Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 1 of 7
Highly Confidential Deposition of Jeffrey Lee Hamer - 10/7/2015

Moldex-Metric, Inc. v. 3M Company, et al.

612.338.3376

Benchmark Reporting Agency

Page 1

1 UNITED STATES DISTRICT COURT

 DISTRICT OF MINNESOTA

2

3

4 MOLDEX-METRIC, INC., 

5 Plaintiff, 

6 -v- CAUSE NO.

 14-cv-01821 (JNE/LFN)

7 3M COMPANY and 3M INNOVATIVE 

PROPERTIES COMPANY, 

8

 Defendants. 

9

10

11

12 The videotaped deposition upon oral

13 examination of JEFFREY LEE HAMER, a witness produced

14 and sworn before me, Julie A. Rupprecht, RPR, CRR,

15 Notary Public in and for the County of Hamilton, State

16 of Indiana, taken on behalf of the Plaintiff at the

17 offices of Katz & Korin, The Emelie Building,

18 334 North Senate Avenue, Indianapolis, Indiana, on

19 October 7, 2015, at 9:44 a.m., pursuant to the Federal

20 Rules of Civil Procedure.

21

22

23

24

25

Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 2 of 7
Highly Confidential Deposition of Jeffrey Lee Hamer - 10/7/2015

Moldex-Metric, Inc. v. 3M Company, et al.

612.338.3376

Benchmark Reporting Agency

Page 87

1 MS. HUNTER: Object to form.

2 A Possibly. But we have a standard statistical test

3 that we do on the entire dataset to look at that

4 very thing.

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

6 sometimes decide there's something wrong with the

7 test and we should redo the test?

8 A No.

9 Q You never do that?

10 A Not for a label test.

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

12 never stop a label test?

13 A We do not.

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

15 because --

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

17 past --

18 Q Uh-huh.

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

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

21 on the same product.

22 Q Why is that?

23 A Because we didn't -- we were not meeting our

24 objectives in development.

25 Q Yeah. But if you're doing a test, a labeling test,

Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 3 of 7
Highly Confidential Deposition of Jeffrey Lee Hamer - 10/7/2015

Moldex-Metric, Inc. v. 3M Company, et al.

612.338.3376

Benchmark Reporting Agency

Page 164

1 involves using the plug in a different

2 configuration than is advertised or shown in the

3 plug; right? It involves folding back that flange.

4 A It appears so.

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

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

7 appropriate test; isn't that true?

8 A It appears so.

9 Q Do you know why there is no mention on Exhibit 5201

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

11 summaries, of test 213015?

12 A I do not.

13 Q Do you think that when you met with Mr. Berger and

14 Mr. Kieper on January 13, 2009, to talk about the

15 labeling -- withdrawn.

16 Do you realize that the same problem that

17 we're looking at with the closed end could also

18 happen when you're testing the yellow end?

19 MS. HUNTER: Object to form.

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

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

22 still have the same possibility that the flange on

23 the green end might interfere with the ear canal

24 and pull the plug out a little bit?

25 A It's possible.

Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 4 of 7
Highly Confidential Deposition of Jeffrey Lee Hamer - 10/7/2015

Moldex-Metric, Inc. v. 3M Company, et al.

612.338.3376

Benchmark Reporting Agency

Page 165

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

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

3 Arms 2 if the plug was pulled out imperceptibly

4 like that?

5 A Potentially.

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

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

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

9 the same plug in the open mode?

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

11 at the time.

12 Q Would it be fair to say that if they did not test

13 the open mode that way, but they did test with

14 the -- would it be fair to say that it would not be

15 proper to test the open mode part of the plug with

16 the flange not rolled back but the closed end with

17 the flange rolled back?

18 MS. HUNTER: Object to form.

19 A You're going to have to ask that one again.

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

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

22 they did test the closed end with the flange rolled

23 back, that that would be improper because the two

24 tests were using the product in two different ways?

25 A My opinion is that testing the product with the

Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 5 of 7
Highly Confidential Deposition of Jeffrey Lee Hamer - 10/7/2015

Moldex-Metric, Inc. v. 3M Company, et al.

612.338.3376

Benchmark Reporting Agency

Page 166

1 flange rolled back is improper.

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

3 knew about this whole flange thing?

4 A Yes.

5 Q Did 3M ever to your knowledge change the design of

6 Combat Arms Version 2 because of this issue?

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

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

9 that this is a potential defect in the design of

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

11 being aware of this flange issue, and the plug

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

13 MS. HUNTER: Object to form.

14 A I'm sorry. Once more.

15 Q Do you realize that this design of the Combat

16 Arms 2 to have two separate plugs is defective

17 because the second end of the plug can pull the

18 plug out when the first end is inserted?

19 MS. HUNTER: Same objection.

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

21 as defective or not without doing more research.

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

23 problem in the design of the plug?

24 MS. HUNTER: Object to form.

25 A It's certainly worth investigating further.

Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 6 of 7
Highly Confidential Deposition of Jeffrey Lee Hamer - 10/7/2015

Moldex-Metric, Inc. v. 3M Company, et al.

612.338.3376

Benchmark Reporting Agency

Page 174

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

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

3 A I wasn't there.

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

5 in the design?

6 A No.

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

8 labeling test, then shouldn't they have completed

9 the test and listed the NRR on the packaging?

10 A I do not know.

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

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

13 Version 2 as being 11 rather than 22?

14 MS. HUNTER: Object to form.

15 A I would think that would be insufficient.

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

17 to go back and do anything about Combat Arms

18 Version 2?

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

20 we'll talk about that, yes.

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

22 A Same answer.

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

24 A Same answer.

25 Q What's the answer?

Case 7:20-cv-02945-MCR-HTC Document 20-9 Filed 08/09/22 Page 7 of 7