped on the

230:08 front page of this document?

230:09 A. Yes.

230:10 Q. And is it Fallon 00025?

230:11 A. Yes.

230:12 Q. And if you turn to Slide Number -- it

230:13 will actually be Slide Number 27 but it will have

230:14 Fallon 25 on the bottom. If you'll turn to that

230:15 for me, please. Or you can just look at the

230:16 screen. I'll put it up for you.

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230:17 A. Okay.

230:18 Q. It's called "Selected Hearing

230:19 Protection," it has criteria, and it sets out three

230:20 things to be considered; degree of noise

230:21 attenuation required, work environment, and

230:22 advantages and disadvantages. Do you agree that

230:23 that's at least a partial criteria for selecting

230:24 hearing protection devices?

230:25 A. Yes.

231:07 - 231:23 Gates, Kathy (2020-05-29) 1:53

231:07 Q. (BY MR. MORRISS:) If you'll turn to Re: [231:07 to 232:10] Re: [231:07 to 232:10] Re: [231:07 to 232:10] OVERRULED

231:08 Page Fallon 40, which is the sixteenth slide in the Pltf Obj 602, 611, foundation, OVERRULED Pltf Obj 602, 611, foundation,

231:09 deck. This has a picture of various plugs and a 802 802

231:10 carrying case, correct?

231:11 A. Correct.

231:12 Q. And then if you go to Page 43, which

231:13 is Slide 19, it gives a listing of the advantages

231:14 of preformed plugs, correct?

231:15 A. Yes, that's correct, yes.

231:16 Q. Less expensive, washable, reusable.

231:17 And the Combat Arms Version 2 would be in the

231:18 preformed plug category, correct?

231:19 A. Yes.

231:20 Q. All right. If you'll go to the next

231:21 page, Page 44, there is a slide on disadvantages of

231:22 preformed plugs, correct?

231:23 A. Yes.

231:24 - 232:10 Gates, Kathy (2020-05-29) 1:33

231:24 Q. And one of the disadvantages is that Re: [231:07 to 232:10] Re: [231:07 to 232:10] Re: [231:07 to 232:10] OVERRULED

231:25 the initial fit of a preformed plug must be made by Pltf Obj 602, 611, foundation, OVERRULED Pltf Obj 602, 611, foundation,

232:01 a medically trained person, correct? 802 802

232:02 A. Correct, yes.

232:03 Q. And that's consistent with both the

232:04 DoD and the Army pamphlet on the Hearing

232:05 Conservation Program, correct?

232:06 A. Correct.

232:07 Q. And then also an acknowledgement that

232:08 just from normal jaw movements, these preformed

232:09 plugs will work loose, correct?

232:10 A. Yes.

232:20 - 233:10 Gates, Kathy (2020-05-29) 1:52

232:20 Q. (BY MR. MORRISS:) If you'll go to Re: [232:20 to 233:10] Re: [232:20 to 233:10] Re: [232:20 to 233:10] OVERRULED

232:21 Page 53. This presentation contains a slide Pltf Obj 602, 611, foundation, OVERRULED Pltf Obj 602, 611, foundation,

232:22 similar to the wallet card that we looked at 802 802

232:23 earlier, correct?

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232:24 A. Yes, it does, uh-huh.

232:25 Q. And the bullet point below the year

233:01 also says, "Check proper fit by gently tugging on

233:02 the plugs for tension," correct?

233:03 A. Correct.

233:04 Q. And then the next, the very next

233:05 bullet point says, "For very large ear canals, fold

233:06 opposing plug back," correct?

233:07 A. Yes.

233:08 Q. And then it shows a picture of the

233:09 flange being folded back as an example, correct?

233:10 A. Yes.

234:01 - 234:02 Gates, Kathy (2020-05-29) 0:05

234:01 Q. (BY MR. MORRISS:) So I'm now going

234:02 to show you Exhibit Number 25.

234:14 - 234:18 Gates, Kathy (2020-05-29) 0:13

234:14 Q. (BY MR. MORRISS:) So Col. Gates, you

234:15 have in front of you this USACHPPM TG41, correct?

234:16 A. Yes, I do.

234:17 Q. Dated March 2006?

234:18 A. Yes, March 2006, yes.

234:19 - 235:02 Gates, Kathy (2020-05-29) 0:18

234:19 Q. It would have been USACHPPM, I think

234:20 you testified, that would have put this manual

234:21 together, right?

234:22 A. That's correct.

234:23 Q. USACHPPM would have made the

234:24 decisions about what information should be included

234:25 about the various protection -- protective devices

235:01 that are included, correct?

235:02 A. Yes, that's correct.

235:12 - 235:19 Gates, Kathy (2020-05-29) 0:13

235:12 Q. (BY MR. MORRISS:) I'll reask it.

235:13 I'll reask it. The "frequently asked questions"

235:14 document we looked at, that's a military document,

235:15 right?

235:16 A. That's correct, yes.

235:17 Q. The wallet card document we looked

235:18 at, that's a military document, right?

235:19 A. Yes.

235:24 - 235:24 Gates, Kathy (2020-05-29) 0:00

235:24 A. Yes.

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236:04 - 236:15 Gates, Kathy (2020-05-29) 0:27

236:04 Q. Lt. Col. Merkley in the early 2000s, Re: [236:11 to 236:15] Re: [236:11 to 236:15] Re: [236:11 to 236:15] OVERRULED

236:05 he was a member of the military, correct? Pltf Obj 602, 611, foundation, OVERRULED Pltf Obj 602, 611, foundation,

236:06 A. Yes, he was. 403 (undue delay, waste of 403 (undue delay, waste of

236:07 Q. He was making presentations, whatever time, needless presentation of time, needless presentation of

236:08 he said about folding the flange back, he was doing cumulative evidence) cumulative evidence)

236:09 it as a member of the armed services, correct?

236:10 A. Yes.

236:11 Q. Same for Lt. Fallon, if he was making

236:12 his presentations and showing slides that had the

236:13 flange folded back, he was doing that as a member

236:14 of the military, correct?

236:15 A. Yes.

236:16 - 236:21 Gates, Kathy (2020-05-29) 0:18

236:16 Q. And this TG41, do you know why

236:17 whoever put this together did not include the

236:18 folding the flange information in it?

236:19 A. I don't have that information. I

236:20 wasn't part of putting this document exhibit

236:21 together.

236:22 - 236:25 Gates, Kathy (2020-05-29) 0:09

236:22 Q. You would not have expected the Re: [236:22 to 236:25] Re: [236:22 to 236:25] Re: [236:22 to 236:25] SUSTAINED

236:23 manufacturer of any of the hearing protection Pltf Obj 611, foundation, SUSTAINED Pltf Obj 611, foundation,

236:24 devices to be involved in the preparation of this calls for speculation calls for speculation

236:25 exhibit, would you?

237:03 - 237:20 Gates, Kathy (2020-05-29) 1:57

237:03 A. No. Re: [237:03 to 237:03] Re: [237:03 to 237:03] Re: [237:03 to 237:03] SUSTAINED

237:04 Q. Now, have you heard Doug Ohlin make Pltf Obj 611, foundation, SUSTAINED Pltf Obj 611, foundation,

237:05 the statement that written instructions alone are calls for speculation calls for speculation

237:06 ineffective? Re: [237:04 to 237:12]

237:07 A. Yes, I have. Re: [237:04 to 237:12] SUSTAINED Re: [237:04 to 237:12] SUSTAINED

237:08 Q. And, in fact, Doug Ohlin has stated Pltf Obj 611, 802, foundation Pltf Obj 611, 802, foundation

237:09 publicly that handing somebody a set of

237:10 instructions and a hearing protection device is

237:11 inadequate, correct?

237:12 A. Yes.

237:13 Q. And is that consistent with your

237:14 view, as an audiologist, that written instructions

237:15 are inadequate and that a soldier or military

237:16 person must be trained on the fitting and use of

237:17 hearing protection devices?

237:18 A. I believe that I prefer to do the

237:19 training and allowing the soldier to experience how

237:20 to properly use hearing protection.

Page 39 of 41

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242:08 - 243:11 Gates, Kathy (2020-05-29) 1:22

242:08 Q. So if we will turn back to Exhibit Re: [242:08 to 243:15] Re: [242:08 to 243:15] Re: [242:08 to 243:15] SUSTAINED

242:09 27, this is the ArmyTimes article, correct? Pltf Obj 802, 402 SUSTAINED Pltf Obj 802, 402

242:10 A. That is correct, yes.

242:11 Q. It was an article written or posted Re: [243:04 to 243:06] Re: [243:04 to 243:06] Re: [243:04 to 243:06] SUSTAINED

242:12 on September -- Tuesday, September the 8th, 2009, Pltf Obj 611 SUSTAINED Pltf Obj 611

242:13 correct?

242:14 A. Yes. Re: [243:07 to 243:11] Re: [243:07 to 243:11] Re: [243:07 to 243:11] SUSTAINED

242:15 Q. You were quoted in the article by the Pltf Obj 611, 802, foundation SUSTAINED Pltf Obj 611, 802, foundation

242:16 reporter, correct?

242:17 A. Yes.

242:18 Q. You answered the questions or gave

242:19 the quotes in some respect about some version of

242:20 the Combat Arms earplug, correct?

242:21 A. Right.

242:22 Q. And you would have done that in your

242:23 role as a member of the military, correct?

242:24 A. Yes.

242:25 Q. If we turn over to the second page,

243:01 one of the things that you are quoted as saying is

243:02 that "the key to success is training," true?

243:03 A. That is correct, yes.

243:04 Q. And the key to success is training,

243:05 that is true of all earplugs, correct?

243:06 A. Correct.

243:07 Q. And I am not really sure where we

243:08 talked about this. But Doug Ohlin has said

243:09 publicly that simply handing someone written

243:10 instructions is ineffective, true?

243:11 A. Yeah.

243:12 - 243:15 Gates, Kathy (2020-05-29) 0:11

243:12 Q. Okay. And Doug Ohlin believed that Re: [242:08 to 243:15] Re: [242:08 to 243:15] Re: [242:08 to 243:15] SUSTAINED

243:13 to be true at a time when he was head of the Pltf Obj 802, 402 SUSTAINED Pltf Obj 802, 402

243:14 Department of Defense Hearing Conservation Working

243:15 Group, correct? Re: [243:12 to 243:15] Re: [243:12 to 243:15] Re: [243:12 to 243:15] SUSTAINED

Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

calls for speculation calls for speculation

243:18 - 243:25 Gates, Kathy (2020-05-29) 0:21

243:18 A. I -- I believe that was his belief. Re: [243:18 to 243:19] Re: [243:18 to 243:19] Re: [243:18 to 243:19] SUSTAINED

243:19 I mean -- Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

243:20 Q. (BY MR. MORRISS:) You, I believe, speculation speculation

243:21 said that you also believed that it is important to Re: [243:20 to 244:03]

243:22 sort of put your hands on an individual soldier or Re: [243:20 to 244:03] SUSTAINED Re: [243:20 to 244:03] SUSTAINED

243:23 military personnel to show them how to use the plug Pltf Obj 611, 702 Pltf Obj 611, 702

243:24 and to make sure that it fits correctly.

Page 40 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 41 of 78
243:25 A. That's correct, yes.

244:01 - 244:03 Gates, Kathy (2020-05-29) 0:10

244:01 Q. And that is paramount in making sure Re: [243:20 to 244:03] Re: [243:20 to 244:03] Re: [243:20 to 244:03] SUSTAINED

244:02 that the plug that is given to the soldier or Pltf Obj 611, 702 SUSTAINED Pltf Obj 611, 702

244:03 military personnel will work, correct?

244:06 - 244:10 Gates, Kathy (2020-05-29) 0:16

244:06 A. I think that the training helps give Re: [244:06 to 244:10] Re: [244:06 to 244:10] Re: [244:06 to 244:10] OVERRULED

244:07 them experience in wearing the hearing protection. Pltf Obj 611, 702 OVERRULED Pltf Obj 611, 702

244:08 I can't say that giving them a wallet-sized card

244:09 doesn't help them properly insert their earplugs.

244:10 I --

244:18 - 244:20 Gates, Kathy (2020-05-29) 0:09

244:18 Q. And that is the very reason that Re: [244:18 to 244:20] Re: [244:18 to 244:20] Re: [244:18 to 244:20] SUSTAINED

244:19 USACHPPM developed a wallet card specific to the Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

244:20 Combat Arms Version 2 earplug, right? argumentative, misstates argumentative, misstates

244:23 - 245:20 Gates, Kathy (2020-05-29) 1:12

244:23 A. Yeah. And just to make a comment Re: [244:23 to 245:20] Re: [244:23 to 245:20] Re: [244:23 to 245:20] SUSTAINED

244:24 here, this article was written in support of the Pltf Obj 602, 611, foundation, SUSTAINED Pltf Obj 602, 611, foundation,

244:25 fourth generation Combat Arms earplug that was argumentative, misstates, 802, argumentative, misstates, 802,

245:01 coming out. The existing earplug that was part of 402 402

245:02 the rapid fielding issue also was the dial-up -- or

245:03 the pistol-grip version of the Combat Arms earplug

245:04 that had the three sizes. So that was --

245:05 Q. (BY MR. MORRISS:) Right.

245:06 A. -- introducing the next version of

245:07 the Combat Arms earplug.

245:08 Q. The reason that you were giving the

245:09 quote and being interviewed -- in fact, if you look

245:10 at the first sentence of the article on Page 1, is

245:11 it was -- the topic was "next-generation earplug

245:12 designed to make it easier for troops to protect

245:13 their eardrums will hit the war zone." Right?

245:14 A. That's correct yeah.

245:15 Q. But the comments about the key to

245:16 success is training and that soldiers need an

245:17 opportunity to train with earplugs, those

245:18 statements are true no matter what version you are

245:19 talking about, correct?

245:20 A. Correct.

Page 41 of 41

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 42 of 78
Preserved Objections Previous Rulings New Objections Rulings

8:03 - 9:01 Hamer, Jeff (2019-12-18) 1:42

8:03 Q. Mr. Hamer, could you please

8:04 state your name for the record?

8:05 A. Jeffrey Lee Hamer.

8:06 Q. And where do you work?

8:07 A. 3M.

8:08 Q. What do you do for 3M?

8:09 A. I'm the laboratory manager for

8:10 hearing protection.

8:11 Q. Is that your title?

8:12 A. Global laboratory manager.

8:13 Q. You're the global laboratory

8:14 manager?

8:15 A. That's correct.

8:16 Q. Does that mean that you manage

8:17 all of the laboratories at 3M as worldwide?

8:18 A. For hearing solutions.

8:19 Q. For hearing solutions.

8:20 How many labs do you have?

8:21 A. Two labs; one in Vdrnamo,

8:22 Sweden, one in Indianapolis.

8:23 Q. One in where?

8:24 A. Indianapolis.

8:25 Q. And Sweden?

9:01 A. And Sweden, correct.

10:05 - 10:09 Hamer, Jeff (2019-12-18) 0:15

10:05 Q. Okay. So as far as you know,

10:06 all of the testing that's been done of all of

10:07 the versions of the Combat Arms has been done

10:08 in Indianapolis?

10:09 A. 3M testing, yes.

10:10 - 10:11 Hamer, Jeff (2019-12-18) 0:02

10:10 Q. 3M testing. 3M or Aearo?

10:11 A. Right.

10:17 - 11:08 Hamer, Jeff (2019-12-18) 1:34

10:17 Q. Now, there has been outside

10:18 testing of the Combat Arms done?

10:19 A. Correct.

10:20 Q. And who has done the outside

10:21 testing of the Combat Arms?

10:22 A. I have seen testing both from

10:23 an independent lab called Michaels &

10:24 Associates as well as from the Army Research

10:25 Lab and the Army in general. I'm not sure

11:01 specifically which labs, but they've tested

11:02 the product.

11:03 Q. Okay. Tell me how many labs

Designations

Page 1 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 43 of 78
11:04 did NRR testing.

11:05 A. NRR testing, complete label

11:06 testing, I believe that Indianapolis and I

11:07 believe Michaels & Associates did a complete

11:08 test on it.

11:12 - 11:19 Hamer, Jeff (2019-12-18) 0:10

11:12 Q. Now, speaking of litigation,

11:13 this is not your first deposition, is it?

11:14 A. It is not.

11:15 Q. You were deposed at least one

11:16 other time that I know of in the Moldex

11:17 litigation.

11:18 Do you recall that?

11:19 A. I do.

14:11 - 15:05 Hamer, Jeff (2019-12-18) 1:50

14:11 Q. And you didn't make any

14:12 corrections to that deposition, did you?

14:13 A. I disagree.

14:14 Q. Oh, you did?

14:15 What did you correct?

14:16 A. I made a statement, I believe.

14:17 When I reread the transcript, I found some

14:18 typographical errors in it as well as tried

14:19 to clarify a statement I made about stopping

14:20 the test.

14:21 Q. Okay. Tell me what you

14:22 clarified when you did the read-and-sign

14:23 process on stopping the test.

14:24 A. So when you're performing a

14:25 label test, you have subjects that are

15:01 undergoing that test. And I believe at the

15:02 time I was interpreting the question as, do

15:03 you stop a test during a subject's particular

15:04 test, and my answer was no. And so that's

15:05 what I was trying to clarify.

16:01 - 16:15 Hamer, Jeff (2019-12-18) 0:27

16:01 Q. And how did you -- did you

16:02 recast the context in some way?

16:03 A. I tried to, yes.

16:04 Q. And how did you do that? Like

16:05 you made one statement in the deposition; you

16:06 corrected it.

16:07 Tell me -- explain to me what

16:08 you corrected.

16:09 A. I was trying to correct my

16:10 statement, as I did in further testimony

16:11 during that same deposition, to try to

16:12 correct the interpretation that I had about

Page 2 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 44 of 78
16:13 whether it was a subject -- stopping a

16:14 particular subject or stopping the test in

16:15 general.

21:10 - 21:20 Hamer, Jeff (2019-12-18) 0:11

21:10 You went to Monroe Catholic

21:11 High School?

21:12 A. Monroe Catholic Central, that's

21:13 correct.

21:14 Q. Monroe Catholic Central.

21:15 Are you from Monroe?

21:16 A. That's where I would say I grew

21:17 up.

21:18 Q. Okay.

21:19 A. Oh, from the time I was about

21:20 12 years old.

22:04 - 22:11 Hamer, Jeff (2019-12-18) 0:07

22:04 Q. And then you went to Michigan

22:05 Tech?

22:06 A. I did.

22:07 Q. And you got a degree in

22:08 engineering?

22:09 A. I did.

22:10 Q. Mechanical engineering?

22:11 A. Correct.

45:24 - 46:01 Hamer, Jeff (2019-12-18) 0:04

45:24 Have you ever worked for a Re: [45:24 to 46:01] Re: [45:24 to 46:01] Re: [45:24 to 46:08] SUSTAINED

45:25 company that sold a product it had never Pltf Obj 802, lack of FOUNDATION OBJECTION Pltf Obj nonresponsive

46:01 tested? foundation, 403 WITHDRAWN, 3/11/2021;REMAINING

OBJECTIONS SUSTAINED

46:03 - 46:06 Hamer, Jeff (2019-12-18) 0:06

46:03 THE WITNESS: I believe that we Re: [46:03 to 46:06] Re: [46:03 to 46:06] Re: [45:24 to 46:08] SUSTAINED

46:04 sold this product in here with the Pltf Obj 802, lack of FOUNDATION OBJECTION Pltf Obj nonresponsive

46:05 military, so we were selling it to the foundation, 403 WITHDRAWN, 3/11/2021;REMAINING

46:06 military, who tested the product. OBJECTIONS SUSTAINED

62:05 - 63:23 Hamer, Jeff (2019-12-18) 2:52

62:05 Q. And Exhibit 7 is the one where

62:06 they're folding back the flanges to get -- to

62:07 allow a deeper insertion of the green end of

62:08 the plug, right?

62:09 A. Correct.

62:10 Q. And so three days later,

62:11 Elliott Berger sends to Brian Myers the

62:12 following e-mail, and it says, "Here are the

62:13 data on the UltraFit end of the Combat Arms.

62:14 Note the original study was stopped with

62:15 eight subjects. The second study was with

62:16 folded-back flanges on the end sticking out

Page 3 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 45 of 78
62:17 of the ear." He asked the question, "Should

62:18 I share this with Ohlin? It looks like the

62:19 existing product has problems unless the user

62:20 instructions are revised."

62:21 Did I read that right?

62:22 A. You did.

62:23 Q. Okay. You know Doug Ohlin to

62:24 be at the time one of the company contacts

62:25 with CHPPM, the hearing protection outfit for

63:01 the department of the Army, right?

63:02 A. I believe that's correct.

63:03 Q. Doug Ohlin actually ended his

63:04 career with 3M, didn't he?

63:05 A. He was a consultant.

63:06 Q. Yeah.

63:07 Did you work with Doug Ohlin

63:08 when he worked with 3M?

63:09 A. Yes, he was there when I joined

63:10 the company for a short period of time.

63:11 Q. What Elliott is pointing out

63:12 three days after 017 is completed is that the

63:13 existing product, the Combat Arms version 2,

63:14 has problems, right?

63:15 A. He's pointing out that the test

63:16 method that was used differed in two

63:17 different tests.

63:18 Q. Where is he doing that?

63:19 A. He said, "Here are the data.

63:20 Note the original study was stopped with

63:21 eight subjects. Second study was with

63:22 folded-back flanges," implying the first

63:23 study was not with folded-back flanges.

64:12 - 66:02 Hamer, Jeff (2019-12-18) 1:29

64:12 Q. Okay. And so you're pointing Re: [65:05 to 66:02] Re: [65:05 to 66:02] Re: [65:05 to 66:02] SUSTAINED

64:13 out that Elliott is informing Brian in Pltf Obj unresponsive, lacks SUSTAINED - Lack of Pltf Obj nonresponsive

64:14 marketing, among other things, that the foundation, 702 expert opinion personal knowledge/foundation

64:15 product was tested two different ways? from a non expert; 403

64:16 A. I believe so.

64:17 Q. All right. And after he says,

64:18 "Should I share this with Ohlin," this is the

64:19 part I was focusing on, it says, "The

64:20 existing product has problems."

64:21 Right?

64:22 A. Depending on what instructions

64:23 he used.

64:24 Q. Yes. No, I wasn't -- I was

64:25 going finish that, but then I look at the

65:01 sort of two clauses. It says, "It looks like

65:02 the existing product has problems," and then

65:03 there's an "unless," right?

Page 4 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 46 of 78
65:04 A. That's correct.

65:05 Q. So as existed, as it exists

65:06 without changing the instructions, the

65:07 product has a problem, right?

65:08 A. The instructions have a problem

65:09 in the use of the product, that's correct.

65:10 Q. What's that?

65:11 A. I don't believe the product has

65:12 a problem. I think the instructions for use

65:13 had a problem.

65:14 Q. You mean the existing

65:15 instructions for use?

65:16 A. The instructions that were used

65:17 in the first test.

65:18 Q. Okay. So then he says, "We

65:19 have to" -- "unless the user instructions are

65:20 revised," right?

65:21 A. Correct.

65:22 Q. So he seems to imply that we

65:23 can cure the problem with the product by

65:24 revising instructions?

65:25 A. We can -- we can optimize the

66:01 performance of the product by changing the

66:02 instructions.

77:01 - 77:08 Hamer, Jeff (2019-12-18) 0:19

77:01 Q. Do you know whether there's any

77:02 version of your instructions for use that

77:03 tell the user that the plug is too short for

77:04 proper insertion if you don't roll back the

77:05 flanges?

77:06 A. Not to my knowledge.

77:07 Q. That's exactly what they should

77:08 have been told, isn't it?

77:10 - 77:10 Hamer, Jeff (2019-12-18) 0:01

77:10 THE WITNESS: I don't agree.

77:12 - 77:18 Hamer, Jeff (2019-12-18) 0:14

77:12 Q. Well, how come? How come

77:13 they're not entitled to know that?

77:14 A. Well, I believe that they were

77:15 entitled to know that if they couldn't get

77:16 the proper fit of the earplug, that they

77:17 could roll back a flange to get --

77:18 potentially get better insertion.

83:02 - 83:05 Hamer, Jeff (2019-12-18) 0:10

83:02 Does anywhere in your Re: [83:02 to 83:05] Re: [83:02 to 83:05]

83:03 instructions do you -- do you tell the user Pltf Obj nonresponsive answer OBJECTION WITHDRAWN,

83:04 that the only way we got an NRR of 22 is by 3/12/2021

Page 5 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 47 of 78
83:05 folding back the flanges?

83:07 - 83:10 Hamer, Jeff (2019-12-18) 0:06

83:07 THE WITNESS: I believe the Re: [83:07 to 83:10] Re: [83:07 to 83:10]

83:08 instructions tell the user to get -- Pltf Obj nonresponsive OBJECTION WITHDRAWN,

83:09 potentially to get a better fit, they 3/12/2021

83:10 could fold back the flanges.

83:17 - 84:13 Hamer, Jeff (2019-12-18) 1:43

83:17 Anywhere in your instructions Re: [83:17 to 84:13] Re: [83:17 to 84:13] Re: [83:17 to 84:13] SUSTAINED

83:18 do you tell the user, "The only way that we Pltf Obj nonresponsive, SUSTAINED Pltf Obj nonresponsive

83:19 obtained an NRR of 22 is by folding back the foundation

83:20 flanges"?

83:21 A. I don't agree that that's the

83:22 only way.

83:23 Q. In this test?

83:24 A. Yeah. I don't know that they

83:25 folded back the flanges on every subject.

84:01 Q. How many did they fold them

84:02 back on?

84:03 A. I don't know the answer.

84:04 Q. What do they say?

84:05 A. They said they folded back the

84:06 flanges.

84:07 Q. On the subjects, right?

84:08 Subjects plural?

84:09 A. Right.

84:10 When I look at the test data

84:11 that I've seen before this, the notes of that

84:12 suggest that every subject's -- every subject

84:13 was not necessarily folded back.

100:09 - 100:13 Hamer, Jeff (2019-12-18) 0:15

100:09 Q. Okay. Now, just as a threshold Re: [100:09 to 100:13] Re: [100:09 to 100:13] Re: [100:09 to 100:18] SUSTAINED

100:10 matter, is that a proper way to do an NRR Pltf Obj 701, foundation, SUSTAINED - Improper Pltf Obj nonresponsive

100:11 test, that is, to watch the variability as it lay opinion testimony

100:12 comes across in realtime and then fold

100:13 flanges back if it happens?

100:15 - 100:18 Hamer, Jeff (2019-12-18) 0:09

100:15 THE WITNESS: If the Re: [100:15 to 100:18] Re: [100:15 to 100:18] Re: [100:09 to 100:18] SUSTAINED

100:16 instructions indicate a tip that could Pltf Obj 701, foundation, SUSTAINED - Improper Pltf Obj nonresponsive

100:17 get better seal, that would be speculation, 403 lay opinion testimony

100:18 appropriate.

106:13 - 106:20 Hamer, Jeff (2019-12-18) 0:10

106:13 Q. Yeah. Re: [106:13 to 106:20] Re: [106:13 to 106:20] OVERRULED

106:14 On a break we pulled your Def Obj Relevance (401, 402) Def Obj Relevance (401, 402)

106:15 errata sheet.

106:16 A. Okay.

106:17 Q. Do you have the errata sheet in

Page 6 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 48 of 78
106:18 front of you that you reviewed in preparation

106:19 for your deposition?

106:20 A. I do not.

106:23 - 106:24 Hamer, Jeff (2019-12-18) 0:00

106:23 (Hamer Exhibit 11 marked for

106:24 identification.)

107:02 - 107:15 Hamer, Jeff (2019-12-18) 1:38

107:02 Q. Is this Exhibit 11?

107:03 Exhibit 11 is the errata sheet

107:04 from your deposition. The first page is your

107:05 signature page where you say, "I, Jeffrey Lee

107:06 Hamer, state that I have read the foregoing

107:07 transcript of the testimony given by me at my

107:08 videotaped deposition on October 7, 2015, and

107:09 that said transcript constitutes a true and

107:10 correct record of the testimony given by me

107:11 at said videotaped deposition except as I

107:12 have so indicated on the errata sheets

107:13 provided herein," and then you sign Jeffrey

107:14 Lee Hamer, don't you?

107:15 A. Correct.

107:16 - 108:07 Hamer, Jeff (2019-12-18) 1:42

107:16 Q. And then if you flip over,

107:17 we'll see the things that you changed. And

107:18 as you described to me in your testimony, it

107:19 was mostly typos, but there's a couple of

107:20 things I want to bring to your attention.

107:21 The first one is 13.

107:22 A. Okay.

107:23 Q. Do you see your 13th errata

107:24 sheet change?

107:25 A. I do.

108:01 Q. Maybe the best way to do this

108:02 is to look at the original page.

108:03 Can we queue that up? Do we

108:04 have a videotape of that clip? Let's queue

108:05 that up.

108:06 And for the record, it's

108:07 page 89 of your deposition.

109:14 - 109:18 Hamer, Jeff (2019-12-18) 0:18

109:14 So page 89, lines 8 and 9. Re: [109:14 to 109:18] Re: [109:14 to 109:18] SUSTAINED

109:15 Just put the whole page up. Actually, Def Obj Relevance (401, 402) Def Obj Relevance (401, 402)

109:16 the top of page 88 and 89 is what we

109:17 need to put up there. There we go.

109:18 Much easier.

109:20 - 110:16 Hamer, Jeff (2019-12-18) 1:46

Page 7 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 49 of 78
109:20 Q. So at the bottom of page 88 the

109:21 question starts, Mr. Hamer. It says: "Okay.

109:22 And is it your practice, if you either change

109:23 a product or change the way it's being, for

109:24 example, fitted, then you would do a retest?"

109:25 And you asked the question:

110:01 "Fitted?"

110:02 Question: "Yeah.

110:03 "Explain 'fitted' to me."

110:04 He says: "Well, how the

110:05 person's being instructed to put it in."

110:06 You answer: "No."

110:07 He says: "No, what?

110:08 "We would not redo a label test

110:09 due to a new fitting instruction."

110:10 Is that statement true?

110:11 A. I believe I corrected that in

110:12 my errata.

110:13 Q. Okay.

110:14 A. That I didn't recollect an

110:15 instance where we had done that, but indeed

110:16 we have.

110:17 - 111:25 Hamer, Jeff (2019-12-18) 2:35

110:17 Q. Okay. And let's see what your Re: [111:22 to 111:25] Re: [111:22 to 111:25] OVERRULED

110:18 errata sheet actually said. And can we go to Def Obj Relevance (401, 402); Def Obj Relevance (401, 402);

110:19 the ELMO? Because I've got it here. 403 403

110:20 Here under 13 it says, "I

110:21 didn't" -- your correction was, 88, 8 and 9:

110:22 "I did not recollect an instance where we had

110:23 changed fitting instructions resulting in a

110:24 retest, as this was a historical event from

110:25 my perspective."

111:01 Right?

111:02 A. That's what I wrote, yes.

111:03 Q. So how does that change your

111:04 answer?

111:05 A. It doesn't change my answer. I

111:06 mean, it does -- I'm sorry, it does change my

111:07 answer in that I, at the time, did not

111:08 recollect an instance that we did that, so my

111:09 answer was incorrect.

111:10 Q. Okay. But you said this was

111:11 a -- retest was a historical event.

111:12 What does that mean?

111:13 A. That I was thinking about this

111:14 particular test, not future -- not current or

111:15 future tests that I was aware of.

111:16 Q. I'm not following you. It may

111:17 be me.

111:18 A. I mean, when I said "a

Page 8 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 50 of 78
111:19 historical event," it was a event that was

111:20 history to me, not realtime, so that I wasn't

111:21 there when it happened.

111:22 Q. Okay. But I don't understand

111:23 the question to be asking what you're

111:24 answering, but I want to make sure I'm

111:25 understanding you.

112:01 - 112:12 Hamer, Jeff (2019-12-18) 0:28

112:01 You say, "We would not redo a

112:02 label test due to new fitting instructions,"

112:03 right? That's your testimony?

112:04 A. That's how I answered that

112:05 question, yes.

112:06 Q. Yes.

112:07 And is that not true?

112:08 A. I was incorrect.

112:09 Q. Okay. So your company will

112:10 redo label tests due to new fitting

112:11 instructions?

112:12 A. Yes, we will.

112:13 - 112:19 Hamer, Jeff (2019-12-18) 0:12

112:13 Q. Okay. Where is that in your Re: [112:17 to 112:19] Re: [112:17 to 112:19] OVERRULED

112:14 policy and procedure manual? Def Obj Argumentative (611, Def Obj Argumentative (611,

112:15 A. I'd have to go through it. I 403) 403)

112:16 don't know if it's there or not, to be sure.

112:17 Q. You know actually it's not

112:18 there, don't you?

112:19 A. I do not.

112:23 - 113:04 Hamer, Jeff (2019-12-18) 1:48

112:23 Q. Okay. Well, let's do just

112:24 that. I'm going to mark this as the next

112:25 exhibit. This is your company policy and

113:01 procedure manual. This was attached to

113:02 Elliott Berger's deposition as Exhibit 5206.

113:03 It'll be Exhibit 12 -- 13, 13 to this

113:04 deposition.

114:24 - 115:05 Hamer, Jeff (2019-12-18) 0:15

114:24 Q. That all may be true. My Re: [114:24 to 115:05] Re: [114:24 to 115:05] OVERRULED

114:25 question is related to your policy and Def Obj Foundation (602); 403 Def Obj Foundation (602); 403

115:01 procedure manual and why it's not in there,

115:02 why the last part about doing a retest due to

115:03 changing fitting instructions is not in your

115:04 manual.

115:05 A. I do not know the answer.

118:02 - 118:04 Hamer, Jeff (2019-12-18) 0:03

118:02 Q. Is that the industry standard Re: [118:02 to 118:04] Re: [118:02 to 118:04]

Page 9 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 51 of 78
118:03 with hearing protection devices; do you know Pltf Obj unresponsive, OVERRULED

118:04 that? foundation, speculation

118:06 - 118:10 Hamer, Jeff (2019-12-18) 0:23

118:06 THE WITNESS: I don't believe Re: [118:06 to 118:10] Re: [118:06 to 118:10]

118:07 there is a standard on that. I don't Pltf Obj unresponsive, OVERRULED

118:08 believe any of the guidance documents foundation, speculation

118:09 from EPA or ANSI indicate reasons for

118:10 retest.

122:10 - 123:01 Hamer, Jeff (2019-12-18) 1:33

122:10 It is true that you are not

122:11 supposed to stop a labeling test in the

122:12 middle just because you're getting low

122:13 numbers or variability?

122:14 A. I would say that's not true.

122:15 Q. Okay. Do you remember being

122:16 asked that question in your previous

122:17 deposition?

122:18 A. I do.

122:19 Q. Do you remember what your

122:20 answer was?

122:21 A. I believe I answered in an

122:22 opposite way because I believe that I was --

122:23 my recollection of my understanding of the

122:24 question at that time was that it was

122:25 associated with stopping a particular

123:01 subject's test in the middle of it.

123:02 - 123:13 Hamer, Jeff (2019-12-18) 0:24

123:02 Q. And when did you come to that Re: [123:02 to 123:13] OVERRULED

123:03 understanding that you just gave us? Def Obj improper

123:04 A. When I did the errata sheet. clarification, 106, improper

123:05 Q. Where on the errata sheet do designation of a question

123:06 you change that testimony from what it was, without an answer (10-13)

123:07 yes, to no?

123:08 A. Where was that in my deposition

123:09 in terms of the --

123:10 Q. Yeah, let me set the table for

123:11 you.

123:12 Can we have the -- the ELMO,

123:13 please?

123:14 - 124:09 Hamer, Jeff (2019-12-18) 1:39

123:14 This is page 173 of your Re: [123:14 to 124:01] Re: [123:14 to 124:01] Re: [123:22 to 124:09] OVERRULED

123:15 deposition. It says: "And isn't it your Pltf Obj non responsive OVERRULED Pltf Obj nonresponsive

123:16 testimony that you're not supposed to stop a

123:17 labeling test in the middle just because

123:18 you're getting low numbers or variability?"

123:19 And you answered "yes," didn't

123:20 you?

Page 10 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 52 of 78
123:21 A. Right.

123:22 And "labeling test" in the

123:23 middle, in my interpretation when I made that

123:24 statement, was during the middle of a

123:25 subject's test. That was my interpretation.

124:01 That's what I answered yes to.

124:02 Q. Oh, okay.

124:03 So, but I'm -- before we get to

124:04 that, I heard you say that you changed it on

124:05 the errata sheet.

124:06 Now, I have the errata sheet --

124:07 A. I didn't, because I didn't

124:08 believe it was wrong. I was wrong -- I was

124:09 incorrect.

124:10 - 124:22 Hamer, Jeff (2019-12-18) 1:31

124:10 Q. Okay. So at the time, and even Re: [124:10 to 124:20] Re: [124:10 to 124:20] OVERRULED

124:11 after you read your deposition and you signed Def Obj Argumentative (611, Def Obj Argumentative (611,

124:12 it as being true and correct, you believed 403) 403)

124:13 your answer there was true, that it would

124:14 have been -- that you're not supposed to stop Re: [124:21 to 124:22] Re: [124:21 to 124:22] OVERRULED

124:15 a labeling test in the middle just because Def Obj Relevance (401, 402) Def Obj Relevance (401, 402)

124:16 you're getting low numbers or variability?

124:17 A. That it was true. And my

124:18 context of that was during a subject test.

124:19 That was the context I answered the question

124:20 under.

124:21 Q. Well, I want to make sure I

124:22 understand this.

124:23 - 125:12 Hamer, Jeff (2019-12-18) 1:30

124:23 The question is, you're not

124:24 supposed to stop a labeling test in the

124:25 middle just because you're getting low

125:01 numbers or variability?

125:02 A. A labeling test is -- a subject

125:03 is undergoing a test, okay? And so that

125:04 subject is responding, taking a test, and

125:05 you're not supposed to stop that in the

125:06 middle of it.

125:07 Q. When are you allowed to stop

125:08 it?

125:09 A. At any point in time.

125:10 Q. Why not that time?

125:11 A. Because it's during the middle

125:12 of a subject evaluation.

125:13 - 126:13 Hamer, Jeff (2019-12-18) 1:45

125:13 Q. Why does that make any

125:14 difference?

125:15 A. It's just our policy, is not to

Page 11 of 17

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125:16 stop at that point.

125:17 Q. What point is your policy you

125:18 can stop?

125:19 A. At any point in time when --

125:20 after -- after subjects are completely

125:21 tested.

125:22 Q. What does "completely tested"

125:23 mean?

125:24 A. They've gone through the whole

125:25 test sequence for that subject for that

126:01 product.

126:02 Q. Okay. I'm having trouble

126:03 understanding you.

126:04 A. There's ten subjects.

126:05 Q. Yes.

126:06 A. Each subject has multiple fits

126:07 and tests.

126:08 Q. Three.

126:09 A. And you're not -- my -- the

126:10 policy, as I understood it, was that while a

126:11 subject is under test, you should not stop

126:12 the test at that point during that testing

126:13 sequence.

126:14 - 126:19 Hamer, Jeff (2019-12-18) 0:10

126:14 Q. Okay. This question doesn't

126:15 say anything about subjects, though, right?

126:16 A. It says "during the test." My

126:17 interpretation was while the test was

126:18 occurring, while a particular data was being

126:19 collected.

127:19 - 127:21 Hamer, Jeff (2019-12-18) 0:06

127:19 Q. When did you come to the Re: [127:19 to 127:21] Re: [127:19 to 127:21] Re: [127:19 to 128:08] OVERRULED

127:20 realization that the answer you gave here Pltf Obj Vague, incomplete OVERRULED Pltf Obj nonresponsive

127:21 needed clarification? designation, 402/403,

127:23 - 128:08 Hamer, Jeff (2019-12-18) 0:29

127:23 THE WITNESS: Upon -- upon -- I Re: [127:19 to 128:08] OVERRULED

127:24 mean, I think there's other places in Pltf Obj nonresponsive

127:25 this -- in this -- in this deposition

128:01 where this line of questioning came

128:02 up, and I think even -- even further

128:03 into this document, this question

128:04 comes up again. And I tried to

128:05 correct it by saying we could -- we

128:06 could change the fitting instructions

128:07 to do a retest. Or to start a new

128:08 test.

128:10 - 129:02 Hamer, Jeff (2019-12-18) 1:46

Page 12 of 17

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128:10 Q. Okay. Fitting instructions

128:11 issue is different than this to me.

128:12 Is it different to you?

128:13 A. To me this is, when can you

128:14 stop a label test, and the answer is, you can

128:15 stop a label test at any point in time that

128:16 you wish to. You don't have to complete any

128:17 test, but -- any complete labeling test, but

128:18 that you shouldn't stop during the testing of

128:19 an individual subject.

128:20 Q. Okay. Okay. Why not? If you

128:21 can stop a test at any time, at any time, why

128:22 does it matter whether you stop it in the

128:23 middle of one?

128:24 A. Okay. So you might pick this

128:25 test back up after you stop it, and if you do

129:01 that, you need to have completed every

129:02 subject or you can't start it over.

129:03 - 129:12 Hamer, Jeff (2019-12-18) 0:29

129:03 Q. So let me understand this. Re: [129:03 to 129:03] Re: [129:03 to 129:03] Re: [129:03 to 129:03] OVERRULED

129:04 Are you saying that you need to Def Obj Relevance (401, 402) OVERRULED Def Obj Relevance (401, 402)

129:05 have completed all three tests for that

129:06 subject? Re: [129:08 to 129:16] Re: [129:08 to 129:16] Re: [129:08 to 129:16] OVERRULED

129:07 A. Yes. Def Obj Foundation (602); 701 OVERRULED Def Obj Foundation (602); 701

129:08 Q. Okay. So if I'm subject

129:09 number 1, right, I'm the first person tested,

129:10 you're saying that I cannot stop a labeling

129:11 test until I have had all three tests done on

129:12 a label test?

129:14 - 130:01 Hamer, Jeff (2019-12-18) 1:47

129:14 THE WITNESS: Our policy was Re: [129:08 to 129:16] Re: [129:08 to 129:16] Re: [129:08 to 129:16] OVERRULED

129:15 not to stop a test in the middle for a Def Obj Foundation (602); 701 OVERRULED Def Obj Foundation (602); 701

129:16 given subject.

129:17 QUESTIONS BY MR. TRACEY: Re: [129:24 to 130:03] Re: [129:24 to 130:03] Re: [129:24 to 130:03] OVERRULED

129:18 Q. Okay. Does that mean you can't Def Obj Foundation (602); OVERRULED Def Obj Foundation (602);

129:19 stop a test, change the instructions and vague, misstates (611, 403) vague, misstates (611, 403)

129:20 start again?

129:21 A. You can't stop the test, change

129:22 the instructions and not redo this -- the

129:23 test from the beginning.

129:24 Q. Okay. Is it fair to say that

129:25 everybody who is undergoing a label test

130:01 ought to use the same instructions?

130:03 - 130:03 Hamer, Jeff (2019-12-18) 0:00

130:03 THE WITNESS: Yes. Re: [129:24 to 130:03] Re: [129:24 to 130:03] Re: [129:24 to 130:03] OVERRULED

Def Obj Foundation (602); OVERRULED Def Obj Foundation (602);

vague, misstates (611, 403) vague, misstates (611, 403)

Page 13 of 17

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130:15 - 130:17 Hamer, Jeff (2019-12-18) 0:05

130:15 Okay. Mr. Hamer, it's your

130:16 opinion that testing this product with the

130:17 flanges folded back is improper, isn't it?

130:19 - 130:19 Hamer, Jeff (2019-12-18) 0:02

130:19 THE WITNESS: It is not.

130:21 - 130:25 Hamer, Jeff (2019-12-18) 0:06

130:21 Q. It is not improper?

130:22 A. That's correct.

130:23 Q. Do you remember making a

130:24 statement to the contrary in your previous

130:25 deposition?

131:02 - 131:05 Hamer, Jeff (2019-12-18) 0:07

131:02 THE WITNESS: I remember a line

131:03 of questioning that was revolving

131:04 around the instruction set that was

131:05 handed to me at that time.

131:06 - 131:09 Hamer, Jeff (2019-12-18) 0:06

131:06 QUESTIONS BY MR. TRACEY:

131:07 Q. Okay. And let me just -- let

131:08 me put this on the ELMO so we can make sure

131:09 we're clear.

132:11 - 133:10 Hamer, Jeff (2019-12-18) 1:28

132:11 Q. Okay. Go ahead. Play it.

132:12 (Video played.)

132:13 Q. Is that statement true?

132:14 A. Based on the instruction set

132:15 that I was looking at at the time of the

132:16 product they provided, it did not indicate a

132:17 tip or an instruction to roll back the

132:18 flange.

132:19 Q. I don't see a question about

132:20 instructions in this question. This question

132:21 appears to be --

132:22 A. There was an exhibit that was

132:23 handed to me prior to this --

132:24 Q. I see.

132:25 A. -- that had instructions and

133:01 NRR label on the back of the panel, and an

133:02 insert for it that had the user instructions

133:03 for the product that did not include rolling

133:04 back the flanges.

133:05 Q. And tell me the importance of

133:06 that.

133:07 A. That if you want to apply the

133:08 NRR label test that was being used, that that

Page 14 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 56 of 78
133:09 tip or that instruction should have been

133:10 included.

140:15 - 140:19 Hamer, Jeff (2019-12-18) 0:21

140:15 Q. Okay. Do you believe that when

140:16 Aearo found out in 2000 that this plug was

140:17 pulling out, they should have stopped selling

140:18 the product until they figured out the

140:19 problem?

140:21 - 140:22 Hamer, Jeff (2019-12-18) 0:02

140:21 THE WITNESS: No, not

140:22 necessarily.

140:24 - 141:01 Hamer, Jeff (2019-12-18) 0:05

140:24 Q. Do you remember making a Re: [140:24 to 141:01] Re: [140:24 to 141:01] Re: [140:24 to 141:01] OVERRULED

140:25 statement to the contrary in your deposition Def Obj vague, misstates, OVERRULED Def Obj vague, misstates,

141:01 in 2015? argumentative (611, 403); argumentative (611, 403);

foundation (602); 403 foundation (602); 403

141:03 - 141:05 Hamer, Jeff (2019-12-18) 0:04

141:03 THE WITNESS: I do not, but Re: [141:03 to 141:05] Re: [141:03 to 141:05] OVERRULED

141:04 I'm -- we'd have to go through it and Def Obj vague, misstates, Def Obj vague, misstates,

141:05 look at it. argumentative (611, 403); argumentative (611, 403);

foundation (602); 403 foundation (602); 403

141:07 - 141:12 Hamer, Jeff (2019-12-18) 1:39

141:07 Q. Let's do just that. This is Re: [141:07 to 141:12] OVERRULED

141:08 page 175. Pltf Obj Foundation,

141:09 We have the cut. Okay. Let me arguementative, misstates, 802

141:10 give him -- 175, starting where, Kenny.

141:11 Line 22, Mr. Hamer.

141:12 Let's play that.

141:17 - 142:07 Hamer, Jeff (2019-12-18) 1:30

141:17 QUESTIONS BY MR. TRACEY: Re: [141:17 to 142:05] Re: [141:17 to 142:05] Re: [141:17 to 142:05] OVERRULED

141:18 Q. Is that statement true? Def Obj vague, misstates, OVERRULED Def Obj vague, misstates,

141:19 A. Yes, I agree. argumentative (611, 403); argumentative (611, 403);

141:20 Q. That they should have stopped foundation (602); 403 Re: [142:06 to 142:07] foundation (602); 403

141:21 selling the plug? OVERRULED

141:22 A. Oh, no, I'm sorry. I'm Re: [142:06 to 142:07] Re: [142:06 to 142:07] OVERRULED

141:23 responding to the wrong lawyer. Def Obj Relevance (401, 402) Def Obj Relevance (401, 402)

141:24 I said: "I don't know that

141:25 they didn't."

142:01 And then: "If they didn't,

142:02 don't you think that would have been wrong?"

142:03 And I said: "If they didn't,

142:04 if they did not, yes, it would have been

142:05 wrong."

142:06 Q. Let's go to the ELMO so we can

142:07 see where he's reading along -- with him.

Page 15 of 17

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142:08 - 143:04 Hamer, Jeff (2019-12-18) 1:54

142:08 So starting at the bottom here: Re: [142:24 to 143:04] Re: [142:24 to 143:04] Re: [142:08 to 143:04] SUSTAINED

142:09 "Don't you think in 2000 when 3M found this Pltf Obj nonresponsive SUSTAINED - Pltf Obj nonresponsive

142:10 problem with this plug pulling out, they Nonresponsive

142:11 should have stopped" -- and then at the top

142:12 of page 176 -- "figured out what it was and

142:13 stopped selling it until they solved it?"

142:14 Your answer was: "I don't know

142:15 that they didn't."

142:16 And then the question is:

142:17 "Even if they didn't, don't you think that

142:18 would have been wrong?"

142:19 And you said: "If they did

142:20 not, yes."

142:21 That's what you testified to in

142:22 your previous deposition.

142:23 A. That's correct.

142:24 Q. Is that statement still true?

142:25 A. I'm just trying to understand

143:01 the context of this questioning, because I

143:02 believe we did stop the test, and we learned

143:03 how to fit the product better and provided

143:04 that information to the military.

196:19 - 197:05 Hamer, Jeff (2019-12-18) 0:28

196:19 Q. How long have you been with the

196:20 company?

196:21 A. Since I rejoined the company in

196:22 2008 in this position.

196:23 Q. Were you with them before?

196:24 A. I was with what -- at the --

196:25 what at the time was E-A-R division of Cabot

197:01 Corporation, which became Aearo, which 3M

197:02 bought, from 1984 to 1997.

197:03 Q. '97 to 2007 you were gone?

197:04 A. In a different company,

197:05 correct.

278:07 - 278:18 Hamer, Jeff (2019-12-18) 0:28

278:07 Q. And is it your belief that the Re: [278:07 to 278:18] Re: [278:07 to 278:18]

278:08 regulatory authorities know that you guys do Pltf Obj 602, speculation, 701 SUSTAINED - 402; 701

278:09 this and there's no problem with it? , 403, nonresponsive

278:10 A. I don't -- I don't understand

278:11 why that would matter to them, because we

278:12 would not market a product that we stopped

278:13 and didn't change something on.

278:14 Q. Either the instructions or the

278:15 product?

278:16 A. Or the design or the

278:17 manufacturing. It's not the same at that

Page 16 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 58 of 78
278:18 point.

328:10 - 328:22 Hamer, Jeff (2019-12-18) 1:33

328:10 Q. And as we sit here today, Re: [328:10 to 328:22] Re: [328:10 to 328:22] Re: [328:10 to 328:22] SUSTAINED

328:11 20 years later, you have seen not one shred Pltf Obj non responsive, SUSTAINED Pltf Obj nonresponsive

328:12 of evidence in the form of anybody from your foundation, speculation, 802

328:13 company communicating the results of the hearsay, 403

328:14 flange report to the American military, have

328:15 you?

328:16 A. I believe that our fitting

328:17 instructions indicate a way to get better

328:18 seal on the product, and I believe that Doug

328:19 Ohlin was involved in the development of this

328:20 product and the training of the soldiers that

328:21 were using this product and that he was --

328:22 that he had knowledge of that.

335:01 - 335:11 Hamer, Jeff (2019-12-18) 0:17

335:01 Q. Your company is in the best Re: [335:01 to 335:06] Re: [335:01 to 335:06] Re: [335:01 to 335:06] OVERRULED

335:02 position to train people how to use their Def Obj foundation (602); 701; MOOT Def Obj foundation (602); 701;

335:03 product, aren't they? vague (611, 403) vague (611, 403)

335:04 MR. MORRISS: Object to form. Re: [335:07 to 335:11]

335:05 THE WITNESS: I believe we have Re: [335:07 to 335:11] MOOT Re: [335:07 to 335:11] OVERRULED

335:06 a good position. Def Obj foundation (602); 701; Def Obj foundation (602); 701;

335:07 QUESTIONS BY MR. TRACEY: vague (611, 403) vague (611, 403)

335:08 Q. Well, you're the only -- you're

335:09 the only people that have access to the data

335:10 found in the flange report, right?

335:11 A. Yes.

335:12 - 335:15 Hamer, Jeff (2019-12-18) 0:06

335:12 Q. And if we were going to train Re: [335:12 to 335:15] Re: [335:12 to 335:15] Re: [335:12 to 335:19] SUSTAINED

335:13 soldiers on how to properly use your product, Pltf Obj nonresponsive, SUSTAINED - Pltf Obj nonresponsive,

335:14 we would want to use the data in the flange foundation, speculation, 802 Irrelevant; Speculative; speculation

335:15 report, wouldn't we? hearsay, 403 Nonresponsive

335:17 - 335:19 Hamer, Jeff (2019-12-18) 0:04

335:17 THE WITNESS: Yeah, I believe Re: [335:17 to 335:19] Re: [335:17 to 335:19] Re: [335:12 to 335:19] SUSTAINED

335:18 that Doug Ohlin and the military was Pltf Obj nonresponsive, SUSTAINED Pltf Obj nonresponsive,

335:19 aware of that situation. foundation, speculation, 802 speculation

hearsay, 404

Page 17 of 17

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 59 of 78
Preserved Objections Previous Rulings New Objections Rulings

11:01 - 12:04 Van Densen, Mark (2020-12-04) 2:35

11:01 This deposition is being provided Re: [10:17 to 184:20] Global objection OVERRULED.

11:02 pursuant to the Touhy letter provided by the Pltf Obj **Global Objection**

11:03 Department of the Army, dated November 16 and Baker objects to 3M's

11:04 is limited by the terms set out in the letter. designations from Mark Van

11:05 I want to highlight a couple of those Densen in their entirety. This

11:06 limitations, however, all limitations in the deposition was not noticed in

11:07 letter apply. the Baker case, and is

11:08 Mr. Van Densen is authorized to inadmissible hearsay not

11:09 testify about his administration of the subject to any exception. Mr.

11:10 November 27, 2006, hearing exam of bellwether Baker had no notice and was

11:11 Plaintiff Adkins and his administrations on or not represented at this

11:12 about July 31, 2009, December 12, 2010, and deposition. Pursuant to Touhy,

11:13 December 15, 2010, of the hearing exam of the deposition was not

11:14 bellwether Plaintiff Taylor. approved with regard to Mr.

11:15 Mr. Van Densen is authorized to Baker as Defendants only

11:16 provide testimony regarding information requested authorization

11:17 contained in the audiogram records and his specifically in relation to

11:18 practices as an audiology technician. other plaintiffs (Taylor and

11:19 Additionally, Mr. Van Densen is Adkins).

11:20 authorized to discuss hearing conservation

11:21 training he provided to bellwether Plaintiff Re: [11:01 to 12:04] SUSTAINED

11:22 Taylor on or about May 19, 2011. Mr. Van Def Obj 401, 403, MIL 6

11:23 Densen is not authorized to testify about any

11:24 other subjects.

11:25 Mr. Van Densen is not authorized

12:01 to testify about any other subjects, cannot be

12:02 qualified as an expert witness, or be asked for

12:03 personal opinions relating to official

12:04 information.

12:20 - 13:11 Van Densen, Mark (2020-12-04) 1:46

12:20 MR. GUNDERSON: Ms. Fairchild, Re: [12:20 to 13:11] SUSTAINED

12:21 just for one point of clarification per our -- Def Obj 401, 403, MIL 6

12:22 by my understanding of the authorization

12:23 letter, Mr. Van Densen is permitted to testify

12:24 about the November 2006 hearing exam of

12:25 Plaintiff Adkins, and then the hearing exams

13:01 for Plaintiff Taylor between 2009 and 2011; is

13:02 that consistent with your understanding?

13:03 MS. FAIRCHILD: Did I say -- Did

13:04 I say something different? The letter, which I

13:05 will be happy to provide you, should govern. I

13:06 intended to read the letter verbatim.

13:07 MR. GUNDERSON: I may have

Designations

Page 1 of 19

Case 7:20-cv-00039-MCR-GRJ Document 172-1 Filed 06/15/21 Page 60 of 78
13:08 misheard. I just wanted to clarify that we're

13:09 talking about Mr. Adkins hearing exams and Mr.

13:10 Taylor's hearing exams that Mr. Van Densen was

13:11 involved in.

15:05 - 15:06 Van Densen, Mark (2020-12-04) 0:02

15:05 Q. Mr. Van Densen, good morning.

15:06 A. Good morning, sir.

15:07 - 15:13 Van Densen, Mark (2020-12-04) 0:16

15:07 Q. My name is Carl Gunderson. I am

15:08 an attorney from the law firm of Kirkland and

15:09 Ellis, LLP, and I represent the defendants 3M

15:10 and Aearo in this litigation.

15:11 Can you please state your name

15:12 for the Record?

15:13 A. Mark Robert Van Densen.

16:18 - 17:05 Van Densen, Mark (2020-12-04) 0:26 Re: [16:18 to 17:05] SUSTAINED

16:18 Q. And which branch of the military Pltf Obj 401; 402; 401;

16:19 did you serve in? bolstering

16:20 A. I served in the United States

16:21 Marine Corps and the United States Army.

16:22 Q. And which years did you serve in

16:23 the Marine Corps?

16:24 A. '73 to '76.

16:25 Q. And which years did you serve in

17:01 the Army?

17:02 A. '76 to '95.

17:03 Q. And did you retire from the Army

17:04 in 1995?

17:05 A. Yes, I did.

24:09 - 24:13 Van Densen, Mark (2020-12-04) 0:09

24:09 Q. You understand that your Re: [24:09 to 24:13] SUSTAINED

24:10 testimony today relates to two former soldiers Def Obj 401, 403, MIL 6

24:11 named Brandon Adkins and Joseph Taylor, who

24:12 were stationed at Fort Lewis; correct?

24:13 A. Yes.

26:25 - 27:12 Van Densen, Mark (2020-12-04) 1:33

26:25 You worked at the Hearing Conservation Clinic

27:01 at Fort Lewis; correct?

27:02 A. Yes.

27:03 Q. When did you begin working at the

27:04 Hearing Conservation Clinic at Fort Lewis?

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27:05 A. September 2005.

27:06 Q. And do you still work at the

27:07 Hearing Conservation Clinic at Fort Lewis?

27:08 A. Yes, I do.

27:09 Q. Because of your job, are you

27:10 familiar with the hearing protection devices

27:11 used by the military since at least 2005?

27:12 A. Yes.

40:22 - 41:08 Van Densen, Mark (2020-12-04) 1:50

40:22 MR. GUNDERSON: Erik, can you

40:23 please mark as Exhibit 9 tab 2-F?

40:24 (Whereupon, Exhibit 9 was

40:25 marked for identification

41:01 purposes.)

41:02 Q. Mr. Van Densen, are you familiar

41:03 with these earplugs?

41:04 A. Yes.

41:05 Q. Can you describe for the jury

41:06 what these are?

41:07 A. Well, the combat/battle plugs,

41:08 should be type 2.

49:21 - 51:09 Van Densen, Mark (2020-12-04) 2:38

49:21 Q. Mr. Van Densen, starting with

49:22 college, can you walk me through your

49:23 educational history?

49:24 A. I have a bachelor's in workforce

49:25 education, I have an associate's in hearing aid

50:01 technology, and an associate's in general

50:02 education, and a GED.

50:03 Q. Great. What year did you get

50:04 each of those different degrees?

50:05 A. 2004 for the applied science,

50:06 2003 for the general education, and 2007 for

50:07 the bachelor's in science.

50:08 Q. And during the course of your --

50:09 the classes you took in connection with those

50:10 degrees, did you take any classes specifically

50:11 related to audiology or hearing?

50:12 A. Yes.

50:13 Q. And in what years did you take

50:14 those classes approximately?

50:15 A. From 2002 to 2004.

50:16 Q. And what kind of classes did you

50:17 take in connection with that training?

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50:18 A. I took a associate's degree in

50:19 applied science for hearing aid technology.

50:20 Q. And during the course of those

50:21 classes, did you learn about how the ear

50:22 worked?

50:23 A. Yes.

50:24 Q. Did you study hearing protection

50:25 and how it works?

51:01 A. I took the COAC course, I did not

51:02 receive any training on hearing protection in

51:03 college.

51:04 Q. And what is COAC?

51:05 A. It is the civilian course on

51:06 hearing conservation.

51:07 Q. And is that course provided by

51:08 the military?

51:09 A. The military has its version.

51:24 - 52:07 Van Densen, Mark (2020-12-04) 0:17

51:24 Q. And what year did you complete

51:25 that training?

52:01 A. I took the first -- I took my

52:02 civilian course in 2003.

52:03 Q. Okay. Did you take any more

52:04 advanced courses in connection with that?

52:05 A. I've taken a certification

52:06 training every five years since then,

52:07 recertification.

52:12 - 52:22 Van Densen, Mark (2020-12-04) 1:31

52:12 Q. And can you explain to the jury

52:13 what kind of training from -- you got the first

52:14 time you took that course and then in your

52:15 recertifications? Is it how to conduct

52:16 audiograms, fit hearing protection devices?

52:17 A. Basically, it's on how to -- how

52:18 to give the hearing test, how to fit the

52:19 hearing protection, and how to instruct people

52:20 to use it, and how to determine -- and how to

52:21 refer somebody for further testing, if

52:22 required.

54:09 - 54:24 Van Densen, Mark (2020-12-04) 1:44

54:09 Q. And do you recall in 2006 and

54:10 2009 to '11 which earplugs came in bulk versus

54:11 which earplugs were individually wrapped?

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54:12 A. The triple-flange earplugs came

54:13 in bulk; they were usually in a cardboard box

54:14 with 24 plugs wrapped in white paper.

54:15 Q. And did those triple-flange

54:16 earplugs include instructions?

54:17 A. We give the individuals -- Every

54:18 individual was given a card on how to properly

54:19 use the earplugs, also they were trained on how

54:20 to properly use them.

54:21 Q. And so for every earplug you

54:22 issued, you would provide written instructions

54:23 on use to the soldier?

54:24 A. On -- Yes.

55:06 - 55:24 Van Densen, Mark (2020-12-04) 1:36

55:06 Q. And so there were different

55:07 instructions provided for the Combat Arms

55:08 earplugs?

55:09 A. Yes.

55:10 Q. And then for the other hearing

55:11 protection devices, was it generic instructions

55:12 or the same instructions provided for all of

55:13 them, or was a quad-flange set of instructions,

55:14 triple-flange set of instructions?

55:15 A. The card for the instructions on

55:16 the quad flange and triple flange are all --

55:17 incorporated in all three.

55:18 Q. Okay. So there's one set of

55:19 instructions that has instructions for those

55:20 different types of earplugs?

55:21 A. Yes.

55:22 Q. And that was true in 2006 and

55:23 from 2009 to 2011?

55:24 A. Yes.

60:02 - 60:19 Van Densen, Mark (2020-12-04) 1:52

60:02 Q. And is it the case that during

60:03 your experience and your personal practice in

60:04 2006 and from 2009 to 2011 that if a change in

60:05 hearing was identified in one audiogram, you

60:06 would instruct soldiers to come back for a

60:07 follow-up audiogram to confirm whether that

60:08 change is permanent or temporary?

60:09 A. Yes.

60:10 Q. And in terms of tinnitus, during

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60:11 the course of your conducting hearing exams in

60:12 2006 and from 2009 to 2011, did you -- or were

60:13 you aware of instances of soldiers reporting

60:14 ringing in their ears or tinnitus as part of

60:15 those exams?

60:16 A. Part of the intake form for the

60:17 individual soldier would indicate if he had

60:18 tinnitus, and we would mark it on the hearing

60:19 exam, or if the individual soldier told us.

61:13 - 61:20 Van Densen, Mark (2020-12-04) 0:19

61:13 Q. Was it your practice in 2006 to

61:14 ask soldiers whether they had any ringing in

61:15 the ears as part of their exam?

61:16 A. Yes.

61:17 Q. And if a soldier had indicated in

61:18 2006 that they were having ringing in the ear

61:19 or experiencing tinnitus, you would have

61:20 recorded that as part of the audiogram process?

61:22 - 61:22 Van Densen, Mark (2020-12-04) 0:00

61:22 A. Yes.

65:09 - 66:04 Van Densen, Mark (2020-12-04) 1:53

65:09 Q. And what was your first job for

65:10 the Department of the Army?

65:11 A. I worked for -- I worked as a

65:12 hearing tech, but I worked at the SRP Center.

65:13 Q. And what is the SRP Center?

65:14 A. Service -- Soldiers Readiness

65:15 Process.

65:16 Q. And how was that different from

65:17 the Hearing Conservation Clinic you worked for

65:18 later?

65:19 A. I verified the individual's

65:20 service record, to make sure the individual had

65:21 a current hearing test, and I also -- also

65:22 fitted earplugs at that time to each individual

65:23 soldier as they processed in.

65:24 Q. Okay. And when they processed

65:25 in, and you fitted this -- the -- the earplugs

66:01 for soldiers, was that part of their, sort of,

66:02 arrival at Fort Lewis?

66:03 A. Yes. Active duty soldier also,

66:04 yes.

Page 6 of 19

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66:14 - 67:20 Van Densen, Mark (2020-12-04) 1:13

66:14 Q. So the soldiers at Fort Lewis who

66:15 were getting ready to deploy, you would have

66:16 processed them and fit them with earplugs; is

66:17 that fair?

66:18 A. Yes. Yes.

66:19 Q. And then you did that -- that job

66:20 from 2004 to 2005?

66:21 A. Yes.

66:22 Q. And did you fit the Combat Arms

66:23 Version 2 Earplugs during that time?

66:24 A. No.

66:25 Q. What earplugs were you fitting in

67:01 soldiers getting ready for deployments during

67:02 that time?

67:03 A. Initially, the triple flange,

67:04 then we -- then we started getting quad flange.

67:05 Q. So between 2004 and 2005 when

67:06 soldiers were getting ready for deployment, you

67:07 were issuing the triple-flange and quad-flange

67:08 earplug; is that right?

67:09 A. Yes.

67:10 Q. And in 2005 you began working at

67:11 the Hearing Conservation Clinic at Fort Lewis?

67:12 A. Yes.

67:13 Q. Where was the Hearing

67:14 Conservation Clinic located at Fort Lewis in

67:15 2006?

67:16 A. In building 9911-Charlie, Madigan

67:17 Annex.

67:18 Q. And is it located in the same

67:19 place today?

67:20 A. Yes.

71:10 - 72:25 Van Densen, Mark (2020-12-04) 2:38

71:10 Q. And between 2006 and 2011, you

71:11 worked as an audiology technician; is that

71:12 correct?

71:13 A. Yep. Or a hearing technician.

71:14 Q. And what did you do in your role

71:15 as an audiology technician between 2006 and

71:16 2011?

71:17 A. I performed daily calibration of

71:18 the equipment to be sure it was calibrated

71:19 prior to testing; I would -- I would test the

71:20 individuals as they came in. I would verify

Page 7 of 19

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71:21 the individual's Social Security numbers;

71:22 download any available testing from what is

71:23 called the DOEHRS repository, to make sure it

71:24 was in our database if possible; and I would

71:25 perform the hearing test; I would interpret the

72:01 hearing test by reading what was in the remarks

72:02 section and notifying the individual if he

72:03 needed to do a follow-up or if I needed to

72:04 refer him to the audiologist; and I would --

72:05 and also I would ask them if they had any

72:06 questions or any issues at that time.

72:07 Q. Would you also fit earplugs as

72:08 part of your work in the Hearing Conservation

72:09 Clinic?

72:10 A. If the individual requested it,

72:11 yes.

72:12 Q. And what percentage of the time

72:13 would you say soldiers would request earplugs,

72:14 again, focusing on the time period between 2006

72:15 and 2011, based on your personal experience?

72:16 A. Approximately 10 percent of the

72:17 time.

72:18 Q. Approximately 10 percent of the

72:19 soldiers you saw would request hearing

72:20 protection, and then you would fit that hearing

72:21 protection for them?

72:22 A. They would request -- Yeah. If

72:23 they requested it from me directly, yes.

72:24 The majority of the people were

72:25 tested or fitted prior to coming in.

73:01 - 73:13 Van Densen, Mark (2020-12-04) 0:29

73:01 Q. And were they fitted -- When you

73:02 say they were fitted prior to coming in, was it

73:03 that they were fitted as part of the same visit

73:04 by somebody else or they were -- they were

73:05 fitted on different visits?

73:06 A. It depends on how the -- It

73:07 depends on what day it was and what procedure

73:08 -- and if it was a unit appointment, the unit

73:09 would fit its own people, refer to otoscopy,

73:10 which is a specialty area, and they would fit

73:11 their own individuals for earplugs. And if it

73:12 was just an individual appointment, if they

73:13 requested it, then we would fit them.

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74:18 - 75:11 Van Densen, Mark (2020-12-04) 1:49

74:18 Q. And do different earplugs fit

74:19 different soldiers differently?

74:20 A. Yes.

74:21 Q. And in your -- Based on your

74:22 experience, again, focused on 2006 and from

74:23 2009 to 2011, was it the case that there was

74:24 any earplug being issued during those years

74:25 that would, in fact, fit all soldiers or was it

75:01 the case that some -- some earplugs worked for

75:02 some soldiers, some earplugs worked for

75:03 different soldiers?

75:04 A. There was a standard formula of

75:05 75/25/10.

75:06 Q. And what did that correspond to?

75:07 A. Well, approximately 70 percent

75:08 would be fit by medium earplug, 10 percent may

75:09 be medium to large earplug, and maybe 25

75:10 percent that would either be a small or an

75:11 extra large or an extra small.

76:04 - 77:06 Van Densen, Mark (2020-12-04) 1:55

76:04 Q. Were you given instructions on

76:05 sizing earplugs for individual soldiers or how

76:06 did you know what size to provide for which

76:07 soldiers?

76:08 A. You would start out with a medium

76:09 earplug; the individual would go through a

76:10 proper fitting technique, if it didn't fit,

76:11 like you pulled on it, and it fell out, it was

76:12 too large -- I mean too small; you put it in,

76:13 it didn't go far enough into the ear, then

76:14 there were different techniques to determine.

76:15 Q. When you were fitting earplugs,

76:16 would you actually insert the plug into the

76:17 soldier's ear or would they --

76:18 A. No.

76:19 Q. -- insert it themselves?

76:20 A. The individuals insert it

76:21 themselves for they were trained on how to

76:22 properly fit the plug.

76:23 Q. And then how would you check

76:24 whether it was fitted properly?

76:25 A. The individual would pull --

77:01 would reach up and tug on the earplug, it

77:02 should be snug and it should not have fallen

Page 9 of 19

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77:03 out. Then we would have the individual count

77:04 and them ask how it sounded; if it sounded like

77:05 it was a barrel effect, then that means the

77:06 earplug was a proper fit.

77:16 - 78:18 Van Densen, Mark (2020-12-04) 1:04

77:16 Q. And during that fitting process

77:17 and that sizing process, if the plug couldn't

77:18 get a good seal, you would have moved on to a

77:19 different earplug; is that fair?

77:20 A. Yeah. We would have either gone

77:21 larger or smaller, or in some cases to a

77:22 different type of plug.

77:23 Q. And then you said in addition to

77:24 what I will call the tug test, for the sake of

77:25 clarity, you would also do a sort of auditory

78:01 sound check for the soldier?

78:02 A. Yeah. The soldier would count

78:03 off, and the soldier should hear something

78:04 similar to a barrel effect, like when you plug

78:05 your ears, and that would indicate that it was

78:06 a good fit.

78:07 Q. And was your understanding that

78:08 both of those tests, the tug test and the sort

78:09 of barrel sound effect test, were used on the

78:10 Combat Arms Version 2 in addition to other

78:11 plugs?

78:12 A. That should have been done -- It

78:13 was required to be done on all plugs when you

78:14 do the fitting.

78:15 Q. And did you do any different

78:16 testing or fitting procedures for the Combat

78:17 Arms Version 2 Earplugs?

78:18 A. Nope.

78:19 - 78:23 Van Densen, Mark (2020-12-04) 0:12

78:19 Q. And if the Combat Arms Version 2

78:20 Earplugs didn't fit a particular soldier, did

78:21 you ever roll back the flanges to see if that

78:22 would improve the fit?

78:23 A. Personally, no, I did not.

78:24 - 79:21 Van Densen, Mark (2020-12-04) 1:54

78:24 Q. Were you aware that you could

78:25 have rolled back the flanges?

79:01 A. Yes, I was. I would leave that

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79:02 up to the audiologist because I -- to make sure

79:03 it was a proper fit.

79:04 Q. And were you aware of that in

79:05 2005, when you began working at the Fort Lewis

79:06 Hearing Conservation Clinic?

79:07 A. When I first started working?

79:08 No. Within about a half a year.

79:09 Q. So within approximately six

79:10 months of starting working at the Hearing

79:11 Conservation Clinic, you were aware that the

79:12 flange could be folded back to achieve a better

79:13 fit on the Combat Arms Version 2 Earplug?

79:14 A. Yes.

79:15 Q. And if you were fitting a soldier

79:16 with the Combat Arms Version 2 Earplug, and you

79:17 couldn't get a good seal, you could have

79:18 attempted to fold back the flange or you could

79:19 have moved on to a different kind of earplug;

79:20 is that fair?

79:21 A. Yes, that's fair.

80:23 - 81:01 Van Densen, Mark (2020-12-04) 0:17 Re: [80:23 to 82:01] OVERRULED

80:23 Q. We're going to mark as Exhibit 10 Pltf Obj foundation

80:24 a document titled Hearing Conservation

80:25 Information Packet for Commanders at Fort Lewis

81:01 dated March 8, 2006.

81:04 - 81:13 Van Densen, Mark (2020-12-04) 0:23 Re: [80:23 to 82:01] OVERRULED

81:04 Q. Mr. Van Densen, you were involved Pltf Obj foundation

81:05 and worked in the Hearing Conservation Clinic

81:06 in March of 2006; correct?

81:07 A. Yes.

81:08 Q. As part of your work in the

81:09 Hearing Conservation Clinic, were you ever

81:10 involved in providing information to commanders

81:11 or units about the Hearing Conservation

81:12 program?

81:13 A. Yes.

81:14 - 81:22 Van Densen, Mark (2020-12-04) 0:17 Re: [80:23 to 82:01] OVERRULED

81:14 Q. Do you recall ever having worked Pltf Obj foundation

81:15 on documents like this Hearing Conservation

81:16 Information Packet?

81:17 A. No.

81:18 Q. You don't recall specifically

81:19 having worked on this Hearing Conservation

Page 11 of 19

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81:20 Information Packet, do you?

81:21 A. I did not work on that document,

81:22 no.

81:23 - 82:01 Van Densen, Mark (2020-12-04) 0:07 Re: [80:23 to 82:01] OVERRULED

81:23 Q. Do you recall documents like this Pltf Obj foundation

81:24 having been circulated by the Hearing

81:25 Conservation Program?

82:01 A. Yes.

82:02 - 82:22 Van Densen, Mark (2020-12-04) 1:43

82:02 Q. And where the point of contact is

82:03 listed here, the Chief Hearing Conservation

82:04 Service --

82:05 A. Yes.

82:06 Q. -- do you know who the chief of

82:07 the Hearing Conservation Service would have

82:08 been at Fort Lewis in 2006?

82:09 A. It would have been, at that time,

82:10 Captain Ohama.

82:11 Q. And did you work for Captain

82:12 Ohama?

82:13 A. Yes, I did.

82:14 Q. He was also your boss?

82:15 A. Yes.

82:16 Q. And as the chief of Hearing

82:17 Conservation Service, did Captain Ohama oversee

82:18 the Hearing Conservation Clinic and other

82:19 hearing conservation activities?

82:20 A. Yeah. He was -- He was the

82:21 officer in charge of hearing conservation for

82:22 all of Fort Lewis.

83:02 - 83:04 Van Densen, Mark (2020-12-04) 0:05

83:02 Q. Do you see where it says Earplugs

83:03 and Carrying Case Requisition Information?

83:04 A. Yes.

83:09 - 83:12 Van Densen, Mark (2020-12-04) 0:10

83:09 Q. Are you familiar with this

83:10 particular Requisition Information Form dated

83:11 March 8, 2006?

83:12 A. Yes.

83:17 - 84:05 Van Densen, Mark (2020-12-04) 1:31

83:17 A. This is a -- This is a breakdown

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83:18 of what type of hearing protection was

83:19 available for the units to buy, and the

83:20 quantities suggested by the average, like we

83:21 had talked about earlier.

83:22 Q. So earlier I believe you

83:23 testified that individual units would have

83:24 purchased hearing protection for their units;

83:25 is that correct?

84:01 A. Yes. Yes. That's what this

84:02 document is for.

84:03 Q. And that was happening in March

84:04 of 2006; correct?

84:05 A. Yes.

86:11 - 86:15 Van Densen, Mark (2020-12-04) 0:10

86:11 Q. And based on this Requisition

86:12 Information Form, under optional items, there

86:13 are two different types of Combat Arms listed.

86:14 Do you see that?

86:15 A. Yes.

86:21 - 87:17 Van Densen, Mark (2020-12-04) 1:44

86:21 Q. So under optional items, the very

86:22 first row there in the chart says Combat Arms

86:23 regular, do you see that?

86:24 A. Yes.

86:25 Q. And then the next sort of cell

87:01 over to the right says Combat Arms Earplug,

87:02 paren, double ended, paren.

87:03 Do you see that?

87:04 A. Yes, I do -- I do see it now,

87:05 yes.

87:06 Q. And is it your understanding that

87:07 that would have referred to the bumblebee, or

87:08 Combat Arms Version 2, that we saw earlier?

87:09 A. Yes. At that time.

87:10 Q. And do you see the bright red

87:11 letters there that say -- says requires user

87:12 instruction sheet?

87:13 A. Yes.

87:14 Q. And is that the same user

87:15 instruction sheet that you testified earlier

87:16 that would have been handed out with the Combat

87:17 Arms Version 2?

87:19 - 88:02 Van Densen, Mark (2020-12-04) 0:22

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87:19 A. Yes. Also the vendor provided

87:20 instructions, along with the earplugs.

87:21 Q. And so were there two different

87:22 sets of instructions provided or was there one

87:23 set of instructions provided?

87:24 A. I only provided the one set of

87:25 instructions. But the vendor package

88:01 instructions inside the -- inside with the

88:02 items at one time.

88:06 - 88:12 Van Densen, Mark (2020-12-04) 0:16

88:06 Q. And when you say packaged inside,

88:07 was it on the individual packaging for a pair

88:08 of earplugs or was it a sheet in a box of fifty

88:09 or a hundred?

88:10 A. No. It was a sheet that would be

88:11 -- would be inside the envelope for the

88:12 earplug.

88:19 - 88:25 Van Densen, Mark (2020-12-04) 0:10

88:19 Q. Okay. The current version of the Re: [88:19 to 88:25] OVERRULED

88:20 Combat Arms Earplugs have instructions with Def Obj 401, 403, Baker MIL 1

88:21 them?

88:22 A. Yes.

88:23 Q. But you're not sure, in March of

88:24 2006 --

88:25 A. I cannot swear to that, no.

89:01 - 89:20 Van Densen, Mark (2020-12-04) 1:41

89:01 Q. But some instruction -- user

89:02 instructions would have been provided in March

89:03 of 2006 with the Combat Arms Earplugs?

89:04 A. Yes. A plastic -- A laminated

89:05 card with the instructions were provided to the

89:06 individuals.

89:07 Q. And was that referred to as the

89:08 wallet card? Was it the sort of size of a card

89:09 that would fit in a wallet?

89:10 A. Yes.

89:11 Q. And then if you go to the last

89:12 column there, it says regular size fits most

89:13 and then approximately 80 percent?

89:14 A. Yes.

89:15 Q. And so units were told that the

89:16 Combat Arms Version 2 double-ended earplug fits

89:17 most, meaning only approximately 80 percent of

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89:18 soldiers?

89:19 A. Yeah. That's what it states,

89:20 yes.

90:06 - 90:16 Van Densen, Mark (2020-12-04) 0:25

90:06 Q. Based on your personal knowledge,

90:07 the double-ended version of the Combat Arms

90:08 Version 2 required size fitting; correct?

90:09 A. Yes. All earplugs require size

90:10 fitting.

90:11 Q. And it was your understanding in

90:12 2006 that the double-ended version of the

90:13 Combat Arms Earplugs also required an

90:14 instruction sheet be provided to the soldiers;

90:15 correct?

90:16 A. Yes.

92:16 - 92:21 Van Densen, Mark (2020-12-04) 1:33

92:16 Q. We're now going to mark as

92:17 Exhibit 11 tab 08.

92:18 So, Mr. Van Densen, I will

92:19 represent to you that this is a blown-up

92:20 version of a much smaller card.

92:21 A. Yes.

93:06 - 93:18 Van Densen, Mark (2020-12-04) 1:31 Re: [93:13 to 93:24] OVERRULED

93:06 Are the instructions provided on Pltf Obj 602; scope

93:07 this instruction sheet consistent with your

93:08 understanding of the instructions that were

93:09 provided on the wallet card distributed to

93:10 soldiers who received the Combat Arms Version 2

93:11 Earplugs?

93:12 A. Yes.

93:13 Q. And is it the case that any

93:14 soldier receiving the Combat Arms Earplugs

93:15 during your time at the Hearing Conservation

93:16 Clinic at Fort Lewis would have received a copy

93:17 of these instructions on a wallet card?

93:18 A. Yes.

93:25 - 94:20 Van Densen, Mark (2020-12-04) 1:54

93:25 Q. Do you see on the instructions

94:01 here, Mr. Van Densen, the photo towards the

94:02 bottom of the instruction sheet?

94:03 A. Yes.

94:04 Q. And do you see that the green

Page 15 of 19

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94:05 flange is rolled back?

94:06 A. Yes.

94:07 Q. It is your testimony that as of

94:08 2005, or at some point in 2005, you became

94:09 aware of the fact that the flange on the Combat

94:10 Arms Earplug could be rolled back to achieve a

94:11 better fit; correct?

94:12 A. Yes.

94:13 Q. And when we -- When you testified

94:14 to that earlier, in terms of talking about

94:15 rolling back the flange, does this photograph

94:16 here show what you understood rolling back the

94:17 flange to be?

94:18 A. This is what I learned -- this is

94:19 where I learned about rolling back the flanges,

94:20 from this document.

95:03 - 95:06 Van Densen, Mark (2020-12-04) 0:12

95:03 Q. But in your experience, you never

95:04 rolled back the flanges; is that also correct?

95:05 A. To the best of my recollection,

95:06 yes.

143:10 - 143:15 Van Densen, Mark (2020-12-04) 0:14

143:10 Q. Well, thanks for sitting for a

143:11 deposition today, sir.

143:12 My name is Adam Wolfson, and I'm

143:13 from the law firm name Quinn Emanuel, and I

143:14 represent the Plaintiffs in this case.

143:15 A. Yes.

144:21 - 145:24 Van Densen, Mark (2020-12-04) 1:23

144:21 Q. I see. So for the -- For the

144:22 double-sided plugs, the bumblebee plugs, was it

144:23 -- is it correct that your testimony is that

144:24 the only instruction of which you are aware was

144:25 that -- that wallet card that Mr. Gunderson

145:01 showed you?

145:02 A. That, and the individual -- and

145:03 training by -- by medics on how to fit them.

145:04 Q. I see. So -- But were you the

145:05 one providing these instructions?

145:06 A. I trained the medics.

145:07 Q. You trained the medics?

145:08 A. Yes.

145:09 Q. Okay. So when you trained the

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145:10 medics on how to provide instructions for the

145:11 Combat Arms Version 2 Earplugs, the bumblebee

145:12 plugs, what did you train them to tell soldiers

145:13 on how to fit them into the ear?

145:14 A. The individuals -- The

145:15 individuals are instructed to reach over with

145:16 one hand, insert the plug, push the plug in,

145:17 release the ear, release the plug; do the same

145:18 thing on the other side, insert the plug, push

145:19 it in, release it; tug, see if there's a proper

145:20 fit.

145:21 Also the individual could have

145:22 his buddy or the medic would verify that the --

145:23 that they went in at least three flanges deep

145:24 for a proper fit.

147:17 - 150:01 Van Densen, Mark (2020-12-04) 3:34

147:17 Well, let me -- In 2006, besides teaching

147:18 medics how to train soldiers to use the Combat

147:19 Arms Version 2 earplugs by pulling up the upper

147:20 part of their ear and inserting and then

147:21 checking with a tug test, were there any other

147:22 special instructions that you provided to the

147:23 medics on how to use the plug?

147:24 A. Once I learned about the

147:25 rollback, we would teach them about the

148:01 rollback. Also, how to do the barrel effect

148:02 when they count, make sure they had that barrel

148:03 effect when they had the plugs in to make sure

148:04 it was a good fit.

148:05 Q. Uh-huh.

148:06 A. And we would -- Basically, that

148:07 would be it. Clean them and maintain them.

148:08 Q. Okay. So when you refer to the

148:09 rollback, Mr. Gunderson asked you some

148:10 questions about that. But am I correct, sir,

148:11 that you learned how to -- how and when to roll

148:12 back the opposing flange from that wallet card

148:13 that Mr. Gunderson showed you?

148:14 A. Originally, yes. Then I was

148:15 taught by other people as we went along.

148:16 I was trained by the audiologist

148:17 and the other tech when we started using those

148:18 plugs, or the few times we did issue those

148:19 plugs.

148:20 Q. And what did you learn from the

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148:21 audiologist in -- to -- about rolling back the

148:22 opposing flange to then educate soldiers on how

148:23 to use the plug?

148:24 A. Roll back the plug to get it

148:25 completely in the ear, which would also help

149:01 with the mounting of the helmet.

149:02 Q. Uh-huh. Okay.

149:03 A. Because you have to get a deep

149:04 fit and get a good seal.

149:05 Q. Were there certain types of ear

149:06 canals that that was necessary for?

149:07 A. Usually somebody with a short

149:08 canal, yes, I would think.

149:09 Q. You would think or do you recall

149:10 specifically?

149:11 A. Specifically, like I said,

149:12 individuals -- each ear canal is different. It

149:13 could be -- It's a possibility it was a short

149:14 canal or there was a bend in the canal that

149:15 would cause the issue.

149:16 Q. I see. So if they were not --

149:17 Well, how would you tell, you know, what would

149:18 you instruct people about the instances in

149:19 which they needed to fold back the opposing

149:20 flange?

149:21 A. If it didn't seat deep enough

149:22 into the ear canal, say it only went in two,

149:23 and you could only -- because you put the

149:24 yellow side in, it only went in two -- two

149:25 flanges, we'd have them roll it back and see if

150:01 it could go to the third flange for a good fit.

150:02 - 150:07 Van Densen, Mark (2020-12-04) 1:36

150:02 Q. I see. So if there was an

150:03 obvious problem in getting the plug into

150:04 someone's ear, then one possible solution to

150:05 remedy that problem, you instructed medics and

150:06 soldiers was to roll back the opposing flange?

150:07 A. Yes.

179:13 - 179:21 Van Densen, Mark (2020-12-04) 0:29

179:13 Q. Mr. Van Densen, just a couple of

179:14 questions here related to what Mr. Wolfson

179:15 asked you about.

179:16 Is it your testimony that it was

179:17 only necessary to roll back the flanges if a

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179:18 soldier was unable to get a good seal and a

179:19 good fit with the Combat Arms Version 2?

179:20 A. Roll it back, a good fit would

179:21 be, yes, that's what I understood.

180:23 - 181:01 Van Densen, Mark (2020-12-04) 0:10 Re: [180:23 to 181:03] OVERRULED

180:23 Q. And it was your understanding, Pltf Obj 611; 602

180:24 that if you were able to get a good seal, or a

180:25 good fit in those circumstances, rolling back

181:01 the flange wasn't necessary; correct?

181:03 - 181:18 Van Densen, Mark (2020-12-04) 1:37 Re: [180:23 to 181:03] OVERRULED

181:03 A. Correct. Pltf Obj 611; 602

181:04 Q. And if you were unable to get a

181:05 good seal or a good fit with the Combat Arms Re: [181:13 to 181:20] OVERRULED

181:06 Version 2, you would have issued a different Pltf Obj 611; 602

181:07 type of hearing protection to the soldier;

181:08 correct?

181:09 A. We would have tried the roll-back

181:10 technique first, if that worked, we would have

181:11 issued them; otherwise, we would have tried a

181:12 different earplug, yes.

181:13 Q. And it is your understanding,

181:14 from your practices in the Hearing Conservation

181:15 Clinic, that one of the purposes of the sizing

181:16 and fitting was to ensure that the earplugs

181:17 issued to a particular soldier worked for that

181:18 soldier; correct?

181:20 - 181:20 Van Densen, Mark (2020-12-04) 0:00 Re: [181:13 to 181:20] OVERRULED

181:20 A. Yes. Pltf Obj 611; 602

182:04 - 182:11 Van Densen, Mark (2020-12-04) 0:27

182:04 Q. And you have testified multiple

182:05 times now that the information provided in box

182:06 G and then the remarks section could either

182:07 reflect the hearing protection that the soldier

182:08 reported using on the date of the exam or the

182:09 hearing protection that was issued to a

182:10 soldier; correct?

182:11 A. Correct.

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