EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 1 of 94
Preserved Objections Previous Rulings New Objections Rulings

8:07 - 8:18 Merkley, LTC John A. (2020-02-26) 1:37

8:07 Q. Good morning, LTC Merkley. My name is

8:08 Nick Wasdin, and I represent 3M Company in this

8:09 case. You serve as the Army Hearing Division chief

8:10 at the Army Public Health Center in Aberdeen,

8:11 Maryland; is that right?

8:12 A. I'm -- I'm the Army Hearing Program

8:13 Manager. There's been a reorganization over the

8:14 last year, so it's not -- it's not a division any

8:15 more. It's a -- it's a program.

8:16 Q. How long have you had the title of chief

8:17 of that program or head of that program?

8:18 A. Since July of 2018.

8:19 - 13:08 Merkley, LTC John A. (2020-02-26) 7:35

8:19 Q. Can you give us an overview of your Re: [8:19 to 13:08] SUSTAINED

8:20 military service leading up to July of 2018? Pltf Obj FRE 402/403; Calls

8:21 A. Sure. I -- I started in the National for narrative and answer(s)

9:01 Guard in 19 -- September 1991. I joined the Utah given as narratives; Improper

9:02 National Guard as a linguist. I went to basic bolstering;

9:03 training in October of '91 to December of '91 at

9:04 Fort Leonard Wood, Missouri.

9:05 I was a -- I went from there to the

9:06 Defense Language Institute to study Russian, and I

9:07 was at the Defense Language Institute for almost

9:08 all of 1992, and then went to Fort Huachuca and was

9:09 trained as an interrogator.

9:10 I went off of active duty in March of '93

9:11 and into the National Guard and stayed in the

9:12 National Guard until June of 1998, when I graduated

9:13 as an audiologist and left the state of Utah.

9:14 I was in inactive -- the inactive ready

9:15 reserve through June of 1999 and then commissioned

9:16 as a First Lieutenant in the Army Reserves as an

9:17 audiologist with the 7231st Mobilization Support

9:18 Unit in Lubbock, Texas.

9:19 I left that unit in March -- or February

9:20 of 2000 and went in -- on active duty as an

9:21 audiologist and then went to basic training as an

10:01 audi- -- officer basic training in 2000, March of

10:02 2000.

10:03 From there, I went to -- to duty stations

10:04 at Fort Drum, New York. I was stationed at Fort

10:05 Drum, New York from June or July, I don't remember

10:06 exactly, of -- of 2000 through July of 2004 and

10:07 then moved to Wurzburg, Germany from 2004 to 2006,

10:08 when I deployed to Iraq.

10:09 I was in Iraq -- well, on a deployment.

10:10 I went with the 28th Combat Support Hospital, so we

10:11 did some train-up. I left in August. We trained

Designations

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10:12 up, went to Kuwait in September of 2006.

10:13 I went into Iraq in October 2006 and then

10:14 returned from that deployment in November of 2007

10:15 to Fort Bragg. I returned home on the 1st of

10:16 December 2007 and then stayed in Wurzburg for three

10:17 years, and then PCS'd to Landstuhl.

10:18 I'm sorry, I'm not telling you my

10:19 position. So, my position at Fort Drum was the

10:20 chief of audiology and the hearing -- installation

10:21 hearing conservation program manager. In Wurzburg,

11:01 I had the same title. I was the chief of audiology

11:02 and the hearing conservation program manager for

11:03 all of the Bavaria region. So, the Wurzburg

11:04 Hospital and all of the subordinate clinics to

11:05 Wurzburg.

11:06 Then as -- with the 28th CSH, I deployed

11:07 as an audiologist, and in Iraq, I also served as

11:08 the theatre consultant for audiology.

11:09 Then PCS'd -- I came back to Germany,

11:10 PCS'd to Landstuhl where I was assigned to the Army

11:11 Public Health -- well, it was -- it was the Center

11:12 for Health Promotion and Preventive Medicine at the

11:13 time.

11:14 Q. CHPPM?

11:15 A. CHPPM. CHPPM Europe. They transitioned

11:16 to the Army Public Health Command Region Europe

11:17 while I was there. That was in 2008. So,

11:18 2008/2009 is when -- when that transitioned.

11:19 I left that position -- oh, while in

11:20 Europe, I also served as the Europe audiology

11:21 consultant, so that -- the European -- European

12:01 Regional Medical Command audiology consultant.

12:02 Then PCS'd from Germany in 200- -- August

12:03 2011 to Fort Carson, where I served as the chief

12:04 of -- well, I'm sorry. I served as the

12:05 installation hearing program manager and was

12:06 assigned to the Department of Preventive Medicine.

12:07 I also served as the western

12:08 region or, I'm sorry, southern region audiology

12:09 consultant until the regions changed and Fort

12:10 Carson fell under the western -- I have to go back.

12:11 Q. That's okay.

12:12 A. But I was the audiology consultant for

12:13 the region, --

12:14 Q. Got it.

12:15 A. -- whichever it was. Because it

12:16 transitioned, and I became the central region

12:17 audiology consultant. And then PCS'd from Fort

12:18 Carson in January 2015 to the Defense Hearing

12:19 Center of Excellence, where I was assigned as the

12:20 Army liaison officer to the DoD Hearing Center of

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12:21 Excellence.

13:01 Q. What year was that?

13:02 A. That was in January 2015.

13:03 Q. What did you do between 2015 when you

13:04 took over as the chief of the Army --

13:05 A. So --

13:06 Q. -- hearing division?

13:07 A. So, I left San Antonio in May of 2018 and

13:08 PCS'd to Aberdeen Proving Grounds.

13:16 - 14:01 Merkley, LTC John A. (2020-02-26) 0:18

13:16 So, were you the Army liaison officer at Re: [13:16 to 14:01] OVERRULED

13:17 the Defense Center for Hearing Excellence up until Pltf Obj FRE 402/403; Leading;

13:18 you took over as the chief of the, what is now the Improper bolstering.

13:19 Army Hearing Program?

13:20 A. Yes.

13:21 Q. And that was in July of 2018?

14:01 A. Correct.

14:02 - 15:07 Merkley, LTC John A. (2020-02-26) 2:07

14:02 Q. What responsibilities does the Army Re: [14:02 to 15:07] OVERRULED

14:03 Hearing Program have? Pltf Obj FRE 402/403; Vague

14:04 A. Well, the Army Hearing Program has and overbroad question that

14:05 responsibility for oversight of the -- of asks for narrative answer, and

14:06 the -- the Army Hearing Program across the world. improper narrative answer

14:07 We have professionals that monitor the given; Improper Bolstering;

14:08 database for surveillance audiometry and report on 701/702; Plaintiff's MIL #1,

14:09 the database report statistics from the -- you 2, 16, 17.

14:10 know, we -- we can find the number of individuals

14:11 that were -- were required to receive a -- a

14:12 monitoring audiogram, the number of individuals

14:13 that received a monitoring audiogram, injury and

14:14 illness rates, recordable injury and illness rates,

14:15 follow-up compliance and the information like that.

14:16 That's one area of what we do.

14:17 We also have a studies and investigations

14:18 group that was borne out of the Institute of

14:19 Medicine report, and I believe it was the 2009 NDAA

14:20 that looked at what we needed to do to improve

14:21 hearing health across the Department of Defense.

15:01 The Army stood up this studies group to look

15:02 specifically at ways of improving hearing health.

15:03 So, we -- we conduct studies and

15:04 collaborate with other organizations, like the

15:05 Defense Hearing Center of Excellence, to look at,

15:06 you know, best practices and implementing best

15:07 practices in hearing conservation.

15:08 - 16:05 Merkley, LTC John A. (2020-02-26) 1:08

15:08 Q. Does the Army Hearing Program have a role

15:09 in determining what type of hearing protection

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15:10 devices would be used by service members in the

15:11 Army?

15:12 A. They have a consultative role in that

15:13 currently. I mean, I don't -- I don't make

15:14 selections or I don't solicit hearing protection

15:15 and make an up or down vote on what hearing

15:16 protectors are used. That falls -- that

15:17 responsibility falls to the Program Executive

15:18 Office for soldiers --

15:19 Q. Who's --

15:20 A. -- I believe.

15:21 Q. Who is in charge of that office today?

16:01 A. I -- I don't know. I know who is in

16:02 charge of -- well, who was in charge of the TCAPS

16:03 Program, but I am -- I don't know who is in charge

16:04 of the selecting and, you know, choosing which

16:05 hearing protectors to use.

18:18 - 18:21 Merkley, LTC John A. (2020-02-26) 0:08

18:18 Q. Where is the Army Hearing Program Re: [18:18 to 18:21] OVERRULED

18:19 physically located? Pltf Obj FRE 402/403;

18:20 A. Aberdeen Proving Grounds. The Edgewood Vague/Overbroad;

18:21 area of Aberdeen Proving Grounds.

22:02 - 22:04 Merkley, LTC John A. (2020-02-26) 0:11

22:02 MAJOR EVANS: He's not authorized to give Re: [22:02 to 22:04] SUSTAINED

22:03 opinions. He can give factual testimony, but not Def Obj attorney testifying,

22:04 opinions. relevance

22:06 - 22:09 Merkley, LTC John A. (2020-02-26) 0:05

22:06 Q. The Department of Defense requires the

22:07 Army to maintain a Hearing Conservation Program,

22:08 right?

22:09 A. Correct.

22:14 - 24:01 Merkley, LTC John A. (2020-02-26) 2:32

22:14 Q. I'm going to hand you what I have marked Re: [22:14 to 24:01] OVERRULED

22:15 as Exhibit 1. Take a look at Exhibit 1 and tell me Pltf Obj FRE 402/403

22:16 if you recognize it. relevance/prejudice as to

22:17 A. Yes. outdated version of document

22:18 Q. What is that document? applicability for Baker; 602;

22:19 A. Well, this is an -- an outdated 701/702 improper lay opinion;

22:20 Department of Defense instruction for the Hearing 802; speculation; Plaintiff's

22:21 Conservation Program. MIL # 1, 2, 16, 17, 21.

23:01 Q. You say outdated. This particular

23:02 version is dated April 22, 1996, correct?

23:03 A. Correct.

23:04 Q. This instruction is updated from time to

23:05 time, right?

23:06 A. Correct.

23:07 Q. Do you know when the next update after

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23:08 April of 1996 was?

23:09 A. I -- I believe it was in 2010.

23:10 Q. Okay. So, this was the operative

23:11 instruction during at least 1996 to 2010?

23:12 A. I believe so.

23:13 Q. This instruction contains a number of

23:14 requirements for the Hearing Conservation Program

23:15 at each of the DoD components, right?

23:16 A. Correct.

23:17 Q. Including the Army?

23:18 A. Yes.

23:19 Q. For example, if you turn to page 7 and

23:20 look at section 6.6, there are requirements for

23:21 personal hearing protectors, do you see that?

24:01 A. Yes.

24:04 - 24:20 Merkley, LTC John A. (2020-02-26) 1:55

24:04 Q. And, for example, 6.6.2 requires that DoD Re: [24:04 to 25:11] OVERRULED

24:05 components issue personal hearing protectors free Pltf Obj FRE 402/403; 602;

24:06 to all personnel who work in noise or 701/702 improper lay opinion;

24:07 noise-hazardous areas or with noise-hazardous 802; speculation; Plaintiff's

24:08 equipment, right? MIL # 1, 2, 16, 17, 21.

24:09 A. Right.

24:10 Q. 6.6.5 provides that DoD personnel shall

24:11 be allowed to choose personal hearing protectors

24:12 from among those approved devices available through

24:13 supply channels unless medically contraindicated or

24:14 inappropriate for a particular hazardous-noise

24:15 exposure; is that right?

24:16 A. Correct.

24:17 Q. Are Army service members able to choose

24:18 what hearing protection device they wear while in

24:19 service?

24:20 A. Yes.

24:21 - 26:19 Merkley, LTC John A. (2020-02-26) 2:04

24:21 Q. 6.6.7 says that preformed earplugs shall Re: [24:21 to 26:19] Re: [24:21 to 26:19] Re: [24:04 to 25:11] OVERRULED

25:01 be fitted and issued only under the supervision of Pltf Obj 611 OVERRULED Pltf Obj FRE 402/403; 602;

25:02 personnel who have been specifically trained to fit 701/702 improper lay opinion;

25:03 earplugs, did I read that right? 802; speculation; Plaintiff's

25:04 A. Correct. MIL # 1, 2, 16, 17, 21.

25:05 Q. What are preformed earplugs?

25:06 A. Preformed earplugs are ear -- earplugs Re: [25:15 to 27:06]

25:07 that are -- you -- you don't form on yourself. Pltf Obj FRE 402/403;

25:08 They're not moldable. They -- they come premolded speculation; 404; 802;

25:09 usually containing flanges. They can be single Plaintiff's MIL #1, 2, 16, 17,

25:10 flanges up to -- currently there are hearing 21; 701/702 improper opinion;

25:11 protectors that have four flanges. mischaracterizing evidence.

25:12 Q. Is -- are you familiar with the Combat

25:13 Arms Version 2 Earplug?

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25:14 A. Yes.

25:15 Q. Is that a preformed earplug?

25:16 A. Yes.

25:17 Q. And so, when the Combat Arms Version 2 is

25:18 issued to service members, the DoD instruction

25:19 requires that it would be fitted and issued only

25:20 under the supervision of personnel who have been

25:21 specifically trained to fit earplugs --

26:01 MR. BUCHANAN: Objection to form.

26:02 BY MR. WASDIN:

26:03 Q. -- is that right?

26:04 A. That's correct.

26:05 Q. 6.6.9, going down, states that medically

26:06 trained personnel must examine the fit and

26:07 condition of preformed and custom earplugs at least

26:08 annually, right?

26:09 A. Yes.

26:10 Q. So, under 6.6.9, anyone who had been

26:11 issued the Combat Arms Version 2 should have been

26:12 examined for fit at least annually?

26:13 A. Correct.

26:14 Q. And then 6.6.8 allows that if basically

26:15 you couldn't be fit by the medically trained

26:16 personnel with the preformed earplug, such as the

26:17 Combat Arms, then they would move to a custom

26:18 device in special circumstances; is that right?

26:19 A. Correct.

26:20 - 27:06 Merkley, LTC John A. (2020-02-26) 0:29

26:20 Q. Flipping back a page or two, excuse me, Re: [25:15 to 27:06] OVERRULED

26:21 page -- the page at the bottom is 3, there is a Pltf Obj FRE 402/403;

27:01 requirement under the header 6, Procedures, and speculation; 404; 802;

27:02 subheader, 6.1, Written Plan, that the DoD Plaintiff's MIL #1, 2, 16, 17,

27:03 components shall prepare a written plan for the 21; 701/702 improper opinion;

27:04 implementation of a comprehensive Hearing mischaracterizing evidence.

27:05 Conservation Program, right?

27:06 A. Correct.

27:14 - 28:07 Merkley, LTC John A. (2020-02-26) 1:54

27:14 Q. For example, 6.1 states that the plan to Re: [27:14 to 28:07] OVERRULED

27:15 be implemented by the DoD components shall address

Pltf Obj FRE 402/403

27:16 occupational noise exposure, computation and confusing/misleading;

27:17 monitoring, noise abatement, hearing protectors, conjecture; Plaintiff's MIL

27:18 methods for exa- -- estimating the adequacy of #2, 17, 21.

27:19 hearing protector attenuation, training,

27:20 audiometric testing requirements, audiometric test

27:21 rooms, audiometric measuring instruments, acoustic

28:01 calibration of audiometers, recordkeeping and

28:02 program evaluation, did I read that right?

28:03 A. Yes.

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28:04 Q. And so, in 1996 at least, the requirement

28:05 was for the Army to have a written plan that

28:06 tracked those items?

28:07 A. Correct.

28:18 - 29:20 Merkley, LTC John A. (2020-02-26) 1:52

28:18 Q. LTC Merkley, do you recognize the Re: [29:04 to 29:20] OVERRULED

28:19 document that I have handed you as Exhibit 2? Pltf Obj FRE 402/403;

28:20 A. Yes. speculation; 701/702 improper

28:21 Q. What is it? opinion testimony; Plaintiff's

29:01 A. DA Pamphlet 40-501. It's the Army's MIL # 1, 2, 16, 21

29:02 written program for the Hearing Conservation

29:03 Program.

29:04 Q. This version is dated 10 December 1998,

29:05 right?

29:06 A. Correct.

29:07 Q. And like the DoD instruction, the Army

29:08 would from time to time update the 40-501 Pamphlet,

29:09 right?

29:10 A. Correct.

29:11 Q. Do you know when the next update was

29:12 after 1998?

29:13 A. I don't have a current. I believe it was

29:14 2014.

29:15 Q. Okay. In any event, this was the

29:16 operative document as of December --

29:17 A. Yes.

29:18 Q. -- 10th, 1998 through some time around

29:19 2014?

29:20 A. Correct.

30:17 - 31:02 Merkley, LTC John A. (2020-02-26) 1:31

30:17 Q. If you flip to Chapter 6 on page 5, for Re: [30:17 to 32:18] OVERRULED

30:18 example, section 6.1 titled, Introduction, it Pltf Obj FRE 402/403; 404;

30:19 begins by saying that all personnel working in or speculation; 701/702 improper

30:20 visiting potentially noise-hazardous areas must opinion testimony; 802;

30:21 have hearing protectors with them at all times, do Plaintiff's MIL # 1, 2, 16, 21

31:01 you see that?

31:02 A. Yes.

31:03 - 31:19 Merkley, LTC John A. (2020-02-26) 1:53

31:03 Q. Section 6.2, labeled Protector Re: [30:17 to 32:18] OVERRULED

31:04 Requirements, contains guidelines that were then in Pltf Obj FRE 402/403; 404;

31:05 place for what type of protector to wear in various speculation; 701/702 improper

31:06 types of steady-state or impulse noises, correct? opinion testimony; 802;

31:07 A. Correct. Plaintiff's MIL # 1, 2, 16, 21

31:08 Q. And then section 3 or, excuse me, 6.3,

31:09 labeled Characteristics discusses the various types

31:10 of hearing protection devices that were then

31:11 available; is that right?

31:12 A. Yes.

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31:13 Q. And like the DoD instruction, it begins

31:14 by saying that preformed ear flange -- excuse me,

31:15 preformed earplugs are triple- or single-flange

31:16 earplugs. Medically trained personnel must fit and

31:17 examine these earplugs at least annually to ensure

31:18 proper fit and condition, right?

31:19 A. Correct.

31:20 - 32:18 Merkley, LTC John A. (2020-02-26) 1:54

31:20 Q. I noticed, if you go back to 6.1c on page Re: [30:17 to 32:18] OVERRULED

31:21 5, there's a reference that an earplug carrying Pltf Obj FRE 402/403; 404;

32:01 case must also be provided in addition to earplugs? speculation; 701/702 improper

32:02 A. Um-hum. opinion testimony; 802;

32:03 Q. And then it has a single national stock Plaintiff's MIL # 1, 2, 16, 21

32:04 number there?

32:05 A. Correct.

32:06 Q. Do you know what carrying case that's

32:07 referring to?

32:08 A. Yes.

32:09 Q. At the time in 1998, was there just one

32:10 carrying case that would be issued regardless of

32:11 what type of preformed earplug you get?

32:12 A. Yes.

32:13 Q. And did the military have -- they had

32:14 that carrying case as of at least December 1998

32:15 already?

32:16 A. Well, I -- they -- they had it in -- yes.

32:17 I was issued one in the National Guard, so -- and

32:18 that was prior to 1998.

33:03 - 33:04 Merkley, LTC John A. (2020-02-26) 0:11

33:03 Q. What year were you issued one? Re: [33:03 to 34:04] OVERRULED

33:04 A. I was issued one in 1994. Pltf Obj 602

Re: [33:03 to 34:04]

Pltf Obj FRE 402/403;

speculation; 701/702 improper

opinion testimony; 802;

conjecture; Plaintiff's MIL #

1, 2, 16, 21

33:05 - 34:04 Merkley, LTC John A. (2020-02-26) 1:17

33:05 Q. Focusing on 6.3a, the requirement that Re: [33:05 to 34:04] Re: [33:05 to 34:04] Re: [33:03 to 34:04] OVERRULED

33:06 medically trained personnel must fit and examine Pltf Obj 602, 611 OVERRULED Pltf Obj 602

33:07 preformed earplugs at least annually to ensure

33:08 proper fit and condition, can you tell us how, if Re: [33:03 to 34:04]

33:09 you know at this time, medically trained personnel Pltf Obj FRE 402/403;

33:10 would have evaluated the fit of preformed earplugs speculation; 701/702 improper

33:11 for service members? opinion testimony; 802;

33:12 A. For -- conjecture; Plaintiff's MIL #

33:13 MR. BUCHANAN: Objection to form and 1, 2, 16, 21

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33:14 foundation.

33:15 THE WITNESS: Okay. So, if it was -- if

33:16 it was done correctly -- and I was fitted with

33:17 preformed earplugs at basic training back in

33:18 October of 1991. They were the triple-flanged,

33:19 orange, regular hearing protectors, and the

33:20 medically trained personnel would do a tug test and

33:21 a visual inspection of the ear to see, you know,

34:01 were -- were all of the flanges in the ear and then

34:02 tugged -- well, they actually had us tug to make

34:03 sure that we felt the suction and that the earplug

34:04 didn't just come out of the ear.

34:06 - 34:08 Merkley, LTC John A. (2020-02-26) 0:05

34:06 Q. That happened for you at basic? Re: [34:06 to 35:02] OVERRULED

34:07 A. That happened to me -- for me at basic Pltf Obj 602

34:08 training.

Re: [34:06 to 35:02]

Pltf Obj FRE 402/403;

speculation; 701/702 improper

opinion testimony; 802;

conjecture; Plaintiff's MIL #

1, 2, 15, 16, 21

34:09 - 34:12 Merkley, LTC John A. (2020-02-26) 0:11

34:09 Q. Okay. Re: [34:09 to 34:12] Re: [34:09 to 34:12] Re: [34:06 to 35:02] OVERRULED

34:10 A. We trained all of our technicians on the Pltf Obj 602 OBJECTION WITHDRAWN, Pltf Obj 602

34:11 same fitting technique and how to identify a -- a 3/11/2021

34:12 good or a poor fit. Re: [34:06 to 35:02]

Pltf Obj FRE 402/403;

speculation; 701/702 improper

opinion testimony; 802;

conjecture; Plaintiff's MIL #

1, 2, 15, 16, 21

34:13 - 34:16 Merkley, LTC John A. (2020-02-26) 0:07

34:13 Q. Okay. And it sounds like that Re: [34:13 to 34:16] Re: [34:13 to 34:16] Re: [34:06 to 35:02] OVERRULED

34:14 technique -- would the technician actually insert Pltf Obj 602 OBJECTION WITHDRAWN, Pltf Obj 602

34:15 the earplug into the service member's ear? 3/11/2021

34:16 A. Not usually. Re: [34:06 to 35:02]

Pltf Obj FRE 402/403;

speculation; 701/702 improper

opinion testimony; 802;

conjecture; Plaintiff's MIL #

1, 2, 15, 16, 21

34:17 - 35:02 Merkley, LTC John A. (2020-02-26) 0:14

34:17 Q. Okay. Re: [34:17 to 35:02] Re: [34:17 to 35:02] Re: [34:06 to 35:02] OVERRULED

34:18 A. The -- the service member would insert Pltf Obj 602, 611 OVERRULED Pltf Obj 602

34:19 the earplug, and then the -- the -- the service

34:20 member would walk by the technician, and the Re: [34:06 to 35:02]

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34:21 technician would do a check. Pltf Obj FRE 402/403;

35:01 Q. Visual and tug test? speculation; 701/702 improper

35:02 A. Visual and tug test. opinion testimony; 802;

conjecture; Plaintiff's MIL #

1, 2, 15, 16, 21

35:04 - 35:17 Merkley, LTC John A. (2020-02-26) 0:22

35:04 THE WITNESS: For both ears.

35:05 MAJOR EVANS: And, I'm sorry, I'm just

35:06 going to clarify one point. You weren't an

35:07 audiologist in that time frame, sir?

35:08 THE WITNESS: No. No, I was not.

35:09 MAJOR EVANS: So, you're -- you're just

35:10 only talking about what the test would be from

35:11 your -- your education as an audiologist?

35:12 THE WITNESS: No. This is what happened

35:13 to me --

35:14 MAJOR EVANS: Okay.

35:15 THE WITNESS: -- at Fort Leonard Wood.

35:16 MAJOR EVANS: That's just what I wanted

35:17 to be clear about.

36:20 - 37:11 Merkley, LTC John A. (2020-02-26) 1:32

36:20 Q. Is situation awareness important in the Re: [36:20 to 37:11] Re: [36:20 to 37:11] Re: [36:20 to 37:11] OVERRULED

36:21 military? Pltf Obj 602, MIL G5 OVERRULED; 602 Pltf Obj 602

37:01 A. Yes. OBJECTION WITHDRAWN, 3/11/2021

37:02 Q. Why? Re: [36:20 to 37:11]

37:03 A. Because in a combat zone, a combat Pltf Obj FRE 402/403;

37:04 environment, you need to be aware of what's foundation; speculation;

37:05 happening around you. 701/702 improper opinion

37:06 Q. Is situation awareness a dueling priority testimony; 802; conjecture;

37:07 with hearing protection? Plaintiff's MIL # 1, 2, 16

37:08 A. Absolutely.

37:09 Q. Why?

37:10 A. Because any time you plug the ears, it

37:11 affects your ability to hear and localize sounds.

38:05 - 39:01 Merkley, LTC John A. (2020-02-26) 1:54

38:05 Q. Yeah, sure. If you go in 40-501 and you Re: [38:05 to 39:01] Re: [38:05 to 39:01] Re: [38:05 to 39:01] OVERRULED

38:06 flip to section 6.2, you told me earlier that this Pltf Obj 611 OVERRULED Pltf Obj FRE 402/403;

38:07 section had requirements for the use of hearing speculation; 602; 701/702

38:08 protection in various situations in noise I improper opinion testimony;

38:09 believe? 802; conjecture; Plaintiff's

38:10 MR. BUCHANAN: Objection. Form. MIL # 1, 2, 15, 16, 21

38:11 THE WITNESS: I -- I didn't say that this

38:12 section had the requirements. It may.

38:13 BY MR. WASDIN:

38:14 Q. This is section 6 --

38:15 A. It does indicate what hearing protection

38:16 to use when you're exposed to certain levels of

38:17 noise.

Page 10 of 70

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 11 of 94
38:18 Q. Okay. And if you go on to page 6 and go

38:19 down to the bottom of the left-hand column to

38:20 the -- what is 6. -- or 6-2(d), there's guidance

38:21 for combat scenarios, right?

39:01 A. Right.

40:04 - 40:21 Merkley, LTC John A. (2020-02-26) 1:50

40:04 Q. And that section that starts out, in Re: [40:04 to 40:21] Re: [40:04 to 40:21] Re: [40:04 to 40:21] OVERRULED

40:05 combat, soldiers, and then -- Pltf Obj 402; 403; 611 OVERRULED Pltf Obj 402; 403; 611

40:06 A. Correct.

40:07 Q. -- there's a dash, and it has a Re: [40:04 to 40:21]

40:08 subsection (1) and (2), and if you -- can you look Pltf Obj 701/702 improper

40:09 at (2) at the top of the right-hand column and tell opinion testimony; 802;

40:10 me what that says? conjecture; Plaintiff's MIL #

40:11 A. Should NOT wear hearing protectors when 1, 2, 15, 16, 21

40:12 they impair necessary hearing. For example, with

40:13 dismounted infantry operations.

40:14 Q. So, as of December 1998, the Army

40:15 requirement was that when in combat, service

40:16 members should not, and not there is all

40:17 capitalized, wear hearing protectors when they

40:18 impair necessary hearing, including with dismounted

40:19 infantry op- -- operations, right?

40:20 MR. BUCHANAN: Objection to form.

40:21 THE WITNESS: That's what it says.

41:18 - 41:21 Merkley, LTC John A. (2020-02-26) 0:16

41:18 Q. LTC Merkley, I have handed you a document Re: [41:18 to 42:01] SUSTAINED

41:19 we have marked as Exhibit 3. This is a test report Pltf Obj FRE 602; 402/403;

41:20 that was produced to us by the military in this 802.

41:21 case. Is this a document you've ever seen before?

42:01 - 42:01 Merkley, LTC John A. (2020-02-26) 0:01

42:01 A. Not that I recall, no. Re: [41:18 to 42:01] SUSTAINED

Pltf Obj FRE 602; 402/403;

802.

43:17 - 45:10 Merkley, LTC John A. (2020-02-26) 2:15

43:17 Q. Okay. Going down to the bottom paragraph Re: [43:17 to 45:10] Re: [43:17 to 45:10] Re: [43:17 to 45:10] SUSTAINED

43:18 it says, several military laboratories in the Pltf Obj Vague; 602; 611 SUSTAINED Pltf Obj Vague; 602; 611

43:19 United States and Europe, working with industry,

43:20 have endeavored to develop tactical headset Re: [43:17 to 45:10]

43:21 technologies which protect the hearing of mounted Pltf Obj FRE 402/403;

44:01 and dismounted personnel from weapons and blast speculation; 701/702 improper

44:02 noise while promoting ambient soundscape listening opinion testimony; 802;

44:03 and voice communications, did I read that right? conjecture; Plaintiff's MIL #

44:04 A. Yes. 1, 2, 15, 16, 21

44:05 Q. Do you know which laboratories, which

44:06 military laboratories in the U.S. and Europe worked

44:07 with industry to develop nonlinear hearing devices?

44:08 MR. BUCHANAN: Objection to form. Vague

Page 11 of 70

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44:09 as to time.

44:10 THE WITNESS: I -- I know USAARL worked

44:11 on a product meeting this description. ARL did

44:12 work with -- in reports that I have read worked

44:13 with our researchers from the laboratory in -- I

44:14 believe it's in Saint-Louis, France to develop this

44:15 type of hearing pro- -- develop and evaluate this

44:16 type of hearing protector.

44:17 BY MR. WASDIN:

44:18 Q. Are you referring to the Combat Arms

44:19 Earplug?

44:20 MR. BUCHANAN: Objection to the form.

44:21 THE WITNESS: Yes.

45:01 BY MR. WASDIN:

45:02 Q. So, it's your understanding that ARL

45:03 worked with the Institute of Saint-Louis in France

45:04 to develop the Combat Arms Earplug?

45:05 MR. BUCHANAN: Objection to form and

45:06 foundation.

45:07 THE WITNESS: I -- I believe so.

45:08 BY MR. WASDIN:

45:09 Q. Okay. Let's talk about that history a

45:10 little bit.

45:15 - 46:01 Merkley, LTC John A. (2020-02-26) 1:57

45:15 Q. LTC Merkley, I going to hand you a -- a Re: [45:15 to 46:01] Re: [45:15 to 46:01] Re: [45:15 to 46:04] OVERRULED

45:16 document we've marked as Exhibit 4. You'll see it Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

45:17 has a prior sticker from a different deposition on

45:18 it, but I'll refer to it as Exhibit 4. Re: [45:15 to 46:04]

45:19 If you flip that open, tell me if you Pltf Obj FRE 402/403;

45:20 recognize the document as a test report prepared by speculation; 701/702 improper

45:21 a gentleman named Dan Johnson in the mid 1990s? opinion testimony; 802;

46:01 A. That's who signed it, yes. conjecture; Plaintiff's MIL #

1, 2, 15, 16, 21

46:02 - 46:04 Merkley, LTC John A. (2020-02-26) 0:06

46:02 Q. Have you ever seen this test report Re: [45:15 to 46:04] OVERRULED

46:03 before? Pltf Obj 602

46:04 A. Not to my knowledge, no.

Re: [45:15 to 46:04]

Pltf Obj FRE 402/403;

speculation; 701/702 improper

opinion testimony; 802;

conjecture; Plaintiff's MIL #

1, 2, 15, 16, 21

46:08 - 47:08 Merkley, LTC John A. (2020-02-26) 1:12

46:08 This report, just on page 1, is titled Re: [46:08 to 47:08] Re: [46:08 to 47:08] Re: [46:08 to 47:08] OVERRULED

46:09 Blast Overpressure Studies with Animals and Man, Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

46:10 right?

46:11 A. Correct. Re: [46:08 to 47:08]

Page 12 of 70

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 13 of 94
46:12 Q. And it appears to have been conducted in Pltf Obj FRE 402/403;

46:13 Albuquerque, New Mexico, correct? speculation; 701/702; 802;

46:14 A. Correct. conjecture; Plaintiff's MIL #

46:15 Q. If you -- I'm going to use the romanettes 1, 2, 15, 16, 21

46:16 or I guess they're actually capital Romans at the

46:17 bottom, the page numbers, but if you go to III,

46:18 page 18 with me. Actually, before you turn there,

46:19 can I just go right -- keep your finger there and

46:20 go back to the front page. I should have asked

46:21 you, this report, if you go down the left, was

47:01 prepared for the Commander of the U.S. Army Medical

47:02 Research and Material Command at Fort Detrick in

47:03 Maryland, right?

47:04 A. Correct.

47:05 Q. Okay. And if you go to III, page 18, it

47:06 looks like this section is titled, Results, and

47:07 then Nonlinear Earplug Study, right?

47:08 A. Correct.

48:15 - 48:20 Merkley, LTC John A. (2020-02-26) 0:15

48:15 Q. Okay. And beneath that, it talks about Re: [48:15 to 48:20] Re: [48:15 to 48:20] Re: [48:15 to 48:20] OVERRULED

48:16 Phase 1 was a nonlinear earplug (Rucker Plug, Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

48:17 designed by the U.S. Army Aeromedical Research

48:18 Laboratory, USAARL, Fort Rucker, Alabama. Did I Re: [48:15 to 48:20]

48:19 read that right? Pltf Obj FRE 611; 402/403;

48:20 A. Yes. 802; speculation

49:06 - 49:13 Merkley, LTC John A. (2020-02-26) 0:21

49:06 Q. Okay. If you go down, Phase 2 talks Re: [49:06 to 49:13] Re: [49:06 to 49:13] Re: [49:06 to 49:13] OVERRULED

49:07 about a nonlinear earplug (French No. 1 Plug, Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

49:08 designed by the French-German Research Institute

49:09 Saint-Louis, ISL France,) did I read that right? Re: [49:06 to 49:13]

49:10 A. Yes. Pltf Obj FRE 611; 402/403;

49:11 Q. Have you ever heard of the French No. 1 701/702; 802. Plaintiffs MIL

49:12 Plug? #16, 21.

49:13 A. I've heard of it.

50:06 - 50:18 Merkley, LTC John A. (2020-02-26) 1:36

50:06 Q. This -- this says the French No. 1 Plug Re: [50:06 to 50:18] Re: [50:06 to 50:18] Re: [50:06 to 50:18] OVERRULED

50:07 is also a modification of the triple-flange EAR Pltf Obj Foundation; 602; 611 OVERRULED Pltf Obj 602

50:08 UltraFit with a 2 millimeter diameter hole through

50:09 it's longitudinal access. This modification Re: [50:06 to 50:18]

50:10 consisted of shortening the stem by 8 millimeters Pltf Obj FRE 611; 402/403;

50:11 and putting the filter designed at ISL Saint-Louis, 701/702; 802. Plaintiffs MIL

50:12 France in the front end of the plug, and then it #16, 21.

50:13 directs us to a -- a figure, do you see that?

50:14 A. Yes.

50:15 Q. Does that refresh you at all that the

50:16 French No. 1 Plug was an UltraFit earplug with a

50:17 version of the ISL filter in it?

Page 13 of 70

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50:18 A. Yes.

51:09 - 52:05 Merkley, LTC John A. (2020-02-26) 1:45

51:09 Q. Before I ask you this, you said earlier Re: [51:09 to 52:05] Re: [51:09 to 52:05] Re: [51:09 to 52:10] OVERRULED

51:10 that you heard of the Dan Johnson study. Can you Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

51:11 just sort of give us an overview of what you know

51:12 about it? Re: [51:09 to 52:10]

51:13 A. I've just heard -- this is the Pltf Obj FRE 611; 402/403;

51:14 Albuquerque -- 701/702; 802. Plaintiffs MIL

51:15 Q. Yeah. #1, 2, 16, 21.

51:16 A. -- study. I've -- I've just heard -- I

51:17 work with the -- the acoustic engineers that refer

51:18 back to this study based on their work for

51:19 the -- on AHAAH model for determining health hazard

51:20 assessment and risks, and -- and that's really what

51:21 I know about it.

52:01 Q. Okay.

52:02 A. It was a -- it was a blast study on human

52:03 subjects.

52:04 Q. Impulse noise study?

52:05 A. Impulse noise study, yeah.

52:06 - 52:10 Merkley, LTC John A. (2020-02-26) 0:07

52:06 Q. Using nonlinear earplugs? Re: [51:09 to 52:10] SUSTAINED

52:07 MR. BUCHANAN: Objection to form and Pltf Obj 602

52:08 foundation.

52:09 THE WITNESS: Well, I -- I didn't -- I Re: [51:09 to 52:10]

52:10 don't -- I just knew it was a blast study. Pltf Obj FRE 611; 402/403;

701/702; 802. Plaintiffs MIL

#1, 2, 16, 21.

Re: [52:06 to 52:10]

Def Obj 602

52:12 - 54:07 Merkley, LTC John A. (2020-02-26) 2:09

52:12 Q. On page 4 -- IV, page 5, there's a Figure Re: [52:12 to 54:07] Re: [52:12 to 54:07] Re: [52:12 to 54:07] OVERRULED

52:13 IV-2 that compares the Rucker Plug to French No. 1 Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

52:14 Plug with respect to percent of unacceptable TTS

52:15 versus peek level, do you see that? Re: [52:12 to 54:07]

52:16 A. Yes. Pltf Obj FRE 402/403; 611;

52:17 Q. What does TTS mean? speculation; conjecture;

52:18 A. Temporary threshold shift. 701/702; 802. Plaintiffs MIL

52:19 Q. So, that means essentially that someone's #1, 2, 16, 21.

52:20 hearing shifts temporarily and responds to an

52:21 exposure to noise?

53:01 MR. BUCHANAN: Objection to form.

53:02 THE WITNESS: Yes.

53:03 BY MR. WASDIN:

53:04 Q. And then there's data in the -- the chart

53:05 above that plots out how the French No. 1 and the

53:06 Rucker Plug performed as a measure of percent of

Page 14 of 70

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53:07 unacceptable TTS?

53:08 A. Yes.

53:09 Q. And it looks like that data tracks their

53:10 performance up through 193 decibels at various

53:11 numbers of shots fired?

53:12 MR. BUCHANAN: Objection to form and

53:13 foundation. Leading.

53:14 THE WITNESS: Yes.

53:15 BY MR. WASDIN:

53:16 Q. And if you track, you can see on the

53:17 right that the French No. 1 Plug, the plug with the

53:18 UltraFit and the ISL filter, is tracked on two

53:19 metrics using the solid line; once at six shots

53:20 fired and then once at 100 shots fired, right?

53:21 A. Correct.

54:01 Q. And at six shots fired at 190 decibels,

54:02 the French No. 1 Plug showed ten percent of

54:03 unacceptable TTS?

54:04 MR. BUCHANAN: Objection to form.

54:05 THE WITNESS: If that is at the ten

54:06 percent mark, and it appears to be close to ten

54:07 percent, then, yes.

56:03 - 56:21 Merkley, LTC John A. (2020-02-26) 1:46

56:03 Q. The section that starts on V-1 is titled Re: [56:03 to 56:21] Re: [56:03 to 56:21] Re: [56:03 to 57:02] OVERRULED

56:04 Conclusions, right, at the top? Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

56:05 A. Yes.

56:06 Q. And then there's a section for the Re: [56:03 to 57:02]

56:07 Nonlinear Earplug Study below that, right? Pltf Obj FRE 402/403;

56:08 A. Correct. speculation; 611; 701/702;

56:09 Q. And I'm going to start with the second 802. Plaintiffs MIL #1, 2,

56:10 paragraph for the nonlinear earplug study, and 15,16.

56:11 you'll have to track me over that page number

56:12 oddity, but it says, like the perforated plug of

56:13 the previous study, the nonlinear plug designed at

56:14 Fort Rucker was inadequate. Perhaps with

56:15 additional subjects, the plug might be safe for

56:16 shots at 175 dB and below; however, like the

56:17 perforated plug, they made it difficult to

56:18 understand speech and windy conditions; thus, there

56:19 is no valid reason to use them, did I read that

56:20 right?

56:21 A. Yes.

57:06 - 57:12 Merkley, LTC John A. (2020-02-26) 0:20

57:06 Q. And then the next paragraph Re: [57:06 to 57:12] Re: [57:06 to 57:12] Re: [57:06 to 57:12] OVERRULED

57:07 talks -- says, the nonlinear plug that used a Pltf Obj Foundation; 602 OVERRULED Pltf Obj 602

57:08 special filter designed in France performed better

57:09 and may be a satisfactory solution; however, not Re: [57:06 to 57:12]

57:10 enough subjects were exposed to provide a Pltf Obj FRE 402/403;

57:11 definitive answer, did I read that right? speculation; 611; 701/702;

Page 15 of 70

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 16 of 94
57:12 A. Yes. 802. Plaintiffs MIL #1, 2,

15,16.

58:02 - 58:15 Merkley, LTC John A. (2020-02-26) 1:48

58:02 Q. So, again, just to sort of -- I'm going Re: [58:02 to 58:12] OVERRULED

58:03 to hand you a document I have marked Exhibit 5, and Pltf Obj FRE 402/403;

58:04 to level set our chronology here, the Johnson blast speculation; 602; 611;

58:05 study, the Albuquerque study, that was -- the front 701/702; 802. Plaintiffs MIL

58:06 of that was dated 1996, correct? #1, 2, 15,16.

58:07 A. Correct. Right.

58:08 Q. And then if you turn -- if you look at

58:09 Exhibit 5, it's titled, Agenda DoD Hearing

58:10 Conservation Working Group Meeting 9 April 1998,

58:11 right?

58:12 A. Correct.

58:13 Q. What is the DoD or what was the DoD

58:14 Hearing Conservation Working Group, if you know, at

58:15 that time period?

58:18 - 59:04 Merkley, LTC John A. (2020-02-26) 0:29

58:18 THE WITNESS: Well, I know what the DoD

58:19 Hearing Conservation Working Group is.

58:20 BY MR. WASDIN:

58:21 Q. Okay. What is it?

59:01 A. It is a -- a working group of hearing

59:02 health professionals across the DoD that respond to

59:03 and address issues related to hearing conservation

59:04 in the Department of Defense.

59:12 - 60:03 Merkley, LTC John A. (2020-02-26) 1:54

59:12 Q. If you turn to it looks like on the first Re: [59:12 to 59:17] OVERRULED

59:13 page, the agenda for the April 9th, 1998 meeting, Pltf Obj FRE 802; 805; 602;

59:14 there's a highlighted piece in the middle, number 611; 701/702

59:15 4. It's the Tactical Combat Arms Nonlinear Plug

59:16 (Dr. Doug Ohlin USACHPPM), do you see that?

59:17 A. Yes.

59:18 Q. Who is Doug Ohlin?

59:19 A. Doug Ohlin is -- was a Ph.D. audiologist

59:20 assigned to the Army Center for Health Promotion

59:21 and Preventive Medicine as the Hearing Conservation

60:01 Program manager, and I believe at this time, he was

60:02 also the chair of the DoD Hearing Conservation

60:03 Working Group.

60:04 - 60:09 Merkley, LTC John A. (2020-02-26) 0:18

60:04 Q. Do you know what dates Mr. Ohlin would Re: [60:04 to 61:02] SUSTAINED

60:05 have held that position? Pltf Obj FRE 402/403;

60:06 A. Not exactly. He -- he was in that speculation; 602; 611;

60:07 position when I came on active duty as an 701/702; 802. Plaintiffs MIL

60:08 audiologist, and I -- I don't remember when #1, 2, 15,16.

60:09 he -- he retired.

Page 16 of 70

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 17 of 94
60:10 - 61:02 Merkley, LTC John A. (2020-02-26) 0:28

60:10 Q. Do you know what Mr. Ohlin's Re: [60:04 to 61:02] SUSTAINED

60:11 responsibilities were in that position in the late Pltf Obj FRE 402/403;

60:12 1990s? speculation; 602; 611;

60:13 MR. BUCHANAN: Objection to form and 701/702; 802. Plaintiffs MIL

60:14 foundation. #1, 2, 15,16.

60:15 THE WITNESS: Not -- not exactly.

60:16 BY MR. WASDIN: Re: [60:10 to 61:02] SUSTAINED

60:17 Q. Do you know whether Mr. Ohlin would have Def Obj 602

60:18 had the responsibility to evaluate hearing

60:19 protection devices as a member of the DoD Hearing

60:20 Conservation Working Group?

60:21 MR. BUCHANAN: Same objections.

61:01 THE WITNESS: I -- I don't know if that

61:02 was his responsibility.

61:13 - 62:07 Merkley, LTC John A. (2020-02-26) 1:42

61:13 Q. The memorandum is on Department of Army Re: [61:13 to 62:15] SUSTAINED

61:14 letterhead? Pltf Obj FRE 402/403;

61:15 A. Right. It's for the Department of the speculation; 602; 611;

61:16 Army Research Laboratory. 701/702; 802. Plaintiffs MIL

61:17 Q. ARL? #1, 2, 15,16.

61:18 A. Right.

61:19 Q. Yeah. It's dated 19 March 1997, right?

61:20 A. Correct.

61:21 Q. And the Subject is, trip report on Visit

62:01 to the French-German Institute at Saint-Louis (ISL)

62:02 France 5 to 23 December 1996?

62:03 A. Correct.

62:04 Q. And if you just flip a few pages over to

62:05 page 6 of that memo, it's signed by a gentleman

62:06 named Georges Garinther?

62:07 A. Um-hum.

62:08 - 62:15 Merkley, LTC John A. (2020-02-26) 0:25

62:08 Q. Do you know who Georges Garinther was? Re: [61:13 to 62:15] SUSTAINED

62:09 A. I've heard his name associated with other Pltf Obj FRE 402/403;

62:10 studies, but I -- I don't know him exactly, what speculation; 602; 611;

62:11 his responsibilities were. 701/702; 802. Plaintiffs MIL

62:12 Q. Was he a member of the U.S. Army? #1, 2, 15,16.

62:13 A. I -- I don't believe so. I -- I think he

62:14 was a researcher, but I don't think he was on

62:15 active duty, that -- that I recall.

63:02 - 64:12 Merkley, LTC John A. (2020-02-26) 2:46

63:02 Q. Okay. If you go to -- flip back, sir, to Re: [63:02 to 64:12] Re: [63:02 to 64:12] Re: [63:02 to 64:12] SUSTAINED

63:03 page 2 of the memo -- by the way, to -- to level Pltf Obj Foundation; 602; 611 SUSTAINED Pltf Obj Foundation; 602; 611

63:04 set again our time period, this is -- he's writing

63:05 about a trip report that was at the end of 1996, so Re: [63:02 to 64:12]

63:06 after the Johnson blast study we talked about? Pltf Obj FRE 402/403;

Page 17 of 70

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 18 of 94
63:07 A. Right. Okay. speculation; 701/702; 802;

63:08 Q. And on paragraph 5 he writes, In view of 806. Plaintiffs MIL #1, 2,

63:09 the potential positive impact of nonlinear 15,16.

63:10 earplugs, Mr. Garinther participated in a series of

63:11 experiments conducted by ISL in December 1996 at a

63:12 large French Army training area near the city of

63:13 Nimes, France. This study is preliminary to a more

63:14 complete study being planned for May of 1997 using

63:15 a larger number of subjects and exposing the

63:16 soldiers to large caliber mortars. The experiments

63:17 conducted in December consisted of, and then

63:18 there's a list of them, do you see that?

63:19 A. Um-hum.

63:20 Q. So, it looks like in 1996, Mr. Garinther

63:21 has gone to ISL in France to further test nonlinear

64:01 earplugs with the ISL filter?

64:02 MR. BUCHANAN: Objection to the leading

64:03 and foundation.

64:04 THE WITNESS: Yes.

64:05 BY MR. WASDIN:

64:06 Q. And then if you turn to the next page,

64:07 page 3, paragraph 6 says, preliminary results prior

64:08 to a detailed analysis indicate that the nonlinear

64:09 earplug protected hearing as effectively as the

64:10 Max-Lyte earplug that is normally worn by French

64:11 soldiers, did I read that right?

64:12 A. Yes.

65:06 - 65:16 Merkley, LTC John A. (2020-02-26) 1:31

65:06 Q. If you go to page 5, one over, paragraph Re: [65:06 to 65:18] SUSTAINED

65:07 11, Mr. Garinther writes, I have discussed these Pltf Obj FRE 402/403;

65:08 results with Felix Sachs and Doug Ohlin of CHPPM, speculation; 602; 611;

65:09 who also believe that nonlinear earplugs should be 701/702; 802, 805.

65:10 included as a standard or specialized earplug in

65:11 the military, did I read that right?

65:12 A. Yes.

65:13 Q. Who is Felix Sachs?

65:14 A. Felix Sachs was an acoustical or a noise

65:15 control engineer assigned to the Center for Health

65:16 Promotion and Preventive Medicine.

65:17 - 65:18 Merkley, LTC John A. (2020-02-26) 0:03

65:17 Q. A member of the Army? Re: [65:06 to 65:18] SUSTAINED

65:18 A. No. He was a civilian. Pltf Obj FRE 402/403;

speculation; 602; 611;

701/702; 802, 805.

66:03 - 69:16 Merkley, LTC John A. (2020-02-26) 4:49

66:03 Q. So, in 1996, this report indicates Re: [66:03 to 69:16] Re: [66:03 to 69:16] Re: [66:03 to 69:16] SUSTAINED

66:04 essentially that Mr. Garinther went to France, Pltf Obj Foundation; 602; 611 SUSTAINED Pltf Obj Foundation; 602; 611

66:05 tested a nonlinear earplug and discussed the

Page 18 of 70

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66:06 results of that with Felix Sachs and Doug Ohlin? Re: [66:03 to 70:14]

66:07 MR. BUCHANAN: Objection to form. Pltf Obj FRE 402/403;

66:08 THE WITNESS: Yes. speculation; 701/702 improper

66:09 BY MR. WASDIN: opinion testimony; 802; 805.

66:10 Q. If you turn the page again, there's a Plaintiffs MIL #1, 2, 15,16.

66:11 second memorandum, and this one is dated 2 March

66:12 1998.

66:13 A. Okay.

66:14 Q. This memorandum is also on Department of

66:15 Army letterhead or --

66:16 A. That's the Research Laboratory

66:17 letterhead.

66:18 Q. Yes.

66:19 A. Correct.

66:20 Q. And it relates to the visit to the

66:21 French-German Institute at Saint-Louis 21 to 29

67:01 November 1997, right?

67:02 A. Correct.

67:03 Q. So, essentially a year later -- and if

67:04 you flip over a page, this one is also signed by

67:05 Mr. Georges Garinther, right?

67:06 A. Yes.

67:07 Q. Going back to page 2. The middle

67:08 paragraph on page 2 says that, during 24 to 28

67:09 November 1997, the undersigned participated in

67:10 testing of this device using French soldiers firing

67:11 mortars at Canjuers, France. During 1996,

67:12 Mr. Garinther also took part in the evaluation of

67:13 this earplug to determine its hearing protective

67:14 qualities when firing the FAMAS, the French

67:15 equivalent to the M16, when detecting and

67:16 localizing various military sounds and when

67:17 listening to speech, did I read that right?

67:18 A. Yes.

67:19 Q. So, this memo is detailing that a year

67:20 after his first trip to France, Mr. Garinther went

67:21 back to ISL for additional testing on the nonlinear

68:01 earplug they were using?

68:02 MR. BUCHANAN: Objection to the leading

68:03 and foundation.

68:04 THE WITNESS: Yes.

68:05 BY MR. WASDIN:

68:06 Q. And if you go to page 4, there's already

68:07 some highlighting on the document. I -- I think it

68:08 came this way to us from when was it was produced

68:09 by the government, but the highlighted paragraph

68:10 reads, a preliminary analysis of the data indicates

68:11 that none of the soldiers had a hearing loss

68:12 exceeding the criterion of acceptability after 24

68:13 hours and that none of the soldiers incurred a TTS

68:14 after five minutes that exceeded the CHABA

Page 19 of 70

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 20 of 94
68:15 criterion. This analysis indicates that nonlinear

68:16 earplugs provide acceptable hearing protection

68:17 especially when one considers that the alternative

68:18 presently being used is to not wear hearing

68:19 protection, did I read that right?

68:20 A. Yes.

68:21 Q. And then he goes on to say, as a result

69:01 of this experiment, the French Army is presently

69:02 issuing a request for proposal for 300,000

69:03 earplugs. It's probable that the earplug would be

69:04 manufactured by the same company that manufactures

69:05 the EAR earplug, do you see that?

69:06 A. Yes.

69:07 Q. Going down in that paragraph,

69:08 Mr. Garinther talks about different alternatives

69:09 for how the nonlinear earplug might end up being

69:10 designed. Do you see the three bullets at the

69:11 bottom?

69:12 A. Yes.

69:13 Q. So, he states, since the nonlinear

69:14 earplug provides essentially no attenuation against

69:15 high level steady-state noise, such as that

69:16 produced by armored vehicles, it would still be

69:17 - 70:14 Merkley, LTC John A. (2020-02-26) 1:39

69:17 necessary to provide the soldiers with normal Re: [66:03 to 70:14] OVERRULED

69:18 earplugs. The configuration issue centers about Pltf Obj FRE 402/403;

69:19 providing the soldiers with, and then there are speculation; 701/702 improper

69:20 three options in bullets, right? opinion testimony; 802; 805.

69:21 A. Correct. Plaintiffs MIL #1, 2, 15,16.

70:01 Q. The first is a nonlinear earplug, and

70:02 then a separate normal earplug, right? So, that's

70:03 essentially two different plugs?

70:04 A. Correct.

70:05 Q. The second one is a nonlinear earplug in

70:06 which the two tiny holes can be closed or covered,

70:07 right?

70:08 A. (Nodding head yes.)

70:09 Q. Did I read that right?

70:10 A. Yes.

70:11 Q. And then the third one is a reversible

70:12 earplug with a nonlinear earplug at one end and a

70:13 normal earplug at the other, right?

70:14 A. Correct.

71:08 - 71:12 Merkley, LTC John A. (2020-02-26) 0:10

71:08 Q. Let me try my question again. That's a Re: [71:08 to 71:16] OVERRULED

71:09 good clarification. Def Obj 602, outside the scope

71:10 In 199- -- March 2nd, 1998, the Army is of Touhy

71:11 considering which of these three configurations

Page 20 of 70

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71:12 that it wants?

71:15 - 71:16 Merkley, LTC John A. (2020-02-26) 0:02

71:15 THE WITNESS: Yeah, I don't -- I don't Re: [71:08 to 71:16] OVERRULED

71:16 know that the Army was considering this. Def Obj 602, outside the scope

of Touhy

71:20 - 72:13 Merkley, LTC John A. (2020-02-26) 1:38

71:20 Q. Okay. And then Mr. Garinther goes on Re: [71:20 to 72:13] Re: [71:20 to 72:13] Re: [71:20 to 72:13] OVERRULED

71:21 with his recommendation at the end, and he says, Pltf Obj 611 OVERRULED Pltf Obj 611

72:01 this is on page 5, Recommendation: It's the

72:02 recommendation of the undersigned that this Re: [71:20 to 72:13]

72:03 nonlinear earplug be considered for use by the Army Pltf Obj FRE 402/403;

72:04 since its use by weapon crews will reduce hearing speculation; foundation; 602;

72:05 loss among soldiers while permitting them to hear 611; 701/702; 802; 805.

72:06 voice commands and combat-related sounds, did I Plaintiffs MIL #1, 2, 15,16.

72:07 read that right?

72:08 A. Yes.

72:09 Q. So, in 1998 at least, Mr. Garinther is

72:10 recommending to the Army that they move forward

72:11 with a nonlinear earplug?

72:12 MR. BUCHANAN: Objection to form.

72:13 THE WITNESS: Yes.

72:15 - 73:03 Merkley, LTC John A. (2020-02-26) 1:35

72:15 Q. Do you -- do you know whether subsequent Re: [72:15 to 73:03] Re: [72:15 to 73:03] Re: [72:15 to 73:03] OVERRULED

72:16 to these trips to ISL France by Mr. Garinther the Pltf Obj Foundation; 602; 611 SUSTAINED Pltf Obj Foundation; 602; 611

72:17 military requested that Aearo manufacture a

72:18 nonlinear earplug for use in the military? Re: [72:15 to 73:03]

72:19 MR. BUCHANAN: Objection to the form and Pltf Obj FRE 402/403;

72:20 foundation. speculation; foundation;

72:21 THE WITNESS: So, do I know? I've -- 701/702 improper opinion

73:01 I've have seen documents that indicate that, yes, testimony; 802; 805.

73:02 they requested that from Aearo, but I -- other than Plaintiffs MIL #15, 16.

73:03 that, I don't know.

73:05 - 74:02 Merkley, LTC John A. (2020-02-26) 1:53

73:05 Q. You didn't participate in those?

73:06 A. I did not participate in those.

73:07 Q. What does your review of documents

73:08 indicate the military requested from Aearo in a

73:09 nonlinear earplug?

73:10 A. I don't -- I don't remember.

73:11 Q. Okay. Have you ever spoken to Doug Ohlin

73:12 about whether he requested a dual-ended, nonlinear

73:13 earplug from Aearo?

73:14 A. No.

73:15 Q. Do you --

73:16 A. Not that I recall.

73:17 Q. Have you ever spoken to anyone in the

73:18 military about whether they requested a dual-ended,

Page 21 of 70

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73:19 nonlinear earplug from Aearo?

73:20 A. No. When I came in, the dual-ended

73:21 earplug was -- was already produced, so I -- I

74:01 don't know, you know, all that went on to get that

74:02 dual-ended earplug.

75:13 - 75:21 Merkley, LTC John A. (2020-02-26) 0:27

75:13 Q. LTC Merkley, what we have marked as Re: [75:13 to 75:21] OVERRULED

75:14 Exhibit 6 is a series of email communications that Pltf Obj FRE 611; 602;

75:15 were produced to us by the -- the military in this 402/403; foundation; 802; 805.

75:16 case, and I believe they're sort of out of order

75:17 and just kind of --

75:18 A. Um-hum.

75:19 Q. -- they don't track a -- a single

75:20 conversation over a linear period of time, but I'll

75:21 try to direct you around as best I can.

76:12 - 77:06 Merkley, LTC John A. (2020-02-26) 1:44

76:12 Q. Okay. If you turn to the second page of Re: [76:12 to 78:21] OVERRULED

76:13 the Exhibit 6 and go to the bottom email, there's Pltf Obj FRE 402/403;

76:14 an email from Doug Ohlin to a few other people foundation; speculation; 602;

76:15 dated April 13th, 1999, do you see that? 611; 701/702 improper opinion

76:16 A. Yes. testimony; 802; 805.

76:17 Q. Who is Wayne -- the recipients are Wayne Plaintiffs MIL #1, 2, 15,16.

76:18 Loyborg, David Chandler, and then I'm -- I'm not

76:19 sure, there's just an email address there, but who

76:20 is Wayne Loyborg?

76:21 A. I've -- I've heard his name. I believe

77:01 he's an audiologist.

77:02 Q. Civilian or in the military?

77:03 A. I -- I don't know.

77:04 Q. And who is David Chandler?

77:05 A. David Chandler was an Army active duty

77:06 audiologist.

77:07 - 77:09 Merkley, LTC John A. (2020-02-26) 0:08

77:07 Q. And do you recognize that last email Re: [76:12 to 78:21] OVERRULED

77:08 address? Pltf Obj FRE 402/403;

77:09 A. I -- I don't. foundation; speculation; 602;

611; 701/702 improper opinion

testimony; 802; 805.

Plaintiffs MIL #1, 2, 15,16.

77:10 - 77:12 Merkley, LTC John A. (2020-02-26) 0:04

77:10 Q. And then below that, there's Martin Re: [76:12 to 78:21] OVERRULED

77:11 Robinette? Pltf Obj FRE 402/403;

77:12 A. Right. foundation; speculation; 602;

611; 701/702 improper opinion

testimony; 802; 805.

Plaintiffs MIL #1, 2, 15,16.

Page 22 of 70

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77:13 - 77:14 Merkley, LTC John A. (2020-02-26) 0:06

77:13 Q. Who's Martin Robinette? Re: [76:12 to 78:21] OVERRULED

77:14 A. He is an active duty Army audiologist. Pltf Obj FRE 402/403;

foundation; speculation; 602;

611; 701/702 improper opinion

testimony; 802; 805.

Plaintiffs MIL #1, 2, 15,16.

77:15 - 78:04 Merkley, LTC John A. (2020-02-26) 1:43

77:15 Q. Okay. In April of 1999, Doug Ohlin Re: [76:12 to 78:21] OVERRULED

77:16 writes to that group and says, the production Pltf Obj FRE 402/403;

77:17 samples Aearo sent me were at least a quarter of an foundation; speculation; 602;

77:18 inch too long. I took the liberty in cutting down 611; 701/702 improper opinion

77:19 the samples I'm sending you under a separate cover. testimony; 802; 805.

77:20 The production samples didn't fit in the standard Plaintiffs MIL #1, 2, 15,16.

77:21 earplug hearing case, didn't take advantage of a

78:01 design that could minimize wind noise and, most

78:02 importantly, were hit by the Kelvar helmet chin

78:03 strap when it was fastened, did I read that right?

78:04 A. Yes.

78:05 - 78:09 Merkley, LTC John A. (2020-02-26) 0:19

78:05 Q. If you turn back a page to the front, Re: [76:12 to 78:21] OVERRULED

78:06 there's an email from Brian Myers at a Compuserve Pltf Obj FRE 402/403;

78:07 email address to Doug Ohlin dated April 8th, 1999, foundation; speculation; 602;

78:08 do you see that? 611; 701/702 improper opinion

78:09 A. Um-hum. testimony; 802; 805.

Plaintiffs MIL #1, 2, 15,16.

78:10 - 78:11 Merkley, LTC John A. (2020-02-26) 0:04

78:10 Q. Do you know who Brian Myers is? Re: [76:12 to 78:21] OVERRULED

78:11 A. I don't. Pltf Obj FRE 402/403;

foundation; speculation; 602;

611; 701/702 improper opinion

testimony; 802; 805.

Plaintiffs MIL #1, 2, 15,16.

78:12 - 78:21 Merkley, LTC John A. (2020-02-26) 0:27

78:12 Q. Okay. The email says, Doug, and then the Re: [76:12 to 78:21] OVERRULED

78:13 second paragraph says, I spoke with Dick Knauer who Pltf Obj FRE 402/403;

78:14 believes that we can probably shorten the plug by foundation; speculation; 602;

78:15 the one-quarter inch required to fit your current 611; 701/702 improper opinion

78:16 container. The designer will look at this when he testimony; 802; 805.

78:17 gets back from vacation on the 19th. It may help Plaintiffs MIL #1, 2, 15,16.

78:18 to expedite the redesign if we could get a storage

78:19 container from you, and then he gives the contact

78:20 information for Dick Knauer, do you see that?

78:21 A. Um-hum.

79:08 - 79:15 Merkley, LTC John A. (2020-02-26) 0:20

79:08 Q. Okay. Prior to today, did you know that

Page 23 of 70

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79:09 the Combat Arms Version 2 was shortened a quarter

79:10 of an inch?

79:11 A. No.

79:12 Q. Okay. You had no personal involvement in

79:13 any discussions regarding whether to shorten the

79:14 Combat Arms Version 2?

79:15 A. No.

79:16 - 80:06 Merkley, LTC John A. (2020-02-26) 1:31

79:16 Q. If you flip to the -- what is the third Re: [79:16 to 80:06] OVERRULED

79:17 page of Exhibit 6, you'll see another email from Pltf Obj FRE 402/403;

79:18 Doug Ohlin, and this one is dated approximately one Foundation; Speculation; 602;

79:19 month later in May of 1999, do you see that -- 611; 701/702; 802/805.

79:20 A. Um-hum.

79:21 Q. -- at the bottom? And it says, Belva,

80:01 the manufacturer, Aearo, got back to us with

80:02 acceptable production samples. Do you require a

80:03 pair? I'm curious as to the status of our request.

80:04 Is there anything you need, Doug? Did I read that

80:05 right?

80:06 A. Yes.

80:07 - 80:09 Merkley, LTC John A. (2020-02-26) 0:02

80:07 Q. Who is -- are you familiar with someone

80:08 named Belva Hoffman?

80:09 A. I am not, no.

80:16 - 81:07 Merkley, LTC John A. (2020-02-26) 1:45

80:16 Q. LTC Merkley, we've given you a document

80:17 that we marked as Exhibit 7, which is titled

80:18 ARL-HRED Hearing Protection Device Assess- --

80:19 Assessments in Reverberating Environments, do you

80:20 see that?

80:21 A. Yes.

81:01 Q. It was prepared by the Army Research

81:02 Laboratory Hearing Research & Engineering

81:03 Directorate; is that right?

81:04 A. Yes.

81:05 Q. What is the ARL-HRED?

81:06 A. It's a -- a division within the Army

81:07 Research Laboratory.

81:08 - 81:11 Merkley, LTC John A. (2020-02-26) 0:13

81:08 Q. And at the very top, it's a little faded, Re: [81:08 to 82:11] OVERRULED

81:09 but it looks like this was a report that was Pltf Obj FRE 402/403;

81:10 prepared about two months after the Doug Ohlin foundation; speculation; 602;

81:11 email we just looked at, but on June 30th, 1999? 611; 701/702; 802.

81:19 - 82:09 Merkley, LTC John A. (2020-02-26) 1:34

81:19 THE WITNESS: Yes. Re: [81:08 to 82:11] OVERRULED

81:20 BY MR. WASDIN: Pltf Obj FRE 402/403;

Page 24 of 70

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81:21 Q. The -- looking at the first page, there's foundation; speculation; 602;

82:01 a paragraph titled, Overview, do you see that? 611; 701/702; 802.

82:02 A. Yes.

82:03 Q. And it says, the ARL Human Research &

82:04 Engineering Directorate initiated a quick response

82:05 effort to collect data on several hearing

82:06 protection devices in support of John King, the

82:07 AMC-FAST Science Advisor at SETAF, Vicenza, Italy,

82:08 did I read that right?

82:09 A. Yes.

82:10 - 82:11 Merkley, LTC John A. (2020-02-26) 0:07

82:10 Q. Do you know Mr. King? Re: [81:08 to 82:11] OVERRULED

82:11 A. I don't. Pltf Obj FRE 402/403;

foundation; speculation; 602;

611; 701/702; 802.

82:20 - 83:04 Merkley, LTC John A. (2020-02-26) 0:14

82:20 Q. And then the next sentence goes on to

82:21 say, the primary objective of the effort was to

83:01 collect data on the French design Combat Arms

83:02 Earplug being manufactured in the U.S. by the Aearo

83:03 Company, Indianapolis, Indiana, right?

83:04 A. Correct.

83:05 - 83:07 Merkley, LTC John A. (2020-02-26) 0:06

83:05 Q. Okay. So, in June of 1999, at least, ARL Re: [83:05 to 83:07] Re: [83:05 to 83:07] Re: [83:05 to 83:13] SUSTAINED

83:06 is running its own testing on the Combat Arms Pltf Obj 602; 611; Foundation SUSTAINED Pltf Obj Speculation; 701/702;

83:07 Earplug? 802; 403.

Re: [83:05 to 83:07]

Pltf Obj 602; 611; Foundation

83:10 - 83:10 Merkley, LTC John A. (2020-02-26) 0:00

83:10 THE WITNESS: Yes. Re: [83:10 to 83:10] Re: [83:10 to 83:10] Re: [83:05 to 83:13] SUSTAINED

Pltf Obj 602; 611; Foundation SUSTAINED Pltf Obj Speculation; 701/702;

802; 403.

Re: [83:10 to 83:10]

Pltf Obj 602; 611; Foundation

83:12 - 84:12 Merkley, LTC John A. (2020-02-26) 1:22

83:12 Q. That's what this document indicates? Re: [83:05 to 83:13] OVERRULED

83:13 A. That's what it says, yes. Pltf Obj Speculation; 701/702;

83:14 Q. If you flip over to page 2, there's a 802; 403.

83:15 section titled, Data Analysis and Results -- I'm

83:16 sorry, page 4 is what I was trying to go after. Re: [83:20 to 85:11]

83:17 Operational Significance is the section. Do you Pltf Obj Speculation;

83:18 see the Operational Significance paragraph? foundation; 602; 611 vague;

83:19 A. Yes. 701/702 improper opinion

83:20 Q. It states, the results of this testimony; 402/403; 802;

Page 25 of 70

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83:21 assessment, as depicted in Table 1, suggest that mischaracterizes evidence;

84:01 for the protective device of primary interest to scope.

84:02 the AMC-FAST Advisor, the Combat Arms Earplug, when

84:03 properly fitted will provide acceptable protection

84:04 for most situations when firing up to 276 rounds of

84:05 M16 556 ball ammunition in a hallway-scaled MOUT

84:06 environment (the worst case condition ARL tested in

84:07 the Match-type MOUT training facility); is that

84:08 right?

84:09 A. Correct.

84:10 Q. Can you tell from that description what

84:11 type of tests they were running on the Combat Arms

84:12 at that point in time?

84:15 - 84:18 Merkley, LTC John A. (2020-02-26) 0:07

84:15 THE WITNESS: From this description, yes. Re: [83:20 to 85:11] OVERRULED

84:16 BY MR. WASDIN: Pltf Obj Speculation;

84:17 Q. And what was it? foundation; 602; 611 vague;

84:18 A. They were -- 701/702 improper opinion

testimony; 402/403; 802;

mischaracterizes evidence;

scope.

84:21 - 85:11 Merkley, LTC John A. (2020-02-26) 1:44

84:21 THE WITNESS: Okay. Conducting Re: [84:21 to 85:11] Re: [84:21 to 85:11] Re: [83:20 to 85:11] OVERRULED

85:01 a -- well, I would say a health-hazard assessment Pltf Obj 602; 611; Foundation OVERRULED; 602 & 611 Pltf Obj Speculation;

85:02 of that earplug firing or under worst-case OBJECTIONS WITHDRAWN, foundation; 602; 611 vague;

85:03 conditions in a closed-room, MOUT-type environment.

3/11/2021 701/702 improper opinion

85:04 BY MR. WASDIN: testimony; 402/403; 802;

85:05 Q. And can you tell what the results were, mischaracterizes evidence;

85:06 at least at a high level here? scope.

85:07 A. According to this, it says that they give

85:08 safe -- you know, what -- that the hearing

85:09 protector provides acceptable protection for firing

85:10 up to 276 rounds of ammunition -- of 556

85:11 ammunition.

86:03 - 86:06 Merkley, LTC John A. (2020-02-26) 0:09

86:03 Q. Okay. Well, at least in this case, it Re: [86:03 to 86:17] OVERRULED

86:04 looks like the military, ARL was conducting testing Pltf Obj 602, speculation;

86:05 of the Combat Arms Earplug in June of 1999? 611; 701/702 improper opinion

86:06 A. Right. testimony; 802; 402/403.

Plaintiffs MIL # 1, 2, 16, 18.

86:08 - 86:08 Merkley, LTC John A. (2020-02-26) 0:00

86:08 THE WITNESS: Correct. Re: [86:03 to 86:17] OVERRULED

Pltf Obj 602, speculation;

611; 701/702 improper opinion

testimony; 802; 402/403.

Page 26 of 70

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Plaintiffs MIL # 1, 2, 16, 18.

86:10 - 86:11 Merkley, LTC John A. (2020-02-26) 0:03

86:10 Q. And the determination was essentially Re: [86:10 to 86:11] Re: [86:10 to 86:11] Re: [86:03 to 86:17] OVERRULED

86:11 that it works in the worst-case scenario? Pltf Obj 602; 611; Foundation OVERRULED Pltf Obj 602, speculation;

611; 701/702 improper opinion

testimony; 802; 402/403.

Plaintiffs MIL # 1, 2, 16, 18.

Re: [86:10 to 86:11] OVERRULED

Pltf Obj misstates the

document

Re: [86:10 to 86:11] OVERRULED

Pltf Obj 602; 611; Foundation

86:13 - 86:17 Merkley, LTC John A. (2020-02-26) 1:36

86:13 THE WITNESS: For up to -- up to a Re: [86:03 to 86:17] OVERRULED

86:14 certain point. Pltf Obj 602, speculation;

86:15 BY MR. WASDIN: 611; 701/702 improper opinion

86:16 Q. Up to 276 rounds of M16 fire? testimony; 802; 402/403.

86:17 A. Correct. Plaintiffs MIL # 1, 2, 16, 18.

87:02 - 87:18 Merkley, LTC John A. (2020-02-26) 1:55

87:02 Q. LTC Merkley, I've handed you a document Re: [87:02 to 87:18] OVERRULED

87:03 that we have marked as Exhibit 8, which is titled, Pltf Obj Foundation;

87:04 Memorandum for Staff Director, Joint Readiness speculation; 602; 402/403;

87:05 Clinical Advisory Board at Fort Detrick, do you see 802; 701/702.

87:06 that?

87:07 A. Yes.

87:08 Q. In the Subject of that document is a

87:09 request for national stock number in bulk purchase

87:10 of the Combat Arms Earplug, right?

87:11 A. Yes.

87:12 Q. Paragraph 2 on the first page states that

87:13 the Department of Defense Hearing Conservation

87:14 Working Group has recommended that a nonlinear

87:15 earplug configured to the specifications of the

87:16 enclosed production samples be adopted for military

87:17 use, did I read that right?

87:18 A. Yes.

87:19 - 88:06 Merkley, LTC John A. (2020-02-26) 0:25

87:19 Q. Have you ever seen a memorandum like this

87:20 one before, a request for a national stock number

87:21 and purchase of hearing protection?

88:01 A. I have not seen that, no.

88:02 Q. Okay. Do you know what evaluation is

88:03 typically done by the DoD Hearing Conservation

88:04 Working Group, or others in the military, prior to

88:05 requesting a national stock number and purchase?

Page 27 of 70

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88:06 A. I'm not --

88:10 - 88:11 Merkley, LTC John A. (2020-02-26) 0:02

88:10 Q. You do not?

88:11 A. No, I don't.

88:17 - 88:19 Merkley, LTC John A. (2020-02-26) 0:04

88:17 Q. Sure. Doug Ohlin is -- is the person

88:18 listed in the signature block --

88:19 A. Correct.

89:10 - 89:16 Merkley, LTC John A. (2020-02-26) 0:22

89:10 Q. Okay. Attached to the request for Re: [89:10 to 89:16] Re: [89:10 to 89:16] Re: [89:10 to 89:18] OVERRULED

89:11 purchase is a Justification for a Nonlinear Earplug Pltf Obj 611 OVERRULED Pltf Obj 602; speculation;

89:12 (Combat Arms Earplug), right? foundation; vague; 802;

89:13 A. Um-hum. 701/702 improper opinion

89:14 Q. And you can skim it, but essentially, testimony.

89:15 it's just a write-up of the features and potential

89:16 usability of the Combat Arms plug? Re: [89:10 to 89:16] OVERRULED

Pltf Obj 611

89:18 - 89:18 Merkley, LTC John A. (2020-02-26) 0:06

89:18 THE WITNESS: Correct. Re: [89:10 to 89:18] OVERRULED

Pltf Obj 602; speculation;

foundation; vague; 802;

701/702 improper opinion

testimony.

89:20 - 90:15 Merkley, LTC John A. (2020-02-26) 1:52

89:20 Q. The final paragraph on the first page of

89:21 the justification discusses the American military's

90:01 contribution in the development effort of the

90:02 Combat Arms Earplug, right?

90:03 A. Yes.

90:04 Q. It discusses -- well, I'll just read it.

90:05 It says, the American military's contribution in

90:06 this development effort has been to recommend an

90:07 American-made earplug, the UltraFit to

90:08 hous- -- house the French filter, the color scheme

90:09 and blast overpressure testing. The single-sized

90:10 UltraFit should accommodate most of our Combat Arms

90:11 users. Moreover, thanks to French ergonomic

90:12 designers, a solution has been provided on how to

90:13 eliminate wind noise while adapting the earplug for

90:14 steady-state noise use, did I read that right?

90:15 A. Yes.

93:15 - 95:04 Merkley, LTC John A. (2020-02-26) 2:19

93:15 Q. Okay. We've talked a lot about Doug Re: [93:19 to 95:04] OVERRULED

93:16 Ohlin. I know you told me what his role was, but Pltf Obj FRE 802; 805; 611

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93:17 did you ever have interactions with him? vague questions calling for

93:18 A. I did. narrative answers and

93:19 Q. How did you interact with Mr. Ohlin? narrative answers given;

93:20 A. Well, I interacted with him. When I Nonresponsive answers;

93:21 first came on active duty, I came to the CHPPM to 402/403; conjecture;

94:01 teach a couple of hearing conservation technician Plaintiff's MIL #16, 17, 21.

94:02 courses. I interacted with him at -- at that time

94:03 just in -- as an instructor for a course that --

94:04 that they were -- they were holding at Aberdeen.

94:05 I met him at conferences and, you know,

94:06 received updates on the Army's Hearing Conservation

94:07 Program from him. That's about it.

94:08 Q. Was -- was Doug Ohlin a presenter at the

94:09 conferences that you went to with him?

94:10 A. Not usually. It was his staff that were

94:11 presenting. I -- I don't recall him ever being

94:12 a presenter in a presentation, other than I -- we

94:13 received instruction from him related to the wallet

94:14 cards and -- and the educational materials that

94:15 were being put out.

94:16 Q. For the Combat Arms plug?

94:17 A. For the Combat Arms Earplug. I -- I

94:18 remember that.

94:19 Q. So, you have had conversations with

94:20 Mr. Ohlin related to the wallet card and

94:21 instructions for use for the Combat Arms Earplug?

95:01 A. Yes.

95:02 Q. When did you talk to him about that?

95:03 A. Oh, I don't remember exactly. Between

95:04 200- -- probably 2001 and 2004 or '5.

95:05 - 95:18 Merkley, LTC John A. (2020-02-26) 1:05

95:05 Q. What were the context for those

95:06 conversations?

95:07 A. Oh, just at -- at the conference about,

95:08 you know, the -- how to get hearing protectors, how

95:09 to -- not -- not so much on how to fit them,

95:10 although I -- well, yeah. You know, we -- we got

95:11 instructions on how to order them, who to -- who to

95:12 order them from in terms of for -- for

95:13 government -- government sales and -- and then

95:14 issues related to -- early in their development

95:15 issues related to insufficient stock of that

95:16 particular hearing protector because of bulk

95:17 purchases from other services and what to do to get

95:18 hearing protectors.

95:19 - 96:01 Merkley, LTC John A. (2020-02-26) 1:36

95:19 Q. What was your role at the time?

95:20 A. I was the chief of the Army Hearing

95:21 Program at or the Army Hearing Conservation Program

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96:01 and Audiology Clinic at Fort Drum.

96:06 - 98:09 Merkley, LTC John A. (2020-02-26) 2:49

96:06 Q. LTC Merkley, we've handed you a document Re: [96:06 to 98:09] Re: [96:06 to 98:09] Re: [96:06 to 98:11] OVERRULED

96:07 marked Exhibit 9, and can you tell me if you Pltf Obj 602; 611 OVERRULED Pltf Obj FRE 802; 805;

96:08 recognize that? 402/403; foundation;

96:09 A. Yes. speculation; compound

96:10 Q. What is that? questions; 701/702; 704.

96:11 A. It's a wallet -- it's one of the wallet Plaintiff's MIL # 1, 2, 15,

96:12 cards that was developed. 16, 17, 21.

96:13 Q. You mentioned that in your conversations

96:14 with Doug Ohlin regarding instructions that you Re: [96:06 to 98:09] OVERRULED

96:15 discussed the wallet card with him on those Pltf Obj 602; 611

96:16 occasions, did I remember that?

96:17 A. Right. Re: [96:13 to 98:03] OVERRULED

96:18 Q. Okay. Pltf Obj 602; 611

96:19 A. Now, I -- I want to make it clear,

96:20 this -- these weren't necessarily one-on-one Re: [96:13 to 98:03] OVERRULED

96:21 discussions, but discussions at a -- a meeting with Pltf Obj FRE 802; 805;

97:01 a group. 402/403; foundation;

97:02 Q. Okay. Who were the people that were in speculation; 701/702; 704.

97:03 the group? Plaintiff's MIL # 1, 2, 15,

97:04 A. It would have been military audiologists. 16, 17, 21.

97:05 Q. Like yourself who were the head of some

97:06 program -- Re: [98:04 to 99:21] OVERRULED

97:07 A. Um-hum. Pltf Obj FRE 802; 805;

97:08 Q. -- at a different installation? 402/403; foundation;

97:09 A. Right. speculation; 602; 611,

97:10 Q. Okay. If you look at the wallet card, compound questions, vague;

97:11 beside the pictures, there is an image on the right 701/702; 704; conjecture.

97:12 of the plug with the flange folded back on the Plaintiff's MIL # 1, 2, 15,

97:13 opposite end? 16, 17, 21.

97:14 A. Correct.

97:15 Q. Did you ever discuss whether or not to

97:16 fold the flanges back on the opposite end of the

97:17 plug with Doug Ohlin?

97:18 A. I remember Doug Ohlin giving us

97:19 instruction on how to fit the earplug.

97:20 Q. What did he say?

97:21 A. And he -- he said if you have -- well, I

98:01 don't remember his exact words, but I remember, you

98:02 know, if you needed to, you could fold back the

98:03 flange on the earplug to get a good fit.

98:04 Q. And so, Doug Ohlin was telling the

98:05 program managers at the various installations in

98:06 the country that if they needed to fold back the

98:07 flanges on one side of the plug, they could do so

98:08 to get a good fit?

98:09 A. Yes.

98:13 - 99:20 Merkley, LTC John A. (2020-02-26) 1:07

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98:13 Q. During his oral discussion of that Re: [98:13 to 99:20] Re: [98:13 to 99:11] Re: [98:04 to 99:21] OVERRULED

98:14 fitting procedure, did he limit that technique to Pltf Obj 602; 611 OVERRULED Pltf Obj FRE 802; 805;

98:15 any particular group of service members, or was it 402/403; foundation;

98:16 agnostic as to who they were and what their ear speculation; 602; 611,

98:17 canal size was or anything like that? compound questions, vague;

98:18 A. I don't -- 701/702; 704; conjecture.

98:19 MR. BUCHANAN: Objection to form and Plaintiff's MIL # 1, 2, 15,

98:20 foundation. 16, 17, 21.

98:21 THE WITNESS: Yeah, I don't -- I don't

99:01 remember it being specific to a particular group of Re: [98:13 to 99:21] OVERRULED

99:02 people. Pltf Obj FRE 802; 805;

99:03 BY MR. WASDIN: 402/403; foundation;

99:04 Q. So, as you recall, the instruction you speculation; 701/702; 704.

99:05 got from Doug Ohlin, it was if you need to, you can Plaintiff's MIL # 1, 2, 15,

99:06 fold back the flange to fit the plug, and he didn't 16, 17, 21.

99:07 limit that to one particular size ear canal or

99:08 another? Re: [98:13 to 99:20] OVERRULED

99:09 A. Correct. Pltf Obj 602; 611

99:10 MR. BUCHANAN: Objection. Form.

99:11 BY MR. WASDIN:

99:12 Q. And those conversations, I think you

99:13 said, were happening in the '01 to '05 time period?

99:14 A. Right.

99:15 Q. And was the point of that conversation in

99:16 the group setting that the program managers at the

99:17 various installations would then take that

99:18 information and go back to their particular

99:19 facility and implement it?

99:20 A. Yes.

100:02 - 101:07 Merkley, LTC John A. (2020-02-26) 1:19

100:02 Q. You gave a lecture at the NHCA conference Re: [100:02 to 101:07] Re: [100:02 to 101:07] Re: [100:02 to 100:13] SUSTAINED

100:03 last week, right? Pltf Obj 402; 403; 404; SUSTAINED Pltf Obj FRE 402/403;

100:04 A. I did. Bolstering Bolstering;

100:05 Q. What was your topic?

100:06 A. My topic was just in time learning -- Re: [100:02 to 101:07] SUSTAINED

100:07 Q. You played -- Pltf Obj 402; 403; 404;

100:08 A. -- and micro learning, hearing, yeah. Bolstering

100:09 Q. You played a video of a guy named Elliott

100:10 Berger during your speech -- Re: [100:20 to 101:07]

100:11 A. I did. Pltf Obj FRE 402/403; improper

100:12 Q. -- am I remembering that right? bolstering; 404

100:13 A. Yes.

100:14 Q. Who is Elliott Berger?

100:15 A. Elliott Berger is -- I think he is the

100:16 principal engineer at 3M at their test lab, hearing

100:17 protection testing lab.

100:18 Q. Do you know Elliott?

100:19 A. I do.

100:20 Q. How long have you known Mr. Berger?

100:21 A. I have -- well, I have known him -- I've

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101:01 known of him for, I don't know, 20 years or so.

101:02 I've had more personal interactions with him in the

101:03 last eight years just as a member of the -- the

101:04 Council for Accreditation in Occupational Hearing

101:05 Conservation and his work in different chapters and

101:06 regulations that go into the hearing conservation

101:07 manual, his work on the ANSI working group.

102:05 - 102:20 Merkley, LTC John A. (2020-02-26) 1:39

102:05 Q. I'll try -- let me ask the question again Re: [102:05 to 102:20] Re: [102:05 to 102:20] Re: [102:05 to 102:20] SUSTAINED

102:06 just so we get a Q and A. But what are some of Pltf Obj 402; 403; 404; SUSTAINED Pltf Obj 602; 701/702;

102:07 Mr. Berger's contributions to the national Bolstering speculation. Plaintiffs MIL #

102:08 hearing -- conservation hearing that you're aware 12, 13

102:09 of?

102:10 MR. BUCHANAN: I have the same objection. Re: [102:05 to 102:20]

102:11 Form and foundation. Pltf Obj 402; 403; 404;

102:12 THE WITNESS: Well, he's a well-known Bolstering

102:13 figure in hearing conservation. He is the editor

102:14 of the noise manual. He's contributed to multiple

102:15 chapters on hearing conservation in the United

102:16 States and has been recognized at -- at the

102:17 National Hearing Conservation Association as such.

102:18 BY MR. WASDIN:

102:19 Q. Has he won awards for that?

102:20 A. He has.

103:08 - 104:07 Merkley, LTC John A. (2020-02-26) 1:05

103:08 Q. Do you know whether Mr. Berger has ever Re: [103:08 to 104:07] Re: [103:08 to 104:07] Re: [103:08 to 104:07] SUSTAINED

103:09 worked with members of the military to help the Pltf Obj 402; 403; 404; SUSTAINED Pltf Obj FRE 802; 805;

103:10 military advance its hearing conservation mission? Bolstering improper foundation;

103:11 A. I have seen documents between he and Doug speculation; 602; 611;

103:12 Ohlin, but that's the extent of what I've -- what I 701/702; 704; mischaracterizes

103:13 know about with regard to hearing pro- -- his evidence and assumes facts not

103:14 involvement in hearing protection in the military. in evidence. Plaintiff's MIL #

103:15 Q. Just based on the documents that you've 1, 2, 12, 13, 15, 16, 17, 21.

103:16 seen, was he working with Doug Ohlin on a

103:17 particular project? Re: [103:08 to 104:07]

103:18 A. I -- yes. I believe he was working Pltf Obj 402; 403; 404;

103:19 on -- with Doug Ohlin on this Combat Arms Earplug Bolstering

103:20 project.

103:21 Q. Okay. Given what you know about

104:01 Mr. Berger and the contributions he's made to

104:02 national hearing conservation, does it surprise you

104:03 that Doug Ohlin would work with him to develop a

104:04 product for the military?

104:05 MR. BUCHANAN: Objection to form and

104:06 foundation.

104:07 THE WITNESS: No.

105:04 - 107:05 Merkley, LTC John A. (2020-02-26) 2:05

105:04 Q. LTC Merkley, I want to go back to the Re: [105:04 to 107:05] Re: [105:04 to 107:05] Re: [105:04 to 106:17] OVERRULED

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105:05 discussion we were having regarding your Pltf Obj 611 OVERRULED Pltf Obj FRE 802; 805;

105:06 communications with Doug Ohlin in the '01 to '05 402/403; 404; improper

105:07 time period regarding fitting the Combat Arms bolstering; foundation;

105:08 Version 2. speculation; 602; 701/702;

105:09 A. Um-hum. 704. Plaintiff's MIL # 1, 2,

105:10 Q. I think you said these discussions would 12, 13, 15, 16, 17, 21.

105:11 take place at the National Hearing Conservation

105:12 Association? Re: [105:04 to 107:05]

105:13 A. No. They would take place usually at the Pltf Obj 611

105:14 military audiology short course, which was a -- a

105:15 conference or a -- well, they -- they called it a Re: [106:17 to 107:05]

105:16 work -- a course of Army -- Army audiologists Pltf Obj FRE 802; 805;

105:17 would -- would come together and get instruction 402/403; 404; foundation;

105:18 from leadership, present presentations on things speculation; 602; 701/702;

105:19 that were happening in -- in the military, and 704. Plaintiff's MIL # 1, 2,

105:20 usually, we would get an update from the Hearing 12, 13, 15, 16, 17, 21.

105:21 Conservation Program on, you know, what -- how

106:01 things were going and, you know, what was -- what

106:02 was new that we needed to pay attention to.

106:03 Q. And at the time, you were the chief

106:04 audiologist at Fort Carson?

106:05 A. Correct. No, I'm sorry. Fort Drum.

106:06 Q. Fort Drum. Okay. Who else -- would you

106:07 have had peers that were the chief audiologists at

106:08 other installations --

106:09 A. Oh, yeah.

106:10 Q. -- that would also attend those meetings?

106:11 A. Right.

106:12 Q. Can you recall who else that would have

106:13 been your peers at other installations would have

106:14 been at the meetings with Doug Ohlin when he

106:15 discussed the flange fold?

106:16 A. I --

106:17 MR. BUCHANAN: Objection to the form.

106:18 THE WITNESS: Yeah, most of the Army

106:19 audiologists, senior audiologists down to junior

106:20 audiologists. I can't recall exactly who was

106:21 there, but usually the -- most of the military

107:01 audiologists. Not just in the Army, but across the

107:02 Navy and the Air Force as well --

107:03 BY MR. WASDIN:

107:04 Q. Okay.

107:05 A. -- would attend that meeting.

107:21 - 110:21 Merkley, LTC John A. (2020-02-26) 2:24

107:21 Q. Okay. Once you would have gotten that Re: [107:21 to 110:21] Re: [107:21 to 110:21] Re: [107:21 to 110:21] OVERRULED

108:01 guidance at the audiology short course, was the Pltf Obj Foundation; 602; 611 OVERRULED Pltf Obj Foundation; 602; 611

108:02 expectation that you would then take it back to

108:03 Fort Drum and implement it with the folks who fit Re: [107:21 to 108:06]

108:04 earplugs there? Pltf Obj FRE 802; 805;

108:05 A. Yes. 402/403; speculation; 701/702;

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108:06 MR. BUCHANAN: Objection to form. 704. Plaintiff's MIL # 1, 2,

108:07 BY MR. WASDIN: 16, 17, 21.

108:08 Q. And was that true for all of the

108:09 installation managers who were there, they were Re: [108:07 to 108:15]

108:10 going to take that guidance back to whatever Pltf Obj FRE 402/403; 404;

108:11 installation they were responsible for and 602; 701/702; Plaintiffs MIL

108:12 implement it? #1, 2, 16.

108:13 MR. BUCHANAN: Objection. Foundation and

108:14 form. Re: [110:04 to 111:09]

108:15 THE WITNESS: Yes. Pltf Obj FRE 802; 805;

108:16 BY MR. WASDIN: 402/403; 404; speculation;

108:17 Q. Okay. When -- when you got back to Fort 701/702; 704. Plaintiff's MIL

108:18 Drum at some point after that, did you, indeed, # 1, 2, 16, 17, 21.

108:19 train the -- who are the folks at Fort Drum or

108:20 elsewhere that would actually be fitting individual

108:21 service members with earplugs?

109:01 A. Well, we would -- we trained all of our

109:02 technicians.

109:03 Q. Technicians, that's what I was looking

109:04 for.

109:05 A. Yeah. So, our hearing technicians, but

109:06 we also trained -- we conducted training for unit

109:07 hearing program -- at -- at the time, they were

109:08 called Hearing Conservation Program officers. I'm

109:09 sure there's a reference to that in the DA-PAM, but

109:10 every company is supposed to have a Hearing

109:11 Conservation Program officer, and a part of that,

109:12 their training would be how to fit hearing

109:13 protection.

109:14 Q. Okay. So, I think I understand. In one

109:15 bucket are the technicians who would fit individual

109:16 service members as they were distributing hearing

109:17 protection?

109:18 A. Correct.

109:19 Q. And then in the other one, bucket, you

109:20 mentioned, it was a unit Hearing Conservation

109:21 Program officer who would be with a -- a group of

110:01 service members going forward and have that

110:02 experience?

110:03 A. Right.

110:04 Q. Okay. You trained both of those groups

110:05 of people?

110:06 A. Yes.

110:07 Q. And when you trained the technicians at

110:08 Fort Drum, did you include the information you

110:09 received from Doug Ohlin regarding folding back the

110:10 flanges as needed to achieve a good fit?

110:11 A. Yes.

110:12 MR. BUCHANAN: Objection to form.

110:13 BY MR. WASDIN:

110:14 Q. Did you limit your instruction to any

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110:15 particular size ear canal?

110:16 MR. BUCHANAN: Objection to form.

110:17 THE WITNESS: No. I don't -- I don't

110:18 recall that.

110:19 BY MR. WASDIN:

110:20 Q. Okay. Is that also true for the unit

110:21 Hearing Conservation Program officers, you gave

111:01 - 111:09 Merkley, LTC John A. (2020-02-26) 0:23

111:01 them the instruction that they could fold back the Re: [110:04 to 111:09] OVERRULED

111:02 flanges as needed to achieve a good fit? Pltf Obj FRE 802; 805;

111:03 MR. BUCHANAN: Objection to form. 402/403; 404; speculation;

111:04 THE WITNESS: Yes. 701/702; 704. Plaintiff's MIL

111:05 BY MR. WASDIN: # 1, 2, 16, 17, 21.

111:06 Q. And did you limit that instruction by

111:07 size of ear canal?

111:08 MR. BUCHANAN: Same objection.

111:09 THE WITNESS: No.

119:19 - 120:07 Merkley, LTC John A. (2020-02-26) 1:37

119:19 Q. Okay. Well, then fast forwarding to the Re: [119:19 to 120:07] SUSTAINED

119:20 time period when you are in charge of audiology at Pltf Obj FRE 602; 611, vague,

119:21 Fort Drum. When in a service member's career, I overbroad questions calling

120:01 guess, would they receive a piece of hearing for speculation; 402/403;

120:02 protection and then be fit with it? Plaintiffs MIL # 1, 2, 15, 16,

120:03 A. We fit at Fort Drum any individuals when 21

120:04 they were coming to the installation, so

120:05 we -- we provided hearing protection fit or hearing

120:06 health education and hearing protection fitting

120:07 at in-processing to the installation.

120:12 - 121:11 Merkley, LTC John A. (2020-02-26) 1:46

120:12 Q. Okay. And is -- when you say when they Re: [120:12 to 121:11] SUSTAINED

120:13 arrive at the facility, is that sort of like the Pltf Obj FRE 602; speculation;

120:14 first stop after basic training? 611; 802; 805; 402/403; 404;

120:15 A. No. It depends. It -- it could be right scope; foundation;

120:16 after basic training. It may be that they're speculation; 701/702; 704.

120:17 PCS'ing. Plaintiff's MIL # 1, 2.

120:18 Q. Okay.

120:19 A. Having -- changing duty stations and

120:20 moving from one installation to Fort Drum. Then

120:21 when they get to that installation, there's an

121:01 in-processing part, and part of that in-processing

121:02 includes a medical in-processing, and they would

121:03 receive a hearing test, get fitted with hearing

121:04 protection and a small class on hearing

121:05 conservation.

121:06 Q. Would the fitting with hearing protection

121:07 as part of the intake process be done by the

121:08 technicians we talked about earlier?

121:09 A. Either the technicians or the audiologist

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121:10 on site, yes.

121:11 Q. Okay.

121:18 - 122:11 Merkley, LTC John A. (2020-02-26) 1:41

121:18 Q. Okay. So, some are brand new in the

121:19 military; some may have been there for a

121:20 while --

121:21 A. Right.

122:01 Q. -- but whenever you get a transition of

122:02 your class or duty station -- regardless of how

122:03 long you have been in the Army, when you show up at

122:04 Fort Drum, while you were there, one of the first

122:05 things that happened was the medical exam that

122:06 included fitting hearing protection?

122:07 A. Correct.

122:08 Q. And was that done for all service

122:09 members?

122:10 A. Everybody that came through

122:11 in-processing.

122:12 - 123:12 Merkley, LTC John A. (2020-02-26) 1:42

122:12 Q. Was there a training component during Re: [122:12 to 123:12] Re: [122:12 to 123:12] Re: [122:12 to 123:12] OVERRULED

122:13 that intake on how to fit themselves with earplugs Pltf Obj 611 OVERRULED Pltf Obj FRE 602; scope;

122:14 going forward? foundation; conjecture; 802;

122:15 A. Yes. 402/403; 404; speculation;

122:16 Q. And would -- was it your expectation that 701/702 improper opinion

122:17 the audiologist or the technicians would have given testimony; 704. Plaintiff's

122:18 the service members the same fitting tips that you MIL # 1, 2, 15, 16, 17, 21.

122:19 had provided them?

122:20 A. Right. Yes. Re: [122:12 to 123:12]

122:21 Q. And that would include that if they Pltf Obj 611

123:01 needed to, they could fold back the flanges?

123:02 MR. BUCHANAN: Objection to form and Re: [122:16 to 123:14]

123:03 foundation. Pltf Obj FRE 602; 402/403;

123:04 THE WITNESS: If -- if they were fitted 404; 701/702; 802;

123:05 with a Combat Arms Earplug. We did not routinely speculation; foundation;

123:06 fit the Combat Arms Earplug for in-processing. Plaintiffs MIL #1, 2, 16, 21

123:07 BY MR. WASDIN:

123:08 Q. Got it. If their earplug was the Combat

123:09 Arms Version 2, their training would have included

123:10 the option to fold back the flanges as needed to

123:11 get a good fit?

123:12 A. Yes.

123:16 - 123:21 Merkley, LTC John A. (2020-02-26) 0:14

123:16 Q. Looking at the wallet card, which was Re: [123:16 to 123:21] OVERRULED

123:17 marked as Exhibit 9, the second bullet at the Pltf Obj FRE 602; 611;

123:18 bottom mentions the option to fold back the flanges conjecture; 402/403; 802; 805.

123:19 on the plug, and then there's an image of it, Plaintiff MIL #16

123:20 right?

123:21 A. Correct.

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124:07 - 124:16 Merkley, LTC John A. (2020-02-26) 1:32

124:07 Q. On the wallet card, there is a reference Re: [124:07 to 124:18] OVERRULED

124:08 to very large ear canals. So, it says for very Pltf Obj FRE 602; speculation;

124:09 large ear canals, fold opposing plug back? 611; 701/702; 802; 403;

124:10 A. Correct. foundation.

124:11 Q. Where did the -- that language relating

124:12 to very large ear canals come from?

124:13 A. I don't know.

124:14 Q. And I guess I'm asking because you said

124:15 earlier that the guidance you got was agnostic as

124:16 to ear canal size, right?

124:18 - 124:18 Merkley, LTC John A. (2020-02-26) 0:00

124:18 THE WITNESS: Right. Re: [124:07 to 124:18] OVERRULED

Pltf Obj FRE 602; speculation;

611; 701/702; 802; 403;

foundation.

125:03 - 125:06 Merkley, LTC John A. (2020-02-26) 0:13

125:03 Q. Do you know if the military did its own

125:04 analysis of what size ear canals were likely to

125:05 benefit from a fold of the flange?

125:06 A. I'm not -- not that I recall.

125:07 - 125:09 Merkley, LTC John A. (2020-02-26) 0:02

125:07 Q. The military drafted the wallet card Re: [125:07 to 125:09] Re: [125:07 to 125:09] Re: [125:07 to 125:10] SUSTAINED

125:08 though, right? Pltf Obj 611 SUSTAINED Pltf Obj FRE 602; speculation;

125:09 A. Yes. foundation; 802; 805; 402/403;

speculation; 701/702; 704.

Plaintiff's MIL # 1,15, 16,

21.

Re: [125:07 to 125:18]

Pltf Obj FRE 602; speculation;

scope; foundation; conjecture;

802; 402/403; 404; 701/702

improper opinion testimony;

704. Plaintiff's MIL # 1, 2,

15, 16, 17, 21.

Re: [125:07 to 125:09]

Pltf Obj 611

125:14 - 125:18 Merkley, LTC John A. (2020-02-26) 0:06

125:14 MAJOR EVANS: And can we just clarify Re: [125:07 to 125:18] SUSTAINED

125:15 real quick, this is the Army's wallet card, Pltf Obj FRE 602; speculation;

125:16 correct? Not the -- scope; foundation; conjecture;

125:17 THE WITNESS: It is the -- it is the 802; 402/403; 404; 701/702

125:18 Army's wallet card, yeah. improper opinion testimony;

704. Plaintiff's MIL # 1, 2,

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15, 16, 17, 21.

126:01 - 126:08 Merkley, LTC John A. (2020-02-26) 0:14

126:01 Q. I should do better about that. The Re: [126:01 to 126:08] Re: [126:01 to 126:08] Re: [126:01 to 126:10] OVERRULED

126:02 wallet card that we marked as Exhibit -- Pltf Obj 602; incomplete OVERRULED Pltf Obj FRE speculation;

126:03 A. Nine. COMPLETENESS OBJECTION scope; foundation; conjecture;

126:04 Q. -- 9 is -- was created by USACHPPM for WITHDRAWN, 3/11/2021 802; 402/403; 404;

126:05 use in the Army? speculation; 611; 701/702

126:06 A. Correct. improper opinion testimony.

126:07 Q. Was this wallet card distributed to Plaintiff's MIL # 1, 2, 15,

126:08 individual service members? 16, 17, 21.

Re: [126:01 to 126:08]

Pltf Obj 602

126:11 - 126:13 Merkley, LTC John A. (2020-02-26) 0:07

126:11 THE WITNESS: Individual service members Re: [126:11 to 126:13] OVERRULED

126:12 that came through the Hearing Conservation Program, Def Obj 106, improper counter

126:13 if -- if the clinic had them available, then yes.

126:15 - 126:18 Merkley, LTC John A. (2020-02-26) 0:10

126:15 Q. Okay. This would be in addition to

126:16 whatever training they received by the technician

126:17 or audiologist when they were being fit?

126:18 A. Right.

126:19 - 126:21 Merkley, LTC John A. (2020-02-26) 0:09

126:19 Q. Other than the wallet card, did the Army Re: [126:19 to 127:14] SUSTAINED

126:20 have other training materials for the Combat Arms Pltf Obj FRE 602; speculation;

126:21 Version 2 that it would distribute to soldiers? scope; foundation; conjecture;

802; 402/403; 404; 611;

701/702 improper opinion

testimony. Plaintiff's MIL #

1, 2, 15, 16, 17, 21.

127:07 - 127:14 Merkley, LTC John A. (2020-02-26) 1:32

127:07 THE WITNESS: You know, I -- I just don't Re: [126:19 to 127:14] SUSTAINED

127:08 recall. I -- I think there was a -- a single sheet Pltf Obj FRE 602; speculation;

127:09 of paper, but I don't -- you know, like an scope; foundation; conjecture;

127:10 8-and-a-half-by-11 fact sheet, but I don't recall 802; 402/403; 404; 611;

127:11 using it a lot to just hand out -- 701/702 improper opinion

127:12 BY MR. WASDIN: testimony. Plaintiff's MIL #

127:13 Q. Okay. 1, 2, 15, 16, 17, 21.

127:14 A. -- to individuals.

127:19 - 129:02 Merkley, LTC John A. (2020-02-26) 1:56

127:19 Q. LTC Merkley, I'll hand you what we just Re: [128:02 to 129:10] OVERRULED

127:20 marked as Exhibit 11. Is this the single fact Pltf Obj FRE 602; scope;

127:21 sheet you were talking about? foundation; conjecture; 802;

128:01 A. I believe so, yes. 402/403; 404; speculation;

128:02 Q. Okay. Other than the wallet card and the 611; 701/702 improper opinion

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128:03 one-page fact sheet we marked as Exhibit 11, are testimony. Plaintiff's MIL #

128:04 you aware of any other training materials that 1, 2, 15, 16, 17, 21.

128:05 would have been physically distributed to

128:06 individual service members?

128:07 MR. BUCHANAN: Objection to the form of

128:08 the question --

128:09 THE WITNESS: Not -- not that I can

128:10 recall.

128:11 MR. BUCHANAN: -- and foundation.

128:12 BY MR. WASDIN:

128:13 Q. Have you ever seen instructions for the

128:14 Combat Arms Version 2 that were authored by Aearo

128:15 or 3M?

128:16 A. I have not.

128:17 Q. When you were responsible for training

128:18 technicians and hearing conservation officers on

128:19 how to fit the Combat Arms Version 2, you weren't

128:20 relying on any Aearo or 3M instructions; is that

128:21 fair?

129:01 MR. BUCHANAN: Objection to form.

129:02 THE WITNESS: Yes.

129:04 - 129:10 Merkley, LTC John A. (2020-02-26) 0:13

129:04 Q. Do you know whether the Army ever used Re: [128:02 to 129:10] SUSTAINED

129:05 any instructions or training materials provided by Pltf Obj FRE 602; scope;

129:06 Aearo or 3M to train soldiers on how to use the foundation; conjecture; 802;

129:07 Combat Arms Version 2? 402/403; 404; speculation;

129:08 A. I -- I don't know. 611; 701/702 improper opinion

129:09 Q. You've never seen it? testimony. Plaintiff's MIL #

129:10 A. I -- I haven't seen it, no. 1, 2, 15, 16, 17, 21.

129:14 - 130:04 Merkley, LTC John A. (2020-02-26) 1:32

129:14 Q. Yes. Let's switch gears a little bit Re: [129:14 to 130:04] SUSTAINED

129:15 here. In addition to the testing that we looked at Pltf Obj FRE 701/702 improper

129:16 briefly from June of 1999 that was done by Georges opinion testimony; 602;

129:17 Garinther, -- 402/403; 802; speculation;

129:18 A. Um-hum. foundation. Plaintiff's MIL #

129:19 Q. -- are you aware if the military has done 1, 2, 16

129:20 other testing on the Combat Arms Version 2 over

129:21 time?

130:01 A. I -- I believe they have. I recall a

130:02 couple of reports --

130:03 Q. Okay.

130:04 A. -- on them, but I --

137:06 - 138:12 Merkley, LTC John A. (2020-02-26) 2:33

137:06 LTC Merkley, Exhibit 13 is a PowerPoint Re: [137:06 to 138:12] OVERRULED

137:07 presentation that was given by LTC Lorraine Babeu, Pltf Obj FRE 602, speculation;

137:08 U.S. Army Research Laboratory, Human Research and foundation; 701/702 improper

137:09 Engineering Directorate at Aberdeen, right? opinion testimony; 402/403;

137:10 A. Um-hum. 802.

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137:11 Q. Do you know LTC Babeu?

137:12 A. I -- I do. Not really well, but I -- she

137:13 was an active duty audiologist when -- when I first

137:14 came into the Army.

137:15 Q. What were her principal responsibilities,

137:16 if you know? Did she work at ARL?

137:17 A. I believe she -- well, she was working at

137:18 ARL as -- in a utilization tour following her Ph.D.

137:19 program at -- I believe she went through the

137:20 University of Florida.

137:21 Q. If you look in the bottom left-hand

138:01 corner of the first slide, there's a tiny date on

138:02 it. You probably need a magnifier, but I think it

138:03 says March 18th, 2005?

138:04 A. Correct.

138:05 Q. So, it looks like LTC Babeu is testing

138:06 level-dependent hearing protection devices at

138:07 Aberdeen in -- at least by 2005?

138:08 A. Um-hum.

138:09 Q. And if you flip the page to page 2, the

138:10 bottom slide shows that her testing included

138:11 the -- the Combat Arms Version 2 dual-ended plug?

138:12 A. Correct.

138:13 - 138:15 Merkley, LTC John A. (2020-02-26) 0:03

138:13 Q. Have you ever reviewed testing done by

138:14 LTC Babeu before?

138:15 A. No.

138:21 - 143:04 Merkley, LTC John A. (2020-02-26) 4:49

138:21 Q. And it says, Overview Hearing Protection Re: [138:21 to 143:04] Re: [138:21 to 143:04] Re: [138:21 to 143:04] OVERRULED

139:01 Study. Infan- -- infantry soldiers over the course Pltf Obj 702; 602; 611; OVERRULED Pltf Obj 702; 602; 611;

139:02 of nine days wore the Combat Arms Earplug, yellow Foundation Foundation

139:03 and green side, and the Peltor ComTac earmuff while

139:04 firing the M4 Rifle.

139:05 On each day, soldiers had

139:06 pre-and-post-distortion product otoacoustic

139:07 emission (DPOAE) measurements recorded during the

139:08 weapons firing task.

139:09 Soldiers fired 54 each day.

139:10 Noise level at the ear was 155 dBP.

139:11 Did I read that right?

139:12 A. Yes.

139:13 Q. What is, if you know,

139:14 pre-and-post-distortion product otoacoustic

139:15 emission measurements?

139:16 A. Well --

139:17 MR. BUCHANAN: Objection to form and

139:18 foundation.

139:19 THE WITNESS: So, distortion product

139:20 otoacoustic emissions is a type of test of cochlear

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139:21 function. A healthy cochlea will produce an

140:01 otoacoustic emission, and so for this, they would

140:02 test otoacoustic emissions prior to shooting, fire

140:03 the weapon, and then test distortion

140:04 product -- distortion product otoacoustic emissions

140:05 following.

140:06 BY MR. WASDIN:

140:07 Q. Wearing the Combat Arms after --

140:08 A. After -- wearing the Combat Arms Earplug

140:09 while firing, yes.

140:10 Q. Does otoacoustic emission testing tell

140:11 you something about whether or not the

140:12 person -- whether or not the noise that they're

140:13 being exposed to is damaging the cochlea?

140:14 MR. BUCHANAN: Objection to form and

140:15 foundation. Overbroad.

140:16 THE WITNESS: It can, yes.

140:17 BY MR. WASDIN:

140:18 Q. At a high level, I think this is kind of

140:19 an oversimplification, but if the otoacoustic

140:20 emissions are the same before and after the noise

140:21 exposure, then there hasn't been damage to the

141:01 cochlea?

141:02 MR. BUCHANAN: Objection to form and

141:03 foundation.

141:04 THE WITNESS: Correct.

141:05 BY MR. WASDIN:

141:06 Q. If you go to page 11, at the bottom,

141:07 there's a slide that says, Results, do you see

141:08 that?

141:09 A. Yes.

141:10 Q. And there's two colors on the graph. One

141:11 says CAE-level-dependent-before, and the next one

141:12 says CAE-level-dependent-after, right?

141:13 A. Correct.

141:14 Q. And then if you flip the page to 12,

141:15 there's a second result slide similar, but it's for

141:16 the non-level dependent. So, it's

141:17 CAE-non-level-dependent-before and then

141:18 CAE-non-level-dependent-after, right?

141:19 A. Correct.

141:20 Q. So, does this look like LTC Babeu tested

141:21 both the green and the yellow end of the Combat

142:01 Arms Earplug?

142:02 MR. BUCHANAN: Objection. Foundation.

142:03 THE WITNESS: Yes.

142:04 BY MR. WASDIN:

142:05 Q. And so, she would measure a service

142:06 member's hearing prior to noise exposure, put the

142:07 earplug in, have them shoot a particular weapon 54

142:08 times and then measure the otoacoustic emission

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142:09 after that exposure?

142:10 MR. BUCHANAN: Objection. Misstates the

142:11 document.

142:12 THE WITNESS: That's correct. That's

142:13 what it sounds like.

142:14 BY MR. WASDIN:

142:15 Q. So, if you look at -- start on page 12,

142:16 the -- the green end, the non-level-dependent end,

142:17 it looks like, although there's minor variation,

142:18 the DP amplitude is basically the same or a little

142:19 higher after the exposures to noise than before?

142:20 MR. BUCHANAN: I'm sorry, what page are

142:21 you on?

143:01 MR. WASDIN: Twelve.

143:02 BY MR. WASDIN:

143:03 Q. Do you see that?

143:04 A. Yes.

143:11 - 145:02 Merkley, LTC John A. (2020-02-26) 1:24

143:11 Q. I guess let me just ask a different Re: [143:11 to 145:02] Re: [143:11 to 145:02] Re: [143:11 to 145:02] SUSTAINED

143:12 question then. I just don't understand the Pltf Obj 702; 602; 611; SUSTAINED as to Pltf Obj 702; 602; 611;

143:13 testing. Foundation 143:11-17; otherwise OVERRULED Foundation

143:14 What do you want to see on an otoacoustic

143:15 emissions test to determine whether or not there Re: [143:11 to 145:02]

143:16 was cochlear damage? Pltf Obj 402/403; Plaintiffs

143:17 MR. BUCHANAN: Objection. Foundation. MIL #1, 2, 16

143:18 BY MR. WASDIN:

143:19 Q. You can put that document aside. I just

143:20 want to know, do you want the DP amplitude to be

143:21 higher, or lower, or about the same?

144:01 A. To determine if -- if any damage has been

144:02 done, --

144:03 Q. I guess, yeah.

144:04 A. -- you would want to see the same pre

144:05 versus post.

144:06 Q. Okay. And then looking back at the

144:07 exhibit that I just told you to put aside, I'm

144:08 sorry about that, --

144:09 A. Oh.

144:10 Q. -- but on both the level-dependent end,

144:11 the yellow end, and the green end, the

144:12 non-level-dependent end, does it look like the

144:13 values are about the same before and after?

144:14 MR. BUCHANAN: Objection. Form. Vague,

144:15 about.

144:16 THE WITNESS: Yes, they appear to be the

144:17 same or -- well --

144:18 BY MR. WASDIN:

144:19 Q. Okay.

144:20 A. -- relatively close.

144:21 Q. Okay. So, this is 2005 testing done by

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145:01 Lorraine Babeu at Aberdeen Proving Grounds?

145:02 A. Correct.

145:12 - 145:18 Merkley, LTC John A. (2020-02-26) 0:20

145:12 Q. LTC Merkley, I have just given you a Re: [145:12 to 145:18] OVERRULED

145:13 document marked Exhibit 14, which is a test report Pltf Obj FRE 602; speculation;

145:14 bearing the insignia of the Army Research foundation; 802; 402/403; 702.

145:15 Laboratory and titled, Modeling of Acoustic

145:16 Pressure Waves in Level-Dependent Earplugs, do you

145:17 see that?

145:18 A. Yes.

145:19 - 146:07 Merkley, LTC John A. (2020-02-26) 0:22

145:19 Q. The authors are James DeSpirito and Mary

145:20 Binseel, right?

145:21 A. Correct.

146:01 Q. Who is James DeSpirito?

146:02 A. I don't know.

146:03 Q. Who is Mary Binseel?

146:04 A. I don't know.

146:05 Q. Okay. Have you ever seen this report

146:06 before?

146:07 A. I -- no.

146:08 - 146:15 Merkley, LTC John A. (2020-02-26) 0:21

146:08 Q. If you flip to page 1, there's an Re: [146:08 to 146:15] Re: [146:08 to 146:15] Re: [146:08 to 146:15] OVERRULED

146:09 Introduction, and it describes that they're going Pltf Obj Foundation OBJECTION WITHDRAWN, Pltf Obj Foundation

146:10 to perform testing on the dual-ended Combat Arms 3/11/2021

146:11 Version 2 essentially, do you see that?

146:12 A. Yes.

146:13 Q. There's a picture of the dual-ended

146:14 Combat Arms Version 2 in the middle of the page?

146:15 A. Right.

148:10 - 149:05 Merkley, LTC John A. (2020-02-26) 1:06

148:10 Q. Yeah, just -- yeah, it's a habit. Re: [148:10 to 149:05] Re: [148:10 to 149:05] Re: [148:10 to 149:05] OVERRULED

148:11 Looking at this data, what it tells us is, at least Pltf Obj Foundation OBJECTION WITHDRAWN, Pltf Obj FRE 602; 402/403;

148:12 in the Army's testing in September of 2008, how 3/11/2021 702; 802

148:13 much peak pressure reduction the Combat Arms

148:14 Earplug provides at various levels of impulses Re: [148:10 to 149:05]

148:15 between 125 and 186.91, do you see that? Pltf Obj Foundation

148:16 A. Okay. Yes, I see that.

148:17 Q. And just looking at it, does it appear to

148:18 be providing nonlinear protection as the decibel of

148:19 the impulse increases?

148:20 MR. BUCHANAN: Objection to form.

148:21 THE WITNESS: Yes.

149:01 BY MR. WASDIN:

149:02 Q. The higher the impulse level, the higher

149:03 the peak pressure reduction for the Combat Arms

149:04 plug in this testing, right?

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149:05 A. Correct.

151:01 - 151:21 Merkley, LTC John A. (2020-02-26) 1:08

151:01 Q. When -- so, look back at the Just the Re: [151:01 to 151:21] OVERRULED

151:02 Facts doc- -- keep your place there on that Pltf Obj FRE 602; scope;

151:03 document for a second, but look back at Just the foundation; 802; 402/403; 404;

151:04 Facts document. Do you know -- this is Exhibit 11. 702 improper opinion

151:05 Do you know who authored the Just the Facts testimony. Plaintiff's MIL #

151:06 document on the Combat Arms Version 2? 1, 2, 15, 16, 21.

151:07 A. The -- I -- I don't know who the author

151:08 was. It was put out by the Army Public Health

151:09 Center, the Army Hearing Program or the Army

151:10 Hearing Conservation Program, so it was Doug Ohlin

151:11 and his staff.

151:12 Q. If you go down to the column on the left,

151:13 the bottom left of the first page title -- titled,

151:14 Protection Available, --

151:15 A. Um-hum.

151:16 Q. -- about midway through that paragraph it

151:17 says, the nonlinearity begins at about 110 dBP and

151:18 increases with increasing peak pressure level. At

151:19 190 dBP, there's an overall peak reduction of 25

151:20 dB, do you see that?

151:21 A. Yes.

153:03 - 154:15 Merkley, LTC John A. (2020-02-26) 1:04

153:03 Q. In any event, if -- whatever that Re: [153:03 to 154:15] Re: [153:03 to 154:15] Re: [153:03 to 154:15] SUSTAINED

153:04 publication says, if you go back to the Army Pltf Obj 611 SUSTAINED Pltf Obj 611

153:05 Research Lab testing that we had, that chart

153:06 out -- Re: [153:03 to 154:15]

153:07 A. Um-hum. Pltf Obj 602; 701/702;

153:08 Q. -- it doesn't go up to 190 in this 402/403. Plaintiffs MIL #16,

153:09 particular test, but, indeed, you do see that as 18.

153:10 you approach 190, 186.91, the Combat Arms is

153:11 providing actually a little bit more than

153:12 that --

153:13 A. Correct.

153:14 Q. -- 30.43?

153:15 MR. BUCHANAN: Objection to leading.

153:16 THE WITNESS: Correct. Sorry. I'm

153:17 speaking over you.

153:18 BY MR. WASDIN:

153:19 Q. Yeah. And so, the testing that's being

153:20 done in October of 2008, you know, confirms this

153:21 statement about 190 dB peak in the Just the Facts

154:01 document?

154:02 MR. BUCHANAN: Objection to the leading.

154:03 Foundation.

154:04 THE WITNESS: Yes.

154:05 BY MR. WASDIN:

154:06 Q. And then if you go on, that same sentence

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154:07 in the Just the Facts says, testing at a U.S.

154:08 military facility found this nonlinear earplug

154:09 protective up to 190 dB peak, do you see that?

154:10 A. Yes.

154:11 Q. And then if you flip the page, you can

154:12 see that the citation there, the first one is to

154:13 that Dan Johnson study that we looked at a long

154:14 time ago?

154:15 A. Right.

155:03 - 156:03 Merkley, LTC John A. (2020-02-26) 1:51

155:03 Q. What I wanted to ask you about was, this Re: [155:03 to 156:03] Re: [155:03 to 156:03] Re: [155:03 to 156:03] SUSTAINED

155:04 statement that testing at a U.S. military facility Pltf Obj 602; 611 SUSTAINED Pltf Obj 602; 611

155:05 found this nonlinear earplug protective up to 190

155:06 dB peak, that's a statement that's included in the Re: [155:03 to 156:03]

155:07 Army's Just the Facts document, right? Pltf Obj FRE 701/702; 402/403.

155:08 MR. BUCHANAN: Objection to form. Plaintiffs MIL #16, 18

155:09 THE WITNESS: Yes.

155:10 BY MR. WASDIN:

155:11 Q. Yeah. And it's -- the source of that

155:12 representation is the Dan Johnson study that he did

155:13 for the Army in 1995?

155:14 MR. BUCHANAN: Objection to the form.

155:15 BY MR. WASDIN:

155:16 Q. Or '96?

155:17 A. It appears to be, yes.

155:18 Q. And so, this is an Army interpretation of

155:19 an Army study that the testing at a U.S. military

155:20 facility found this nonlinear earplug protective up

155:21 to 190 dB peak?

156:01 MR. BUCHANAN: Objection to form.

156:02 Argumentative. Foundation.

156:03 THE WITNESS: Yes.

156:05 - 157:01 Merkley, LTC John A. (2020-02-26) 1:56

156:05 Q. Now, when you go to the 2008 study that Re: [156:05 to 157:01] Re: [156:05 to 157:01] Re: [156:05 to 157:01] OVERRULED

156:06 we were just talking about, this is the Exhibit 14, Pltf Obj Foundation OVERRULED Pltf Obj foundation

156:07 the Mary Binseel document?

156:08 A. Um-hum. Re: [156:05 to 157:01]

156:09 Q. If you look -- and we just said this, but Pltf Obj FRE 611; 602;

156:10 although it shows that it -- it is providing 701/702; 402/403; 802.

156:11 protection up at least to 186.91 dB here, right? Plaintiffs MIL #16, 18

156:12 A. Correct.

156:13 Q. But it's providing 30 dBs of reduction,

156:14 and the output of that is that it would reduce 186

156:15 dB peak down to 156.48, right?

156:16 A. Correct.

156:17 MR. BUCHANAN: Objection to form.

156:18 BY MR. WASDIN:

156:19 Q. Okay. 156.48 is still over the 140 dB

156:20 limit that you and I talked about earlier as a sort

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156:21 of baseline standard safe impulse limit, right?

157:01 A. Correct.

158:04 - 158:10 Merkley, LTC John A. (2020-02-26) 0:13

158:04 Q. And then when you look at the Just the Re: [158:04 to 158:10] Re: [158:04 to 158:10] Re: [158:04 to 158:10] OVERRULED

158:05 Facts document, kind of tying together the -- the Pltf Obj 602 OVERRULED Pltf Obj FRE 611; 701/702;

158:06 questions we've been talking about, that reduction 402/403. Plaintiffs MIL #16,

158:07 is actually a little better than what they cite 18

158:08 there. They're citing only a 25 dB reduction at

158:09 190, right? Re: [158:04 to 158:10]

158:10 A. Correct. Pltf Obj 602

158:18 - 159:09 Merkley, LTC John A. (2020-02-26) 1:36

158:18 Q. In the Just the Facts document, the Army Re: [158:18 to 159:09] Re: [158:18 to 159:09] Re: [158:18 to 159:09] OVERRULED

158:19 is saying that at 190 dB peak, there's an overall Pltf Obj 602; 611; foundation OVERRULED Pltf Obj 702; scope.

158:20 peak reduction of only a 25 dB, right?

158:21 A. Correct. Re: [158:18 to 159:09]

159:01 Q. So, that would take you down to 165? Pltf Obj 602; 611; foundation

159:02 A. Correct.

159:03 Q. And they're saying that that's

159:04 demonstrative that the Combat Arms Version 2 is

159:05 protective up to 190 dB, right?

159:06 MR. BUCHANAN: Objection. Form and

159:07 foundation.

159:08 THE WITNESS: That's -- that's what it

159:09 says in the document.

161:08 - 161:12 Merkley, LTC John A. (2020-02-26) 0:12

161:08 Q. So, unless there's some change to fit, Re: [161:08 to 161:12] Re: [161:08 to 161:12] Re: [161:08 to 161:12] SUSTAINED

161:09 you'd expect the whatever protection it's providing Pltf Obj 602; 611; 702 SUSTAINED Pltf Obj improper opinion

161:10 at 190 to be the same on the first exposure and the testimony; 402/403;

161:11 101st exposure? speculation. Plaintiffs MIL

161:12 A. Correct. #16, 18

Re: [161:08 to 161:12]

Pltf Obj 602; 611; 702

162:01 - 162:04 Merkley, LTC John A. (2020-02-26) 0:09

162:01 Q. So, Exhibit 3 is a testing report done by

162:02 a variety of individuals, one of which Brian Hobbs

162:03 I think you said you knew?

162:04 A. Right.

162:07 - 162:18 Merkley, LTC John A. (2020-02-26) 1:05

162:07 Q. This says, Warfighter Interface Division, Re: [162:07 to 162:18] OVERRULED

162:08 Battlespace Acoustics Branch. Do you know what Pltf Obj FRE 611; 602;

162:09 that is? 701/702; 402/403. Plaintiffs

162:10 A. I don't. From their -- I believe it's MIL #16, 18

162:11 the Air Force Research Lab or a branch or a group

162:12 of that laboratory.

162:13 Q. If you open this test report, we talked a

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162:14 little bit about the first page of this,

162:15 but -- mine is stapled -- if you'd go to page 5.

162:16 So, on the left, you've got a photo of

162:17 somebody doing a real ear attenuation test, right?

162:18 A. Yes.

163:01 - 164:02 Merkley, LTC John A. (2020-02-26) 1:10

163:01 Q. On page 5, there's a table of data that's Re: [163:01 to 164:12] OVERRULED

163:02 titled Real -- Real Ear Attenuation Test Data (ANSI Pltf Obj FRE 611; 602;

163:03 S12.6-1997, Method A) for TH? 701/702; 802; 402/403.

163:04 A. Correct. Plaintiffs MIL #16, 18

163:05 Q. And then if you look in the tactical

163:06 headset or TH column on the left, there's a variety

163:07 of different protectors here, but if you go down to

163:08 the Passive subsection, you'll see the CAEP green

163:09 tip and the CAEP yellow tip, do you see those?

163:10 A. Yes.

163:11 Q. This testing that was done in October

163:12 2008 indicates that for the green end of the Combat

163:13 Arms, the NRR mean minus 1 standard deviation is

163:14 21, right?

163:15 A. Correct.

163:16 Q. That's using the Method A --

163:17 A. Um-hum.

163:18 Q. -- ANSI standard, right?

163:19 A. Correct.

163:20 Q. And then for the yellow end, it indicates

163:21 that the NRR mean minus one standard deviation is

164:01 6, right?

164:02 A. Correct.

164:03 - 164:12 Merkley, LTC John A. (2020-02-26) 1:30

164:03 Q. Do you know when a hearing Re: [163:01 to 164:12] OVERRULED

164:04 protector -- protection device is labeled for Pltf Obj FRE 611; 602;

164:05 civilian use, do they use the Method A standard to 701/702; 802; 402/403.

164:06 do that? Plaintiffs MIL #16, 18

164:07 A. Well, the -- the noise reduction rating

164:08 label on a hearing protector is not measured to

164:09 S12.6-1997.

164:10 Q. It's measured to the 1974 standard,

164:11 right?

164:12 A. Correct.

166:10 - 167:08 Merkley, LTC John A. (2020-02-26) 1:47

166:10 Q. All right. So, looking at the chart that Re: [166:10 to 167:08] Re: [166:10 to 167:08] Re: [166:10 to 167:08] OVERRULED

166:11 is in the October 2008 Air Force testing, when you Pltf Obj 602 OVERRULED Pltf Obj 602

166:12 go to two standard deviations, they list the Combat

166:13 Arms Earplug green tip as a 15 NRR, do you see Re: [166:10 to 167:08]

166:14 that? Pltf Obj 702 improper opinion

166:15 A. Um-hum. testimony; 402/403; 404; 802.

166:16 Q. And then they list the Combat Arms Plaintiffs MIL #16, 18

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166:17 Earplug yellow tip as a 3 NRR, do you see that?

166:18 A. Correct.

166:19 Q. So, as of at least October 2008, the

166:20 gov- -- the Air Force, excuse me, has REAT, Real

166:21 Ear Attenuation Test data on both ends of the

167:01 Combat Arms; is that correct?

167:02 MR. BUCHANAN: Objection to form and

167:03 foundation.

167:04 THE WITNESS: Correct.

167:05 BY MR. WASDIN:

167:06 Q. And they have used that data to calculate

167:07 their own NRR for the product?

167:08 A. Correct.

168:02 - 168:11 Merkley, LTC John A. (2020-02-26) 1:34

168:02 Q. Okay. If you flip to page 19, there's a Re: [168:02 to 168:11] OVERRULED

168:03 section titled 3.3, Discussion, at the top, do you Pltf Obj 602

168:04 see that?

168:05 A. Um-hum. Re: [168:02 to 168:11]

168:06 Q. And it starts out by saying, the Pltf Obj FRE 701/702 improper

168:07 continuous noise protection of all devices tested opinion testimony;

168:08 was reasonable and should provide for a safe speculation; foundation;

168:09 exposure level for the average user in many noise 402/403. Plaintiffs MIL #1,

168:10 environments up to 105 dB, do you see that? 16, 18

168:11 A. Yes.

169:04 - 170:01 Merkley, LTC John A. (2020-02-26) 1:59

169:04 Q. Okay. Flipping the page to page Re: [169:04 to 170:01] Re: [169:04 to 170:01] Re: [169:04 to 170:01] OVERRULED

169:05 20 -- geez -- it goes on to say, the passive in the Pltf Obj 602 OVERRULED Pltf Obj 602; 611; 802; 403;

169:06 ear tactical headset, ITE TH work as they should in 702; 704; foundation; scope.

169:07 that continuous noise settings provide more Plaintiffs MIL #16, 18

169:08 continuous noise attenuation than the impulse noise

169:09 settings. Table 1 illustrates that the Combat Arms

169:10 Earplug green, intended for continuous noise

169:11 protection, provides very good attenuation and is

169:12 readily distinguished from the Combat Arms P yellow

169:13 intended for impulse noise protection setting, did

169:14 I read that right?

169:15 A. Yes.

169:16 Q. So, as of October of 2008, this list of

169:17 authors doing an Air Force study of the Combat Arms

169:18 determined that it provides very good attenuation

169:19 in continuous noise?

169:20 MR. BUCHANAN: Objection to form and

169:21 foundation.

170:01 THE WITNESS: Yes.

170:03 - 171:13 Merkley, LTC John A. (2020-02-26) 1:18

170:03 Q. If you go to page 21, in addition to Re: [170:03 to 172:11] OVERRULED

170:04 conducting testing on continuous noise, it looks Pltf Obj FRE 611; 602; 701/702

170:05 like they also did some air blast overpressure improper opinion testimony;

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170:06 measurements for impulse noise, right? 402/403; 802. Plaintiffs MIL

170:07 A. (Nodding head yes.) Yes. #1, 16, 18

170:08 Q. And if you flip the page to page 22 and

170:09 23, there are images of how they conducted some of

170:10 that testing, do you see those?

170:11 A. Um-hum. Yes.

170:12 Q. Figure 17, in particular, is labeled as

170:13 195 dB blast, do you see that?

170:14 A. Yes.

170:15 Q. And it looks like what they've done is

170:16 put some manequin heads on the ground and exploded

170:17 some sort of explosive within a couple of feet of

170:18 the heads, is that fair?

170:19 A. Yes.

170:20 Q. 195 decibels, are there -- what are these

170:21 weapons, if any, in the military arsenal that would

171:01 create 195 decibel impulse peak?

171:02 MR. BUCHANAN: Objection to the form.

171:03 THE WITNESS: I'm -- I'm not aware of any

171:04 that create 195 decibel peak.

171:05 BY MR. WASDIN:

171:06 Q. It looks like to get that high, you have

171:07 to basically have an explosion happen a few feet

171:08 away from you.

171:09 MR. BUCHANAN: Objection to form.

171:10 THE WITNESS: I --

171:11 BY MR. WASDIN:

171:12 Q. Okay.

171:13 A. I -- I guess, yeah.

171:14 - 172:11 Merkley, LTC John A. (2020-02-26) 1:56

171:14 Q. Okay. Do you know any that Re: [171:14 to 172:11] Re: [171:14 to 172:11] Re: [170:03 to 172:11] OVERRULED

171:15 create -- weapons in the military arsenal that Pltf Obj 611 OBJECTION WITHDRAWN, Pltf Obj FRE 611; 602; 701/702

171:16 create 190 dB peak? 3/11/2021 improper opinion testimony;

171:17 A. That approximate -- 402/403; 802. Plaintiffs MIL

171:18 Q. What are those? #1, 16, 18

171:19 A. -- 190. Some of the shoulder-fired

171:20 weapon systems. Re: [171:14 to 172:11]

171:21 Q. Like shoulder fired -- Pltf Obj 611

172:01 A. Like the AT4, the 5 -- I'm not sure about

172:02 the law, and then the MAA -- the MAAWS, the

172:03 multipurpose anti-armor, anti-personnel weapon

172:04 system, or the Carl Gustaf if you want to -- it's a

172:05 shoulder-fire recoilless rifle.

172:06 Q. Is that a -- do a lot of people use that

172:07 weapon in the Army?

172:08 A. No. Up until recently, they were only

172:09 fielded in the special operations community, but

172:10 they're currently being fielded now into

172:11 conventional forces.

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173:05 - 173:09 Merkley, LTC John A. (2020-02-26) 0:13

173:05 Q. You've examined service members in Iraq? Re: [173:05 to 173:09] Re: [173:05 to 173:09] Re: [173:05 to 173:09] OVERRULED

173:06 A. Yes. Pltf Obj 602; 611; foundation OVERRULED Pltf Obj 602; 611; foundation

173:07 Q. Do you know how common it would be for

173:08 somebody in a combat setting to come across 190

173:09 decibel impulse peak?

173:15 - 174:02 Merkley, LTC John A. (2020-02-26) 0:21

173:15 A. From my experience. Well, most of the Re: [173:15 to 174:02] OVERRULED

173:16 IEDs -- Pltf Obj FRE 602; 402/403;

173:17 Q. Yeah. conjecture; Plaintiff MIL #1,

173:18 A. -- would -- would create that level 2, 16

173:19 of -- of noise. So, when I was in Iraq, it was

173:20 very common, --

173:21 Q. From IED --

174:01 A. -- and I was in Iraq from 2006 through

174:02 200- -- the end of 2006 to 2007.

175:02 - 176:11 Merkley, LTC John A. (2020-02-26) 1:28

175:02 Q. If you flip in this testing report over Re: [175:02 to 176:11] Re: [175:02 to 176:11] Re: [175:02 to 176:11] OVERRULED

175:03 to page 26, there's a section for the Results of Pltf Obj 602; 611; foundation OVERRULED Pltf Obj 602; 611; foundation

175:04 the impulse noise testing these authors performed,

175:05 do you see that? Re: [175:02 to 176:11]

175:06 A. Um-hum. Pltf Obj 701/702; 402/403;

175:07 Q. It reads, over 100 individual blasts were 802; speculation; scope.

175:08 completed on 13 devices over a four-day period. Plaintiffs MIL #16, 18

175:09 Impulse noise attenuation measurements an

175:10 estimated -- as estimated by insertion loss, were

175:11 recorded at two levels of peak pressure, 165 dB and

175:12 195 dB, and then it says it's going to present the

175:13 data in these tables, do you see that?

175:14 A. Um-hum.

175:15 Q. Going over to page 27, there's a table

175:16 that lists the data for the impulse -- the

175:17 insertion loss in response to both 165 dB and 195

175:18 dB explosions, right?

175:19 A. (Nodding head yes.)

175:20 Q. Do you see that?

175:21 A. Correct.

176:01 Q. And it lists it for both the green end

176:02 and the yellow end of the Combat Arms, right?

176:03 A. Yes.

176:04 Q. We don't have to go through them all, but

176:05 in summary, the Air Force had test data on the

176:06 performance of the Combat Arms Earplug, both ends

176:07 of it, at both 165 and 195 dB as of at least

176:08 October 2008?

176:09 MR. BUCHANAN: Objection to form and

176:10 foundation.

176:11 THE WITNESS: Yes.

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176:13 - 176:16 Merkley, LTC John A. (2020-02-26) 0:08

176:13 Q. So, however it performed, whatever Re: [176:13 to 176:16] Re: [176:13 to 176:16] Re: [176:13 to 176:16] OVERRULED

176:14 protection it provided at those impulses, that data Pltf Obj 602; 611; foundation OBJECTION WITHDRAWN, Pltf Obj 701/702; 402/403;

176:15 is in this test report? 3/11/2021 802; foundation; speculation;

176:16 A. Yes. scope. Plaintiffs MIL #2, 16,

18

Re: [176:13 to 176:16]

Pltf Obj FRE 611; 602;

foundation

177:06 - 178:05 Merkley, LTC John A. (2020-02-26) 1:47

177:06 Q. Did you, while in Iraq, observe service Re: [177:06 to 178:05] Re: [177:06 to 178:05] Re: [177:06 to 178:05]

177:07 members who had used the Combat Arms Version 2 and

Pltf Obj 602; 611; foundation; OVERRULED Pltf Obj 602; foundation; 702;

177:08 been exposed to noise and then those who had not 702; MIL G7 Baker MIL 18

177:09 worn hearing protection and been exposed to noise?

177:10 A. Yes. Re: [177:06 to 178:05]

177:11 Q. And did the Combat Arms Version 2 protect Pltf Obj 403; 802

177:12 service members in Iraq?

177:13 MR. BUCHANAN: Objection to form and

177:14 foundation.

177:15 THE WITNESS: I -- I won't be specific on

177:16 the Combat Arms Version 2, but hearing protection

177:17 use did protect the individuals.

177:18 BY MR. WASDIN:

177:19 Q. But you're including the Combat Arms?

177:20 A. Including the Combat Arms Earplug.

177:21 Q. So, what you observed in Iraq was service

178:01 members who did not use hearing protection, had

178:02 greater rates of threshold shifts than those who

178:03 used hearing protection, including the Combat Arms

178:04 Version 2?

178:05 A. Yes.

179:20 - 181:01 Merkley, LTC John A. (2020-02-26) 1:27

179:20 This is an email chain dated October 6, Re: [179:20 to 181:01] SUSTAINED

179:21 2005. Subject RE: Success story regarding the Pltf Obj FRE 802; 805; 602;

180:01 Combat Arms Earplug, right? 701/702; 402/403; foundation;

180:02 A. Correct. speculation; scope. Plaintiffs

180:03 Q. It was sent from Leanne Cleveland to MIL #1, 2, 16, 18

180:04 Kathy Gates, Kevin Hannah and a variety of other

180:05 people in the military, including, if you go all of

180:06 the way down to the bottom, you, do you see that?

180:07 A. Yes.

180:08 Q. Who is Leanne Cleveland?

180:09 A. She's an audiologist in the Army; active

180:10 duty.

180:11 Q. Who is Kathy Gates?

180:12 A. Kathy Gates, she -- she is -- was an Army

SUSTAINED. Personal 

use.

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180:13 audiologist at this time serving in -- at the

180:14 Office of the Surgeon General. I'm not sure she

180:15 was a consultant to Army audiology or to the

180:16 Surgeon General for Army audiology, but I -- I

180:17 don't know if she was a consultant at this time.

180:18 Q. I don't want to ask you about every

180:19 single person here on the cc: line, but are these,

180:20 generally, folks that were involved in military or

180:21 Army hearing conservation?

181:01 A. Yes, all -- all of them.

181:07 - 182:14 Merkley, LTC John A. (2020-02-26) 1:21

181:07 Q. If you just go to this first -- it's a Re: [181:07 to 182:14] Re: [181:07 to 182:14] Re: [181:07 to 182:14] SUSTAINED

181:08 very long chain, and I'll tell you that I think it Pltf Obj 403; 602; foundation; SUSTAINED Pltf Obj 403; 602; foundation;

181:09 duplicates itself a few times on the way through, 702; 802 MIL G7 702; 802; Baker MIL 18

181:10 so I don't want to attempt to track it. But if you

181:11 just go to the first one, it looks like this is an

181:12 email from Leanne Cleveland specifically at least

181:13 to Kathy Gates and Kevin Hannah, copying the rest

181:14 of the Army audiology community and sharing two

181:15 success stories, right?

181:16 A. Right. Two?

181:17 Q. It says --

181:18 A. Yes. Yes, two. Okay.

181:19 Q. I'm going to read the first one.

181:20 A. Okay.

181:21 Q. Several months ago, I saw an O6 Brigade

182:01 Commander for his post-deployment OIF audiometric

182:02 evaluation. What's -- what's the post-deployment

182:03 OIF audiometric evaluation?

182:04 A. Well, the post-deployment hearing test.

182:05 So, the unit is returning from a deployment, and

182:06 they get a hearing test to determine if -- has

182:07 there been any change in their hearing.

182:08 Q. And what is an O6 Brigade Commander?

182:09 A. An 06 is a Colonel level. A Brigade

182:10 Commander is generally a full-bird Colonel.

182:11 Q. And can we tell anything from the time

182:12 period about where he was likely returning from?

182:13 A. Well, it says he was returning from

182:14 Operation Iraqi Freedom, OIF.

182:19 - 185:11 Merkley, LTC John A. (2020-02-26) 2:24

182:19 Q. Okay. So, this is somebody who had been Re: [182:19 to 185:11] Re: [182:19 to 185:11] Re: [182:19 to 185:11] SUSTAINED

182:20 in combat basically -- Pltf Obj 403; 602; foundation; SUSTAINED Pltf Obj 403; 602; foundation;

182:21 A. The -- 702; 802 MIL G7 802; Plaintiffs MIL 18

183:01 Q. -- the O6 Brigade Commander --

183:02 A. Yes. Re: [182:19 to 185:11]

183:03 Q. -- that was being evaluated? It goes on Pltf Obj 403; 602; foundation;

183:04 to say, he told me that he hadn't heard of the CAE speculation; scope; 702

183:05 plugs until he was in theatre. He did not know improper opinion testimony;

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183:06 what they looked like, but he was determined to get 802; 805; Plaintiffs MIL # 1,

183:07 them for his entire brigade. He inquired with some 2, 16, 18

183:08 local Iraqi supply company and ended up purchasing

183:09 what he thought were CAE plugs, but in reality,

183:10 they were only foam plugs.

183:11 Finally, he made some calls back to Fort

183:12 Hood and was able to get his staff to order them

183:13 here and then ship them out to the brigade. They

183:14 were finally received by the soldiers in Iraq

183:15 at -- over four months after they initially

183:16 deployed.

183:17 The COL, the Colonel, told me that he was

183:18 sitting in the back of his HMWVV with his new CAE

183:19 plugs in his ears for the first time when he

183:20 experienced his first IED blast in close range. He

183:21 said that his soldiers in the HMWVV had just been

184:01 grumbling to him about his insistence that they all

184:02 wore their CAE plugs, but that they were all very

184:03 glad that they had their CAEs after the blast, and

184:04 they all wore them every day afterwards. By the

184:05 way, the Colonel had no hearing loss and no

184:06 tinnitus upon redeployment, did I read that right?

184:07 A. Yes.

184:08 Q. Is it -- we talked just a couple of

184:09 minutes ago about a -- basically how loud an IED

184:10 blast would be at close range, so it sounds like

184:11 this is a service member who experienced a

184:12 close-range IED blast while wearing the Combat Arms

184:13 Earplug?

184:14 A. Correct.

184:15 Q. And what Leanne Cleveland is

184:16 determining -- determining is that after that

184:17 event, while wearing those plugs, he had no hearing

184:18 loss and no tinnitus?

184:19 A. Correct.

184:20 Q. Is that -- I mean, 190 dB, are there many

184:21 hearing protection devices available to the Army,

185:01 passive earplugs, that would protect against 190 dB

185:02 with no hearing loss and no tinnitus?

185:03 MR. BUCHANAN: Objection. Form, vague.

185:04 At what range?

185:05 BY MR. WASDIN:

185:06 Q. At close range?

185:07 A. Are there a lot of earplugs?

185:08 Q. Right.

185:09 A. I -- I would expect that any of the

185:10 earplugs that were available at this time, if they

185:11 were in use, would have -- have been protective.

185:16 - 185:19 Merkley, LTC John A. (2020-02-26) 0:11

185:16 Q. And this is telling us that the Combat Re: [185:16 to 185:19] Re: [185:16 to 185:19] Re: [185:16 to 185:19] SUSTAINED

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185:17 Arms Earplug was protective for that exposure? Pltf Obj 403; 602; foundation; SUSTAINED Pltf Obj 403; 602; foundation;

185:18 MR. BUCHANAN: Objection to form. 702; 802 MIL G7 702; 802; Baker MIL 18

185:19 THE WITNESS: For this, yes.

185:21 - 187:09 Merkley, LTC John A. (2020-02-26) 2:52

185:21 Q. The second success story she shares is, Re: [185:21 to 187:09] Re: [185:21 to 187:09] Re: [185:21 to 187:09] SUSTAINED

186:01 at a recent PDHRA Post Deployment Health Pltf Obj 403; 602; foundation; SUSTAINED Pltf Obj 403; 602; foundation;

186:02 Reassessment Survey session -- 702; 802 MIL G7 802; Plaintiffs MIL 18

186:03 A. Where --

186:04 Q. Number 2. Re: [185:21 to 187:09]

186:05 A. Okay. I'm sorry. Pltf Obj FRE 611;701/702; 402;

186:06 Q. -- I asked several redeploying 1CAV 805; foundation; speculation;

186:07 soldiers the following questions re: the CAE plug scope. Plaintiffs MIL #1, 16

186:08 at the request of Aearo. What is a Post Deployment

186:09 Health Reassessment Survey session?

186:10 A. The -- well, every -- every soldier that

186:11 deploys, when they return, that -- they're required

186:12 to complete a health assessment, a post deployment

186:13 health assessment --

186:14 Q. Basically --

186:15 A. -- and -- and now, this was the Post

186:16 Deployment Health Reassessment, so I believe that's

186:17 90 days post deployment. So, they come back. They

186:18 -- they do their Post Deployment Health Assessment,

186:19 and then there's a -- a reassessment.

186:20 Q. What is a 1CAV soldier?

186:21 A. First calvary division, so CAV is a Cav.

187:01 Q. And then later, I'm about to read the

187:02 sentence, but it references an SPC 50 cal gunner.

187:03 What is that?

187:04 A. Where is that?

187:05 Q. The next sentence.

187:06 A. Oh, the S -- like this -- I -- I believe

187:07 what they're referring to is a specialist, the rank

187:08 of specialist who is a 50 -- who was a 50, a gunner

187:09 on a 50-caliber machine gun.

187:15 - 188:07 Merkley, LTC John A. (2020-02-26) 1:43

187:15 Q. Leanne Cleveland in this success story Re: [187:15 to 188:07] Re: [187:15 to 188:07] Re: [187:15 to 188:07] SUSTAINED

187:16 goes on to state, I wish all soldiers believed in Pltf Obj 403; 602; foundation; SUSTAINED Pltf Obj 403; 602; foundation;

187:17 the merit of the Combat Arms Earplug like this SPC 702; 802 MIL G7 802; Plaintiffs MIL 18

187:18 50 cal gunner does. (I especially liked his

187:19 comment that he wouldn't change anything about the Re: [187:15 to 188:07]

187:20 Combat Am -- Combat Arms Earplug -- plug or the Pltf Obj 702; 805; Plaintiffs

187:21 case, because they "worked for 205 convoys.") Did MIL # 1, 2, 15, 16

188:01 I read that right?

188:02 A. Yes.

188:03 Q. What is a -- what does it mean to work

188:04 for a 205 convoy?

188:05 A. I -- I read that to mean that it worked

188:06 for 205 convoys. The individual com- -- completed

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188:07 205 convoys during their tour.

188:08 - 188:20 Merkley, LTC John A. (2020-02-26) 1:17

188:08 Q. I asked you earlier about, you know, Re: [188:08 to 188:20] Re: [188:08 to 188:20] Re: [188:08 to 188:20] SUSTAINED

188:09 performance on shot one versus performance on shot Pltf Obj 403; 602; foundation; SUSTAINED Pltf Obj 403; 602; foundation;

188:10 101, and you said you thought they'd be the same 702; 802 MIL G7 802; Plaintiffs MIL 18

188:11 unless there was an issue with the fit, right?

188:12 MR. BUCHANAN: Objection to the form. Re: [188:08 to 188:20]

188:13 THE WITNESS: Correct. Pltf Obj FRE 611; 702; 402;

188:14 BY MR. WASDIN: 805; speculation; scope.

188:15 Q. This is a report from a 50 cal gunner, Plaintiffs MIL #1, 2, 16

188:16 who had been employed into Iraq, that says they

188:17 worked for 205 separate convoys, right?

188:18 MR. BUCHANAN: Objection to form.

188:19 THE WITNESS: That's what it appears to

188:20 say, yes.

191:20 - 192:03 Merkley, LTC John A. (2020-02-26) 0:11

191:20 Q. So, you had personally observed examples Re: [191:20 to 192:03] SUSTAINED

191:21 where service members in Iraq were exposed to large Pltf Obj FRE 602; 702;

192:01 impulses that damaged their hearing in one way or 402/403; 802; 805; foundation;

192:02 another? speculation; scope. Plaintiffs

192:03 A. Yes. MIL #1, 2, 16, 18

195:06 - 195:19 Merkley, LTC John A. (2020-02-26) 0:23

195:06 Q. Yeah. I think you just said it way Re: [195:06 to 195:19] Re: [195:06 to 195:19] Re: [195:06 to 195:19] SUSTAINED

195:07 better than I attempted to, but the essence of it Pltf Obj 403; foundation; MIL SUSTAINED Pltf Obj 403; foundation;

195:08 is when you were in Iraq, most of the cases of G7 Plaintiff MIL 18

195:09 hearing-related injuries you saw stemmed from not

195:10 wearing hearing protection? Re: [195:06 to 195:19]

195:11 A. Correct. Pltf Obj 702; 802;

195:12 MR. BUCHANAN: Objection to form. speculation; conjecture;

195:13 BY MR. WASDIN: Plaintiff MIL #1, 2, 16

195:14 Q. And that those service members who you

195:15 treated who had worn hearing protection, including

195:16 the Combat Arms Version 2, tended to not have any

195:17 hearing loss?

195:18 MR. BUCHANAN: Objection to form.

195:19 THE WITNESS: Correct.

197:01 - 197:11 Merkley, LTC John A. (2020-02-26) 0:15

197:01 Q. Okay. Have you ever personally used the Re: [197:01 to 197:11] Re: [197:01 to 197:11] Re: [197:01 to 197:11] SUSTAINED

197:02 Combat Arms Version 2? Pltf Obj 403; 702; MIL G7 SUSTAINED Pltf Obj 403; 702; MIL 18

197:03 A. Yes.

197:04 Q. Did it work for you? Re: [197:01 to 197:11]

197:05 A. Yes. Pltf Obj 704; Plaintiff MIL # 1, 

197:06 Q. Did you need to fold the flanges back to 2, 16

197:07 get a good fit?

197:08 A. I didn't.

197:09 Q. So, you wore it without the flanges

197:10 folded back, and it worked?

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197:11 A. Yes.

197:17 - 198:06 Merkley, LTC John A. (2020-02-26) 1:48

197:17 Q. How often did you wear it in service? Re: [197:17 to 198:06] Re: [197:17 to 198:06] Re: [197:17 to 198:06] SUSTAINED

197:18 A. As -- as long as I had it. Pltf Obj 403; 702; MIL G7 SUSTAINED Pltf Obj 402; MIL 16

197:19 Q. What time period did you have it?

197:20 A. So, I had that earplug -- well, I -- I Re: [197:17 to 198:06]

197:21 got my first set in -- right around 2000 when they Pltf Obj 403; 702; Baker MIL

198:01 were just starting to come out in the military. 18

198:02 It was at the -- I believe the MASC, the

198:03 military audiology short course, so it may have

198:04 been 2001, because I -- I don't remember if I went

198:05 in 2000. In 2001 definitely, and then up until

198:06 the -- the new version came out --

198:13 - 198:17 Merkley, LTC John A. (2020-02-26) 0:12

198:13 Q. So, you wore the Version 2, the Re: [198:13 to 198:17] Re: [198:13 to 198:17] Re: [198:13 to 198:17] SUSTAINED

198:14 dual-ended version, during your deployment in Iraq, Pltf Obj 403; 702; MIL G7 SUSTAINED Pltf Obj Plaintiffs MIL #1, 2,

198:15 right? 16,

198:16 MR. BUCHANAN: Objection to form.

198:17 THE WITNESS: Yes. Re: [198:13 to 198:17]

Pltf Obj 403; 702; Plaintiffs

MIL 18

199:09 - 199:10 Merkley, LTC John A. (2020-02-26) 0:09

199:09 Q. You fired weapons with it in? Re: [199:09 to 199:10] Re: [199:09 to 199:10] Re: [199:09 to 199:10] SUSTAINED

199:10 A. Yes. Pltf Obj 403; 702; MIL G7 SUSTAINED Pltf Obj 403; 702; Baker MIL

18

200:07 - 200:10 Merkley, LTC John A. (2020-02-26) 0:05

200:07 Q. There's also a triple-flange earplug

200:08 that's a linear passive earplug that the Army has

200:09 available to it, right?

200:10 A. Right.

204:13 - 204:20 Merkley, LTC John A. (2020-02-26) 0:13

204:13 Q. Okay. You were given, when you first

204:14 joined the National Guard, a triple-flange earplug?

204:15 A. Correct.

204:16 Q. Is that what you refer to when you talk

204:17 about the triple flange in the military?

204:18 A. The triple -- yes.

204:19 Q. Yeah. It's a linear device?

204:20 A. Correct.

205:05 - 207:02 Merkley, LTC John A. (2020-02-26) 2:42

205:05 Q. Do you know what the DD 2216 form is?

205:06 A. Yes.

205:07 Q. What is that?

205:08 A. It's an audiogram.

205:09 Q. Is that --

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205:10 A. It's the form that the surveillance or

205:11 monitoring audiogram is documented on.

205:12 Q. Does every -- is this a -- this is the

205:13 surveillance audiogram that's given to service

205:14 members --

205:15 A. Correct.

205:16 Q. -- every year?

205:17 A. Across -- across the DoD.

205:18 Q. And it's -- the output of the

205:19 surveillance audiogram is then memorialized on DD

205:20 form 2216 for that person?

205:21 A. Correct.

206:01 Q. One of the pieces of information that's

206:02 included on a DD 2216 form is the type of personal

206:03 hearing protection used. Are you familiar with

206:04 that?

206:05 A. Yes.

206:06 Q. And then it's a -- a box that lists a

206:07 variety of options?

206:08 A. Correct.

206:09 Q. What --

206:10 (Whereupon, Merkley Deposition Exhibit

206:11 18, DD 2216 Form, marked for identification.)

206:12 BY MR. WASDIN:

206:13 Q. I've redacted out -- I just want to

206:14 basically understand what the box is used for, but

206:15 do you see the box on this particular DD 2216 that

206:16 lists the type of hearing protection used?

206:17 A. Yes.

206:18 Q. Let me get to my copy of it. There are a

206:19 variety of options that could be filled in, right?

206:20 A. (Nodding head yes.)

206:21 Q. Who -- who fills in that box?

207:01 A. Generally, it's the technician that

207:02 completes the test.

207:21 - 209:15 Merkley, LTC John A. (2020-02-26) 1:05

207:21 Q. Okay. The box provides seven options, Re: [207:21 to 209:15] Re: [207:21 to 209:15] Re: [207:21 to 209:15] OVERRULED

208:01 right? Pltf Obj 602; 403; foundation OVERRULED; 403 Pltf Obj 602; 403; foundation

208:02 A. Correct. OBJECTION WITHDRAWN, 3/11/2021

208:03 Q. And if you look at the box -- what Re: [207:21 to 209:15]

208:04 Exhibit Number did I just give you? Pltf Obj FRE 702; 402; 802;

208:05 A. Eighteen. 805; speculation; scope.

208:06 Q. If you look at Exhibit 18, this box is Plaintiffs MIL #1, 2, 16, 18

208:07 checked as 6 for this person on this date, right?

208:08 A. Correct.

208:09 Q. And 6 corresponds to, Other?

208:10 A. Correct.

208:11 Q. And then if you go over to the left,

208:12 there's a Remarks column, and it notes, Other HPD:

208:13 Combat Arms Earplug, do you see that?

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208:14 A. Yes.

208:15 Q. So, if the person is using a Combat Arms

208:16 Earplug, they check, Other, 6, and then reference

208:17 that in the notes?

208:18 A. Correct.

208:19 Q. If the person was using the triple

208:20 flange, the conventional passive product you talked

208:21 about, would they check 2 for triple flange?

209:01 MR. BUCHANAN: Objection.

209:02 THE WITNESS: They would.

209:03 BY MR. WASDIN:

209:04 Q. If they were using single flange, they

209:05 would check 1, right?

209:06 A. Correct.

209:07 Q. For 3, the hand-formed earplug, is that a

209:08 foam-rolled plug?

209:09 A. Yes.

209:10 Q. Four is ear canal caps, right?

209:11 A. Correct.

209:12 Q. Five is noise muffs, right?

209:13 A. Correct.

209:14 Q. And then 7 is none?

209:15 A. Correct.

210:04 - 210:12 Merkley, LTC John A. (2020-02-26) 0:21

210:04 Q. If none is check, what does it mean?

210:05 A. Well, it means -- it means -- it may mean

210:06 that they just weren't fitted on that day, that

210:07 they're not reporting any hearing protection used.

210:08 It doesn't mean that they don't have it.

210:09 Q. It means they're not --

210:10 A. It means --

210:11 Q. -- reporting using it?

210:12 A. -- they're not reporting using it.

211:09 - 212:14 Merkley, LTC John A. (2020-02-26) 1:05

211:09 I -- I also want to clarify one thing. Re: [211:06 to 212:15] OVERRULED

211:10 When it -- when it reads Combat Arms Earplug -- Pltf Obj FRE 611; 602; 702;

211:11 Q. Um-hmm. 402/403; 802; foundation;

211:12 A. -- here, this -- there is only one speculation; scope. Plaintiffs

211:13 choice, and the Combat Arms -- I understand the MIL #1, 2, 16, 18

211:14 Combat Arms Earplug is a propriety name, but at the

211:15 time the DOEHRS system was developed, Combat Arms

211:16 Earplug referred to a nonlinear-type device.

211:17 Q. Um-hmm.

211:18 A. So, now, if you read Combat Arms Earplug,

211:19 it -- it may be any of the approved nonlinear

211:20 hearing protection devices --

211:21 Q. Understood.

212:01 A. -- that are fielded in the Army or the

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212:02 DoD.

212:03 Q. So, the other HBD Combat Arms Earplug

212:04 reference on here is like a drop-down box or

212:05 something for the technician to check?

212:06 A. Yes.

212:07 Q. And they would check that?

212:08 A. They would check that. So yeah, they're

212:09 not typing in Combat Arms Earplug.

212:10 Q. Okay. And it's your understanding they

212:11 would select that drop-down for Combat Arms Earplug

212:12 if the person was wearing any nonlinear hearing

212:13 protection?

212:14 A. Right.

212:17 - 213:02 Merkley, LTC John A. (2020-02-26) 0:16

212:17 Q. For None, for 7 now just to clarify that Re: [212:17 to 213:02] Re: [212:17 to 213:02] Re: [212:17 to 213:02] OVERRULED

212:18 one, the reasons why someone's DD Form 2216 might Pltf Obj 602; 403; foundation OVERRULED Pltf Obj 602; 403; foundation

212:19 say none include a self-reported they weren't

212:20 wearing hearing protection, right? Re: [212:17 to 213:02]

212:21 A. Right. Pltf Obj FRE 701/702; 402;

213:01 MR. BUCHANAN: Objection to form. 802; speculation; scope.

213:02 THE WITNESS: Right. Plaintiffs MIL # 1, 2,16, 18

213:04 - 213:16 Merkley, LTC John A. (2020-02-26) 1:46

213:04 Q. Or that they weren't fitted with a

213:05 product that day, and the technician put a 7 down?

213:06 A. Correct.

213:07 Q. If they weren't fitted that day for their

213:08 annual audiogram, what are the -- like why wouldn't

213:09 they be fitted at every --

213:10 A. Well, you know, not -- not every clinic

213:11 fits service members when they come in for

213:12 that --

213:13 Q. Got it.

213:14 A. -- appointment. They might fit them at a

213:15 different educational event or at some other

213:16 location.

213:17 - 214:04 Merkley, LTC John A. (2020-02-26) 0:19

213:17 Q. The military -- we talked about this Re: [213:17 to 214:04] OVERRULED

213:18 earlier, and I was going to come back to it, so now Pltf Obj FRE 602; 702;

213:19 I'm going to do it. The military 40-501 402/403; 802; 805; foundation;

213:20 Pamphlet -- speculation; scope. Plaintiffs

213:21 A. Um-hum. MIL #1, 2, 16, 18, 21

214:01 Q. -- we talked, contains criteria for when

214:02 you should use either single or double protection

214:03 or just avoid a noise entirely?

214:04 A. Correct.

214:16 - 215:14 Merkley, LTC John A. (2020-02-26) 1:45

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214:16 Q. Okay. So, the military -- the Army, Re: [214:16 to 215:14] OVERRULED

214:17 excuse me, has standards on when service members Pltf Obj FRE 602; 702;

214:18 should use a single earplug, like the Combat Arms 402/403; 802; 805; foundation;

214:19 Version 2, or where they, instead, should use speculation; scope. Plaintiffs

214:20 double-hearing protection, right? MIL #1, 2, 16,

214:21 A. Yes.

215:01 Q. Double-hearing protection, what does that

215:02 mean?

215:03 A. It means that they're using an -- an

215:04 earplug and another form of hearing protection,

215:05 usually a noise muff.

215:06 Q. So, an earplug in the ear, and then a

215:07 muff on top of that?

215:08 A. Correct.

215:09 Q. If you look at page -- starting on page

215:10 5, section 6.2, Protector Requirements, I believe

215:11 that's the beginning of this section that talks

215:12 about what types of noise merit double-hearing

215:13 protection, am I right about that?

215:14 A. Yes.

216:19 - 217:11 Merkley, LTC John A. (2020-02-26) 1:31

216:19 Q. 6.2 c. in the middle of the page is a Re: [216:19 to 217:11] OVERRULED

216:20 section titled, Soldiers in Training, Noncombat or Pltf Obj FRE 602; 702;

216:21 Nonindustrial Scenarios, right? 402/403; 802; 805; foundation;

217:01 A. Yes. speculation; scope. Plaintiffs

217:02 Q. And then the first guidance under that MIL #1, 2, 16, 21

217:03 section is for steady-state noise levels, right?

217:04 A. Correct.

217:05 Q. If you go down to (2), there's a section

217:06 for impulse noise levels there?

217:07 A. Um-hum.

217:08 Q. And impulse noise levels would include

217:09 like weapons fired and things of that nature,

217:10 right?

217:11 A. Right.

218:09 - 219:21 Merkley, LTC John A. (2020-02-26) 1:13

218:09 Q. Okay. And what they say is that for less Re: [218:09 to 219:21] OVERRULED

218:10 than 140 dB peak, personnel may wear hearing Pltf Obj FRE 602; 702;

218:11 protection, if desired? 402/403; 802; 805; foundation;

218:12 A. Correct. speculation; scope. Plaintiffs

218:13 Q. So, that means up to 139, you don't even MIL #1, 2, 16, 18, 21

218:14 need hearing protection?

218:15 MR. BUCHANAN: Objection to form.

218:16 BY MR. WASDIN:

218:17 Q. Or it's not required?

218:18 MR. BUCHANAN: Objection.

218:19 THE WITNESS: It's not required.

218:20 BY MR. WASDIN:

218:21 Q. It's not required, so --

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219:01 A. Correct. For -- for impulsive noise.

219:02 Q. For impulse noise, yeah. For impulse

219:03 noises 140 to 165 dB peak, the requirement is that

219:04 you have to wear hearing protection, right?

219:05 A. Correct.

219:06 Q. And that would include an earplug, like

219:07 the Combat Arms Version 2?

219:08 A. Yes.

219:09 Q. Or any other earplug in the -- that the

219:10 Army has approved, right?

219:11 A. Correct.

219:12 Q. But for greater than 165 dB, but less

219:13 than or equal to the Z, to the curve Z per mil

219:14 standard 1474 D, personnel must wear earplugs in

219:15 combination with noise muffs or a noise attenuation

219:16 helmet, right?

219:17 A. Correct.

219:18 Q. So, the general rule is if you're going

219:19 to be exposed to impulse peaks above 165, you need

219:20 to wear double protection?

219:21 A. Correct.

223:10 - 223:15 Merkley, LTC John A. (2020-02-26) 0:14

223:10 Q. You talked about when you were in Iraq Re: [223:10 to 223:15] Re: [223:10 to 223:15] Re: [223:10 to 223:15] SUSTAINED

223:11 that for those folks that you treated that had Pltf Obj 611 SUSTAINED Pltf Obj FRE 602; 702;

223:12 hearing loss, it was typically because of nonuse of 402/403; 802; 805; foundation;

223:13 hearing protection devices? speculation; scope. Plaintiffs

223:14 MR. BUCHANAN: Objection to form. MIL #1, 2, 16, 18, 21

223:15 THE WITNESS: Right.

225:21 - 226:20 Merkley, LTC John A. (2020-02-26) 1:40

225:21 Q. LTC Merkley, I just have a few more Re: [225:21 to 226:20] Re: [225:21 to 226:20] Re: [225:21 to 226:20] SUSTAINED

226:01 questions before we break for lunch, the first of Pltf Obj 403; 702; MIL G7 SUSTAINED Pltf Obj FRE 602; 402; 802;

226:02 which relates to your own use of the Combat Arms 805; foundation; speculation;

226:03 Earplug Version 2. scope. Plaintiffs MIL #1, 2,

226:04 A. Okay. 16, 21

226:05 Q. I think you told me that when you used

226:06 the Combat Arms Version 2, you did not need to roll Re: [225:21 to 226:20]

226:07 back the flanges in order to achieve a proper fit? Pltf Obj 403; 702; Baker MIL

226:08 MR. BUCHANAN: Objection to form. 18

226:09 THE WITNESS: Correct.

226:10 BY MR. WASDIN:

226:11 Q. When you used the Combat Arms Version 2,

226:12 were you able to achieve a good fit?

226:13 MR. BUCHANAN: Objection to form.

226:14 THE WITNESS: Yes.

226:15 BY MR. WASDIN:

226:16 Q. And during the course of whatever time

226:17 you used them, were you able to keep that fit with

226:18 the Combat Arms Version 2?

226:19 MR. BUCHANAN: Objection to form.

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226:20 THE WITNESS: Yes.

227:08 - 227:14 Merkley, LTC John A. (2020-02-26) 0:12

227:08 Q. That's -- the idea that a premolded Re: [227:08 to 227:14] Re: [227:08 to 227:14] Re: [227:08 to 227:14] SUSTAINED

227:09 earplug, you know, may lose its seal is reported in Pltf Obj 602; 611; 702 SUSTAINED Pltf Obj 602; 611; 702

227:10 the academic literature in hearing conservation,

227:11 right?

227:12 MR. BUCHANAN: Objection. Foundation and

227:13 form.

227:14 THE WITNESS: Yes.

228:01 - 228:14 Merkley, LTC John A. (2020-02-26) 1:53

228:01 Q. You were aware when you were a military Re: [228:01 to 228:14] Re: [228:01 to 228:14] Re: [228:01 to 228:14] SUSTAINED

228:02 audiologist or an Army audiologist that preformed Pltf Obj 403; 602 SUSTAINED Pltf Obj FRE 602; 402; 802;

228:03 earplugs of any variety could loosen in a wearer's foundation; speculation;

228:04 ear, right? scope. Plaintiffs MIL #1, 2,

228:05 MR. BUCHANAN: Objection to the 15, 16, 21

228:06 leadingness.

228:07 THE WITNESS: Yes.

228:08 BY MR. WASDIN:

228:09 Q. And on occasions when a preformed earplug

228:10 does lose its seal, you found that to be

228:11 perceptible because you could hear ambient noise

228:12 louder than you did when you had a seal, right?

228:13 MR. BUCHANAN: Objection to form.

228:14 THE WITNESS: Yes.

228:16 - 228:20 Merkley, LTC John A. (2020-02-26) 0:12

228:16 Q. Did you have any problem properly Re: [228:16 to 228:20] Re: [228:16 to 228:20] Re: [228:16 to 228:20] OVERRULED

228:17 inserting the CAEv2 into your ear when you used it? Pltf Obj 403; 702; MIL G7 OVERRULED Pltf Obj 403; 702; Baker MIL

228:18 MR. BUCHANAN: Objection to form to the 18

228:19 personal use.

228:20 THE WITNESS: No.

229:01 - 230:06 Merkley, LTC John A. (2020-02-26) 1:03

229:01 Q. The last thing I want to ask you about is Re: [229:01 to 230:06] Re: [229:01 to 230:06] Re: [229:01 to 230:06] OVERRULED

229:02 we talked a little bit about experimenter fit Pltf Obj 611 OVERRULED Pltf Obj 611

229:03 versus user fit in the testing of hearing

229:04 protection devices; do you remember that? Re: [229:01 to 230:06]

229:05 A. Yes. Pltf Obj FRE 602; 702;

229:06 Q. And we said that experimenter fit was 402/403; 802; 805; foundation;

229:07 definitely the standard -- the fitting methodology speculation; scope. Plaintiffs

229:08 for the 1974 ANSI standard, right? MIL #1, 2, 15, 16, 18, 21

229:09 A. Correct.

229:10 Q. That's the standard that's used during

229:11 NRR labeling testing?

229:12 A. Yes.

229:13 Q. Are you aware that the results achieved

229:14 when an experimenter fits an earplug are often

229:15 greater than when a user fits the plug themselves?

229:16 MR. BUCHANAN: Objection to form.

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229:17 THE WITNESS: Yes.

229:18 BY MR. WASDIN:

229:19 Q. Is that something that is discussed at

229:20 the NHCA conference from time to time?

229:21 A. Yes.

230:01 Q. For that reason, NRR ratings tend to

230:02 overestimate the amount of attenuation any

230:03 particular person would get with a product, right?

230:04 MR. BUCHANAN: Objection. Form and

230:05 foundation.

230:06 THE WITNESS: Yes.

231:13 - 232:14 Merkley, LTC John A. (2020-02-26) 1:38

231:13 Q. Some of the data we looked at on the Re: [232:03 to 232:14] OVERRULED

231:14 yellow end included real ear attenuation data for Pltf Obj FRE 402/403; 602;

231:15 the yellow end of the product, right? 702; 802; speculation; scope;

231:16 A. Um-hum. foundation; Plaintiffs MIL #1,

231:17 Q. And it shows some levels of attenuation 2, 16, 18

231:18 at various frequencies even on the yellow end,

231:19 right?

231:20 A. Correct.

231:21 MR. BUCHANAN: Objection to form and

232:01 foundation.

232:02 BY MR. WASDIN:

232:03 Q. Were you generally aware during your time

232:04 as an Army audiologist that the yellow end did

232:05 provide some level of attenuation --

232:06 MR. BUCHANAN: Objection to form.

232:07 THE WITNESS: Yes.

232:08 BY MR. WASDIN:

232:09 Q. -- even for lower-level sounds?

232:10 A. Yes.

232:11 Q. You didn't think that it let one hundred

232:12 percent of all ambient sound come through?

232:13 MR. BUCHANAN: Objection to the leading.

232:14 THE WITNESS: Correct.

233:15 - 234:06 Merkley, LTC John A. (2020-02-26) 1:32

233:15 Is it correct, sir, that you're at the

233:16 Army Hearing Conservation Program office today?

233:17 A. It's the Army Hearing Program Office.

233:18 Q. Okay. And is the Army -- is that also

233:19 called Program 51?

233:20 A. It is, yes.

233:21 Q. Okay. And that's within another group

234:01 called the Occupational and Environmental Medicine

234:02 Group?

234:03 A. Not -- not currently. It falls

234:04 under -- the directorate is the clinical public

234:05 health and epidemiology directorate, so the

234:06 directorates have changed.

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235:15 - 235:20 Merkley, LTC John A. (2020-02-26) 0:13

235:15 Q. Okay. Am I correct, sir, you -- you

235:16 served as a clinical audiologist for several years

235:17 and in several different settings and then have

235:18 separately held positions where I'll say more

235:19 policy based, is that fair?

235:20 A. Yes.

235:21 - 236:05 Merkley, LTC John A. (2020-02-26) 1:30

235:21 Q. Okay. Could you kind of identify for us

236:01 your windows when you had clinical experience?

236:02 A. Clinical experience initially from 2000

236:03 to -- well, really all of the way through 2015 when

236:04 I moved to the Defense Hearing Center of

236:05 Excellence.

238:02 - 238:12 Merkley, LTC John A. (2020-02-26) 0:22

238:02 Q. Okay. You were telling us about your Re: [238:02 to 239:08] SUSTAINED

238:03 time in Iraq. Pltf Obj FRE 402/403; 702;

238:04 A. Um-hum. 602; 802;

238:05 Q. I believe you spent about a year there?

238:06 A. I spent 13 months in Iraq.

238:07 Q. And those years again?

238:08 A. 2006/'07.

238:09 Q. And were you attached to a particular

238:10 brigade -- brigade there?

238:11 A. I was attached to the 28th Combat Support

238:12 Hospital.

238:13 - 239:08 Merkley, LTC John A. (2020-02-26) 1:09

238:13 Q. And how large a group does the 28th Re: [238:02 to 239:08] SUSTAINED

238:14 Combat Support Hospital support? Pltf Obj FRE 402/403; 702;

238:15 A. Like how large is the organization? 602; 802;

238:16 Q. No. I was asking more in terms of the

238:17 soldiers that you were, you know, assigned to

238:18 supporting, how -- in terms of troop count?

238:19 A. Oh, we -- we conducted split operations

238:20 in Iraq, covered Baghdad and Tallil and Mosul.

238:21 The -- the split operations were in Mosul at first.

239:01 I don't remember, I wasn't -- I think up in Mosul.

239:02 I thought they moved down to Tallil, but I may be

239:03 wrong on that. I spent all of my time in Baghdad,

239:04 and we supported all coalition forces in and

239:05 around -- well, in Iraq.

239:06 Q. And at its peak, or at least when you

239:07 were there, tens of thousands of forces?

239:08 A. Yes.

379:14 - 379:17 Merkley, LTC John A. (2020-02-26) 0:11

379:14 THE WITNESS: I was not. Re: [379:14 to 379:17] Re: [379:14 to 379:17] Re: [379:14 to 379:17] SUSTAINED

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379:15 BY MR. BUCHANAN: Def Obj Improper Counter DEFER RULING Def Obj Improper Counter

379:16 Q. Are you aware the company discontinued it

379:17 the next week?

434:02 - 434:13 Merkley, LTC John A. (2020-02-26) 0:27

434:02 Q. Hearing Center of Excellence. You looked Re: [434:02 to 434:13] OVERRULED

434:03 at some DoD materials that talk about hearing loss Pltf Obj FRE 402/403; 602;

434:04 being preventable in the military, do you remember 702; 711; 802. Plaintiff's MIL

434:05 those? #1, 2, 16, 18

434:06 A. Yes.

434:07 Q. I think you and I talked earlier about

434:08 ways to prevent, or at least the 40-501

434:09 regulations, on how someone should approach noise

434:10 to give themselves the best chance of preventing

434:11 hearing loss, do you remember those discussions we

434:12 had?

434:13 A. Yes.

435:08 - 435:21 Merkley, LTC John A. (2020-02-26) 0:23

435:08 Q. Some levels of noise you can protect Re: [435:08 to 436:17] OVERRULED

435:09 yourself against with a single-hearing protection Pltf Obj FRE 402/403; 602;

435:10 device, right? 702; 711; 802. Plaintiff's MIL

435:11 A. Yes. #1, 2, 16, 18

435:12 Q. Some levels of noise are high enough that

435:13 you would need two separate hearing protection

435:14 devices together, right?

435:15 A. Yes.

435:16 Q. In order to prevent hearing loss, right?

435:17 A. Yes.

435:18 Q. And some noises are so high that the only

435:19 way to prevent hearing loss is to either limit your

435:20 time in them or not encounter them at all, right?

435:21 A. Correct.

436:03 - 436:09 Merkley, LTC John A. (2020-02-26) 0:11

436:03 Q. So, when we say hearing loss is Re: [436:03 to 436:09] Re: [436:03 to 436:09] Re: [435:08 to 436:17] OVERRULED

436:04 preventable, we mean with one, with multiple Pltf Obj 611; foundation; 702 OVERRULED Pltf Obj FRE 402/403; 602;

436:05 hearing protection devices or by just by avoiding 702; 711; 802. Plaintiff's MIL

436:06 the noise in the first place, right? #1, 2, 16, 18

436:07 MR. BUCHANAN: Objection to the form and

436:08 foundation. Re: [436:03 to 436:09]

436:09 THE WITNESS: Correct. Pltf Obj foundation; 702

436:11 - 436:17 Merkley, LTC John A. (2020-02-26) 0:15

436:11 Q. The materials you reviewed with Re: [436:11 to 436:17] Re: [436:11 to 436:17] Re: [435:08 to 436:17] SUSTAINED

436:12 Mr. Buchanan did not say that all hearing losses Pltf Obj 611 SUSTAINED Pltf Obj FRE 402/403; 602;

436:13 are preventable in the military by wearing the 702; 711; 802. Plaintiff's MIL

436:14 Combat Arms Version 2 on its own, right? #1, 2, 16, 18

436:15 MR. BUCHANAN: Objection to form and

436:16 foundation. Re: [436:11 to 436:17]

436:17 THE WITNESS: Correct. Pltf Obj 611

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439:12 - 439:17 Merkley, LTC John A. (2020-02-26) 0:19

439:12 Q. In the Just the Facts document the Army Re: [439:12 to 439:17] OVERRULED

439:13 says, at 190 dB, there's an overall peak reduction Pltf Obj FRE 402/403; 602;

439:14 of 25 dB. Testing at a U.S. military facility 702; 711; 802. Plaintiff's MIL

439:15 found this nonlinear earplug protective up to 190 #1, 2, 16, 18

439:16 dB. Do you remember that?

439:17 A. Yes.

440:06 - 441:01 Merkley, LTC John A. (2020-02-26) 1:35

440:06 Q. Okay. So, when the Army was authoring Re: [440:06 to 441:01] Re: [440:06 to 441:01] Re: [440:06 to 441:08] SUSTAINED

440:07 the Just the Facts document, the Army had Pltf Obj 602; 611 SUSTAINED Pltf Obj FRE 402/403; 702;

440:08 determined that testing at a U.S. military facility 802. Plaintiff's MIL #1, 2,

440:09 found this nonlinear earplug, the Combat Arms 16, 18

440:10 Earplug, protective up to 190 dB?

440:11 MR. BUCHANAN: Objection to form. Re: [440:06 to 441:01]

440:12 THE WITNESS: Yes. Pltf Obj 602; 611

440:13 BY MR. WASDIN:

440:14 Q. That's what the document says. And then

440:15 ten years later, or nine years later, the exact

440:16 same statement is in a 3M advertisement on the

440:17 product, right?

440:18 A. Yes.

440:19 Q. And, indeed, if you look at the 3M ad,

440:20 there's a citation on the end of that sentence,

440:21 too, and it's to the Dan Johnson blast study?

441:01 A. To the study, yes.

441:02 - 441:08 Merkley, LTC John A. (2020-02-26) 0:21

441:02 Q. So, what 3M is doing in the ad is just Re: [441:02 to 441:08] Re: [441:02 to 441:08] Re: [440:06 to 441:08] SUSTAINED

441:03 repeating the Army's own interpretation of the Pltf Obj 602; 611 SUSTAINED Pltf Obj FRE 402/403; 702;

441:04 Army's study that the Army had made almost a decade 802. Plaintiff's MIL #1, 2,

441:05 earlier, right? 16, 18

441:06 MR. BUCHANAN: Objection to form and

441:07 foundation. Re: [441:02 to 441:08]

441:08 THE WITNESS: Yes. Pltf Obj 602; 611

443:03 - 444:10 Merkley, LTC John A. (2020-02-26) 1:04

443:03 Q. Mr. Berger testified that Doug Ohlin Re: [443:03 to 444:10] Re: [443:03 to 444:10] Re: [443:03 to 444:15] SUSTAINED

443:04 requested from him a dual-ended product that Pltf Obj 602; 611 SUSTAINED Pltf Obj FRE 402/403; 702;

443:05 included the Ultra Fit tips of a single size and 802. Plaintiff's MIL #1, 2,

443:06 the ISL filter. You don't have any reason to 16, 18

443:07 disagree with that testimony, do you?

443:08 MR. BUCHANAN: Objection to form. Re: [443:03 to 444:10]

443:09 THE WITNESS: No. Pltf Obj 602; 611

443:10 BY MR. WASDIN:

443:11 Q. Now, you and I looked at some documents

443:12 that included emails from Doug Ohlin in the April

443:13 1999 time period, do you remember those?

443:14 A. Yes.

443:15 Q. And in those emails, Mr. Ohlin had found

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443:16 that the original production samples of that plug

443:17 that were sent by Aearo were about a quarter of an

443:18 inch too long and didn't fit into the military

443:19 carrying case, do you remember those emails?

443:20 A. Yes.

443:21 Q. Subsequent to those emails, Aearo reduced

444:01 the size, reduced the length of the Combat Arms

444:02 Version 2 by a quarter of an inch.

444:03 During your investigation of the

444:04 materials in this case, did you find anything that

444:05 contradicts that Aearo shortened the length of the

444:06 Combat Arms Version 2 in response to Doug Ohlin's

444:07 request?

444:08 MR. BUCHANAN: Objection to form.

444:09 Ambiguous.

444:10 THE WITNESS: No.

444:12 - 444:15 Merkley, LTC John A. (2020-02-26) 0:03

444:12 Q. You don't have any reason to disagree Re: [443:03 to 444:15] SUSTAINED

444:13 with that, do you? Pltf Obj FRE 402/403; 702;

444:14 MR. BUCHANAN: Leading. 802. Plaintiff's MIL #1, 2,

444:15 THE WITNESS: No. 16, 18

445:11 - 445:16 Merkley, LTC John A. (2020-02-26) 0:13

445:11 Q. But you don't have any reason to disagree Re: [445:11 to 445:16] Re: [445:11 to 445:16] Re: [445:11 to 445:16] SUSTAINED

445:12 with Mr. Berger's testimony that he told Doug Ohlin Pltf Obj 602; 611 SUSTAINED Pltf Obj 602; 611

445:13 about the company's internal testing while it was

445:14 happening, do you?

445:15 MR. BUCHANAN: Objection to form.

445:16 THE WITNESS: No.

449:01 - 449:06 Merkley, LTC John A. (2020-02-26) 1:50

449:01 Q. And that's interesting, because if you go

449:02 to the Hobbs testing, which is the Air Force

449:03 testing we've been talking about all day, he

449:04 actually does -- are you with me on the Air Force

449:05 document?

449:06 A. I am.

449:12 - 450:14 Merkley, LTC John A. (2020-02-26) 1:52

449:12 Q. He actually does real ear attenuation Re: [449:12 to 450:14] Re: [449:12 to 450:14] Re: [449:12 to 450:14] OVERRULED

449:13 testing as part of that testing, right? Pltf Obj 403; 702; MIL G7 OVERRULED Pltf Obj FRE 402; 602; 802.

449:14 MR. BUCHANAN: Objection to form. Plaintiff's MIL #1, 2, 16

449:15 THE WITNESS: Yes.

449:16 BY MR. WASDIN: Re: [449:12 to 450:14] OVERRULED

449:17 Q. And real ear there means the earplugs Pltf Obj 403; 702; Baker MIL

449:18 were inserted into a human ear and tested for 18

449:19 attenuation, right?

449:20 A. Correct.

449:21 Q. And if you go to page 19, at the top,

450:01 there's a paragraph called, Discussion. He

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450:02 determines that the continuous noise protection of

450:03 all devices tested was reasonable and should

450:04 provide for a safe exposure level for the average

450:05 users in many noise environments up to 105 dB,

450:06 right?

450:07 MR. BUCHANAN: Objection to the form.

450:08 THE WITNESS: Yes.

450:09 BY MR. WASDIN:

450:10 Q. So, Mr. Hobbs is testing the earplug in

450:11 human ears without rolling the flanges back, and

450:12 they are working?

450:13 MR. BUCHANAN: Objection to form.

450:14 THE WITNESS: Yes, it appears so.

452:12 - 453:14 Merkley, LTC John A. (2020-02-26) 1:53

452:12 Q. First, we have test data from a variety Re: [452:12 to 453:14] Re: [452:12 to 453:14] Re: [452:12 to 453:14] SUSTAINED

452:13 of branches of the military that show that the plug Pltf Obj vague; 602; 702; 402; SUSTAINED Pltf Obj 805; Plainitff MIL

452:14 provides reasonable attenuation or good attenuation 802 #1, 2, 16, 18

452:15 under a variety of different circumstances, right?

452:16 MR. BUCHANAN: Objection to form and Re: [452:12 to 453:14] SUSTAINED

452:17 foundation. Vague. Pltf Obj vague; 602; 702; 402;

452:18 THE WITNESS: Yes. 802;

452:19 BY MR. WASDIN:

452:20 Q. Second, you have personal experience with

452:21 the plug, and for you, it worked well?

453:01 A. Yes.

453:02 MR. BUCHANAN: Objection to form.

453:03 BY MR. WASDIN:

453:04 Q. Third, we reviewed a number of success

453:05 stories from other members of the military who

453:06 served in Iraq who said that the plug worked for

453:07 them, too, right?

453:08 A. Yes.

453:09 Q. Third, you treated patients in Iraq, and

453:10 your experience was those that didn't use a plug

453:11 had hearing loss, and those that did use a hearing

453:12 protector, like the CAEv2, did not, right?

453:13 MR. BUCHANAN: Objection. Form.

453:14 THE WITNESS: Correct.

455:01 - 455:08 Merkley, LTC John A. (2020-02-26) 0:18

455:01 Q. But your experience was, regardless of Re: [455:01 to 455:08] Re: [455:01 to 455:08] Re: [455:01 to 455:08] SUSTAINED

455:02 what a particular document did or did not say, that Pltf Obj 611 SUSTAINED Pltf Obj FRE 402/403; 602;

455:03 in the 2001 to 2005 time period, Doug Ohlin 702; 711; 802. Plaintiff's MIL

455:04 instructed you and other Army audiologists to fold #1, 2, 16, 18

455:05 back the flanges as needed to get a good fit,

455:06 right? Re: [455:01 to 455:08]

455:07 MR. BUCHANAN: Objection to form. Pltf Obj 611

455:08 THE WITNESS: Yes.

456:02 - 457:11 Merkley, LTC John A. (2020-02-26) 1:45

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456:02 Q. Now, you told me earlier that all Re: [456:02 to 457:11] Re: [456:02 to 457:11] Re: [456:02 to 457:11] SUSTAINED

456:03 preformed earplugs are susceptible to loosening, Pltf Obj foundation; 602; 611; SUSTAINED Pltf Obj foundation; 602; 611;

456:04 right? 702 702

456:05 A. Yes.

456:06 Q. That's a well-known phenomenon, right? Re: [456:02 to 457:11]

456:07 A. Yes. Pltf Obj FRE 402/403; 802.

456:08 MR. BUCHANAN: Objection to form. Plaintiff's MIL #1, 2, 16, 18

456:09 BY MR. WASDIN:

456:10 Q. So, users of the Combat Arms Version 2,

456:11 at least the audiology community, would know, like

456:12 other preformed earplugs, it could be susceptible

456:13 to loosening, right?

456:14 MR. BUCHANAN: Objection. Form.

456:15 Foundation. Well beyond the witness.

456:16 THE WITNESS: Yes.

456:17 BY MR. WASDIN:

456:18 Q. Yourself included, right?

456:19 MR. BUCHANAN: Objection to form.

456:20 THE WITNESS: Yes.

456:21 BY MR. WASDIN:

457:01 Q. Now, your experience was with any

457:02 preformed earplug that did loosen, including if it

457:03 happened to you with the Combat Arms Version 2, it

457:04 was perceptible to you, right?

457:05 A. Yes.

457:06 MR. BUCHANAN: Objection.

457:07 BY MR. WASDIN:

457:08 Q. That in the real world, you had an

457:09 auditory clue that you had lost the seal of your

457:10 hearing protector, right?

457:11 A. Yes.

458:02 - 459:01 Merkley, LTC John A. (2020-02-26) 1:44

458:02 Q. I'll represent to you some testimony Re: [458:02 to 459:01] Re: [458:02 to 459:01] Re: [458:02 to 459:01] SUSTAINED

458:03 given in this case. Mr. Berger said that the Pltf Obj foundation; 602; 611; SUSTAINED Pltf Obj foundation; 602; 611;

458:04 concept of imperceptible loosening is a phenomenon 702 702

458:05 that's limited to the REAT chamber because there

458:06 are no auditory clues in a silent room. Do you Re: [458:02 to 459:01]

458:07 follow that logic? Pltf Obj FRE 402/403; 802;

458:08 MR. BUCHANAN: Objection to form. 805; scope. Plaintiff's MIL

458:09 THE WITNESS: Yes. #1, 2, 16, 18

458:10 BY MR. WASDIN:

458:11 Q. And in a silent room that had no auditory

458:12 external clues, if you lost your seal on a plug,

458:13 you might not notice it, right?

458:14 MR. BUCHANAN: Objection to form and

458:15 foundation.

458:16 THE WITNESS: Correct.

458:17 BY MR. WASDIN:

458:18 Q. But in the real world, particularly in a

458:19 combat setting or in military training, if you lose

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458:20 your seal on a plug, you will notice it?

458:21 MR. BUCHANAN: Objection. Foundation.

459:01 THE WITNESS: Generally, yes.

460:07 - 460:12 Merkley, LTC John A. (2020-02-26) 0:16

460:07 Q. Okay. But as of 2001, information that Re: [460:07 to 460:12] SUSTAINED

460:08 for some people they could benefit by folding back Pltf Obj FRE 402/403; 602;

460:09 the flanges on the opposite side of the plug, you 702; 711; 802. Plaintiff's MIL

460:10 had that information as of 2001? #1, 2, 16, 18

460:11 MR. BUCHANAN: Objection to form.

460:12 THE WITNESS: Yes.

488:21 - 489:07 Merkley, LTC John A. (2020-02-26) 0:18

488:21 Q. Okay. And fair to say, sir, that the Re: [488:21 to 489:07] OVERRULED

489:01 design of the yellow end was to allow sound to go Pltf Obj FRE 402/403; 602;

489:02 through, right? 702; 711; 802. Plaintiff's MIL

489:03 A. Yes. #1, 2, 16, 18

489:04 Q. That was the goal, to allow as much sound

489:05 to go through unless it was an impulse noise,

489:06 right?

489:07 A. Correct.

489:18 - 490:08 Merkley, LTC John A. (2020-02-26) 1:41

489:18 THE WITNESS: Can I just add? You know, Re: [489:18 to 490:08] Re: [489:18 to 490:08] Re: [489:18 to 490:08] SUSTAINED

489:19 because the questioning was related to, you know, Pltf Obj nonresponsive SUSTAINED Pltf Obj FRE 402/403; 602;

489:20 would you perceive a -- a break in the seal? And 702; 711; 802. Plaintiff's MIL

489:21 when you fit the yellow end of that earplug in, you #1, 2, 16, 18

490:01 still get an occlusion effect, and when the seal is

490:02 broken, that occlusion effect is what tends to go Re: [489:18 to 490:08]

490:03 away. Pltf Obj nonresponsive

490:04 So, the -- the sound still is different.

490:05 It's different with the earplug seated and when

490:06 it's -- when the seal is broken. They're -- you

490:07 can generally tell when that seal is broken. I

490:08 won't say all the time, but --

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Preserved Objections Previous Rulings New Objections Rulings

641:19 - 642:24 Myers, Brian (2019-12-13) 2:06

641:19 Q. Mr. Myers, my name is Sean Tracy. I am a

641:20 lawyer from Houston, Texas. I'm going to ask you some

641:21 questions this afternoon.

641:22 The first one I'm going to ask you is I

641:23 have listened to your testimony now for a day and a

641:24 half and I'm going to confess that I don't really know

641:25 what you did for Aearo. So I'm going to get you to

642:01 explain to me for the past -- from 1999, let's say, to

642:02 the present, what did you do for them?

642:03 A. From 1999?

642:04 Q. Yeah, or 2000.

642:05 A. Okay. So I was a product manager for the

642:06 hearing protection piece until 2008 for Aearo when it

642:07 was purchased by 3M which meant that, I guess, the two

642:08 big responsibilities that come to my mind would be

642:09 sort of convening meetings when there was an interest

642:10 in trying to develop a new product with

642:11 cross-functional teams to, you know, try to align and

642:12 execute a timetable and key milestones to bring a --

642:13 bring a product potentially to market.

642:14 Q. Okay.

642:15 A. And then the other part of it, I wasn't in

642:16 a sales function, but I was in a function where I

642:17 would interact or go visit customers who may have been

642:18 or may have needed to use hearing protection and try

642:19 to understand what -- where there might be

642:20 opportunities for us to either make our products

642:21 better or modify our products in some way to -- to

642:22 provide some solutions to people who either were

642:23 looking for better solutions or didn't -- or didn't

642:24 have a solution.

644:24 - 645:23 Myers, Brian (2019-12-13) 1:55

644:24 And was there a group you were under when

644:25 you were visiting customers? Were you in marketing or

645:01 sales or what did they -- what was the name of the

645:02 group?

645:03 A. So, you would have referred to me as

645:04 marketing. I think for the most part it was called

645:05 product management, but the responsibilities were I

645:06 think what most people would think of as marketing

645:07 responsibilities.

645:08 Q. So if I met you at a cocktail party rather

645:09 than this sort of artificial atmosphere and I asked

645:10 you what you had been doing for most of your career

Designations

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645:11 the last 20 years, you would have said marketing?

645:12 A. Yeah.

645:13 Q. Okay.

645:14 A. And I don't know -- I don't know, you

645:15 know, what's in your head for marketing, but probably

645:16 marketing and business, you know.

645:17 Q. Okay.

645:18 A. We looked at some exhibits that -- where

645:19 we were trying to establish what we should prioritize

645:20 in terms of a new product or those kinds of things,

645:21 and I don't know if you think of that as marketing.

645:22 Maybe you think of it more as business, but it was

645:23 that kind of thing.

649:08 - 650:25 Myers, Brian (2019-12-13) 2:25

649:08 When did you begin working for Cabot or

649:09 Aearo or whatever the heritage company's name was?

649:10 A. So I -- I joined the -- the first entity

649:11 was Cabot Corporation in November of 1989.

649:12 Q. 1989. That's what I was looking for.

649:13 Okay.

649:14 When you joined -- sorry.

649:15 From 1989 to let's say now, has -- have

649:16 hearing protection devices been in some way, shape or

649:17 form in your wheelhouse?

649:18 A. So when you say -- do you mean in --

649:19 within my responsibilities?

649:20 Q. Yes.

649:21 A. No.

649:22 Q. No, okay.

649:23 When did hearing protection devices become

649:24 your responsibility?

649:25 A. So I think at -- I'm trying to remember

650:01 my -- my CV that we looked at yesterday, but in -- I

650:02 was in production of hearing protection devices

650:03 briefly and then I had some respiratory

650:04 responsibilities, but around the early I'll say mid

650:05 like '93, we can look at the CV if you want to.

650:06 Q. We don't need to.

650:07 A. But around that time is when I first had

650:08 responsibilities like I -- I described that were

650:09 product management, marketing kinds of

650:10 responsibilities within hearing protection, and I had

650:11 response -- I assume you want me to go on forward?

650:12 Q. Yeah, please.

650:13 A. So I had responsibilities, now, at some

650:14 point in the mid 2000s I -- there were other marketers

650:15 who began to work for me and they may have had more of

650:16 day-to-day responsibilities within that product line,

650:17 and -- but I had some responsibilities all of the way

Page 2 of 23

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650:18 up until January of 2011.

650:19 Q. Okay.

650:20 A. And then for about -- I think for -- it

650:21 was for about four-and-a-half years I didn't have any

650:22 responsibilities in hearing whatsoever, and which kind

650:23 of leads me to where I am today where I have

650:24 responsibilities, that's one of the several product

650:25 lines that -- that I oversee or manage.

697:13 - 698:07 Myers, Brian (2019-12-13) 1:07

697:13 Q. By the way, I watched with some Re: [697:13 to 698:07] SUSTAINED

697:14 fascination yesterday as you were handed a pair of the

Pltf Obj 402, 403, 702, MIL G7

697:15 Combat Arms Earplugs and you didn't fold back the lay opinion on efficacy of

697:16 flanges, did you? CAEv2

697:17 A. No, I did not.

697:18 Q. Do you believe they have to be folded back

697:19 to work?

697:20 A. No.

697:21 Q. Have you worn them before?

697:22 A. Yes.

697:23 Q. Without the flanges folded back?

697:24 A. Yes, I have.

697:25 Q. How come?

698:01 A. I followed the -- the tips to put it in,

698:02 I've -- I've fitted the UltraFit style product before,

698:03 and there is a tip, maybe we are going to look at it

698:04 in a minute, where you kind of tug on the earplug to

698:05 make sure it has a seal, and so when I fitted the

698:06 Combat Arms and I do that test, I get a seal without

698:07 needing to fold back the flange.

739:12 - 742:21 Myers, Brian (2019-12-13) 4:38

739:12 Q. Now, you have seen this document in Re: [739:12 to 742:21] Re: [741:10 to 741:22] OVERRULED

739:13 preparation for your deposition, haven't you? Pltf Obj 802, MIL G7 - lay Pltf Obj Lay opinion

739:14 A. Yes, I've seen this document. opinion on efficacy of CAEv2

739:15 Q. Okay. And this is -- this is actually I'm

739:16 sure one of the things that you were alluding to in

739:17 terms of collaboration between you and Dr. Ohlin or

739:18 your company and Dr. Ohlin, right?

739:19 A. Yes, this is one of the things I was

739:20 referring to.

739:21 Q. And this has -- it is from Dr. Ohlin and

739:22 it's sent to a variety of people including Elliott

739:23 Berger at your company, Tim McNamara at your company,

739:24 Brian Myers, you, at your company.

739:25 Armand Dancer is also copied, isn't he?

740:01 A. I see all of those people copied there as

740:02 well as some other folks it looks like from the

740:03 military.

Page 3 of 23

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740:04 Q. Eric Fallon is also copied, isn't he?

740:05 A. Yes, he is.

740:06 Q. Eric Fallon was at the -- as at the -- at

740:07 CHPPM also, wasn't he?

740:08 A. I don't know where Eric Fallon came from.

740:09 Q. You knew he came --

740:10 A. I know he -- I know he was in the

740:11 military.

740:12 Q. And now where does he work?

740:13 A. He does work at -- at 3M now.

740:14 Q. He actually took Doug Fallon's position,

740:15 didn't he, when he left?

740:16 A. Do you mean --

740:17 Q. Doug Ohlin, sorry, Doug Ohlin's position?

740:18 A. I don't know that it was a one for one

740:19 that he took Doug's position. I do just know that

740:20 Eric works for 3M today.

740:21 Q. And he left the military and came right to

740:22 work for you, didn't he?

740:23 A. I don't know. I don't have -- I don't

740:24 recall that I have knowledge of that.

740:25 Q. Okay. In any event, what's going on here

741:01 is Doug Ohlin is asking for your input on these wallet

741:02 cards that the subject is Combat Arms Earplug cards,

741:03 he attaches this attachment PDF. He says: "These

741:04 will be wallet-sized, laminated cards to be issued

741:05 with the earplugs. Any comments other than the need

741:06 to correct the NSN for the double-ended plug to" that

741:07 number?

741:08 Do you see that?

741:09 A. I do see those words on this e-mail.

741:10 Q. And let's flip over and look at the

741:11 attachment because the attachment I think is

741:12 important.

741:13 This -- this part of the wallet card, this

741:14 section has a quote from a soldier in Iraq, doesn't

741:15 it?

741:16 "Combat Arms Earplugs work great in this

741:17 environment. They probably made the difference

741:18 between eardrum/hearing damage and not. They

741:19 definitely allow you to mentally recover quickly so

741:20 you are able to deal with your situation versus

741:21 standing around like a stunned mullet for a while."

741:22 Do you see that?

741:23 A. I see that quote.

741:24 Q. And then there is a section on ordering,

741:25 which says: "Double-ended earplugs (which fit most of

742:01 adult population)" and then "Single-ended plugs (for

742:02 smallest ear canals)," and then we have a fact sheet

742:03 referenced and a place to go get it, right?

Page 4 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 75 of 94
742:04 A. That's -- that looks accurate as to what's

742:05 on that side of the card.

742:06 Q. All right. And then flip over and we have

742:07 a picture of an ear there at the top left, right? And

742:08 it says: "Combat Arms Earplug. Insert yellow plugs

742:09 for weapons fire to protect hearing and to hear

742:10 between firings. Insert green plugs for noise in and

742:11 around aircraft, noisy vehicles and watercraft. Check

742:12 proper fit by gently tugging on plugs for tension."

742:13 And No. 2, it says: "For very large ear canals, fold

742:14 opposing plug back."

742:15 Do you see that?

742:16 A. Yeah, that's the second bullet -- or the

742:17 fourth bullet, I guess, on the page.

742:18 Q. Is that one of the facts that you are

742:19 using to support your claim that somebody in technical

742:20 talked to Doug Ohlin about the contents of the flange

742:21 report?

743:10 - 743:18 Myers, Brian (2019-12-13) 0:27

743:10 Q. Can you answer my question?

743:11 A. So, yes, I see both -- the commonality

743:12 between both of the technical -- the Aearo technical

743:13 report and the -- this wallet card that was created by

743:14 the military technical people, and to me it -- it

743:15 seems that there is a linkage there, that there is

743:16 a --

743:17 Q. Yeah, I can see that.

743:18 A. -- similar idea.

743:19 - 743:23 Myers, Brian (2019-12-13) 0:11

743:19 Q. What percentage of the population has very Re: [743:19 to 744:03] Re: [743:19 to 744:03] OVERRULED

743:20 large ear canals? Def Obj 403 (argumentative); Def Obj 403 (argumentative);

743:21 A. I don't know. 602 (no foundation and calls 602 (no foundation and calls

743:22 Q. It seems like a good question, doesn't it, for expert testimony). for expert testimony).

743:23 given what's on this wallet card?

744:02 - 744:03 Myers, Brian (2019-12-13) 0:03

744:02 A. I don't know what percentage of the Re: [743:19 to 744:03] Re: [743:19 to 744:03] OVERRULED

744:03 population has very large ear canals. Def Obj 403 (argumentative); Def Obj 403 (argumentative);

602 (no foundation and calls 602 (no foundation and calls

for expert testimony). for expert testimony).

826:04 - 827:07 Myers, Brian (2019-12-13) 1:12

826:04 Q. Good evening, Mr. Myers. Re: [826:13 to 826:21] SUSTAINED

826:05 A. Good evening. Pltf Obj 403

826:06 Q. Please introduce yourself to the jury.

826:07 A. So my name is Brian Myers. I am a

826:08 Business Director in the Personal Safety Division at

826:09 3M.

826:10 Q. Where do you live?

Page 5 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 76 of 94
826:11 A. I live just north of St. Paul, Minnesota,

826:12 Vadnais Heights.

826:13 Q. How long have you lived there?

826:14 A. Since January of 2011.

826:15 Q. Are you married?

826:16 A. I am married.

826:17 Q. How long have you been married?

826:18 A. 35 years last June.

826:19 Q. Do you have children?

826:20 A. I have two kids, a 28-year-old son and a

826:21 25-year-old daughter.

826:22 Q. Can you tell the jury a little bit about

826:23 where you grew up and where you went to high school?

826:24 A. So I was born in Denver but I really grew

826:25 up in a small town in Indiana, Connersville, Indiana,

827:01 which is where I went to high school, and then I went

827:02 to an engineering school, also at a small engineering

827:03 school in Indiana, in Terre Haute, Indiana, called

827:04 Rose-Hulman Institute of Technology.

827:05 Q. Okay. And looking at slide two, can you

827:06 tell the jury about what you did as your work history

827:07 before you worked for Aearo?

827:21 - 827:24 Myers, Brian (2019-12-13) 0:13

827:21 Q. Okay. And we've projected a PowerPoint on

827:22 the screen. Looking at slide two of the PowerPoint,

827:23 can you tell the jury about your work history before

827:24 you worked for Aearo?

827:25 - 829:09 Myers, Brian (2019-12-13) 2:10

827:25 A. Sure. When I graduated in 1984 I went to

828:01 work for General Electric in a training program in

828:02 manufacturing. I was at two locations in a couple of

828:03 years and then took a permanent job in Louisville,

828:04 Kentucky for another three years. Through the course

828:05 of that I was a production manager and a process

828:06 engineer. And then in November of -- while I was at

828:07 GE, at night I went to school and got my MBA

828:08 ultimately from the University of Louisville.

828:09 In November of 1989 then I -- if you want

828:10 to go to the next slide, in November of 1989 then I

828:11 joined, at that time it was Cabot Corporation as a

828:12 plant manager -- or as a production manager and then a

828:13 plant manager for what ultimately became Cabot Safety

828:14 Corporation.

828:15 I served briefly, I think less than a

828:16 year, as the product line director for our respiratory

828:17 products and then moved into a product manager

828:18 position with passive hearing protection that we've

Page 6 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 77 of 94
828:19 discussed. And I -- I was in that, a role like that,

828:20 other things got added to it, but through 2008.

828:21 And then in 2008, 3M acquired our -- our

828:22 Aearo Corporation, and I was a portfolio manager then

828:23 from that point until January of 2011 when I really

828:24 left the passive hearing business and did a what's

828:25 called lean six sigma assignment and then for another

829:01 two and I think a quarter years. So that was two

829:02 years and then for another two and a quarters years I

829:03 managed some product lines that were not hearing or --

829:04 or associated with hearing. And ultimately then at

829:05 that point then I got the passive hearing business and

829:06 a number of other businesses back. And to this day

829:07 now I manage -- I think I have six businesses that I

829:08 manage and one of them is passive hearing products

829:09 business.

834:04 - 834:14 Myers, Brian (2019-12-13) 0:24

834:04 Q. Did you have responsibility for Re: [834:12 to 834:14] OVERRULED

834:05 interacting with the military regarding CAE, the Pltf Obj Foundation

834:06 Combat Arms Version 2 on the marketing side?

834:07 A. I did.

834:08 Q. Did others interact with the military

834:09 regarding the Combat Arms Version 2 on the technical

834:10 side?

834:11 A. They did.

834:12 Q. And is it your understanding that the

834:13 technical people from Aearo or 3M interacted with

834:14 technical people from the military?

834:17 - 834:17 Myers, Brian (2019-12-13) 0:02

834:17 A. That was my understanding. Re: [834:17 to 834:17] OVERRULED

Pltf Obj Foundation

834:19 - 834:22 Myers, Brian (2019-12-13) 0:12

834:19 Q. And in terms of what you observed from Re: [834:19 to 834:22] OVERRULED

834:20 e-mails, did you identify any individual from the Pltf Obj Foundation, 802

834:21 military with technical who interacted with the Aearo

834:22 or 3M technical people?

834:25 - 835:01 Myers, Brian (2019-12-13) 0:15

834:25 A. Dr. Ohlin was the -- is the one that comes Re: [834:25 to 835:01] OVERRULED

835:01 to mind. Pltf Obj Foundation, 802

835:17 - 837:10 Myers, Brian (2019-12-13) 2:18

835:17 So if you could identify first what we've Re: [835:17 to 837:10] Re: [835:17 to 837:10] OVERRULED

835:18 marked as Exhibit 78? Pltf Obj 802, foundation Pltf Obj Foundation, 802, ECF

835:19 A. The e-mail is from me, the subject is the 1725

835:20 "Letter for Combat Arms Earplug," there is an

Page 7 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 78 of 94
835:21 attachment, and it appears to be a forwarded message

835:22 that came from Doug Ohlin and there is a Belva Hoffman

835:23 at Fort Detrick who is -- is it's to and he copied me

835:24 on this.

835:25 Q. Okay. So in the April 12th, 1999, e-mail

836:01 from Doug Ohlin to you and others dated April 12th,

836:02 1999, could you read the subject line and the content

836:03 of that e-mail, please?

836:04 A. It's: "Re: Forward: A letter for Combat

836:05 Arms Earplug.

836:06 "Belva: There are at least three reasons

836:07 why they are going to have to shorten the production

836:08 samples I sent you.

836:09 "1. So they fit in the standard case.

836:10 "2. To minimize wind noise.

836:11 "3. To be compatible with the Kevlar

836:12 helmet when the chinstrap is fastened."

836:13 "The last one is a show stopper if we

836:14 can't get the modification.

836:15 Signed "Doug."

836:16 Q. Did Mr. Ohlin's e-mail also include an

836:17 attachment?

836:18 A. It did, which I believe is also attached.

836:19 Q. So if you go to the page that has at the

836:20 top -- the third to last page, what's the -- what's

836:21 the heading on that page?

836:22 A. "Justification for a Nonlinear Earplug

836:23 (Combat Arms Earplug)."

836:24 Q. And can you read the fourth paragraph and

836:25 what's included -- what Mr. -- Dr. Ohlin included as

837:01 an attachment to the e-mail dated April 12th, 1999, to

837:02 you and others?

837:03 A. Of course.

837:04 "The American" -- he writes: "The

837:05 American military's contribution in this development

837:06 effort has been to recommend an American-made earplug,

837:07 the UltraFit, to house the French filter, the color

837:08 scheme and blast overpressure testing. The

837:09 single-sized UltraFit should accommodate most of our

837:10 Combat Arms users."

838:03 - 838:08 Myers, Brian (2019-12-13) 0:23

838:03 Q. Could you read your e-mail to Dr. Ohlin, Re: [838:03 to 838:08] Re: [838:03 to 838:08] OVERRULED

838:04 April 8th, 1999, letter for Combat Arms Earplug, the Pltf Obj 802, foundation Pltf Obj 802, foundation

838:05 first sentence of the second paragraph?

838:06 A. "I spoke with Dick Knauer who believes

838:07 that we can probably shorten the plug by the quarter

838:08 inch required to fit your current container."

Page 8 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 79 of 94
838:16 - 838:21 Myers, Brian (2019-12-13) 0:26

838:16 Q. We've marked the next exhibit as Re: [838:16 to 838:21] OVERRULED

838:17 Exhibit 79. Could you please identify this? Pltf Obj Foundation, 802

838:18 A. These are notes from April the 9th, 1999,

838:19 from Annette Shaver of the design review meeting,

838:20 addressed to Rob Bomke, Dick Knauer, Brian Myers,

838:21 Gordon Grogan, Steve Todor and Bob Zielinski.

839:10 - 840:07 Myers, Brian (2019-12-13) 1:06

839:10 Q. Were you a recipient of the memo on the Re: [839:17 to 840:07] OVERRULED

839:11 second page? Pltf Obj Foundation, 802

839:12 A. I was listed as a recipient.

839:13 Q. That's you, Brian Myers?

839:14 A. That is me.

839:15 Q. And what is the subject of the memo?

839:16 A. "Design review."

839:17 Q. And what does the first sentence say under

839:18 Design Review?

839:19 A. "A design review meeting was held on 9" --

839:20 "on Friday, April 9th, to review the following product

839:21 from meeting" -- "from marketing and technical.

839:22 Combat Arms Earplugs."

839:23 Q. Okay. And then if you could read the

839:24 portions that under Product Design (Preliminary) from

839:25 the design review memo of April 9th, 1999?

840:01 A. This -- this paragraph says: "The

840:02 Technical Department provided samples of the products

840:03 along with Aearo drawings. The length of the earplug,

840:04 once assembled, was discussed. It has been requested

840:05 by the military that the earplug fit into a case,

840:06 which is in current use by the military, this would

840:07 require reducing the length by one-fourth of an inch."

840:14 - 840:14 Myers, Brian (2019-12-13) 0:03

840:14 Q. Can you identify Exhibit 80? Re: [840:14 to 840:14] Re: [840:14 to 841:09] OVERRULED

Pltf Obj 802, foundation Pltf Obj Foundation, 802

840:15 - 841:09 Myers, Brian (2019-12-13) 1:13

840:15 A. It's from Dr. Ohlin, dated June 29th, Re: [840:15 to 841:09] Re: [840:14 to 841:09] OVERRULED

840:16 1999, to me regarding the purchase of Combat Arms Pltf Obj 802, foundation Pltf Obj Foundation, 802

840:17 Earplugs.

840:18 Q. Could you read the first four -- four

840:19 sentences of the e-mail or enough of the e-mail to get

840:20 to the sentence relating to purchase a thousand pair,

840:21 the June 29th, 1999, e-mail from Doug Ohlin to you?

840:22 A. Sure.

840:23 "Brian, the fund side has arrived" --

840:24 "fund cite has arrived and the paperwork has been

840:25 forwarded to purchase 1,000 earplugs for John King in

841:01 Italy. His address was included for the shipment.

Page 9 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 80 of 94
841:02 Meanwhile, our command is hosting a Force Health

841:03 Protection conference in Atlanta, 23 through 27

841:04 August. So far 786 attendees have signed up. All

841:05 three Surgeon Generals are supposed to be there. This

841:06 will be a great opportunity to introduce a large

841:07 number of medical folks to this new earplug. Bottom

841:08 line, I also want to purchase 1,000 pairs to hand out

841:09 at our static display."

841:16 - 841:24 Myers, Brian (2019-12-13) 1:32

841:16 Q. Can you identify Exhibit 81?

841:17 MR. BUCHANAN: Thank you.

841:18 BY THE WITNESS:

841:19 A. This is -- this is another memo from

841:20 Annette Shaver, dated August 16th. It has got that

841:21 weird May 7th date on the front, but the memo that's

841:22 attached is dated August 16th, 1999, subject Combat

841:23 Arms Earplugs. I was among the recipients of this

841:24 e-mail.

842:15 - 843:10 Myers, Brian (2019-12-13) 1:05

842:15 Q. Okay. So looking at the August 16th, Re: [842:15 to 843:10] OVERRULED

842:16 1999, memo from Annette Shaver to you and others Pltf Obj Foundation, Hearsay

842:17 regarding Combat Arms plugs, could you read the

842:18 portion -- first of all, can you read the first

842:19 sentence of the memo under Combat Arms Plugs?

842:20 A. "A design review meeting was held on

842:21 August the 9th, 1999, to discuss the progress towards

842:22 the manufacture and delivery of Combat Arms Earplugs.

842:23 Attending were B. Klun, D. Knauer, A. Aufmann,

842:24 R. Bomke, J. Jurney."

842:25 Q. And if you look at the Short Term Issues

843:01 section? Do you see that on the --

843:02 A. Yes.

843:03 Q. -- on the third page?

843:04 A. I do see that.

843:05 Q. Could you read what the -- it says under

843:06 the Short Term Issues section from the Combat Arms

843:07 Plugs meeting on August 16th, 1999?

843:08 A. Yes. "The bill of material needs to be

843:09 completed." That's Item 1. Item 2 says: "Auditory

843:10 will complete assembly."

843:18 - 843:19 Myers, Brian (2019-12-13) 0:04

843:18 Q. Could you identify Exhibit 82 for the

843:19 jury, please?

843:20 - 844:01 Myers, Brian (2019-12-13) 0:25

843:20 A. Yes. This is the original -- the original Re: [843:20 to 844:01] Re: [843:24 to 844:01] OVERRULED

843:21 Bill of Material that we were able to find for the Pltf Obj Foundation, 602 Pltf Obj Foundation

Page 10 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 81 of 94
843:22 three -- Product Code 370-1000 which was a Combat Arms

843:23 v2 earplug, and it's valid from August the 9th, 1999.

843:24 Q. And does this correspond to the shipments

843:25 to John King and Doug -- Dr. Ohlin that we discussed

844:01 earlier?

844:04 - 844:05 Myers, Brian (2019-12-13) 0:08

844:04 A. Is this -- this is the BOM that reflects Re: [844:04 to 844:05] Re: [844:04 to 844:05] OVERRULED

844:05 what was delivered in the early shipments. Pltf Obj Foundation, 602, Pltf Obj Foundation

Strike Nonresponsive

844:21 - 846:05 Myers, Brian (2019-12-13) 2:00

844:21 Q. Can you identify what Exhibit 83 is, just Re: [844:21 to 846:05] Re: [844:21 to 846:05] OVERRULED

844:22 the -- just the portion starting with the second and Pltf Obj 802, foundation Pltf Obj 802, ECF 1725

844:23 third e-mails?

844:24 A. So, these are two e-mails back and forth

844:25 between Dr. Ohlin and myself.

845:01 Q. And what is the -- what does the subject

845:02 line of the e-mail say?

845:03 A. Regarding information on Combat Arms

845:04 Earplugs. They are dated March 22nd, 2005, and

845:05 March 23rd, 2005.

845:06 Q. Can you please read the first question in

845:07 your e-mail to Dr. Ohlin dated March 22nd, 2005, title

845:08 "Information on Combat Arms Earplugs"?

845:09 A. The first question I ask is: "Is it okay

845:10 to say that the Combat Arms Earplug is 'evaluated and

845:11 specified by the U.S. Armed Forces?'"

845:12 Q. And staying with Exhibit 83, could you

845:13 also read Dr. Ohlin's response to you dated

845:14 March 23rd, 2005, entitled "Information on Combat Arms

845:15 Earplugs," just read the first paragraph?

845:16 A. Sure.

845:17 "Brian: The Combat Arms Earplug has been

845:18 evaluated during blast overpressure studies at White

845:19 Sands Missile Range and at the Army Research Lab at

845:20 the Aberdeen Proving Ground. It is used extensively

845:21 by the U.S. Army and the Marines. It has been

845:22 approved by the DOD Hearing Conservation Working

845:23 Group. It appears in our Defense Occupational and

845:24 Environmental Health Readiness System - Hearing

845:25 Conservation Application's lookup table of approved

846:01 hearing protectors and in Department of the Army

846:02 Pamphlet 40-501, Hearing Conservation, 10

846:03 December 1998. Yes, I think you can say the Combat

846:04 Arms Earplug has been 'evaluate and' -- 'evaluated and

846:05 specified by the U.S. Armed Forces.'"

846:13 - 847:19 Myers, Brian (2019-12-13) 2:52

846:13 Q. Can you identify this document for the Re: [846:13 to 847:19] Re: [846:19 to 847:19] OVERRULED

Page 11 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 82 of 94
846:14 jury, please? Pltf Obj 802, foundation Pltf Obj 802

846:15 A. That's a series of several e-mails that

846:16 began with an e-mail from a Dan Ohama of the Army.

846:17 Mike Cimino, Tim McNamara and myself are also on the

846:18 e-mail chain.

846:19 Q. Could you -- could you read the first two

846:20 sentences of the second paragraph of the e-mail from

846:21 Mr. Ohama, dated August 24th, 2004, starting with "I

846:22 recently met"?

846:23 A. Yes. So, Mr. Ohama writes:

846:24 "I recently met with the Army hearing

846:25 conservation consultants from CHPPM, Aberdeen Proving

847:01 Ground. We spoke of problems with soldiers not using

847:02 the Combat Arms Earplugs effectively; either they

847:03 forget what was explained during initial training with

847:04 the earplugs, there was lack of proper training or

847:05 whatever. In some instances Combat Arms Earplug

847:06 orders/requisitions were held up or disapproved

847:07 because of concerns that soldiers were not using them

847:08 correctly."

847:09 Q. Could you now read not the next paragraph

847:10 but the subsequent paragraph of Mr. Ohama's e-mail

847:11 dated August 24th, 2004, beginning with "An alternate

847:12 idea"?

847:13 A. "An alternate idea is to create a small

847:14 laminated card that fits into the earplug case that

847:15 the Army currently issues. The card will have to be

847:16 small, approximately 1.5 inches by 1.75 inches. On

847:17 the card would be a picture of the Combat Arms

847:18 Earplug, along with all the small prints and pictures

847:19 as described."

848:13 - 849:23 Myers, Brian (2019-12-13) 2:14

848:13 Q. So we've -- what I'm now handing you Re: [848:13 to 849:23] Re: [848:25 to 849:18] OVERRULED

848:14 what's been marked as Exhibit 85. Pltf Obj 602 Pltf Obj 802

848:15 By the way, Dan Ohama, is he somebody with

848:16 the military or is he somebody with Aearo or 3M?

848:17 A. So his -- his signature says he is

848:18 Audiologist/Chief, Hearing Conservation Services at

848:19 Fort Lewis, Washington. So not with 3M or...

848:20 Q. I've marked Exhibit 85. Could you

848:21 identify this document, sir?

848:22 A. It's an e-mail from Doug Ohlin to Brian

848:23 Myers, Tim McNamara and Elliott Berger, dated

848:24 September the 30th of 2004.

848:25 Q. And can you read the portion of

849:01 Dr. Ohlin's e-mail that starts with "Kevin"?

849:02 A. "Kevin: As a result of a hearing

Page 12 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 83 of 94
849:03 conservation briefing to Major General Kiley, last

849:04 week, my program has been asked to develop a

849:05 laminated, wallet-sized instruction card for the

849:06 Combat Arms Earplug. The attachments and work order

849:07 were sent to illustration today. These" --

849:08 Q. Okay. And what -- okay.

849:09 A. "These will be" -- "primarily be for

849:10 deploying troops."

849:11 Q. Okay. And what is the relation in time

849:12 between Exhibit 84 which is Mr. Ohama's e-mail from

849:13 the audiologist from Fort Lewis and the e-mail from

849:14 Dr. Ohlin regarding the Combat Arms Earplug wallet

849:15 card?

849:16 A. So, it looks like there is about a month

849:17 between them, so they were in roughly the same sort of

849:18 timing.

849:19 Q. Let's look at the next exhibit, which has

849:20 previously been marked as Plaintiffs' 67. And

849:21 counsel, I believe Mr. Tracey, asked you some

849:22 questions about this document, correct, sir?

849:23 A. He did.

850:05 - 850:15 Myers, Brian (2019-12-13) 1:36

850:05 Q. Can you identify this document for the

850:06 jury, sir?

850:07 A. It's from Doug Ohlin. It's addressed to

850:08 it looks like a number of people in the Army, in the

850:09 military, and then it CC's some other military people

850:10 as well as Elliott Berger, Tim McNamara, myself,

850:11 Armand -- and Armand Dancer. It is dated October

850:12 the 4th, 2004, and the subject is "Combat Arms Earplug

850:13 cards."

850:14 Q. And does Dr. Ohlin then attach Combat Arms

850:15 Earplug cards?

850:18 - 850:19 Myers, Brian (2019-12-13) 0:04

850:18 A. It looks like he has a PDF attachment

850:19 which appears to be attached to the exhibit.

850:21 - 851:09 Myers, Brian (2019-12-13) 1:44

850:21 Q. And this is the exhibit that Mr. Tracey Re: [850:21 to 851:09] Re: [850:21 to 851:09] OVERRULED

850:22 asked you about, correct? Pltf Obj 611; leading Pltf Obj leading

850:23 A. This looks like the one we reviewed

850:24 earlier. Re: [850:21 to 851:09] OVERRULED

850:25 Q. And if you look at the second page of the Pltf Obj foundation

851:01 wallet card, there is a picture of earplugs, correct?

851:02 A. Yeah. Yes, there are several pictures of

851:03 the earplugs.

851:04 Q. And the picture of the earplugs in the

Page 13 of 23

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851:05 bottom right of the last page of the exhibit that

851:06 Mr. Tracey provided to you, do any of the flanges

851:07 appear to be rolled back in that picture?

851:08 A. So, yes, the bottom green flange appears

851:09 to be rolled back.

851:19 - 853:10 Myers, Brian (2019-12-13) 2:21

851:19 Q. Can you identify this document, sir? Re: [851:19 to 853:10] Re: [851:19 to 851:25] OVERRULED

851:20 A. It's an e-mail stream from December Pltf Obj 802, foundation Pltf Obj foundation, 802

851:21 of 2005, and the initial e-mail includes Doug -- or

851:22 it's written to Doug Ohlin and there is a reply from Re: [852:13 to 853:10] OVERRULED

851:23 him. Ultimately I forwarded his reply on to Marc Pltf Obj 802

851:24 Santoro who implemented what Dr. Ohlin suggested with

851:25 the help of Kevin Spahn.

852:01 Q. Could you read your e-mail to Dr. Ohlin

852:02 dated December 9th, 2005, entitled with the subject

852:03 "Instruction Sheet"?

852:04 A. Yes.

852:05 From December the 9th: "Doug, we are in

852:06 the process of setting up a product which is a single

852:07 pair of Combat Arms Earplugs on a blister card. I'll

852:08 send you some when available. We have prepared the

852:09 attached insert which will be printed and placed in

852:10 the package with each pair. We are interested in any

852:11 comments or modifications which you think are

852:12 appropriate for us to make."

852:13 Q. Could you read Dr. Ohlin's response to

852:14 your e-mail regarding instruction sheet dated

852:15 December 12th, 2005?

852:16 A. Doug writes back: "Brian, looks great.

852:17 You did not mention any potential sizing issues for

852:18 the smaller ear canals and the single-sided version as

852:19 an alternative. Are you abandoning that concept?"

852:20 Q. And then can you read Marc Santoro's

852:21 e-mail dated December 12th of 2005 entitled -- with

852:22 the subject line "Instruction Sheet," the first two

852:23 paragraphs?

852:24 A. Yes.

852:25 "Kevin, just got feedback from the U.S.

853:01 Army on the instruction guide for the CAE blister

853:02 pack. Please add a line sentence at the end of the

853:03 'Fitting Tips' that says....

853:04 "Some individuals with smaller ear canals

853:05 may experience discomfort with the dual-ended Combat

853:06 Arms Earplug due to their restricted canal opening. A

853:07 single-sided version of the Combat Arms Earplug is

853:08 also available and will oftentimes provide greater

853:09 comfort for smaller ear canals. Singling-sided Combat

853:10 Arms Earplug - NSN No. 6515-01-512-6072."

Page 14 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 85 of 94
853:16 - 854:13 Myers, Brian (2019-12-13) 1:13

853:16 Q. I'm handing you what's been marked as Re: [853:16 to 854:13] Re: [853:24 to 854:13] OVERRULED

853:17 Exhibit 87. I'm giving copies to counsel. Pltf Obj 802, foundation, MIL Pltf Obj 802

853:18 Can you identify this document, sir? G4

853:19 A. Yes. It's -- it's from April the 10th. Re: [853:24 to 854:13] OVERRULED

853:20 All of the -- it's an e-mail chain all from April Pltf Obj 701; completeness

853:21 the 10th, 2007, regarding NRR labeling, with Elliott (i.e., understanding of mil

853:22 Berger, myself, it looks like Tim McNamara, Doug Moses

reqs changed)

853:23 and Jeff Hamer are all eventually copied.

853:24 Q. Can you read the bottom e-mail in the

853:25 chain?

854:01 A. It's an e-mail from Elliott Berger. It

854:02 says:

854:03 "Tim and/or Brian, I am unclear about

854:04 whether product sold to the military requires labeling

854:05 in conformance with the EPA requirements including the

854:06 NRR label. Can you please clarify? Elliott."

854:07 Q. And could you read your response to that

854:08 e-mail?

854:09 A. My response was: "My understanding is

854:10 that the military can require whatever they wish.

854:11 They could require different test protocols,

854:12 calculations, et cetera. It is entirely up to them

854:13 what they want on their packaging."

857:22 - 857:25 Myers, Brian (2019-12-13) 0:15

857:22 Q. Can you identify what we've marked as Re: [857:22 to 857:25] Re: [857:22 to 857:25] OVERRULED

857:23 Exhibit 89? Pltf Obj 802, foundation Pltf Obj 802

857:24 A. It is an e-mail to me from Dr. Ohlin,

857:25 dated April 16th, 2002, regarding Combat Arms Earplug.

858:04 - 858:19 Myers, Brian (2019-12-13) 1:49

858:04 Q. Okay. And can you read the fourth Re: [858:04 to 858:19] Re: [858:04 to 858:19] OVERRULED

858:05 paragraph of Dr. Ohlin's e-mail to you regarding the Pltf Obj 802, foundation Pltf Obj 802

858:06 Combat Arms Earplug?

858:07 A. I can. It says: Re: [858:04 to 858:19] OVERRULED

858:08 "Please note that like any earplug it is Pltf Obj 611

858:09 absolutely essential that the CAE be properly

858:10 inserted. This is more difficult with the CAE because

858:11 unlike other preformed earplugs there aren't readily

858:12 available landmarks of the plug to the ear to verify

858:13 proper insertion. Gently tug on the plug. If there

858:14 is tension, that's a good indication of proper

858:15 insertion. Also, there should be a slight occlusion

858:16 effect, that is, the voice of the individual wearing

858:17 the plug will sound more low toned and muffled.

858:18 However, this sensation isn't as pronounced as it is

858:19 with conventional hearing protection."

Page 15 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 86 of 94
858:20 - 858:21 Myers, Brian (2019-12-13) 0:03

858:20 MR. NOMELLINI: Okay. Let's mark the next Re: [858:20 to 858:21] OVERRULED

858:21 document Exhibit 90. Pltf Obj 802, foundation

859:02 - 859:02 Myers, Brian (2019-12-13) 0:08

859:02 Q. Can you identify this document, please? Re: [859:02 to 859:02] OVERRULED

Pltf Obj 802, foundation

859:05 - 859:07 Myers, Brian (2019-12-13) 0:12

859:05 A. It's from August of 2006, and it includes Re: [859:05 to 859:07] OVERRULED

859:06 Dr. Ohlin, Elliott Berger and myself as well as Pltf Obj 802, foundation

859:07 initial e-mails in the chain from a Mary Binseel.

859:09 - 859:19 Myers, Brian (2019-12-13) 1:34

859:09 Q. And -- and can you read the first two Re: [859:09 to 859:19] Re: [859:09 to 859:19] OVERRULED

859:10 paragraphs of Dr. Ohlin's August 17th, 2006, e-mail Pltf Obj 802, foundation Pltf Obj 802, foundation

859:11 regarding the Combat Arms Earplug?

859:12 A. I can. He writes to Elliott:

859:13 "It is a fundamental military principle

859:14 that the troops must train first with anything they

859:15 use in combat to build confidence in their weapon

859:16 systems and any other gear used in the field. The

859:17 Combat Arms Earplug is no exception. In fact, this

859:18 principle applies in spades for any hearing protector

859:19 that will be used in combat."

860:01 - 860:24 Myers, Brian (2019-12-13) 1:21

860:01 Q. Could you please identify this document? Re: [860:01 to 860:24] OVERRULED

860:02 A. This is an e-mail that I wrote to Diane Pltf Obj 802, foundation

860:03 Crawford with the prior e-mail that she had forwarded

860:04 from a distributor to Steve Landgraf who reported to

860:05 her. She is a salesperson. It is dated

860:06 November 29th, 2004 --

860:07 Q. And could you --

860:08 A. -- regarding Canada, Mexico restrictions.

860:09 Q. And could you read the bottom e-mail dated

860:10 November 24th, 2004, the first line, at 10:16 a.m.?

860:11 A. Sure. It says:

860:12 "Good morning, Steve. I would like to

860:13 know if the following list of products has any

860:14 restrictions in Canada and Mexico."

860:15 Q. Okay. And then could you read your e-mail

860:16 to Diane Crawford dated November 9th -- 29th, 2004, at

860:17 7:38 p.m.?

860:18 A. Yes. I write back to Diane.

860:19 "No problem with my stuff. The only one I

860:20 would warn you about is the Combat Arms Earplugs

860:21 (370-1000). These are not labeled as a hearing

860:22 protector (not even in the US) and are exclusively for

Page 16 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 87 of 94
860:23 military use i.e. where separate instructions are

860:24 begin by a trainer."

862:24 - 862:25 Myers, Brian (2019-12-13) 0:05

862:24 Q. I've handed you what's been marked as

862:25 Exhibit 93. Can you identify this document?

863:01 - 864:19 Myers, Brian (2019-12-13) 2:14

863:01 A. That's an -- it's a string of e-mail -- an Re: [863:01 to 864:19] Re: [863:09 to 863:18]

863:02 e-mail chain that includes a -- at least a copy of Pltf Obj 805 Pltf Obj 802, 403

863:03 part of an article from the Dallas Morning News.

863:04 Ultimately it was sent to me from Elliott Berger in Re: [863:19 to 864:02]

863:05 March of 2006. The subject is: "Seeking the Right Pltf Obj 802, 403

863:06 Amount of Sound in the Furry of Combat," which was

863:07 apparently the title of the Dallas Morning News

863:08 article.

863:09 Q. Okay. And can you read the portion of the

863:10 article beginning with the word "Alarmed," the fourth

863:11 paragraph?

863:12 A. Yes.

863:13 "Alarmed by the Fallujah experience, the

863:14 Corps revised its regulations last November to require

863:15 that every marine 'especially forward-deployed Marines

863:16 in combat environments' be issued Combat Arms

863:17 Earplugs, trained in how to use them and required to

863:18 carry them."

863:19 Q. And looking at the next page, it starts

863:20 with the word "Handing them out," can you read that --

863:21 that portion?

863:22 A. Yes. It says:

863:23 "Handing them out with written

863:24 instruction" -- "instructions isn't effective, said

863:25 Douglas Ohlin, an audiologist who heads the Army's

864:01 Hearing Conservation Program. Most people have to be

864:02 shown how to wear earplugs."

864:03 Q. You were -- you were asked some questions

864:04 about a statement of work earlier by counsel.

864:05 Do you recall that?

864:06 A. I do.

864:07 Q. And what was the name of the lady who was

864:08 copied on the e-mails regarding statement of work?

864:09 A. Do you mean Theresa Schulz?

864:10 Q. Yes.

864:11 A. Theresa Schulz was copied.

864:12 Q. Okay. And do you know if that Theresa

864:13 Schulz statement of work regarding training ever

864:14 actually moved forward and took effect?

864:15 A. I don't know of any -- any action that

864:16 took place beyond the e-mail that we reviewed today.

SUSTAINED. Hearsay. 

Objections to Myers Ex. 93 

are also SUSTAINED. The 

previous ruling in Ex. Order 

No. 3 overruling those 

objections was made in 

error.

Page 17 of 23

Case 7:20-cv-00039-MCR-GRJ Document 169-1 Filed 06/14/21 Page 88 of 94
864:17 Q. And that was an e-mail that you reviewed

864:18 with Plaintiffs' counsel, Mr. Tracey?

864:19 A. Yes, and it included a statement of work.

867:07 - 867:08 Myers, Brian (2019-12-13) 0:17

867:07 Q. Okay. Let's go to -- okay. Let's go to

867:08 Exhibit 95. Provide copies to counsel.

867:15 - 869:10 Myers, Brian (2019-12-13) 3:41

867:15 Q. Can you identify this document? Re: [867:15 to 869:10] Re: [867:19 to 868:04] SUSTAINED

867:16 A. It's a -- it's a forward from Elliott to Pltf Obj Foundation, 602, 805, Pltf Obj 802, 403

867:17 Dick Knauer, Bob Falco and Brian Myers of an e-mail MIL G7 - lay opinion on

867:18 from a Lorraine. efficacy of CAEv2 Re: [868:05 to 868:23] SUSTAINED

867:19 Q. And could you read the e-mail -- the Pltf Obj 611, 403

867:20 portion of the e-mail that you received that begins

867:21 with "Elliott, Below is a story"? Re: [868:05 to 868:23] SUSTAINED

867:22 A. Sure. Pltf Obj 802, lay opinion

867:23 "Elliott, below is a story that captures

867:24 an experience with the CAE in Iraq. This is part of a Re: [868:25 to 869:10] SUSTAINED

867:25 larger information gathering process. This Pltf Obj 611, 802, 403

868:01 information is not to be shared or used for marketing

868:02 or anything remotely like that. This is an oppor" --

868:03 "it is an opportunity to hear from the troops what

868:04 they would like to see in the earplug. Lorraine."

868:05 Q. Okay. And can you read the portion of the

868:06 e-mail that begins with "A few months ago"?

868:07 A. "A few months ago I met with Fort Drum's

868:08 range/RID Safety Officer (Bob Boschok). Prior to our

868:09 meeting he sent one Fort Drum, 2BCTs safety officer

868:10 (William Delsolar) an e-mail asking if he has feedback

868:11 on the CAE. I have a hard copy of the e-mails.

868:12 Mr. Boschok's question on 14 December 2004: '... Do

868:13 you have some specific experience with" --

868:14 "experiences with these CAEs that you want me to

868:15 share?...'

868:16 "Mr. Delsolar's response (verbatim) on 14

868:17 December 2004: 'They work period.'

868:18 "Mandatory wear per Pegasus 6. Unless the

868:19 IED is very close and very big, there are no

868:20 detrimental effects of the blast to the ears.

868:21 Occasionally, a soldier will suffer some recoverable

868:22 damage. But without them the damage tends to be

868:23 almost complete and permanent."

868:24 Do you want me to go on?

868:25 Q. Yes.

869:01 A. "Getting enough of them in the system and

869:02 getting soldiers to wear them always in the field is

869:03 key. Hearing is reduced somewhat, but in this

869:04 threat" -- "high threat environment it doesn't matter

869:05 much. I had no trouble hearing the one shot over my

869:06 head in Abu Gharib today. The earplugs also have the

869:07 added benefit of protecting wearers from the sound

Page 18 of 23

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869:08 pressure shock effects. Instead of being knocked

869:09 unconscious or stunned they quickly recover in time to

869:10 react."

875:25 - 876:18 Myers, Brian (2019-12-13) 1:55

875:25 Q. All right. Let's -- I want to -- the next Re: [875:25 to 875:25] OVERRULED

876:01 one I want to talk to you about is another Brian Myers Def Obj MIL 15, 403

876:02 e-mail. This is Exhibit 84.

876:03 This is the exhibit you all used from Dan Re: [876:01 to 876:25] OVERRULED

876:04 Ohama who is talking about -- is talking about he Def Obj MIL 15, 403 (lines

876:05 recently met with the Army hearing conservation 1-25), 602 (lines 16-25)

876:06 consultants from CHPPM and we spoke of problems with

hearsay (lines 1-11)

876:07 soldiers not using the Combat Arms Earplug

876:08 effectively; and either they forgot what was explained

876:09 or there was lack of proper training or whatever.

876:10 Do you see that?

876:11 A. I recall reading that paragraph.

876:12 Q. Now, it doesn't matter how much training

876:13 you get if the training you get is the wrong training,

876:14 does it?

876:15 A. The training should be proper.

876:16 Q. Yeah. Because if we don't tell them how

876:17 to properly fit it, we are going to continue to have

876:18 problems for a decade and a half, aren't we?

876:21 - 877:09 Myers, Brian (2019-12-13) 1:36

876:21 A. So -- so I -- I think that I was relying Re: [876:01 to 876:25] OVERRULED

876:22 on the technical group to talk with the military Def Obj MIL 15, 403 (lines

876:23 technical group who would then use their experience 1-25), 602 (lines 16-25)

876:24 and add input to create training or whatever they hearsay (lines 1-11)

876:25 needed to -- to provide appropriate training for the

877:01 soldiers. Re: [877:01 to 877:20] OVERRULED

877:02 BY MR. SEAN TRACEY: Def Obj 602, MIL 15, 403

877:03 Q. How about relying on you and the flange

877:04 report to do the training and to give them the

877:05 information they need, how about that?

877:06 A. Relying on me?

877:07 Q. Your company who has the information who

877:08 makes the earplug, who studied the earplug and who

877:09 sold it at a 90 percent profit.

877:12 - 877:20 Myers, Brian (2019-12-13) 0:20

877:12 A. My belief was, as I stated earlier, that Re: [877:01 to 877:20] OVERRULED

877:13 our technical group was providing technical Def Obj 602, MIL 15, 403

877:14 information to the military technical experts.

877:15 BY MR. SEAN TRACEY:

877:16 Q. You just don't have any evidence that they

877:17 did it -- did it in this case about the flange report?

877:18 A. I don't recall ever having seen that --

Page 19 of 23

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877:19 Q. All right.

877:20 A. -- being shared.

879:20 - 882:11 Myers, Brian (2019-12-13) 3:44

879:20 Q. Okay. Mr. Myers, you have Exhibit 90 in Re: [880:07 to 882:11] OVERRULED

879:21 front of you? Pltf Obj 802; 403; 611;

879:22 A. I do. leading

879:23 Q. If you flip over to the back, this is an

879:24 exhibit that you used in your direct examination.

879:25 Do you see that Mary Binseel from the U.S.

880:01 Army research laboratory and Elliott Berger are

880:02 exchanging e-mails? And this --

880:03 A. Yes, at the very start.

880:04 Q. And this is July of 2006, right around the

880:05 time you guys signed the contract, right?

880:06 A. Yes. It's end of July 2006.

880:07 Q. And she says, "Mary, we" -- she says,

880:08 "Elliott, as I'm sure you heard, I received the

880:09 improved Combat Arms late last week. I'm planning the

880:10 studies to evaluate them. I didn't count the

880:11 earplugs, but my understanding is you shipped 90,

880:12 another ten pairs, when you have the opportunity, will

880:13 complete the deliverable requirement of our contract.

880:14 I'm not sure if you are waiting until then to invoice

880:15 the government, but whenever you do submit invoices,

880:16 please send a CC to me. Mary Binseel."

880:17 Do you see that?

880:18 A. I do see those words.

880:19 Q. And then Elliott says: "We shipped ten

880:20 more pair last Friday. UPS tracking number. Keep me

880:21 posted."

880:22 And if we come forward in time, here is

880:23 Elliott Berger. Now he is looping in Doug Ohlin and

880:24 you, isn't he?

880:25 A. Doug -- Doug and Brian on the first page.

881:01 Q. Yeah. That's Doug who works for the

881:02 government, right?

881:03 A. Dr. Ohlin was with CHPPM at that time,

881:04 that's what his e-mail address indicates.

881:05 Q. For a little while longer.

881:06 And then we've got Elliott Berger and you

881:07 who work for Aearo?

881:08 A. Yes.

881:09 Q. And then it says:

881:10 "Doug and Brian, I read your e-mail train

881:11 on NSN and cutting bait. Just wanted to copy you on

881:12 correspondence I had with Mary in the past fee weeks.

Page 20 of 23

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881:13 Apparently she is pursuing a field study in Iraq with

881:14 the 100 pairs we sent her and is not interested in any

881:15 outside input on the protocol. Just wanted to keep

881:16 you posted."

881:17 And let's see what Doug says.

881:18 Doug writes to you and to Elliott and

881:19 says:

881:20 "It's a fundamental military principle

881:21 that the troops must first train with anything they

881:22 use in combat to build confidence in their weapon

881:23 systems and any other gear used in the field. The

881:24 Combat Arms Earplug is no exception. In fact, this

881:25 principle applies in spades for any hearing protector

882:01 that will be used in combat. Soldiers are negatively

882:02 disposed to using hearing protection in combat.

882:03 Despite its apparent advantages, the plug is not going

882:04 to be giving the most" -- "going to be given the most

882:05 objective assessment in that kind of environment. I

882:06 don't agree with their study (whose protocol we aren't

882:07 even allowed to see) or her logic to conduct it in

882:08 Iraq."

882:09 Did I read that right?

882:10 A. Yeah, it sounded like you read that

882:11 correctly.

884:15 - 886:01 Myers, Brian (2019-12-13) 1:24

884:15 Q. Mr. Myers, I've got a few questions in Re: [884:15 to 886:01] Re: [884:15 to 886:01] OVERRULED

884:16 response to that examination you did with counsel. Pltf Obj incomplete; 602; 802; Pltf Obj incomplete; 602; 802;

884:17 I've got to keep my time short. I am under some time MIL G6 Baker MIL 15

884:18 constraints by agreement or by the Court's order,

884:19 either way, so I would ask you to be efficient with me

884:20 in answering my questions.

884:21 Will you try and do that, sir?

884:22 A. I'll do my best.

884:23 Q. Okay. Great.

884:24 Pulling up Exhibit 65, it is one that you

884:25 did with Mr. Tracey.

885:01 MR. BUCHANAN: Can I have the Elmo.

885:02 BY MR. BUCHANAN:

885:03 Q. Okay. You were asked a lot of questions

885:04 by counsel concerning documents with a Dr. Ohlin.

885:05 Do you recall that discussion with

885:06 counsel?

885:07 A. I'm sorry. One more time.

885:08 Q. You were asked a lot of questions by

885:09 Mr. Nomellini, counsel for 3M concerning Dr. Ohlin.

885:10 Do you recall that?

885:11 A. I recall, yes, some questions about

885:12 Dr. Ohlin.

885:13 Q. Okay. And his involvement back and forth

885:14 at various points in time while he was in the military

Page 21 of 23

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885:15 concerning the Combat Arms Version 2.

885:16 Do you recall that?

885:17 A. I recall some of those e-mails, yes.

885:18 Q. Dr. Ohlin from your con -- from your

885:19 perspective, sir, was he involved, is that your

885:20 contention, in the development of the Combat Arms?

885:21 A. He -- I read a couple of documents I think

885:22 where he stated what the US military's contribution

885:23 was to that and then there was another e-mail where he

885:24 very specifically said he want -- a length that he

885:25 wanted. I believe he claimed also that he specified

886:01 the color and an over blast pressure study.

886:02 - 886:18 Myers, Brian (2019-12-13) 1:43

886:02 Q. Let's read what Dr. Ohlin told Re: [886:02 to 886:18] Re: [886:02 to 886:18] OVERRULED

886:03 Ms. Friedman from the U.S. Army when he was thinking

Def Obj 401; 402; 403 (the Def Obj 401; 402; 403 (the

886:04 about coming to join your firm in 2007. circumstances of hiring Dr. circumstances of hiring Dr.

886:05 "Although you worked" -- this is Ohlin are irrelevant to the Ohlin are irrelevant to the

886:06 Ms. Friedman sending an e-mail to Dr. Ohlin following case and unfairly prejudicial case and unfairly prejudicial

886:07 a telephone call evaluating whether or not he was to Defendants); 602 (no to Defendants); 602 (no

886:08 permitted to ever represent Aearo back to the military

foundation that witness has foundation that witness has

886:09 after he had been at the military. And what she ever seen this document). ever seen this document).

886:10 writes is:

886:11 "Although you worked on federal projects

886:12 that may have involved Aearo, you did not work on any

886:13 particular matter involving Aearo personally and

886:14 substantially while in federal service, and therefore

886:15 the lifetime ban on you representing Aearo back to the

886:16 Army is not applicable."

886:17 Did I read that correctly, sir?

886:18 A. Yes, those are the words on the page.

887:22 - 888:02 Myers, Brian (2019-12-13) 0:14

887:22 Q. All right, sir. So from Dr. Ohlin's Re: [886:19 to 888:02] Re: [887:22 to 888:02] OVERRULED

887:23 perspective, at least what he related to his officials Def Obj 401; 402; 403 (the Def Obj 401; 402; 403 (the

887:24 within the military at the time of his departure, he circumstances of hiring Dr. circumstances of hiring Dr.

887:25 was not personally and substantially involved in any Ohlin are irrelevant to the Ohlin are irrelevant to the

888:01 matters with Aearo during his time of federal service, case and unfairly prejudicial case and unfairly prejudicial

888:02 isn't that what he represented to them, sir? to Defendants); 602 (no to Defendants); 602 (no

foundation that witness has foundation that witness has

ever seen this document). ever seen this document).

888:06 - 888:13 Myers, Brian (2019-12-13) 0:09

888:06 A. And I don't -- I don't know what Doug Re: [888:03 to 888:20] Re: [888:03 to 888:20] OVERRULED

888:07 represented to her. Def Obj 401; 402; 403; 602. Def Obj 401; 402; 403; 602.

888:08 BY MR. BUCHANAN:

888:09 Q. Oh, you see her summary of what Doug

Page 22 of 23

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888:10 represented, correct?

888:11 A. You read that, yes.

888:12 Q. Okay. And that's her summary of what he

888:13 represented, correct?

888:16 - 888:20 Myers, Brian (2019-12-13) 0:07

888:16 Q. Do you see it on the screen, sir? Re: [888:03 to 888:20] Re: [888:03 to 888:20] OVERRULED

888:17 A. I do and you read the words and... Def Obj 401; 402; 403; 602. Def Obj 401; 402; 403; 602.

888:18 Q. Thank you.

888:19 A. But I can't speak to what Doug represented

888:20 to her.

Page 23 of 23

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